Challenges To Examination Process: Malpractices; Its Implications And Judicial Response
INTRODUCTION
Integrity, competence, honesty, empathy, intellectual capability, etc., are some of the qualities which a person holding a public office isexpected to have in order to gain public confidence in such office and to maintain effectiveness and efficiency of the Executive. The states recruitment agencies undergo the rigours of comprehensive recruitment process to ensure that the most competent candidates are appointed against the available vacancies.However, the entire system gets shaken when these recruitment processes face the allegations of paper leaks, impersonation of candidates, use of unfair means in exams, corrupt practices, technological misuse,inter alia.Over the past few years almost all recruitment drives of the state government have faced these challenges and even some of the prestigious selection processes of the central agencies have also been called into question.
The Executive and Legislators have been developing the framework to tackle these menaces which is evident from the enactment of the recent Legislations such as the Public Examinations (Prevention of Unfair Means) Act, 2024 enacted by the Parliament, and the Rajasthan Public Examination (Measures for Prevention of Unfair Means in Recruitment) Act 2022 which was further amended in 2023 so as to increase the maximum punishment upto Imprisonment for Life. Apart from the legislative enactments, the Executive has gone ahead to constitute the specialised recruitment agencies such as the NTA and even various SOPs have been issued to ensure fair and transparent recruitment process.
However, these efforts have not been sufficient to iron out the malpractices in the recruitment process and the recruitments/examination processes continues to face serious allegations of tampering, paper leak etc., which are time and again dragged to the Courts for ultimate adjudication. The situation becomes more challenging when the senior government officials or office bearers are found directly involved in these malpractices and have been using their office to promote such corrupt practices.
In this peculiar background, the Judiciary is assigned with a mammoth duty to ensure fair play in the recruitment process and to deal with the grievances of unselected candidates by analysing the factual and empirical data to adjudicate upon theveracity of the allegations pertaining to malpractices in the recruitment process and if found true then the future of such recruitment process is also required to be adjudged.
INTERFERENCE OF SUPREME COURT TO REHAUL THE SELECTION PROCESS AND DEVELOP A ROBUST MECHANISM
The Hon’ble Supreme Court and the other Judicial authorities have dealt with the instances of recruitment/selection scams with a different yardstick and have camedown heavily on such criminal acts.
However, there is no need to cite all the instances and it is sufficient to refer to the recent pronouncement of the hon’ble Supreme in the NEET (UG 2024) case (Vanshika Yadav v. Union of India &Ors., Writ Petition (Civil) No.335/2024) wherein the Hon’ble Supreme Court was called upon to adjudge the illegalities and malpractices alleged in conducting the NEET (UG 2024) Examination. On hearing the case, the Hon’ble Court crystallised its scrutiny on 3 major aspects i.e.
(i) Whether the alleged breach took place at a systemic level?
(ii) Whether the breach is of a nature which affects the integrity of the entire examination process? and
(iii) Whether it is possible to segregate the beneficiaries of the fraud from the untainted students?
Though the Apex court concluded that the circumstances on record do not warrant the cancellation of the entire selection process, however, considering the gravity of the matter the apex court asked the 7-Member expert committee constituted by the Central Government to provide a detailed mechanism for conducting such examination process including but not restricted to examination security and administration, data security, technological enhancements policy and stakeholders engagement, collaboration and international cooperation,inter alia. The report of the expert committee is awaited and so are the final remarks of the Supreme Court on such report.
THE REAL DILEMMA – CANCELATION OF EXAMS
The conundrum lies in as to what should be the approach of the authorities.Whether should the Government or the Judiciary declare cancellation of such questionable Examinations or should they create a differentia in the category of candidates appearing for such exams by ensuring a thorough investigation revealing the candidates who used unfair means. The malpractices have devasting implications which shakes the credibility of the educational machinery of the country, demoralizes honest and bonafide candidates and affects the public confidence in the government.
A strict approach by the government like cancellations of entire examinations and ordering re-examination might have a draconian effect on every stakeholder, whereas, a reluctant approach of the authorities may offend the public confidence of the authorities and the authorities may have to face huge condemnation for risking the future of the country. In such situations it is a settled test of whether it is possible to segregate tainted students from those whose candidature does not suffer from any taint.
SELECTION IS NOT A RIGHT OF A CANDIDATE
The Hon’ble Supreme Court in the case of Commissioner of Police &Anr. v. Umesh Kumar (Civil Appeal no. 3334 of 2020) dealt with the issue of whether an applicant has a vested right to be appointed after selection in the final list. The hon’ble court while relying on the case of Punjab SEB v.Malkait Singh, (2005) 9 SCC 22 held that the mere inclusion of a candidate in a selection list does not confer upon them a vested right to appointment. However, the aforesaid principle comes with a rider that there must be some cogent and reasonable grounds to deny such appointment and the state cannot act in an arbitrary and capricious manner.
INSTANCES WARRENTING CANCELLATION OF SELECTION PROCESS
1. Tanvi Sarwal v. Central Board of Secondary Education & Ors., Writ Petition (Civil) No.298/2015
In this case the Hon’ble Apex Court was dealing with the controversy relating to unfair means and malpractice in All India Pre-medical/ Pre-dental entrance test (AIPMT) which was conducted by the CBSE. The answer key for many questions were disseminated to the candidates in consideration of Rs. 15-20 lakhs. Thereafter several persons were arrested. Thereafter the Petition was filed seeking the declaration against the Exam to be null and void.
In its judgement the Hon’ble Supreme Court concluded that examination has exposed the deep-rooted conspiracy of gangs which have aided the beneficiary candidates with the answer keys during the test with the help of electronic devices, allowing them to complete the question paper.
The Hon’ble Court while annulling the examinations held “Having regard to the uncompromising essentiality of a blemishless process of examination involving public participation, we have no alternative but to hold that the examination involved, suffers from an infraction of its expected requirement of authenticity and credence. We are conscious of the fact that every examination being conducted by a human agency is likely to suffer from some shortcomings, but deliberate inroads into its framework of the magnitude and the nature, as exhibited, in the present case, demonstrate a deep seated and pervasive impact, which ought not to be disregarded or glossed over, lest it may amount to travesty of a proclaimed mechanism to impartially judge the comparative merit of the candidates partaking therein. If such an examination is saved, merit would be a casualty generating a sense of frustration in the genuine students, with aversion to the concept of examination. The possibility of leaning towards unfair means may also be the ultimate fall out. Even if, one undeserving candidate, a beneficiary of such illegal machination, though undetected is retained in the process it would be in denial of, the claim of more deserving candidates. At the present, the examination stands denuded of its sanctity as it is not possible to be cleansed of all the participating beneficiary candidates with certainty. We are thus, on an overall assessment of the materials on record, left unpersuaded to sustain the examination.”
The Court further observed that: “We are aware, that the abrogation of the examination, would result in some inconvenience to all concerned and that same extra time would be consumed for holding a fresh examination with renewed efforts therefor. This however, according to us, is the price, the stakeholders would have to suffer in order to maintain the impeccable and irrefutable sanctity and credibility of a process of examination, to assess the innate worth and capability of the participating candidates for being assigned inter se merit positions commensurate to their performance based on genuine and sincere endeavours. It is a collective challenge that all the role-players would have to meet, by rising to the occasion and fulfill the task ahead at the earliest, so as to thwart and abort the deplorable design of a mindless few seeking to highjack the process for selfish gain along with the unscrupulous beneficiaries thereof.”
2. Sachin Kumar &Ors. v. Delhi Subordinate Service Selection Board (DSSSB) & Ors, Civil Appeal Nos 639-640 of 2021
In this case DSSSB invited application for various posts for filling vacancies in the Service Department, Govt. of NCT of Delhi. Subsequently several complaints were received by DSSSB regarding grave malpractices and irregularities including cheating, paper leak, impersonation of members, etc. In view various serious complaints, a committee was formed by the Deputy CM of the Delhi to enquire in to the complaints. Thereafter, the Committee gave its report and opined the allegations of mass cheating and impersonating during the process to be credible and recommended to cancel the selection process.
A Second Committee was constituted by DSSSB “to check the credentials of all the candidates falling in the zone of consideration in the merit list, for Gr.II/DASS (post code 90/09) for checking of the candidate and the authenticity of his/her candidature.” This committee also concluded the presence of severe irregularities and illegalities in the selection process.
The Hon’ble Supreme Court concluded that “Recruitment to public services must command public confidence. Persons who are recruited are intended to fulfil public functions associated with the functioning of the Government. Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrongdoing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrongdoing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment. Both the High Court and the Tribunal have, in our view, erred in laying exclusive focus on the report of the second Committee which was confined to the issue of impersonation. The report of the second Committee is only one facet of the matter. The Deputy Chief Minister was justified in going beyond it and ultimately recommending that the entire process should be cancelled on the basis of the findings which were arrived at in the report of the first Committee. Those findings do not stand obliterated nor has the Tribunal found any fault with those findings. In this view of the matter, both the judgments of the Tribunal and the High Court are unsustainable.”
The Court also noted that “The irregularities were not confined to acts of malpractice or unfair means on the part of a specific group of persons. On the contrary, the report of the Committee found deficiencies of a systemic nature which cast serious doubts on the legitimacy of the entire process of recruitment involving both the Tier I and Tier II examinations.”
The Hon’ble Apex Court upheld the notification cancelling the entire selection process.
INSTANCES WHERE CANCELLATION MAY NOT BE APPROPRIATE
The Apex Court has time and again settled that the cancellation of the examination process must be the last resort when there is no possibility of segregating the untainted candidates from tainted candidates and there exists widespread infirmities of all pervasive nature undermining the selection process. Guidance can be sought from the case of Union of India v. Rajesh P. U, 2003 7 SCC 285 wherein the Apex Court denied to cancel the selection process on the aforesaid reasons.
CANCELLATION OF RECRUITMENT PROCESS AFTER THE APPOINTMENT OF SELECTED CANDIDATES
Cancellation of recruitment process after the appointment of candidates or in the cases where the appointees have undergone a few years of service is the most complicated situation as the appointees have also secured their legal right to continue with the service and such cancellations would have to undergo a detailed Judicial scrutiny so as to balance the rights of the appointees as well as those who have not been appointed. Such situations require fulfilment of different circumstances which have been dealt with and discussed by the Hon’ble Supreme Court in the case of Inderpreet Singh Kahlon v. State of Punjab (2006) 11 SCC 356 wherein after the detailed discussion the Hon’ble Supreme Court enlisted 3 Principles which are imperative to terminate the services of such appointees after a few years, which are as under :-
1. To establish satisfaction in regard to the sufficiency of the materials collected so as to enable the State to arrive at its satisfaction that the selection process was tainted;
2. To determine the question that the illegalities committed go to the root of the matter which vitiate the entire selection process. Such satisfaction as also the sufficiency of materials was required to be gathered by reason of a thorough investigation in a fair and transparent manner; and
3. Whether the sufficient material present enabled the State to arrive at a satisfaction that the officers in majority have been found to be part of the fraudulent purpose or the system itself was corrupt.
CONCLUSION
The incidents and the Judicial precedents cited shed light upon the aspect of security in the examination and recruitment process, as well as the laxity in penalties meted on those involved in malpractices concerning examinations.The actions against the malpractices in exams have included cancellation of entire exams, technological interventions like biological verification and CCTV surveillance, legislations, imposing penalties, debarring the delinquent candidates, and the Judicial intervention.
The government and the judiciary have been continuously working to develop the mechanism to curb these malpractices so as to protect the public confidence in the authorities accountable for conducting the examinations and have been inclined to protect the interest of the honest candidates on one hand and to treat the delinquent offenders with an iron hand on the other. However, the duty is also casted on the candidates to trust on their hard work and skill instead of resorting to these illegal means to get through the selection process as in such cases it may be easier to enter but it would surely be difficult to survive.