J&K and Ladakh HC directs Govt to constitute high-level Committee to enquire into JKSSB’s “brazen illegalities” in awarding tenders for conducting recruitment exams

In an elaborate legal analysis, along with scathing observations, the J&K and Ladakh HC stated that JKSSB's actions in favouring one blacklisted agency to conduct recruitment exams, have doomed the future of many aspirants and put a question mark over its own efficacy.

   

Jammu and Kashmir and Ladakh High Court: While deciding the instant writ petition filed by the aspirants of examinations to be conducted by the Jammu & Kashmir Services Selection Board (JKSSB) especially Junior Engineer (civil), Jal Shakti Department and Sub Inspector (Home Department), wherein concerns were raised that the exams scheduled from 05-12-2022 to 20-12-2022 are to be conducted through a blacklisted agency (Aptech); the Bench of Wasim Sadiq Nargal, J., 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 the their brazen irregularities/illegalities in changing the terms/conditions of the tender, also as to what made them award a contract to conduct an examination through an organization which has previously facilitated malpractices in public examinations.

Petitioners' Grievances and Contentions:

The petitioners in the instant case stated that JKSSB had previously floated a tender for empanelment of agency to conduct several of its 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; however, the tender awarded to one Merit Trac Services Pvt. Ltd. overlooking the fact that Merit Trac had clearly and unambiguously mentioned itself to be a blacklisted firm. Yet Merit Trac got to conduct the examinations of Junior Engineer (Civil) (Jal Shakti Department) on 20-03-2022 and Sub Inspector (Home Department) on 29-03-2022 and Finance Account Assistant exam. The petitioners further stated that these examinations conducted by Merit Trac were compromised as papers were leaked, resulting in the scrapping of the examinations by the respondent. It was brought to the notice of the Court that at present the matter is being investigated by the CBI and recently it has filed a charge-sheet.

The counsels of the petitioners stated that clauses of the e-Tender Notice No.18 of 2022 dated 05-09-2022 by virtue of which tenders were invited for engagement of agency for conduct of Computer Based Tests/Examinations) for JKSSB for a period of one year, had clearly stated that the bidding agencies were under obligation to submit a declaration that it has never been blacklisted in the past by any Govt./Private Institution of the country and there are no cases pending against them.

The petitioners stated that Aptech did not fulfil afore-stated criteria, so JKSSB, in order to facilitate the entry of Aptech in the bidding process, changed the criteria and then re-issued the tender and consequently, Aptech was awarded the tender to conduct examinations scheduled from 05-12-2022 to 20-12.2022. Thus, the petitioners alleged that JKSSB acted in a malicious, arbitrary manner to favour Aptech in the tendering process.

The petitioners also presented before the Court a list of examinations conducted through Aptech, where irregularities and malpractices were committed, like UP Jal Nigam recruitment, Rajasthan Police constable recruitment etc. UPPCL had eventually blacklisted Aptech as it was found guilty of having installed a software which made it possible for candidates to hack the system and to have resorted for cheating.

The counsels of the JKSSB refuted the petitioners' contentions.

Legal Analysis by the Court:

The Court noted that JKSSB is a premier recruiting agency in the Union Territory of J&K having mandate of undertaking recruitment for non-gazetted positions in a fair and transparent manner.

  • Perusing the facts of the case in a detailed manner, the Court held that right of the petitioner to participate in a selection process for a public post in a fair and transparent manner has been infringed and thus, the petitioners have a locus to call in question the mala fide action of respondent and, hence, the writ petition is maintainable. The Court further held that public interest has suffered as the right to participate in selection process in a fair and transparent manner has been tarnished by awarding the tender to a tainted agency.

  • The Court in strict terms, called the instant matter to be ‘rarest of the rare' case where JKSSB's past actions has led to cancellations of several recruitment exams, thereby denting the image of the Board and raising questions regarding its efficacy. The Court strictly observed that despite ongoing CBI investigations regarding the exams conducted in March 2022 and Aptech's shady track record and ongoing investigations, the respondent went on to alter the conditions of the tender to “favour their blue-eyed persons”.

  • The Court pointed out that how the respondent had firstly altered the terms of the tender, then cancelled the earlier tendering process and initiated fresh process again by issuing a fresh tender. “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”.

  • Bringing in Art. 14 of the Constitution, the Court noted that in contractual sphere the State and all its instrumentalities must conform to Art. 14 in which non-arbitrariness is a significant facet. To satisfy this requirement of non-arbitrariness in a State action, it is necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision. “Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process, which is required to be considered keeping in view larger public interest”. The Court stated that 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. “The SSB by its own volition has entered into contract with a tainted agency, which is highly unreasonable and arbitrary and attracts the doctrine of legitimate expectations in the present case (…) The action of respondent No.1 to cancel the earlier tender notice was worse than the problem. Altering the terms and conditions of the tender document and the affidavit class, respondent No.1, in a way, has put both categories, tainted and the rest at par, which is highly unjustified, arbitrary and unconstitutional”.

  • Action of the State and its instrumentalities must have the nexus with the object sought to be achieved. In award of contract the public interest is paramount. The Court was unable to ascertain any reasonable nexus with the object sought to be achieved while altering the terms and conditions of the tendering document and held that the whole action on part of the JKSSB reeks of foul play and is contrary to public interest where they endangered the career of thousands of aspirants by awarding the contract to a tainted/blacklisted agency.

  • Stating that judicial review of the administrative action is intended to prevent arbitrariness, irrational, unreasonableness, bias and mala fide and its purpose is to check whether the decision made is lawful or not the Court held that in the present case the alteration of terms of the tender was loaded with mala fide consideration and intended to favour a blacklisted agency.

  • The Court was of the view that an instrumentality of the state's power or approach to relax or waive a rule or condition, should be avoided.

  • Deliberating over the concept of “Level Playing Field” the Court noted that the JKSSB's actions from the very beginning till award of contract is to favour Aptech at the cost of other bidders, who have equal rights to participate by providing a level playing field ensuring fair competition.

  • It was observed that, “The State or its instrumentalities cannot conduct themselves like ordinary businessmen playing games with others for monetary gains. 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”.

  • It was pointed out that the respondent's actions in altering the tender to benefit Aptech is a reverse process evolved to achieve that objective by relaxing the tender conditions having negative impact on a tainted/blacklisted agency and such has been categorized as Decision Oriented Systematic Analysis (DOSA).

  • The Court pointed out that merely because Aptech was successful in the financial bid, even though it was not up to mark in technical evaluation, public interest has to give way to commercial interest because the present case involves career of many aspiring candidates.

  • It was held that Board's above-mentioned actions cannot stand the test of law, because there cannot be any public interest in awarding a tender to a blacklisted agency.

  • The Court thus held that JKSSB's actions were mala-fide in nature and the tender awarded to Aptech was set aside.

Concluding its elaborate analysis, the Court strictly pointed out that by its own act of omission and commission, the functioning of JKSSB does not inspire confidence in holding public examinations, thus, all the stakeholders must review it functioning.

[Vinkal Sharma v. UT of J&K, 2022 SCC OnLine J&K 948, decided on 08-12-2022]


Advocates who appeared in this case :

Abhishek Gupta, Advocate, for the Petitioners;

Rahul Sharma, Dy. AG, for the R-1;

Abhinav Sharma, Sr. Advocate with Sidhant Gupta, Advocate, for the R-2.


*Sucheta Sarkar, Editorial Assistant has prepared this report.

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