http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  6946 of 1996

PETITIONER: Bihar Public Service Commission & Anr.                   

RESPONDENT: Vs. Vinoy Kumar Singh & Anr.                                         

DATE OF JUDGMENT: 04/08/2003

BENCH: M. B. Shah & Dr. AR. Lakshmanan.

JUDGMENT:

JUDGMENT

Dr. AR. LAKSHMANAN, J.   This appeal was filed by the Bihar Public Service Commission  (hereinafter referred to as "the Commission") against the judgment and order  dated 05.12.1994 of the High Court of Judicature at Patna passed in Letters  Patent Appeal No. 147 of 1988 whereby a Division Bench allowed the said  appeal of respondent No.1/writ petitioner (Vinoy Kumar Singh) and  consequently set aside the judgment and order dated 28.08.1988 of the  learned Single Judge of the High Court dismissing the writ petition filed by the  writ petitioner and came to the conclusion that the authorities of the  Commission are not authorized to take any steps after publication of the  result of the examination.  The Court held that it is not open to the Authorities  of the Commission to issue a show-cause notice and to take any action after  the conclusion of the examination unless there is any specific rule permitting  the Authorities to do so.  The Bench also held that no action can be taken  against the candidate for committing unfair means committed by him in the  course of the examination.  Thus the High Court came to the conclusion that  in the absence of any rules or executive instructions, the entire exercise of the  Commission is vitiated by illegality and procedural impropriety.  The Division  Bench further came to the conclusion that the principles of natural justice  have also not been properly observed inasmuch as the respondent’s request  to inspect and examine the answer books of other candidates and the  specimen signature of the Invigilator thereon was denied.  The Division Bench  finally came to the conclusion that the learned Single Judge of the High Court  had himself tried to form an opinion about the alleged misconduct of the writ  petitioner and hence the learned Single Judge has committed an error of law.   In view of the aforesaid conclusion and findings, the Division Bench set aside  the order dated 22.09.1986 of the Commission debarring respondent  No.1/writ petitioner from the examination and directed the Commission to  treat the candidate/writ petitioner as a successful candidate.  However, it  refrained from giving any direction to the Commission for appointing the writ  petitioner to the post of Deputy Superintendent of Police or any other post as  prayed for as they felt that such a direction was beyond the scope of the writ  petition.

In order to appreciate the various contentions raised by the  Commission in this appeal, it is necessary to recite the facts in brief.   

The Commission invited applications in the prescribed proforma from  eligible graduate candidates for appearing in the 31st Combined Competitive  Examination conducted for filling up various Civil Posts.  The written  examination was to commence w.e.f. 12.02.1983.  Respondent No.1, being a  graduate, applied for the post of Deputy Superintendent of Police as also for  Deputy Collector in the prescribed proforma. The Commission after

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

preliminary scrutiny and having found respondent No.1 eligible, allotted him  Roll No. 16306 and also issued him an Admit Card in order to enable him to  appear in the said written examination which was to commence from  12.02.1983.  Respondent No.1 was required to appear in General Science,  General Knowledge and General Hindi papers which were compulsory  subjects.  The result of the successful candidates was announced and  published by the Commission and respondent No.1 was one of the successful  candidates.  Respondent No.1, being successful in the written examination,  was called upon by the Commission to appear for an interview on 08.04.1985.   Accordingly, respondent No.1 appeared in the viva voce test on 08.04.1985.   On 12.08.1985, respondent No.1 was called upon to show cause by  30.08.1985 as he was accused of having committed unfair means in the  General Knowledge Paper of the 31st Combined Competitive Examination  and which the Commission after due consideration, had prima facie found  correct. "(A)    The main answer-sheet as also additional answer-sheets of  General Knowledge Paper contains forged signature of the  Invigilator which is found corroborated by a comparison of  the signature of the Invigilator on the answer-sheets of other  candidates of that room/hall;

(B)     From a perusal of the answer-sheet, it appears that the  entire answer-sheet is based on materials smuggled from  outside; and

(C)     On the main page of the answer-sheet, there are ink marks  which is different ink than one used in the answer-sheets.

It was further stated that in case, his show-cause to the aforesaid  charges is not received by 30.8.85 through Registered Post, then it  will be presumed that he has nothing to say in the matter. "    The final result was declared by the Commission on 13.08.1985.  To  the show-cause notice, respondent No.1 submitted his reply.  The  Commission, after considering the explanation to the show cause of  respondent No.1 and the other materials, vide order dated 22.09.1986  decided to cancel the answer-sheet of the General Knowledge Paper of the  said examination.  The Commission also decided that respondent No.1 will  stand debarred from the said examination.

Respondent No.1, being aggrieved, filed a writ petition before the High  Court.  The learned Single Judge of the High Court dismissed the same and  came to the conclusion that the charges do disclose use of unfair means and  respondent No.1 correctly understood the charges and furnished explanation  therefor.  The learned Single Judge after perusing the answer- book of  respondent No.1 and other candidates and comparing the signature of the  Invigilator came to the conclusion that they do not tally and that the difference  is glaring to the bare eyes.  However, the learned Single Judge came to the  conclusion that the charge regarding use of smuggled materials has not been  proved in the absence of any material relied upon or produced in the Court.   However, in any event, the learned Single Judge held that the first charge  levelled against respondent No.1 stands established.

Being aggrieved respondent No.1 filed Letters Patent Appeal No. 147  of 1988 before the Division Bench of the High Court and the Division Bench  vide its impugned judgment allowed the same and as stated earlier, set aside  the judgment and order dated 28.08.1988 of the learned Single Judge and  quashed the order dated 22.09.1986 of the Commission debarring the  candidature of the first respondent from the 31st Combined Competitive  Examination and directed the Commission to treat respondent No.1 as a  successful candidate.  The Division Bench came to the conclusion that denial  of inspection by the Commission of the specimen signatures of the Invigilator  in question and the answer-books of the other candidates constitute a  violation of the principles of natural justice.  The Division Bench also came to  the conclusion that the Commission is not authorized to take any steps after

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

publication of the result of the examination.  The Division Bench also held that  the application of the rules is confined to cases where detection of unfair  means is done in the course of conducting of the examination in the  examination hall and that there is no rule or executive instruction which  empowers the Commission to issue show-cause notice after the result has  been published of a successful candidate who has been interviewed and  asked to submit his option in connection with a competitive examination.  In  conclusion, the Division Bench held that the entire exercise by the  Commission in purporting to cancel the first respondent’s examination in  absence of any rule or executive instruction is vitiated by illegality and  procedural impropriety.  The Division Bench relying on Rule 15A of the Bihar  Civil Services (Executive Branch) and the Bihar Junior Civil Service  (Recruitment) Rules, 1951 came to the conclusion that the Commission being  the constitutional functionaries have to act within the four corners of the rules  in the matter of conducting the examination and in publication of the results  and all other allied matters and that the authorities of the Commission are not  authorized to take any steps after publication of the result of the examination.   Aggrieved by the impugned judgment of the Division Bench, the above appeal  has been filed in this Court.

We heard Dr. Rajeev Dhawan, learned senior counsel for the appellant  -Commission and Mr. M.N. Rao, learned senior counsel for respondent No.1.   Learned senior counsel for the appellant took us through the pleadings and  the judgments rendered by the High Court and also all the Annexures and the  rules.  According to the learned senior counsel for the appellant, the  interpretation put by the Division Bench will have devastating and startling  effect if it is to be held that the Commission has no power to take action  against a candidate who had committed unfair means in the examination after  the conclusion of the examination or beyond premises of the examination hall.   He would further submit that the Division Bench has failed to appreciate that  the use of unfair means is not confined to copying or impersonating another  candidate or being impersonated by any other person or communicating with  any person for the purpose of getting help or for aiding any other candidate  which are necessarily to be in the examination hall and at the time of  examination.  According to the learned senior counsel for the appellant,  adoption of unfair means need not be necessarily confined in the examination  hall alone but will include any unfair means adopted at any stage even after  the conclusion of the examination such as getting his original answer-sheets  substituted or addition or additional answer-sheets in collusion with the staff  of the Commission which  necessarily shall be after the conclusion of the  examination but shall nevertheless be unfair means.

He invited our attention to the statutory rule i.e. the Bihar Civil Services  (Executive Branch) and the Bihar Civil Services (Recruitment) Rules, 1951.   He further submitted that the power of the Commission to conduct  examinations is conferred under Article 320 of the Constitution and, therefore,  the power of the Commission is not controlled by the limitations imposed, if  any, by any statutory provisions.  

Dr. Rajeev Dhawan further submitted that the Division Bench also  failed to appreciate that the learned Single Judge in order to satisfy himself  had himself seen the answer-sheet of respondent No.1 and compared the  signatures of the Invigilator thereon with other answer-sheets and the  difference in the signature of the Invigilator on the answer-sheet of  respondent No.1 was so glaring that it came to the conclusion that the  present answer-books were not at all written in the examination centre and  this answer-book has been subsequently substituted for the one written in the  examination centre and in that event, there will be no question of Invigilator’s  noticing the unfair means at the time of using the same in the examination  hall which is also corroborated from the answers given which appears to be  based on the smuggled materials.  Dr. Rajeev Dhawan drew our attention to  the grounds of appeal in Letters Patent Appeal No. 147 of 1988 filed in the  Patna High Court by respondent No.1 and pointed out that it was not the case  of respondent No.1 that the learned Judges of the Division Bench had not  undertaken the exercise of perusal of the records by themselves as did by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

learned Single Judge.  A perusal of the grounds of Letters Patent Appeal  would show that respondent No.1 has not raised any grounds in that regard.

Per contra Mr. M.N. Rao, learned senior counsel for respondent No.1  submitted that the written examination was held on 12.02.1983 and the result  was declared after the efflux of two years on 08.03.1985 and that respondent  No.1 was a successful candidate and as a sequel to the publication of the  result, respondent No.1 was asked to appear in the oral interview on  08.04.1985 and the respondent appeared for oral interview and gave his first  choice for the post of Deputy Superintendent of Police and second choice for  the post of Deputy Collector.  He submitted that this sequence of events and  lapse of over two years from the date of examination is not consistent with the  statement that any complaint was made or was pending against the  respondent as stated in paras 7 and 8 of the special leave petition.  He  submitted that on receipt of the charge-sheet, respondent No.1 filed an  application before the Special Executive Officer of the Commission for  allowing him to see certain records and to furnish him specimen signatures of  Invigilator but the access of these documents was denied and no specimen  signatures were furnished and, therefore, the principles of natural justice were  violated and adequate opportunity was denied to the first respondent.  He  also denied that the answer-sheet was based on material smuggled from  outside.  He also submitted that no adverse inference can be drawn from the  facts stated in the special leave petition that on the main page of the answer- sheet there are ink marks which are in different ink than the one used in the  answer-sheets.  According to the learned senior counsel for the respondent,  the interpretation by the Division Bench of the High Court is consistent with  the rules.  He has  further contended that respondent No.1 was never  charged for adopting unfair means in the General Knowledge paper and,  therefore, the impugned order is bad.  He has further contended that after  publication of the result of the written test, two years after the examination  was held showing respondent No.1 was a successful candidate, the  Commission was not justified in rejecting the answer papers of the General  Knowledge.  Mr. Rao relied upon a decision of this Court in the case of  Haryana Urban Development Authority and Another vs. Roochira  Ceramics and Another (1996) 6 SCC 584 (page 586 para 4) and submitted  that the power under Article 226 is the power of judicial review and that the  High Court can only examine the procedural correctness and cannot go into  the merits of the controversy like an appellate authority.  He also relied on a  judgment of this Court in the case of Sterling Computers Limited vs. M/s M  & N Publications Limited and Others etc. (1993) 1 SCC 445 at 458 and  submitted that while exercising the power of judicial review, the Court is  concerned primarily as to whether there has been any infirmity in the  "decision making process" and by way of judicial review the Court cannot  examine the details of the terms of the contract which have been entered into  by the public bodies or the State and that the Court have inherent limitations  on the scope of any such enquiry.  

We have perused the records.  In our opinion, the argument advanced  by the learned counsel for the appellant merits acceptance.  We are of the  opinion that the Commission has jurisdiction to find out malpractices.  In the  instant case, the Chief Examiner reported to the Commission about the  adoption of unfair means by the writ petitioner, respondent No.1 in the  General Knowledge Paper.  Therefore, the Commission vide its memo No. 56  dated 12.08.1985 called upon respondent No.1 to show cause by 30.08.1985  as he was accused of having committed unfair means in the General  Knowledge paper.  It is also seen from the records that the Commission on  13.08.1985 published and declared the final result of the examination and a  request thereafter was made by respondent No.1 to the Special Executive  Officer of the Commission requesting to allow him to see the answer-sheets  of the other candidates who were appearing along with him in the said hall as  also the specimen signatures of the Invigilators who were invigilating the said  examination in the said hall.  Accordingly, on 15.08.1985, respondent No.1  was allowed to see his answer-book of the General Knowledge paper.  The  Commission, after considering the explanation offered by respondent No.1  and other materials, vide memo No. 109 dated 22.09.1986 decided to cancel

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

the answer-sheet of the General Knowledge Paper of respondent No.1 of the  said examination and also decided further to debar him from the said  examination.  It is also seen from the judgment and order of the learned  Single Judge that the answer-books of the first respondent in General  Knowledge along with few other answer-books of other candidates were  produced for inspection of the Court during the course of hearing and that on  23.05.1988, after perusal of the answer-books, an order was recorded to the  effect that some droppage of ink was found on the cover page of the answer- book and that the signature of the invigilator on the main answer book and the  additional answer papers appears to be of one Mr. R.P. Sao and that the  answer book number of other candidates, namely, 66452, 66453, 66454,  66455 and 66456 have been produced to show that the signature of Mr. R.P.  Sao on those answer books are wholly different than R.P. Sao’s signature on  the answer-book of respondent No.1 and they do not appear to tally with  those found in the answer-books of other candidates.  The learned Single  Judge has also rejected the explanation of respondent No.1 offered in this  regard.  The learned Judge has clearly found that the principal answer book  and the additional answer book contain the signature of Mr. R.P. Sao but Mr.  R.P. Sao’s signature on the answer books of the other candidates who were  sitting in the same room is wholly different and, therefore, it is crystal clear  that the present answer book was not at all written in the examination centre  and that the answer book had been subsequently substituted for the one  written in the examination centre and in that event there would be no question  of the invigilators noticing the use of unfair means at the time of using the  same in the examination hall.  In this background of facts, we are of the  opinion that the decision of the Commission in cancelling the answer paper of  respondent No.1 and the reasoning given by the learned Single Judge in this  regard cannot at all be faulted with.  In our view, it is true that there is some  delay in issuing the show-cause notice.  The delay also, in our opinion,  cannot at all be faulted with.  Things which may go unnoticed at one point of  time may be noticed subsequently and the same delay in noticing the  contumacious act at a later stage cannot at all be termed as illegal.  The  Commission is entrusted with the task of conducting examinations for the very  many public services under the State and the Commission is conducting  examinations and interviews for lakhs and lakhs of people every year.  While  undertaking this process, the delay may occur due to various unavoidable  reasons and at the same time this Court cannot close its eyes for the actions  initiated by the Commission of the grave charges levelled against respondent  No.1 herein though belatedly.  Respondent No.1 was given ample opportunity  to submit his explanation and the Commission after considering the entire  materials decided to cancel the answer-sheet of the General Knowledge  Paper of the said examination and also to debar respondent No.1 from the  said examination.

Rule 15 A of the Bihar Civil Services (Executive Branch) and Bihar  Junior Civil Service (Recruitment) Rules, 1951 is set out below: "15A. If any candidate is found guilty of â\200\223  (i)     resorting to any irregular or improper means for obtaining  admission to the examination; or  (ii)    impersonating another candidate or being impersonated by any  person at the written or viva voce examination; or (iii)   submitting fabricated document or documents which have been  tampered with; or (iv)    making statements which are incorrect or false; or suppressing  material information; or (v)     communication with any person for the purpose of getting help  or for aiding any other candidate; or (vi)    using any other unfair means in the examination hall; or (vii)   unruly behaviour in the examination hall or violating any  instruction issued by the Commission;

he may be expelled from the examination hall by the Commission or  by any person authorised by them in this behalf.  In such cases, the  Commission may also invalidate his answer books or deduct such  marks as they consider fit and in addition to rendering himself liable to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

criminal prosecution, the candidate may be debarred either  permanently or for a specified period â\200\223  (a)     by the Commission from admission to any examination or  appearance at any interview held by the Commission for selection  of candidates; and (b)     by the State Government from employment under Government."

It is clear from the perusal of the said rule that the Commission is  entitled to initiate action against any candidate if the candidate is found guilty  of resorting to any irregular or improper means for obtaining admission to the  examination or using any other unfair means in the examination hall (clause  vi) if any candidate is found guilty he may be expelled from the examination  hall or the Commission may also invalidate his answer-books or may debar  the said candidate either permanently or for a specified period.  The Division  Bench in their judgment while interpreting the above rule has observed that  there was no allegation against respondent No.1 of adoption of any unfair  means in the course of examination and the Commission after two years of  publication of the result initiated action against respondent No.1.  The  interpretation given by the Division Bench of the rule is not correct.  Clause  (iii) of the Rules specifically provides that if a candidate is found guilty of  submitting fabricated document or documents, which have been tampered  with or as provided in Clause (vi) found to have used any other unfair means  in the examination hall, he can be dealt with appropriately under the Rules.  

A perusal of the show cause notice issued to respondent No.1 in  Memo No. 56/P.S.C./C.C.E. dated 12.08.1985 clearly go to show that the  charge against respondent No. 1 was for adoption of unfair means in the 31st  Combined Competitive Examination.  We have already extracted the charges  against respondent No.1.  By issuing the said show-cause notice an  opportunity was given to respondent No.1 to offer his explanation with regard  to the charges.  The proceedings dated 22.09.1986 (annexure-2) clearly  reveal that the explanation offered by respondent No.1 dated 15.04.1986 with  regard to the charges had been considered in detail by the Commission and  the Commission after due consideration has decided to cancel the answer- sheet of the General Knowledge Paper and also decided to treat respondent  No.1 as debarred from the said examination.  The Authorities of the  Commission have, in our opinion, acted within the four corners of the rules,  regulations and executive instructions.  They have adhered to the rule of law.   The Division Bench has characterized the entire exercise by the Commission  in cancelling the respondent’s examination as vitiated by illegality and  procedural impropriety.  We are unable to appreciate the above observation  made by the Division Bench.  In our opinion, the Courts can certainly examine  whether the decision making process was reasonable, rationale and not  arbitrary on the facts and circumstances in each case.  There has been no  infirmity in the decision making process by the Commission.  We, therefore,  hold that the impugned action initiated by the Commission in cancelling the  examination of respondent No.1 and debarring him is well-founded and calls  for no interference.  The grievance of respondent No.1 that he was not  allowed to see the answer-books of other candidates in the concerned subject  nor the specimen signature of the Invigilators of that centre were produced  before the Court are shown to the first respondent.  In this regard, respondent  No.1 has miserably failed to request the Division Bench to see the answer- books by themselves and also permit him to peruse the same.  Such a  request made by Mr. M.N. Rao before us at this distance of time cannot at all  be countenanced.

The appeal filed by the Commission stands allowed and the order of  the Division Bench is set aside.  However, there will be no order as to costs.