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

- **Citation:** (2022) 1 ILRA 1061
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-14
- **Case number:** Writ A No. 5913 of 2021
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikash-tiwari-ors-v-state-of-u-p-ors-47636
- **Pages:** 18

## Headnote

A. Service Law - Constitution of India,
1950-Article
226-Challenge
toCancellation
of
recruitment-
The
Commission conducted the examination
with a collaboration of a private Agency in
which
fairness
and
transparency
is
eliminated-The report of SIT disclosed
that large scale manipulation happenedVariation in the marks of nearly 70%
shortlisted candidates clearly puts a big
question mark upon the fairness of entire
written examination itself-Segregation of
candidates not possible because variation
between the OMR sheet is not just limited
to few candidates as per conclusion drawn
by the SIT- Therefore, the decision to
cancel recruitment is based upon a bonafide assessment of materials placed on
record, which cannot be said to be
arbitrary-Where a recourse to unfair
means has taken place on a systematic
scale, it may be difficult to segregate the
tainted from the untainted participants in
the process.(Para 1 to 45)

The writ petition is dismissed. (E-6)

List of Cases cited:

Sachin Kumar & ors. Vs DSSSB & ors. (2021) 4
SCC 631

## Text

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1 All. Vikash Tiwari & Ors. Vs. State of U.P. & Ors.
1061
or admission of facts, in cases in which the
Court finds on facts that no real prejudice
can therefore be said to have been caused
to the person complaining of the breach of
natural justice.

(4) In cases where facts can be
stated to be admitted or indisputable, and
only one conclusion is possible, the Court
does not pass futile orders of setting aside or
remand when there is, in fact, no prejudice
caused. This conclusion must be drawn by
the Court on an appraisal of the facts of a
case, and not by the authority who denies
natural justice to a person.

(5) The "prejudice" exception must
be more than a mere apprehension or even a
reasonable suspicion of a litigant. It should
exist as a matter of fact, or be based upon a
definite inference of likelihood of prejudice
flowing from the non-observance of natural
justice."

34. Applying the principles as extracted
above to the facts of the present case, it
would indicate that the appellants herein were
not heard nor they participated before the
Deputy Registrar at the time of passing of the
order dated 07.12.2018. The dispute before
the Deputy Registrar as well as before the
learned Single Judge was primarily between
Udai Bhan Misra and Ajit Kumar Jaiswal,
Committee of Management. As held by the
learned Single Judge that the order passed by
the Deputy Registrar was without considering
the relevant documents before it and the
matter is to be decided afresh after affording
opportunity to the parties concerned.

35. In the aforesaid circumstances, the
appellants being covered by the phrase
"parties concerned" as used by the learned
Single Judge have full rights to appear before
the said authority and furnish all its
documents and evidence in order to
establish their membership which shall be
considered by the authority concerned. In
view of the aforesaid, the Court is of the
considered view that no real prejudice has
been caused to the appellants and merely
because they have not been heard by the
learned Single Judge does not render the
order dated 08.10.2021 bad in the eyes of
law.

36. Accordingly, this Court does not
find any merit in the appeal and it is liable
to be dismissed. However, it shall be open
for the appellants to appear and participate
in the proceedings before the Deputy
Registrar, who shall also consider the
version of the appellants, if filed and decide
it in accordance with law in light of the
observations made by the learned Single
Judge after affording full opportunity of
hearing to the parties.

37. Resultantly, the appeal is
dismissed, however, there shall be no order
as to costs.
----------
(2022)01ILR A1061
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 5913 of 2021
Connected with
Writ A No. 15066 of 2021 and other cases

Vikash Tiwari & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Jai Singh Yadav, Sri Akash Yadav, Sri
Radha Kant Ojha (Senior Adv.), Sri Ashok
Khare (Senior Adv.)

Counsel for the Respondents:
C.S.C., Sri Siddharth Singhal

A. Service Law - Constitution of India,
1950-Article
226-Challenge
toCancellation
of
recruitment-
The
Commission conducted the examination
with a collaboration of a private Agency in
which
fairness
and
transparency
is
eliminated-The report of SIT disclosed
that large scale manipulation happenedVariation in the marks of nearly 70%
shortlisted candidates clearly puts a big
question mark upon the fairness of entire
written examination itself-Segregation of
candidates not possible because variation
between the OMR sheet is not just limited
to few candidates as per conclusion drawn
by the SIT- Therefore, the decision to
cancel recruitment is based upon a bonafide assessment of materials placed on
record, which cannot be said to be
arbitrary-Where a recourse to unfair
means has taken place on a systematic
scale, it may be difficult to segregate the
tainted from the untainted participants in
the process.(Para 1 to 45)

The writ petition is dismissed. (E-6)

List of Cases cited:

Sachin Kumar & ors. Vs DSSSB & ors. (2021) 4
SCC 631
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Since the controversy raised in
all the above mentioned writ petitions
are identical they have been heard
together and are being disposed off
finally vide this judgment. Writ-A No.
5913 of 2021 (Vikas Tiwari and others
vs. State of U.P. and others) is treated as
the lead case.

2. Petitioners in this bunch of writ
petitions are aggrieved by the decision of
Examination Controller, U.P. Subordinate
Services Selection Commission, Lucknow
(hereinafter
referred
to
as
''the
Commission'), dated 24.03.2021, cancelling
the recruitment exercise undertaken by the
Commission vide advertisement no.2 of
2018 for combined examination to the
posts of Gram Panchayat Adhikari, Gram
Vikas Adhikari (Samaj Kalyan) and Samaj
Kalayan Supervisor, for which examination
was held on 22nd and 23rd December,
2018. Prayer consequently has been made
to quash the decision taken on 24.03.2021
and command the respondents to proceed
with petitioners' document verification and
issue orders of appointment to them, as
they have already been shortlisted, for
appointment to the advertised posts.

3. The Commission has published
advertisement
no.2
of
2018
inviting
applications for appointment to 1527
permanent posts of Gram Panchayat
Adhikari, 362 temporary posts of Gram
Vikas Adhikari (Samaj Kalyan) and 64
permanent
posts
of
Samaj
Kalyan
Supervisor. Registration pursuant to above
advertisement was to commence online on
30.06.2018 and deposit of online fee was to
start
on
01.06.2018.
Last
date
for
registration was 25.06.2018; whereas last
date for deposit of online fee was
27.06.2018. The last date for submission of
application was 29.06.2018. Provision for
Vertical
and
Horizontal
reservation;
specification of age of candidate and their
qualification etc. were specified in the
advertisement.
Clause
11
of
the
advertisement provided that the basis of
selection in the recruitment is written
examination. Clause 12 specified the
scheme of examination and its syllabus.
The examination itself was to be of
1 All. Vikash Tiwari & Ors. Vs. State of U.P. & Ors.
1063
objective type with only one paper of 300
marks. This paper was to be in three parts,
namely Hindi Knowledge and Writing
Ability; Mental Aptitude; and General
Knowledge, consisting of 50 questions
each in all three parts. Each question
carried 2 marks, totalling 300 marks. All
the questions had to be attempted in 2
hours. Advertisement also provided for
negative marks to be awarded against a
wrong answer.

4. The Commission notified on
17.10.2018 that the examination pursuant
to advertisement in question would be
conducted in two shifts at 1572 centres in
16 districts of the State on 22nd and 23rd
December, 2018 between 10-12 AM and
03-05 PM, respectively.

5. It is admitted to the parties that the
task of conducting written examination was
outsourced to M/s Tata Consultancy
Services
(hereinafter
referred
to
as
''Agency') by the Commission. According
to petitioners full proof measures were
taken to maintain fairness, transparency
and confidentiality in the conduct of
examination and the candidates were
allowed entry in the examination centre
only after their biometric identification and
the examination was also conducted under
surveillance of CCTV cameras.

6. The examination was of objective
type and each question contained four
answers, one of which was correct. The
candidates were required to darken the
circle against the correct answer in the
OMR Sheet. As per the examination
scheme each candidate was provided with
three copies of OMR sheets. The darkening
of correct answer was required on the first
OMR Sheet and its impressions got
copied on the remaining two OMR Sheets.
The first OMR Sheet was to be utilised for
evaluating the score of candidate while the
second copy was to be kept in a safe
custody of Treasury. The candidate could
retain the third copy with himself.

7. Certain allegations appear to have
surfaced in several newspapers highlighting
various illegalities and irregularities in the
conduct of aforesaid examination. This
resulted
in
initiation
of
different
inquiries/investigations into the complaints
at different levels. A First Information
Report was also lodged against 136
candidates, who were prima facie found
guilty of tampering their OMR sheets.

8. A communication was issued by
the Commission on 28.10.2019, declaring a
list of 1952 successful candidates in the
written test to be called for document
verification and examination of their
eligibility. The list contained roll numbers
of candidates in different categories. By a
separate order of the same date the
Commission declared the cut-off marks for
different categories of candidates as per
their vertical and horizontal reservation
category. 136 candidates against whom
police report was lodged under Section 154
Cr.P.C. were excluded in the process.
These 136 candidates moreover were
expelled
from
all
future
recruitment
conducted by the Commission for a period
of three years. The respective examination
centres of these 136 candidates have also
been debarred from holding any other
examination of Commission.

9. The apparent reason for action against
136 candidates was that the marks obtained by
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
them, on the basis of their first OMR Sheet
varied from the marks awarded to them in the
second OMR sheet kept in the Treasury of
concerned district. Since the first copy of
OMR Sheet was scanned by the Commission
and the second OMR sheet merely contained
impressions of the first OMR copy, therefore,
the marks could not have varied in the two
OMR Sheets, as had admittedly occurred in
the case of 136 candidates. This clearly
established manipulation in the OMR Sheets
of these candidates.

10. On 29.02.2020 the Commission
issued yet another notification and called upon
the candidates to appear for document
verification on different dates between
12.03.2020 to 02.06.2020, in the office of
Commission, as per the dates fixed.

11. Petitioners further contend that apart
from various newspaper report etc. the Cabinet
Minister of the Department of Village
Development also sent a letter to the Chief
Minister of Uttar Pradesh highlighting large
scale manipulation in holding of examination
which led to the formation of a special
investigation team (SIT) to investigate the
allegations
made
in
the
conduct
of
examination.

12. On 18.03.2020 the Commission
stayed the ongoing process of document
verification on account of Covid-19 pandemic
and the shortlisted candidates were directed to
download their entry ticket for document
verification and a separate date was to be
notified to them for the conduct of document
verification.
By
a
separate
notice
of
Commission, dated 27.03.2020, the process of
document verification was stayed until further
orders.

13. The Commission on 20.06.2020
notified that since a special investigation
team was constituted by State to probe the
allegations of manipulation in conduct of
examination in question, therefore, the
Commission in its meeting held on
29.05.2020 resolved to await the outcome
of investigation by Special Investigating
Team (SIT) and to proceed in the matter
only thereafter. The process of recruitment
therefore was kept in abeyance till
conclusion of investigation by SIT.

14. The State Government received
the report of SIT upon conclusion of its
investigation on 31.12.2020. A meeting
was held on 18.1.2021 to consider the
report and a Government Order dated
24.02.2021 followed to this effect.

15. The SIT in its report, dated
31.12.2020, has opined that on the basis of
oral and documentary evidence collected
during investigation it has found illegality
in the holding of examination as also
tampering with original OMR sheets.
Recommendation also came to be made to
transfer case crime no.584 of 2019,
registered at Police Station Vibhuti Khand,
Lucknow to the SIT. This recommendation
apparently was considered by the State
Government and ultimately a decision was
taken to accept the recommendation made
by the SIT in the matter. It is thereafter that
the Commission has resolved to cancel the
recruitment vide order impugned dated
24.03.2021. Aggrieved by such decision
the petitioners are before this Court.

16. A counter affidavit has been filed
on behalf of Social Welfare Department of
State, which appears to be formal in nature.
The Commission has filed its counter
affidavit according to which more than 14
lac applications were received against the
advertisement no. 2 of 2018 and 9,53,000
candidates approximately appeared in the
1 All. Vikash Tiwari & Ors. Vs. State of U.P. & Ors.
1065
written examination. In para 8 it is stated
that a conscious decision was taken on
28.01.2019 that before declaring result of
written examination held on 22 & 23rd
December, 2018 the original OMR sheet of
candidate in the ratio of 1:10 to the
available posts be compared with copy of
OMR sheets kept in the Treasury. As per
the Commission each candidate was
supplied three copies of OMR sheet in the
written examination. The main copy was
taken by the nominated Agency for
scanning and evaluating marks while
second copy was kept in the Treasury of
concerned district where examination itself
was
conducted.
The
Commission
accordingly compared OMR sheets of
candidates in the ratio of 1:10 and found
that there was discrepancy of more than
10% in the marks obtained in the two OMR
Sheets of 136 candidates. The Commission
accordingly lodged a first information
report against these 136 candidates and also
debarred them from participating in future
examinations to be conducted by the
Commission for a period of three years,
apart from blacklisting the examination
centres of these candidates from holding
any future examination to be conducted by
the Commission. In para 13 it is asserted
that the evaluation of two OMR sheets was
got conducted from an Agency other than
the Agency which had scanned OMR
sheets earlier. In para 15 it is asserted that
the exercise revealed that 83 candidates
from the list of successful candidates
showed discrepancy of more than 5%
marks between two respective OMR sheets.
A decision was taken then to offer an
opportunity to these 83 plus 136 candidates
in the matter. The Commission thereafter
came to know about State's decision to
have the investigation carried out by SIT
and Commission, therefore, deferred the
process. An interim report is said to
have been submitted by SIT doubting the
role of Agency entrusted with task of
holding examination. The Commission
appears to have taken a further decision not
to allot any further work to the Agency
entrusted
with
the
task
of
holding
examination
and
other
examinations
assigned to such Agency were also
resolved to be stayed.

17. On 19.07.2021 this Court directed
the respondents to produce report of the
SIT. Again on 29.07.2021 the respondents
were directed to obtain instructions with
respect to petitioners' contention that at best
candidature of 136 candidates be cancelled
but the entire recruitment ought not be
cancelled in the absence of any adverse
material existing against other candidates.
On 07.09.2021 this Court further directed
the Commission to bring on record the
agreement/guidelines,
if
any,
entered
between the Commission and Agency for
conduct of the examination.

18. In compliance of above orders the
Commission has filed a supplementary
counter affidavit. It is disclosed therein that
the Commission entered into an agreement
for providing services by the Agency,
effective from 14.07.2018, copy whereof is
Annexure-1 to the aforesaid affidavit. The
scope of work as per the agreement is
contained in Schedule-II which inter alia
included "setting and printing of question
paper, OMR Answer Sheet designing,
printing and supply and also processing of
OMR Answer Sheets, Scanning, Evaluation
and objection resolution. Apart from such
duties the Agency was further conferred the
responsibility
of
conducting
the
examination including selection of well
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
equipped and reputed examination centers
and also deployment of Supervisors,
Managers, Invigilators and other Staff at
each center". In para 5 the Commission has
stated that the OMR sheets were required to
be packed and transported to Lucknow by
the Agency and the opening, sorting,
scanning and processing of answer sheets
were required to be done exclusively at the
Commission's premises. The Agency was
also
required
to
arrange
manpower,
equipment and hardware and other material
at the Commission's office. The instruction
booklet issued by the Commission is also
annexed with the supplementary counter
affidavit which contains procedure for
collection and transportation of OMR
sheets by Agency from Treasury to centers
and back to Treasury and also to the office
of the Commission. The Commission
apparently has taken the stand that it acted
with due diligence to secure fairness in
examination process and only when it got
established in the SIT enquiry that large
scale manipulation was caused in holding
of the recruitment that it resolved to cancel
the examination process.

19. A rejoinder affidavit has been
filed stating that the petitioners have
qualified the test on the strength of their
merit,
without
any
manipulation
or
illegality attributed to them and, therefore,
merely
because
in
respect
of
136
candidates discrepancy to the extent of
10% was observed between two OMR
sheets it would not justify cancellation of
entire recruitment process itself.

20. The report of SIT has also been
produced before the Court in a sealed
envelop and has been perused by the Court.
Relevant passages from the SIT report have
been allowed to be perused by the Senior
Counsels for the petitioners, Sri Ashok
Khare and Sri R. K. Ojha in the presence of
Sri Ajeet Kumar Singh, learned Additional
Advocate General for the State.

21. Sri Ashok Khare and Sri R. K.
Ojha, learned Senior Counsels for the
petitioners
alongwith
other
counsels
appearing in the connected writ petitions
have strenuously urged that decision of the
Commission
to
cancel
the
entire
recruitment exercise in the facts and
circumstances is wholly irrational, arbitrary
and
unsustainable.
With
respect
to
materials placed on record it is sought to be
urged that irregularities, if any, have been
found only in respect of specified number
of candidates and action against them have
been initiated with lodging of police report
and the matter is pending investigation. It is
urged that the Commission can very well
segregated the cases of candidates in
respect
of
whom
irregularities/
illegalities/manipulation have been found/
established
during
the
course
of
investigation and that cancellation of entire
recruitment
was
not
necessary.
By
emphasising upon the process undertaken
by
the
Commission
for
holding
of
recruitment it is suggested that out of three
copies of OMR sheets available in respect
of each candidate, who appeared in the
examination, the first copy of OMR sheet
has been scanned to ascertain merit of each
candidate and the finding of variation in
respect of 10% is based on its comparison
with other set of OMR sheet maintained in
the respective Treasury of 16 districts
where
the
examination
itself
was
conducted. The argument is that the OMR
sheet maintained in the Treasury is
absolutely unadulterated nor any material
during the course of investigation has
surfaced which may doubt the credibility of
such OMR sheet and, therefore, the
Commission could have proceeded by
1 All. Vikash Tiwari & Ors. Vs. State of U.P. & Ors.
1067
tallying the OMR sheet of selected
candidate with the copy of OMR sheet
maintained in the Treasury concerned and
the selection of those candidates about
whom no discrepancy is found ought to
have been processed with appointment
letters issued to them. The decision to
cancel the recruitment is accordingly
challenged on the ground of it being wholly
irrational, unfounded and based on no
material justifying such action. Various
judgments have also been relied upon in
respect of petitioners' claim which shall be
dealt with, later.

22. Sri Ajeet Kumar Singh, learned
Additional Advocate General assisted by Sri
Amit Manohar Sahai for the State and Sri
Siddharth Singhal, learned counsel for the
Commission submits, on the contrary, that the
evidence collected during the investigation by
the SIT reveals existence of large scale
manipulation in the conduct of written
examination which has rendered the entire
recruitment process unworthy of reliance and
vitiated in law and that the decision to cancel
the recruitment suffers from no error and
requires no interference by this Court.

23. Heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri Akash Yadav
for petitioners, Sri Radha Kant Ojha, learned
Senior Counsel assisted by Sri Jai Singh
Yadav for petitioners, Sri Ajeet Kumar Singh,
learned Additional Advocate General assisted
by Sri Amit Manohar Sahai, learned
Additional Chief Standing Counsel for the
State and Sri Siddharth Singhal, learned
counsel for the respondent Commission and
have perused the materials brought on record.

24. The Commission is established by
the State Government pursuant to a
notification issued under section 5(1)
of the Uttar Pradesh Subordinate Services
Selection Act, 2014 (hereinafter referred to
as ''Act of 2014'). The Commission is
vested
with
the powers
to
conduct
examination,
hold
interview,
make
selection of candidates by virtue of section
15(1)
of
the
Act
of
2014.
Direct
recruitment to all posts in the grade pay of
Rs.4600 or below in the employment of the
State is required to be made by the
Commission in view of the notification
dated 15.12.2014.

25. Uttar Pradesh Direct Recruitment
to Group C Posts (Mode and Procedure)
Rules, 2015 (hereinafter referred to as
''Rules of 2015') have also been framed by
the
State
vide
notification
dated
11.05.2015,
in
exercise
of
powers
conferred under the proviso to Article 309
of the Constitution of India. Rule 8 of the
Rules of 2015 specifies the procedure for
direct recruitment to Group ''C' posts in the
State including the syllabus, marks in the
written examination/interview and further
provides that the rules relating thereto shall
be
such
as
is
prescribed
by
the
''Commission', from time to time, with
approval
of
the
Government.
The
Commission in the Rules of 2015 is defined
in rule 4(b) of Rules of 2015 to mean Uttar
Pradesh Subordinate Services Selection
Commission.

26. In exercise of powers conferred
by section 16 and 23 of the Act of 2014 the
State has also notified the Uttar Pradesh
Subordinate
Services
Selection
Commission (Procedure and Conduct of
Business) Regulation, 2015 (hereinafter
referred to as ''Regulation of 2015').
Regulation 7 thereof lays down the
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
procedure for conduct of objective type test
which reads as under:-

"7. (1) To faciliate the use of
computer technique for conducting the
examination, preliminary examination or
screening test, the Commission may get the
objective type of question paper - cum -
answer sheets preapred by drawing upon its
own Question Bank or through the
organization working in the field of
recruitment
or
eminent
and
reliable
psychometric institutes, expert bodies or
expert in the field of psychometric
education and objective type of question
papers - cum- answer sheets prepared
according to the syllabus of different
examinations to be conducted by the
Commission.

(2)
The
Secretary
or
the
Controller of Examination cum Joint
Secretary as nominated by the Chairperson
shall draw a list of the reputed and reliable
psychometric institutes, expert bodies and
experts
of
relevant
fields
including
computer
agencies
and
organizations
functional in the field of recruitment, for
the approval of the Commission. Computer
agencies
shall
be
required
for
the
evaluation
of
answer
sheets
and
compilation of examination results.

(3) The Chairperson may select
any one or more among psychometric
institutes, expert bodies and organizations
functional in the field of recruitment or one
or more experts as per the requirement of
the case from the list prepared under subrule (2) to prepare question paper-cumanswer sheets. He is free to select any
computer agency for the evaluation of
answer
sheets
and
compilation
of
examination results.

(4) (a) If a particular instiute or
expert body is selected for preparing of
question papers-cum-answer sheet for a
particular examination, the Secretary or the
Controller of the Examination cum Joint
Secretary nominated by the Chairperson
shall get prepared three sets of every
question paper and having received them in
separate sealed envelopes keep them in his
custody.

(b)
The
Secretary
or
the
Controller of the Examination cum Joint
Secretary nominated by the Chairperson
shall submit to the Chairperson three sealed
envelopes in separate identical envelopes
specifically designed for this purpose
without marking any mark of identification
on the envelopes after having appended his
signatures thereon at the place therefor.

(c) The Chairperson may choose
any one of the three sealed and signed
envelopes without opening it and handover
it to the Secretary or the Controller of the
Examination cum Joint Secretary and keep
last two envelopes in his safe custody till
the examination is over.

(d)
The
Secretary
or
the
Controller of the Examination cum Joint
Secretary nominated by the Chairperson
shall send the sealed envelopes so chosen
by the Chairperson to the particular
institute, expert body or press, as the case
may be, for printing question paper-cumanswer sheets. Particular institute, expert
body or press, as the case may be, shall be
responsible for printing, proof reading and
preparation of their packets for different
examination
centers
as
also
for
Commission's reserve under its seal in
accordance with the direction furnished to
it by the Secretary or the Controller of the
Examination cum Joint Secretary.

(5) (i) In case the Chairperson
decides to utilize the Question Bank of the
Commission wholly or partly for preparing
the question paper, every such paper or part
thereof, as the case may be, shall be
prepared by three different experts.
1 All. Vikash Tiwari & Ors. Vs. State of U.P. & Ors.
1069

(ii) In case, the three question
papers are wholly prepared by drawing on
the question bank of the Commission, the
question papers so prepared shall be sealed
in three different identical envelopes which
shall be kept by the Secretary or the
Controller of the Examination cum Joint
Secretary nominated by the Chairperson in
his safe custody. In case, the three question
papers cannot be prepared wholly by
drawing
on
Qeustion
Bank
of
the
Commission, service of one or more
experts will be utilized to prepare three
different sets of part question papers. One
set prepared by drawing on Question Bank
and the other two sets prepared otherwise
out of Question Bank. These sets of part
question papers shall be handed over to the
Secretary
or
the
Controller
of
the
Examination cum Joint Secretary against
signed receipt in sealed envelopes for safe
custody, cleraly indicating the part of the
syllabus covered in each set of the part
question papers.

(iii) The two sets of question
papers so prepared under clause (ii) shall
thereafter be entrusted to different experts
or set of experts, as the case may be, for
moderation, after merging the two sets of
part question papers so as to cover the
syllabus fully. The expert shall place them
in three separate envelopes under his seal
without making any mark of identification
on the envelopes and hand them over to the
Secretary
or
the
Controller
of
the
Examination cum Joint Secretary as the
case may be.

(iv)
The
Secretary
or
the
Controller of the Examination cum Joint
Secretary nominated by the Chairperson
shall keep each of the three sealed
envelopes in two separate but identical
envelopes specifically designed for this
purpose without making any mark of
identification on the envelopes and
convey his signatures thereon at the place
reserved therefor and submit the same to
the Chairperson.

(v) The Chairperson may choose
any one of the three sealed and signed
envelopes without operning it shall hand
over the same to the Secretary or the
Controller of the Examination cum Joint
Secretary
and
retain
the
other
two
envelopes in his safe custody till the
examinations are over.

(6) (i) In case the Chairperson
decides to take the services of an expert for
preparing the question papers, every paper
shall be prepared by three different expert
or set of experts and handed over to the
Secretary
or
the
Controller
of
the
Examination
cum
Joint
Secretary
as
nominated by the Chairperson.

(ii) Sealed envelopes so received
from the experts shall be handed over by
the Secretary or the Controller of the
Examination
cum
Joint
Secretary
nominated by the Chairperson to one or
more different experts, as per specific
requirement in each case, approved by the
Chairperson out of the list prepared under
sub-regulation (20 against their signed and
dated receipt, for moderation.

(iii) The experts shall moderate
all the two sets of question papers, place
them in separate envelopes under their seal
without making any mark of identification
on the envelopes and hand them over to the
Secretary
or
the
Controller
of
the
Examination
cum
Joint
Secretary
as
nominated.

(iv)
The
Secretary
or
the
Controller of the Examination cum Joint
Secretary nominated by the Chairperson
shall keep each of the three sealed
envelopes specifically designed for this
purpose without making any mark of
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
identification on the envelopes and append
his signatures thereon at the place reserved
therefor and submit the same to the
Chairperson.

(v) The Chairperson may choose
any one of three sealed and signed
envelopes without opening it, shall hand
over the same to the Secretary or the
Controller of the Examination cum Joint
Secretary and retain the other two
envelopes in his safe custody till the
examinations are over.

(7)
The
Secretary
or
the
Controller of the Examination cum Joint
Secretary send the envelopes so chosen by
the Chairperson under clause (v) of subregulation (5) or under clause (v) of subregulation (6) to an approved press which
shall be responsible for printing of
question
paper-cum-answer
sheets
including proof reading and for preparing
their packet for different examination
centers as also towards Commission's
reserves under its seal in accordance with
the information furnished and directions
given to it by the Secretary or the
Controller of the Examination cum Joint
Secrtary.

(8) (i) as per the direction of the
Chairperson, Secretary or the Controller of
the Examination cum Joint Secretary shall
prepare a list of reliable presses for
printing question paper-cum-answer sheets
for the approval of the Chairperson.

(ii) The Secretary shall choose
any one of the presses aproved by the
Chairperson under sub-regulgation (i) for
printing
question
paper-cum-anshwer
sheets for any particular examination.

(iii) The office nominated by the
Chairperson shall have access to the
computer Agency with a view to ensuring
that there is no mistake in the evaluation
of answer sheets and the preparation of
results.

(iv) The Chairperson or his
nominee will be associated with the
moderation of questions.

(v) The institute expert body or
the press, as the case may be, shall be
responsible for maintaining the secrecy of
the question papers and the Secretary or the
Controller of the Examination cum Joint
Secretary shall issue necessary directions
and take necessary precautions to ensure
such secrecy."

27. The scheme for holding of
objective type test, as per the above
Regulation
7
clearly
obligates
the
Commission to get objective type question
paper-cum-answer
sheets
prepared
by
drawing upon its own Question Bank or
through the organization working in the
field of recruitment or eminent and reliable
psychometric institutes, expert bodies or
expert in the field of psychometric
education and objective type of question
papers-cum-answer
sheets
prepared
according to the syllabus of different
examinations to be conducted by the
Commission.
The
Secretary
or
the
Controller of Examination is expected to
draw
list
of
reputed
and
reliable
psychometric institutes, expert bodies and
experts
of
relevant
fields
including
computer
agencies
and
organizations
functional in the field of recruitment, for
the
approval
of
the
Commission.
Engagement of computer agencies is
permissible for evaluation of answer sheets
and compilation of examination results.
Final authority in the matter of selection is
the Chairperson of the Commission. The
scheme for objective type testing system to
be followed by the Commission, therefore,
permits engagement of outside agency for
the limited purposes, in the manner
specified in the Regulations. The primary
responsibility under the Act of 2014 as also
1 All. Vikash Tiwari & Ors. Vs. State of U.P. & Ors.
1071
the Regulations of 2015 to conduct
examination, hold interview and make
selection however vests exclusively with
the Commission. This, however, does not
appear to have actually happened in the
present recruitment.

28. The supplementary counter
affidavit filed by the Commission would go
to show that the Commission entered into
an agreement with the Agency and virtually
all functions relating to conduct of
recruitment was entrusted to the Agency
itself. The scope of services to be provided
has been specified in clause 2 of the
agreement, which reads as under:

"2. Scope of Services:

2.1 Services: The scope of
Services to be provided by TCS to
Customer is as described in Schedule 2.
TCS
will
host
on
TCS's
Services
Environment at TCS designated location(s)
and/or deploy on designated Customer
systems at Customer designated location(s)
identified
in
Schedule
2,
the
TCS
Application System, for provision of such
Services. TCS reserves the right to modify
the
Services
Environment
without
impacting the Services. The Services may
commence on the Service Commencement
Date identified in Schedule 1, unless the
Parties otherwise agree. If the Parties desire
to modify the Scope of Services in
Schedule 2 in any manner, the Parties agree
that such change to Schedule 2 and tis
corresponding change to other Schedules
hereto shall be implemented in accordance
with the Change Control Procedure defined
in Schedule 5 hereto.

2.2 Permitted Use of Services:
Customers use of TCS Application System
shall always be subject to the Use Terms
stipulated in Schedule 3. In case the
TCS Application System includes a third
party software (identified in Schedule 2),
and where such third party licensor requires
Customer to sign a license agreement, the
Customer agrees to execute such third party
software license agreement, which shall
prevail upon any conflicting provisions
herein. Such third party software license
agreement shall become a part of this
agreement."

29. Exhibit A to the agreement is the
definition
clause
which
has
various
schedules appended to it. Part A of
Schedule-2 provides that Agency was
responsible for setting and printing of
question papers, designing printing and
supplying OMR sheets, processing of OMR
sheets including scanning evaluation and
objection resolution. Preparation of merit
list and uploading it on the website was
also left to be Agency. Part B of Schedule2 describes the other works to be performed
by the Agency and is extracted hereinafter:-

PART-B

S.No.
Description

Details at

1. Conduct
of
Examination-
Includes selection of well-equipped and
reputated examination center, supply of
examination centers management kits,
Biometric capturing of each candidates
finger print and photograph with their roll
number. Deployment of static center
supervisor and center manager, invigilator
and other staff at each center. Providing
instruction to examination centers.

30. Annexure-5 to Schedule-2 deals
with conduct of examination and is
extracted hereinafter:-
1072 INDIAN LAW REPORTS ALLAHABAD SERIES

"Annexure-5:
Conduct
of
Examination

(Including
providing
well
equipped centre, supply of examination
Centre
management
kits,
Biometric
Capturing of candidates, deployment of
static centre supervisor & centre manager
and other staff at each center, providing
instruction to the examination centers.
Inviting of objection from the candidates
and their resolution by the TCS through a
software)

A) Proviiding well equipped
examination centers

a. Examination centres shall be
finalized at least 30 days in advance in
consultation wit UPSSSC. So that it may be
checked
before
hand
and
local
administrative authority are informed in
advance

b. The centre should be well
connected to railway station and bus stands

c.
The
Centres
should
be
preferably government colleges/schools

d. It should be neat and clean
secured place with proper ventilation, light
and fan, fresh drinking water, proper sitting
arrangement, fire-fighting instrument in
working condition, firt aid box and other
basic amenities

e. It should have safe and secure
place adequately guarded for keeping the
examination papers and other related
material

B) Supply of Examination Centre
Management Kits

a. List of candidates with roll
numbers appearing at each examination
centre

b. Seating Plan

c. Room wise attendance sheets
with
roll
numbers,
photograph
and
signatures of candidate, with provision for
pasting of a fresh colour

d. Room wise desk slips

e. Supply of various report forms
which are to be filled by the centre in-
charge

f. Supply of tamper proof packing
material for the packing of Attendance
Sheets and other materials comprising
labelled envelopes for easy handling and
administration

C) Frisking and Biometrics

a. Frisking of all candidates shall
be
ensured
before
entering
in
the
examination centres.

b. TCS shall capture the finger
prints and photograph of all candidates
appearing in examination which will be
used to cross check the identity of the
candidates at the next stage of examination

D) Co-ordination for Conduct of
Examination

1. The TCS shall deploy city head
in each district or as required depends on
number of centres, centre manager in each
centre or as required depends on number of
candidates, invigilator-01 per 25 candidates
& other staff at each centre as required

2. TCS would conduct centre
preparedness exercise a day before the
exam
with
centre
officials
and
representative of the Commission

3. TCS shall prepare standard
examination procedure in consulation with
UPSSSC. For this purpose, TCS is required
to prepare an examination manual, standard
format for capturing information

4. The TCS shall coordinate
examination preparation at each venue,
which will be include traiining, briefing,
putting
up
signages
and
other
administrative arrangements

5. Ensure packing of answer
sheets as per direction of the Commission"

31. Instructions manual for conduct of
recruitment in question has been published by
the Commission, which is Annexure-2 to the
1 All. Vikash Tiwari & Ors. Vs. State of U.P. & Ors.
1073
supplementary counter affidavit. It contains
detailed
instructions
about
plan
of
examination; general instructions in respect of
recruitment; sitting plan etc. etc.