# Ankit Tiwari & Ors v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-06-02
- **Case number:** Civil Misc. Writ Petition No. 40533 of 2014
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankit-tiwari-ors-v-state-of-u-p-ors-43135
- **Pages:** 23

## Headnote

Sri Ashok Khare, Sri V.D. Shukla
Counsel for the Respondents
C.S.C., Sri Neeraj Tiwari, Sri R.K. Ojha
3 All].
Ankit Tiwari & Ors. Vs. State of U.P. & Ors.
1359
Constitution of India, Art.-226-cancellation
of entire entrance examination for joint
para-medical
and
nursing
entrance
examination 2014-on certain objection at
residence of Hon'ble Chief Minister-being
influenced previous examination canceledbut
no
specific
date
of
subsequent
examination
disclosed-held
once
examination held properly-cancellation of
first examination without any valid reasonsubsequent
examination-immaterialquashed-direction to hold counseling as
per
merit
of
OMR
sheet
of
first
examination.
Held: Para-37In
view
of
the
discussions
and
consideration made above, this Court
finds
the
impugned
action
of
the
respondent institute, in cancelling the
examination dated 13.7.2014 to be
without any basis, lacking bona fide, and
based upon non existed material, and as
such,
it
cannot
be
sustained.
The
impugned
order
dated
17.7.2014,
cancelling
the
examination
held
on
13.7.2014 is, therefore, quashed. A
direction
is
further
issued
to
the
respondents to forthwith process the
OMR sheets of the examination held on
13.7.2014, which are lying in the safe
custody of the institute itself, and based
upon the results thereof, the counselling
and admission to Para Medical and
Nursing course be offered, in accordance
with law.
Case Law discussed:
1986(1) SCC 133; 2004 (4) SCC 666; 1991 (3)
SCC 47; 1993 (1) SCC 154; 2002 (5) SCC 533;
2012 (2) ADJ 561; 2009 (9) ADJ 316.
(Deliverd by Hon'ble Ashwani Kumar
Mishra, J.)

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES
pending into his conduct even though
there is no such term in the contract of
employment or in the rules, but in such a
case the employee would be entitled to his
remuneration for the period of suspension
if there is no statute or rule under which,
it could be withheld. The distinction
between suspending the contract of a
service of a servant and suspending him
from performing the duties of his office
on the basis that the contract is subsisting
is important. The suspension in the latter
case is always an implied term in every
contract of service. When an employee is
suspended in this sense, it means that the
employer merely issues a direction to him
that he should not to the service required
of him during a particular period. In other
words the employer is regarded as issuing
an order to the employee which because
the contract is subsisting, the employee
must today."
25. Suspension as punishment can
be imposed after holding departmental
enquiry.
The
Supreme
Court
in
Balvantray Ratilal Patel Versus State of
Maharashtra19, observed as follows:-
"...........On
general
principles
therefore the government like any other
employer, would have a right to suspend a
public servant in one of two ways. It may
suspend any public servant pending
departmental enquiry or pending criminal
proceedings; this may be called interim
suspension. The Government may also
proceed to hold a departmental enquiry
and after his being found guilty order
suspension as a punishment if the rules so
permit. This will be suspension as a
penalty."
26. In the 1960 Rules, suspension is
provided both as a punishment, as well as,
pending enquiry or contemplation of
enquiry (rule 4(4)(iv) and rule 8(1) of
1960 Rules). Suspension pending enquiry
or contemplation of enquiry provided
under rule 8(1), is not a punishment. It is
not the case of the respondents that
suspension by way of punishment was
imposed upon the petitioner.
27. The petitioner was placed under
suspension on 29.05.2014, the moment
the President accepted the proposal of
Executive Officer to place the petitioner
under suspension pending enquiry. The
order
dated
02.06.2014
is
merely
communication of the suspension order
pending euquiry, it is not an order of
punishment.
28. In my opinion, there is no
illegality or infirmity in the impugned
orders.
29. For the reasons and law stated
herein above, the writ petition fails and is
accordingly dismissed.
30. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.10.2014
BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Civil Misc. Writ Petition No. 40533 of 2014
Ankit Tiwari & Ors.
 Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri Ashok Khare, Sri V.D. Shukla
Counsel for the Respondents
C.S.C., Sri Neeraj Tiwari, Sri R.K. Ojha
3 All].
Ankit Tiwari & Ors. Vs. State of U.P. & Ors.
1359
Constitution of India, Art.-226-cancellation
of entire entrance examination for joint
para-medical
and
nursing
entrance
examination 2014-on certain objection at
residence of Hon'ble Chief Minister-being
influenced previous examination canceledbut
no
specific
date
of
subsequent
examination
disclosed-held
once
examination held properly-cancellation of
first examination without any valid reasonsubsequent
examination-immaterialquashed-direction to hold counseling as
per
merit
of
OMR
sheet
of
first
examination.
Held: Para-37In
view
of
the
discussions
and
consideration made above, this Court
finds
the
impugned
action
of
the
respondent institute, in cancelling the
examination dated 13.7.2014 to be
without any basis, lacking bona fide, and
based upon non existed material, and as
such,
it
cannot
be
sustained.
The
impugned
order
dated
17.7.2014,
cancelling
the
examination
held
on
13.7.2014 is, therefore, quashed. A
direction
is
further
issued
to
the
respondents to forthwith process the
OMR sheets of the examination held on
13.7.2014, which are lying in the safe
custody of the institute itself, and based
upon the results thereof, the counselling
and admission to Para Medical and
Nursing course be offered, in accordance
with law.
Case Law discussed:
1986(1) SCC 133; 2004 (4) SCC 666; 1991 (3)
SCC 47; 1993 (1) SCC 154; 2002 (5) SCC 533;
2012 (2) ADJ 561; 2009 (9) ADJ 316.
(Deliverd by Hon'ble Ashwani Kumar
Mishra, J.)
1. U.P. Rural Institute of Medical
Sciences and Research, Saifai, DistrictEtawah, is an institute of Paramedical
Science
established
by
the
State
Government,
which
is
affiliated
to
Chhatrapati Shahu Ji Maharaj University,
Kanpur. The institute was assigned the
responsibility of conducting entrance
examination for Joint Paramedical and
Nursing Entrance Examination, 2014, and
thereafter to conduct counselling. The
institute published notice on 2nd May,
2014,
whereunder
registration
for
appearing in the entrance test was to
commence from 5th May, 2014 with the
last date for submission of online
registration being 6.6.2014 and the date of
examination was notified as 13th July,
2014. The petitioners, who are three in
number, were desirous of appearing in the
entrance examination, duly applied for
appearing in the entrance test, and were
issued admission ticket and they actually
appeared in the entrance test held on 13th
July, 2014. However, the petitioners learnt
through a press release that the examination
conducted on 13th July, 2014, had been
cancelled allegedly for unavoidable reasons,
vide order dated 17th July, 2014 and the
date of next examination was to be notified
through newspapers. It is this press release
dated 17th July, 2014, which has been
challenged by filing the present writ
petition. A further prayer has been made to
command the respondents to publish the
result
of
the
entrance
examination
conducted on 13th July, 2014 and grant
admission, on the basis thereof, to the
petitioners.
2. The writ petition was entertained
and following orders were passed on
6.8.2014:-
"Learned Standing Counsel prays for
and is allowed one week time to seek
instruction as to what was the reason for
cancelling the examination, which took
place on 13th July, 2014.
Put up/list on 18th August, 2014."
1360
 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Again on 19.8.2014, further time
was granted to learned Standing Counsel
to seek instructions and bring on record
reasons
for
cancellation
of
the
examination already conducted on 13th
July, 2014. The order dated 19.8.2014 is
reproduced:-
"The instant petition has been filed
challenging the order dated 17th July,
2014 cancelling the examinations already
held without assigning any reason.
On
6th
August,
2014,
learned
Standing Counsel was granted time to
seek
instructions.
Learned
Standing
Counsel prays for further time to seek
instruction.
Learned counsel for the petitioners
informed the Court that now, by an
advertisement, 14th September, 2014 has
been notified for fresh examination. It has
been submitted that in absence of any
valid reason for cancelling the earlier
examination, the holding of subsequent
examination on 14th September, 2014
does not appear to be justified.
In view of the above, let this matter
be listed on 1st September, 2014. In the
meantime, learned Standing Counsel shall
file counter affidavit detailing the reasons
for which the earlier examination was
cancelled and a decision to take fresh
examination was taken."
4. A counter affidavit was filed by
the institute on 1st September, 2014. The
matter thereafter was heard on 8.9.2014,
wherein following orders were passed:-
"Sri Neeraj Tiwari, who appears on
behalf of respondents 2 and 3, has sent
illness slip.
Learned counsel for the petitioners
submitted that in the counter affidavit
filed by Sri Neeraj Tiwari on behalf of
respondents 2 and 3, in paragraphs 5, 6
and 7 thereof, allegations have been made
against the conduct of respondent no.4.
As per the endorsement in the writ
petition, the learned Standing Counsel
has
accepted
notice
on
behalf
of
respondents 1 to 4, but now learned
Standing Counsel states that he appears
only for respondent no.1 and that due to
mistake the said endorsement has been
made in the writ petition.
In view of the above, let notice be
issued to the respondent no.4 through
Registered Speed Post returnable within
three weeks. Steps to serve the respondent
no.4 may be taken within three days.
List this petition on 7th October,
2014 by which date the respondent no.4
may file counter affidavit."
5. Notices, accordingly, were issued
to respondent no.4, who filed his counter
affidavit on 7.10.2014 and the following
orders were passed:-
"Rejoinder affidavit filed on behalf of
the petitioners is taken on record.
A counter affidavit has been filed on
behalf of respondent no.4, which is taken
on record and a copy whereof is also
supplied to Sri Neeraj Tiwari, learned
counsel appearing for respondent no.2
and 3.
Learned counsel for the petitioners
state that the counselling is to start for
admission to Para Medical Nursing
Course from tomorrow, which fact is not
disputed by Sri Neeraj Tiwari, learned
counsel for respondent no.2 and 3.
On the request made by learned
counsel for the parties, let the matter once
again appear tomorrow in the additional
cause list, by which time, further
affidavits, if any, may be exchanged."
3 All].
Ankit Tiwari & Ors. Vs. State of U.P. & Ors.
1361
6. The matter was heard on
8.10.2014 and while passing an interim
order, case was fixed for delivery of
orders on 13.10.2014. The order passed
on 8.10.2014 was to the following effect:-
"Heard Sri Ashok Khare, Senior
Advocate, assisted by Sri V.D. Shukla,
appearing for the petitioner, learned
Standing Counsel for the respondent no.1,
Sri Neeraj Tiwari, learned counsel for the
respondent no.2 & 3, and Sri R.K. Ojha,
Senior Advocate, assisted by Sri Ashish
Kumar
Ojha,
appearing
for
the
respondent no.4.
Sri Ashok Khare, Senior Advocate,
has challenged the decision taken by the
respondent institute contained in the
communication dated 17.7.2014, whereby
the entrance examination conducted on
13.7.2014 for admission to Para Medical
and Nursing Courses in the State of U.P.
for the year 2014 has been cancelled, on
account
of
alleged
unavoidable
circumstances. The submission advanced
is that no reasons have been assigned in
support of the decision, nor any reasons
actually exist on record, and that the
impugned decision is arbitrary and is
unsustainable in law.
A counter affidavit has been filed by
the respondent institute, wherein it has
been stated that after the examination was
conducted,
certain
complaints
were
received by the office of the Chief
Minister and the attempt of the institute to
contact the Examination Controller could
not succeed. According to the respondent
institute,
it
apprehended
that
the
examination has not been conducted
fairly, and therefore, the decision has
been taken to cancel the examination.
Thereafter, a show cause notice has also
been issued to the respondent no.4 on
23.7.2014. Sri Neeraj Tiwari also submits
that
fresh
examination
has
been
conducted thereafter, although parties are
at issue on it and the date of such
subsequent examination is also disputed.
Sri R.K. Ojha, Senior Advocate,
appearing for the respondent no.4, states
that the facts stated in the counter
affidavit of the respondent no.2 & 3 are
absolutely incorrect, inasmuch as the
institute had already taken a decision to
have entrance examination conducted in
the manner as has been done. The
Director of the Institute had already
passed an order on 18.6.2014, whereby
respondent no.4 was authorized to have
the
possession
of
all
examination
materials and OMR sheets etc., after the
examination were concluded, so that
transparency
in
holding
of
the
examination is maintained. The attention
of the Court has also been invited to the
decision of the institute, whereby the
outside agency had been appointed for the
purposes
of evaluation of the OMR
answer sheets and the rates etc. had all
been settled by the Director. The
argument, therefore, is that there is no
infirmity in holding of the examination
and it has also been contended that after
the examination were conducted, the
OMR sheets were retained in the custody
of respondent no.4, as per the decision
already taken by the Director on
18.6.2014 and respondent no.4 left for
Lucknow along with OMR sheets and
other relevant records for being delivered
to the agency, after obtaining permission
from the Director, which document has
also brought on record along with
counter affidavit.
Prima facie, the contention of the
petitioner
that
cancellation
of
examination conducted on 13.7.2014 was
not for valid reason appears to have
substance. Since the hearing in the matter
1362
 INDIAN LAW REPORTS ALLAHABAD SERIES
has been concluded and sometime may be
consumed in delivering judgment in the
matter,
and
the
counselling
is
to
commence from today itself, therefore, as
an interim measure it is provided that till
delivery of judgment, the counselling,
which is proposed to be undertaken by the
respondent no.4 institute from today, shall
remain stayed.
This order has been passed in the
presence of Sri Neeraj Tiwari, learned
counsel for the respondent no.2 and 3,
who
shall
inform
the
authorities
concerned about passing of this order for
its compliance.
List this matter for delivery of
judgment on 13.10.2014."
7. On 13.10.2014, the matter was
again
adjourned,
after
noticing
the
previous orders passed in the matter, in
order to give one further opportunity to
the respondents to reply to the affidavit of
respondent no.4 and also produce the
records, on the basis of which, the
impugned action has been taken. The
order dated 13.10.2014, which also
records
previous
orders
passed,
is
reproduced:-
"Hearing
in
the
matter
was
concluded on 8.10.2014 and the matter
was fixed for today i.e. 13.10.2014 for
delivery of judgment. However, from the
materials available on record, this Court
is of the opinion that one opportunity is
liable to be
further granted to the
respondents, before the matter is decided
finally,
for
the
reasons
disclosed
hereinafter.
The record of the writ petition shows
that while entertaining the writ petition
following
orders
were
passed
on
6.8.2014:-
"Learned Standing Counsel prays for
and is allowed one week time to seek
instruction as to what was the reason for
cancelling the examination, which took
place on 13th July, 2014. Put up/list on
18th August, 2014."
The matter was thereafter was taken
up on 19.8.2014 and the following orders
were passed:-
"The instant petition has been filed
challenging the order dated 17th July,
2014 cancelling the examinations already
held without assigning any reason.
On
6th
August,
2014,
learned
Standing Counsel was granted time to
seek instructions.
Learned Standing Counsel prays for
further time to seek instruction.
Learned counsel for the petitioners
informed the Court that now, by an
advertisement, 14th September, 2014 has
been notified for fresh examination. It has
been submitted that in absence of any
valid reason for cancelling the earlier
examination, the holding of subsequent
examination on 14th September, 2014
does not appear to be justified.
In view of the above, let this matter
be listed on 1st September, 2014. In the
meantime, learned Standing Counsel shall
file counter affidavit detailing the reasons
for which the earlier examination was
cancelled and a decision to take fresh
examination was taken."
A counter affidavit was filed on
behalf of respondent no.2 and 3, wherein
allegations
were
made
against
the
conduct of Examination Controller i.e.
respondent no.4. Accordingly, notices
were issued to respondent no.4.
A counter affidavit has been filed by
respondent no.4 in the matter on
7.10.2014, copy whereof was made
available to Sri Neeraj Tiwari, learned
counsel appearing for the respondent no.2
3 All].
Ankit Tiwari & Ors. Vs. State of U.P. & Ors.
1363
and 3. The matter was adjourned to
8.10.2014, by which time, learned counsel
for the parties were granted opportunity
to file further affidavits, if any. Hearing in
the matter was concluded on 8.10.2014.
Learned counsel appearing for the
respondent no.2 and 3, on the basis of the
report of the Officiating Director dated
18.7.2014, had stated that after the
Examination
Controller
had
left,
complaints
regarding
bungling
in
examination were received on 15.7.2014
from the office of the Chief Minister and
the Principal Secretary, Department of
Medical Education, which ultimately led
to cancellation of the examination, no
record in support of the report, however,
has been annexed. In response to the
query of the Court, learned counsel for
the respondent no.2 and 3 stated that the
only material available on record was the
report of Officiating Director dated
18.7.2014.
In the counter affidavit filed by
respondent no.4, materials have been
brought on record to show that he had
acted in accordance with the directions
issued by the department. In such
circumstances, as the reply of respondent
no.4 was filed on 7.10.2014 and the
hearing was concluded on 8.10.2014, as
such, it would be appropriate in the
interest
of
justice
that
a
further
opportunity be granted to respondents to
file reply to the affidavit of respondent
no.4. They may also bring on record
materials in support of the report of the
Officiating Director dated 18.7.2014, if
any, which prompted them to take the
impugned action or any other material
existing on record. The respondents may
also produce relevant records, in this
regard.
Since counselling has been stayed by
this Court, the matter is required to be
adjudicated at the earliest. Let matter
once again appear, as a case in the
additional cause list, on 16.10.2014, by
which time, the required affidavit be filed
in the matter."
8. On 16th October, 2014, an
affidavit was filed on behalf of the
respondent nos.2 and 3 and, therefore, the
matter was adjourned to 17th October,
2014. Following orders thereafter were
passed on 17th October, 2014:-
"Heard learned counsel for the
petitioners
and
learned
Advocate
General, assisted by the learned Chief
Standing Counsel, who has appeared for
respondent nos. 2 and 3, at some length.
However, It has been stated by the Chief
Standing Counsel that records relating to
the matter, are not available and will
have to be obtained from the office at
Lucknow, therefore, the matter may be
deffered.
On the request made by the learned
Advocate General, the hearing of the
matter is deffered to 27.10.2014, on which
date relevant record shall be produced
before the Court."
9. On 27th October, 2014, when the
hearing in the matter was resumed, learned
counsel appearing for the respondents made
a statement, which was noted and the
hearing commenced. The order dated 27th
October, 2014 is reproduced:-
"Sri Ramesh Upadhyay, learned
Chief Standing Counsel, states that he has
instructions from Sri Arindam Chatterjee,
Special Secretary of the State of U.P. that
there exists no written complaint on
record of the State Government, which led
to
cancellation
of
examination
in
question.
1364
 INDIAN LAW REPORTS ALLAHABAD SERIES
Learned Advocate General, who is
present in Court, states that the Court
may proceed to adjudicate the matter on
merits in light of the aforesaid fact, on the
basis of pleadings and material, which
exist on record.
Argument of Sri Ashok Khare,
learned Senior Counsel appearing for the
petitioners and Sri V.B. Singh, learned
Advocate General for the State, have been
concluded.
Submission of Sri R.K. Ojha, learned
Senior
Counsel
appearing
for
the
respondent no.4 remains inconclusive.
Put up tomorrow i.e. on 28.10.2014."
10. In view of the stand so taken by
the learned Advocate General, this Court
proceeds to adjudicate the writ petition,
on the basis of pleadings and materials
available on record of the writ petition,
after noticing that there exists no record
of any written complaint etc. on record of
the
State
Government,
against
the
examination held on 13th July, 2014.
11. A counter affidavit on behalf of
the respondent nos.2 and 3 was initially
filed by the Director of the institute.
Paragraph nos. 5, 6, 7 and 9 of the
affidavit are reproduced:-
"5. That it is further stated while
leaving the Institute neither he has taken
any
approval
for
arrangement
of
evaluation
nor
he
has
given
any
information to the Director of Institute.
To
maintain
the
transparency
of
Examination it is necessarily required to
carry
out
OMR
sheet
and
other
documents out of institute with the
permission of Director and further OMR
sheet should be evaluated before a Team
was constituted for that purpose and not
by one individual person.
6. That in this reference complaints
were filed before Principal Secretary,
Medical Education as well as Chief
Minister of the State and direction was
issued to carry out the enquiry on
15.7.2014.
Immediately
thereafter
Institute
has
tried
to
contact
the
Controller of Examination but his all
known
mobile numbers were found
switched off. Thereafter Institute has tried
to contact him by other means then at
8.45 PM he has informed that he is in
seriously and unable to have any talk. At
this stage at 9.45PM after having contact
with him, he was directed to come back
Institute without any evaluation of OMR
sheet but he has informed that he is
suffering with heart disease and it is not
possible to him to come back. Again
around 12.00 night he has informed the
Director that he is admitted in ICU and
he will take at least 4-5 days in coming
back to Institute.
7. That on 17.7.2014 Controller of
Examination again first time informed his
location on telephone that he is admitted
in ICU in Military Hospital, Lucknow and
prior to that he has never informed about
his location. Whole conduct of Controller
of Examination is very objectionable and
which creates serious doubt about the
relativity of examinations result. Under
these circumstances a meeting of officers
was held on 17.7.2014 and it was decided
in the meeting to cancel the earlier
entrance examination held on 13.7.2014
and
taken
fresh
examination
on
14.9.2014. In this reference a detail
report was also submitted vide letter
dated 18.7.2014 to Principal Secretary,
Medical
Education,
Lucknow.
A
photocopy of letter dated 18.7.2014 is
being filed as Annexure CA-1 to this
affidavit.
3 All].
Ankit Tiwari & Ors. Vs. State of U.P. & Ors.
1365
9. That thereafter the institute has
decided to take fresh examination and it
was decided to hold the same on 14.9.2014.
For that purpose a press release dated
8.8.2014 was issued and new date was also
uploaded on the website Institute."
12. Respondent no.4, pursuant to the
notices issued by this Court, appeared in
the matter and filed his counter affidavit
along with annexures. The stand taken by
the respondent no.4 was that the manner
of holding of examination had been
decided in the meeting of the institute
dated 26th March, 2014, pursuant to
which, the then Director passed an order
on 18th June, 2014 appointing respondent
no.4 as Coordinator and Examination
Controller for the examination to be held
on 13th July, 2014. The order dated
18.6.2014 provided as under:-
"izks0 ds0,e0 'kqDyk dks ijh{kkvksa ls lEcfU/kr
leLr vfHkys[k] lhy vkfn ds j[kj[kko] iz'u&i=
,oa mRrj&iqLrdkvksa vkfn dks viuh vfHkj{kk
esa j[kus gsrq vf/kd`r fd;k tkrk gSA MkW0 'kqDyk
ijh{kkvksa ds ldq'ky lEiknu ds lkFk ijh{kk esa
mi;ksx esa yk;s tkus okys iz'u&i= ,oa vU;
vfHkys[kksa dh xksiuh;rk ,oa lqj{kk Hkh j[ksaxsA
mDr dk;Z gsrq og funs'kd ds fu;a=.k esa jgrs
gq, ijh{kkvksa dk lapkyu djus ,oa fofHkUu ijh{kkvksa
ds vk;kstu gsrq vko';d lHkh izcU/k lqfuf'pr
djsaxs ,oa ijh{kk lEcU/kh leLr izfdz;kvksa ds lE;d
fu"iknu gsrq mRrjnk;h gksaxsA"
It was also stated that the agency for
evaluating the answer sheets as well as
rates payable to it, were all approved and
settled
by
the
Director
himself.
Respondent no.4 further brought on
record a confidential letter addressed to
the Director, upon which the permission
was granted by the Director for petitioners
to leave the institute on 15.7.2014 in
connection with confidential examination
work, which reads as under:-
"iSjkesfMdy ,oa uflZx egkfo|ky; ds 'kSf{kd
l= 2014 ds fofHkUu ikB~;dzeksa esa izos'k gsrq fnukad
13 tqykbZ] 2014 dks vk;ksftr ijh{kk ls lacaf/kr
xksiuh;@vfr vko';d dk;ksZ gsrq v/kksgLrk{kjh
fnukad 15 tqykbZ] 2004 ls laLFkku ls ckgj izLFkku
dj jgk gSA
d`i;k mDr dk;Z gsrq LVs'ku NksM+us dh
vuqefr iznku djsaA v/kksgLrk{kjh dh vuqifLFkfr esa
ladk;k/;{k ds dk;ksZa dk fuokZg izks0 vHk; dqekj]
foHkkxk/;{k bZ0,u0Vh0 }kjk fd;k tk,xkA"
It is the case of respondent no.4 that
pursuant to the permission granted by the
Director, he proceeded to take the OMR
sheets and got them delivered to the
agency, selected for evaluation of OMR
sheets by the Director. The Controller
also stated that after he had delivered the
OMR sheets to the agency, selected for
the purposes, at Lucknow, he suffered
serious heart ailment, and therefore, was
admitted to Army Command Hospital at
Lucknow, where he remained hospitalized
and ultimately got discharged on 20th
July, 2014. The certificates and medical
prescription etc. have been brought on
record as
Annexure No.6 to the affidavit.
13. Pursuant to the liberty granted
by this Court, an affidavit in rebuttal to
the affidavit of respondent no.4 was filed
by the Registrar of the institute. Paragraph
nos. 04 to 16 of the affidavit, which
elaborates the stand of institute, are
reproduced:-
"4. That entrance examination for
Paramedical Science and Nursing Course
was
held
on
13th
July,
2014
simultaneously in 13 centres in Etawah.
The examination was based on objective
type of questions to be answered on OMR
sheets. About ten thousand candidates
had participated in the examination for
1366
 INDIAN LAW REPORTS ALLAHABAD SERIES
about 610 seats. The OMR sheets (Answer
sheets) were kept in about 10 boxes,
which itself is a bulky baggage. For the
purposes of its transportation from U.P.
Rural Institute of Medical Sciences and
Research (U.P.R.I.M.S.) to Lucknow at
S.R. Net Computer Services Pvt. Ltd., it
was
necessary
to
have
additional
hands/officials, security men to ensure its
safety and safe transportation.
5. That from the records it transpires
that respondent no.4 all alone without
taking security guards or without taking
any additional hands undertook the
journey himself to Lucknow, S.R. Net
Computers. Before leaving or before
taking
the
permission
for
visiting
Lucknow he did not indicate or disclose
that he would be carrying OMR sheets for
its evaluation to Lucknow. Entire travel
and journey was kept a closely guarded
secret. Before taking permission he
should have requested for security guards
and further would have disclosed that he
would be moving with OMR sheets and
specific disclosure should have been
made to the Director of Institute that he
was going to Lucknow for getting
evaluation of OMR sheets.
6. That with a plan and design Dr.
Shukla appears to have completed a
formality of by obtaining a permission to
leave the station (Safai) from the Director
of Institute but did not disclose which
place/city he was visiting or that he would
be carrying valuable OMR sheets nor
there is any whisper that he required
security. It can be appreciated that
carrying 10 or 9 boxes all alone which
contain the answer sheets of near about
10,000 candidate was itself a risky affair
and could not have been handled by one
individual all alone. There was an
inherent
risk
of
tampering
loss,
manipulations etc.
7. That it is pertinent to submit that
this the second year when the Institute
had
conducted
examination
in
the
previous year that is year 2013-14 even
the then Director Dr. J. B. Singh was
present in Lucknow at the time of
evaluation of OMR sheet had taken place.
But this time Dr. Shukla all alone by
maintaining opaque secrecy took up the
entire task by himself. The Institute tried
to contact Dr. Shukla about his movement
and whereabouts on phone but he could
be contacted only at night on 15th July,
2014 at about 8.45 PM, who disclosed
that he was ill. He was also instructed by
the Director on phone to return back
immediately with all the papers and OMR
sheets but he expressed his inability and
disclosed he had a heart trouble and
cannot come back to Institute. Later on at
about 12 in the midnight Dr. Shukla suomoto informed that he is being admitted
in ICU without disclosing the name of the
hospital or the city.
8. That on 17th July, 2014 for the
first time respondent no.4 Dr. Shukla
informed that he has been admitted in
Lucknow hospital. Only on 17th the
location of the city and the hospital could
be known to the Director.
9. That it is the settled practice that
the movement of the answer sheets (OMR
sheets) for the purpose of its safety,
security, due precaution is taken and
more than one individual/officials with
security personnels should accompany.
One official is not burdened with such
serious responsibility as there may be
chances of its tampering and may be
injurious to ensure the fairness of
examination system.
10. That the way Dr. Shukla acted in
this matter coupled with many complaints
received even in the government serious
doubts and suspicion about the sanctity of
3 All].
Ankit Tiwari & Ors. Vs. State of U.P. & Ors.
1367
the examination are being raised. The
Institute to maintain fairness of the
competitive examination and to ensure
absolute fairness in the selection process
took a decision for re-examination which
has already been held and counselling
had also commenced. It is also significant
to notice that only 3 candidates out of
10,000 candidates who had appeared in
the examination have filed this writ
petition out of which one petitioner
namely Pooja Shukla has also appeared
in the second examination. The Institute is
conducting
the
exercise
of
second
examination at its own expenses and has
given a chance without charging fresh
examination fee to all the 10,000
candidates to appear in the examination
to
maintain
purity,
fairness
of
examination process.
11. That the Director of Institute was
in dark and was not made aware by
respondent no.4 that he was carrying
bulky baggage containing OMR sheets to
Lucknow for the purpose of its evaluation
whereas
respondent
no.4
being
subordinate to Director and was under
his control should have taken precaution
of disclosing in brief details about his
movement and that of the answer sheets.
12. That the complaints were flooded
in the office of Principal Secretary,
Medical Education as well as office of the
Chief Minister, the direction was issued
for holding an enquiry in the entire matter
by the order dated 18th July, 2014. True
copy of the letter is being filed as
ANNEXURE No.1 to this affidavit.
13.
That
the
Institute
of
the
answering
respondent
starting
functioning from the academic session
2012-13. In the first year admissions were
held on the basis of merit determined by
the marks obtained by the students in the
High
School
and
Intermediate
Examination. From the academic session
2013-14 admission are being made on the
basis of entrance examination conducted
by the Institute itself. Last year also
respondent no.4 was the controller of the
examination and the entire process of
examination, evaluation of answer sheets,
declaration of results, and admission of
students was done in the supervision and
control of the Director of the Institute.
This year however, respondent no.4 chose
to transport the OMR sheets all by himself
without informing the Director and
without taking any other officer or
authority of the Institute along with him.
Movement of the answer sheet only in the
sole custody of respondent no.4 without
there being any other officer or authority
of the Institute, without information to the
Director in this regard and without even
taking the security personnel itself casts a
doubt as to whether or not any tampering
may have been done in the OMR sheets.
The conduct of the respondent no.4 itself
reinforces
the
complaints
made
to
different authorities.
14. That upto 17.7.2014 the Institute
was not aware about the location of
respondent no.4 as such the Director of
the Institute requested the Additional
Director (Administration) to carry out an
enquiry and submit the report.
15. That the matter was placed
before the examination committee of the
Institute which came to the conclusion
that the sanctity of the examination had
become doubtful. Looking into the entire
aspect of the matter the examination
committee
recommended
for
the
cancellation of the examination and a
fresh examination has already been
conducted. A copy of the report of the
Additional Director along with the report
of the Committee is being filed herewith
as ANNEXURE NO.2 to this affidavit.
1368
 INDIAN LAW REPORTS ALLAHABAD SERIES
16. That continuous absence of
respondent no.4 and unavailability of his
location for substantially long period with
the answer sheets created a doubt in the
mind of the examination committee and
only with a view to maintain the sanctity
of the examination the Institute has taken
a decision for cancellation of examination
in question and for re-holding the
examination
for
the
purposes
of
admission of students."
14. The aforesaid affidavit of the
Registrar has been replied by respondent
no.4 by filing a fresh affidavit, in which,
following averments have been made in
paragraph no.4:-
"4. That in reply to the contents of
paragraph nos.4 and 5 of the counter
affidavit filed on behalf of the Respondent
Nos.2 and 3, it is submitted that it is the
OMR Sheets which were kept in 9 boxes,
having total weight of 10 Kg. and in order
to avoid any doubt or dispute over the
issue the deponent has taken away those
boxes in a small vehicle with the
permission of the Director and went
Lucknow
and
got
those
documents
received on 15.7.2014 itself. It is further
relevant to mention that deponent has
been given those responsibilities by the
then Director with the direction that he
will maintain all transparency and
secrecy over the issue, however, the
deponent has got certain direction/threat
on telephone from the certain higher
officials, whether said direction given
from the office of the Chief Minister or
not for that the deponent is not clear but
the deponent has received telephone from
the office of the Chief Minister directing
that deponent has to be selected 3 persons
namely (1) Neeraj Kumar, having Roll
No. 300413, (2) Diksha, having Roll No.
110649 and (3) Priti Yadav, having Roll
No. 215112. The deponent has also
maintained a C.D. by dubbing voice
which deponent has received on his
Mobile number from the Mobile No.
9411020906. The deponent is ready to
produce CD which was prepared by him,
at the time of hearing, whereas, for kind
perusal of this Hon'ble Court the
deponent is annexing copy of the version
which was made on 10.7.2014 and
13.7.2014 on the Mobile phone of the
deponent by the Mobile No. 9411020906
is being filed herewith and marked as
Annexure CA-1 to this affidavit. Due to
the aforesaid reason and also as per
direction given by the then Director the
deponent has no option but to maintain
necessary secrecy for the aforesaid
purposes."
It has also been alleged that the
examination process was conducted with
due diligence and sanctity of the process
was maintained by him. It has been stated
that he had acted in the best interest of
transparency and fairness of examination
process
itself
and
disclosure
of
unnecessary details had been avoided so
as to ward of extraneous influences being
exercised upon him. It is also stated that
his movements in connection with the
affairs of the examination was with due
intimation and permission of the Director,
and it was only on account of extraneous
influence that the examination process has
been scuttled, as he has refused to honour
influences unauthorizedly exercised in the
matter. In the affidavit, the details of the
calls received by him and the contents of
the talks and the messages received have
been annexed. Yet another affidavit has
been filed by the respondent no.4
explaining the circumstances and the
manner, in which he had carried the OMR
3 All].
Ankit Tiwari & Ors. Vs. State of U.P. & Ors.
1369
sheets from institute at Saifai, Etawah to
Lucknow. It is also stated that any
association of security guards and the
staff
of
the
institute
would
have
obstructed the secrecy of the examination
process itself under the peculiar facts and
circumstances of the present case. The
petitioners have also filed a rejoinder
affidavit.
15. I have heard Sri Ashok Khare,
learned Senior Counsel assisted by Sri
V.D. Shukla for the petitioners, Sri Vijay
Bahadur Singh, learned Advocate General
assisted by Sri Ramesh Upadhyay,
learned Chief Standing Counsel on behalf
of the respondent nos.1, 2 and 3 along
with Sri Neeraj Tiwari, who also appeared
for respondent no.2 & 3 and Sri R.K.
Ojha, learned Senior Counsel assisted by
Sri A.K. Ojha for the respondent no.4 and
have considered the materials available on
record.
16. Learned counsel for the
petitioner submits that the entrance
examination
in
question
had
been
conducted
in
absolutely
fair
and
transparent manner and there was no
material to support any allegation of
irregularity in the examination process,
and therefore, the cancellation of entrance
examination was wholly unjustified.
17. Sri R.K. Ojha, learned Senior
Advocate, appearing for the respondent
no.4, has submitted that holding of the
examination was strictly, in accordance
with the decision already taken for the
purposes by the Director, and sanctity of
the process had been maintained. The
argument advanced is that the extraneous
influence exercised to secure admission
for some of the candidates since had not
been honoured by him, therefore, for
oblique
and
ulterior
motive
the
examination itself was scuttled. It has
been stated that there is absolutely no
material available on record to show that
any illegality or infirmity was caused in
holding of the examination and the OMR
sheets based on the examination of
13.7.2014 are still in the safe custody of
the respondent institute itself and no
discrepancy therein had been reported till
now, and in such circumstances, the
cancellation of the examination itself was
arbitrary.
18. Learned Advocate General, on
the other hand, defended the action of the
respondent institute. According to him,
the decision to cancel the examination
was taken in order to ensure sanctity of
the process of examination itself, which
cannot be said to be arbitrary. He also
submitted that even otherwise, merely
holding of examination does not create
right in favour of any one and it is always
the concern of the institute to assess
whether
the
examination
has
been
conducted in a fair and transparent
manner and if any bonafide doubt is
created in the process, the decision to
cancel it can always be taken. He also
submitted that once the institute has
exercised such a course and subsequent
examinations have been conducted, in
which one of the petitioner has also
participated, it would not be appropriate
for this Court to interfere in the matter.
19. From the materials brought on
record of the writ petition, as well as the
submissions
advanced,
the
factual
scenario emerges that the respondent no.3
institute was to conduct Para Medical and
Nursing Entrance Examination- 2014.
The institute proceeded to consider the
modalities in its meeting dated 26.3.2014,
1370
 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein respondent no.4 Dr. K.M. Shukla
was appointed as examination controller.
The Director by his order dated 18.6.2014
specifically appointed respondent no.4 to
act as coordinator and examination
controller for the examination to be held
on 13.7.2014.