Srinagar, Dec 08: The High Court of Jammu & Kashmir and Ladakh Thursday cancelled all the examinations conducted by J&K Service Selection Board (JKSSB) through blacklisted firm, Aptech Limited for the posts of Junior Engineer-civil, Jal Shakti Department, and Sub Inspector, Home Department.
The court 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 JKSSB for their “brazen” irregularities and illegalities in changing the terms or 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,” the bench asked.
In a 48-page judgment, Justice Wasim Sadiq Nargal observed that by its own act of “omission and commission”, the functioning of JKSSB does not inspire confidence in holding public examinations.
“It has become incumbent on all stakeholders to review the functioning of the Board,” the court directed.
The court passed the rulings in a plea filed by the aspirants, Vinkal Sharma and others, who had sought direction to JKSSB not to conduct the examination through M/s Aptech Limited, blacklisted in the past, and to appoint some other agency, which is not previously blacklisted for conducting such examinations through Computer Based Test Mode (CBTM) involving public employment.
The court while quashing a tender notice which was issued by the JKSSB on September, 30, 2022 in favour of Aptech Limited, who was earlier blacklisted for perpetuating fraud in the form of hacking of question papers, for conduct of its various examinations through computer based test mode, noted that the process adopted and decision made by awarding contract to M/s Aptech Limited is malafide and change of condition in tender was intended to favour Aptech Limited.
The court observed that these decisions will have an effect on public interest as the Aptech Limited has been assigned to conduct examinations, wherein the selectees will be appointed to hold public posts.
“Consequently, all the exams viz Junior Engineer-civil (Jal Shakti Department) and Sub Inspector (Home Department) held by respondent No.1 (JKSSB) through respondent no. 2 (Aptech Limited) in furtherance of the aforementioned “award of contract to conduct examinations” are also set aside/cancelled at whatever stage they are as on date,” the court ruled.
The court noted that in the technical evaluation of the bidders, which participated in the NIT dated September, 30, 2022, the blacklisted firm, Aptech limited has scored 90 points and on the other hand Eduquity Career Technologies Pvt. Ltd. has scored 95 points in total and the said agency has an edge in the technical evaluation, yet the purchase committee after evaluating technical bid had allowed the contract to the blacklisted firm by giving undue weightage to the commercial value ignoring the public interest, which was paramount and also ignoring the reputation of Aptech Limited, which was tainted.
“Every action of the Government and its instrumentalities has to pass the rigorous inquisition of fair play, lack of arbitrariness and its being founded on good and sound reasons,” the court observed.
The State or its instrumentalities cannot conduct themselves like ordinary businessmen playing games with others for monetary gains, the bench said.
The court held that State cannot behave like a man in the street and indulge in arm twisting tactics.
“Its conduct and actions have to be exemplary and decisions have to be free from bias and unreasonableness,” Justice Nargal said.
The court noted that the terms and conditions of the tender have been tailor-made to suit Aptech limited, “infact this is a reverse process evolved to achieve that objective by relaxing the tender conditions having negative impact on a tainted/blacklisted agency in the past with a view that only one party may fit in the said process. Such an endeavour has been categorized
as “Decision Oriented Systematic Analysis” (DOSA)”
It underscored that merely that Aptech limited has excelled in financial bid will not be the sole criteria to award contract, when admittedly in the technical evaluation the firm 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,” the bench observed.
It further observed that 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 SSB to award contract in favour of Aptech limited cannot sustain the test of law, as there is every likelihood of biasness, favoritism and unfairness in the said process.”
The bench also observed that Aptech limited has already been involved in various malpractices and irregularities and was blacklisted by UPPCL.
Besides, the court pointed out, Aptech limited 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, the bench recorded, the High Court of Delhi has imposed a fine of Rs.10,00,000 on respondent No.2, firm, while observing that the organization resorting to or permitting malpractices at institutional level should be kept at bay by bodies conducting public exams.
“Yet in spite of the clear cut direction issued by the Delhi High Court, contract has been given to respondent No.2 (Aptech limited) without any justifiable cause,” Justice Nargal said.
The bench underscored that Aptech limited has been granted permission to conduct the examination on behalf of SSB and the unfairness in the selection process and the anomalies keeping in view the past conduct of Aptech limited 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 court said
It held that the conduct of public examination by the Government or any instrumentality like JKSSB 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.
The court recorded that a fair and reasonable selection process is a fundamental requirement under Article 14 and Article 16 (1) of the constitution.
JKSSB ought to have acted in public interest outweighing the commercial interest even if it costs more to the State exchequer, it underscored.
Keeping in view the past incidents, which have occurred and are subject matter of investigation by the CBI, the court while relying on Delhi High Court judgement noted that 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, 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,” the bench recorded.
The court said that 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,” it observed.
In the present case, the court recorded, that the whole action of JKSSB from the very beginning till award of contract is to favour a blacklisted firm at the cost of other bidders, who have equal rights to participate by providing a level playing field ensuring fair competition.
“Thus, action of respondent No.1(JKSSB) in restricting the zone of consideration by manipulating the terms and conditions of tender notice is violative of Article 14, 21 and 19(1)(g) of the Constitution for all other competing bidders,” the court held while allowing the plea.
