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2023 Supreme(J&K) 459
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
MOKSHA KHAJURIA KAZMI, J.
Vinkal Sharma and Others – Petitioners
Versus
UT of J&K and Others – Respondents
W.P. (C) No. 2580 of 2022 C.M. No. 3213 of 2023
Decided On : 31-08-2023
Advocate Appeared:
For the Petitioners: Rohit Matoo, Abhishek Gupta.
For the Respondents: Amit Gupta, Abhinav Sharma, Sidhant Gupta, Pranav Kohli, Arun Dev Singh.
Headnote:(A) Jammu and Kashmir Service Selection Board Act - Articles 14 and 16 of the Constitution of India - Recruitment process and tendering - Petitioners challenged the awarding of examination contracts to agencies with alleged past misconduct, citing concerns of fairness and transparency - The court ruled on maintainability and locus standi regarding the petitioners' apprehensions about the tender process. (Paras 2, 42 and 70)
(B) Blacklisting - Legal principles on blacklisting an agency - The court determined that once the period of blacklisting expires, the agency regains eligibility to participate in tender processes. (Paras 21, 50 and 60)
(C) JudICIAL Review - The scope of the court's judicial review over tender conditions is limited, emphasizing the government's discretion in the contracting process unless found arbitrary or discriminatory. (Paras 56 and 70)
Facts of the case:
Petitioners, having responded to recruitment advertisements, sought the cancellation of contracts awarded to agencies previously blacklisted or involved in irregularities. Their concerns stemmed from a history of malpractices by the awarded agency.
Findings of Court:
The court emphasized the need for maintaining public trust in recruitment processes and acknowledged the government's establishment of a Review Committee to investigate the tendering procedures.
Issues: The primary questions addressed involved the maintainability of the writ petitions, the implications of past blacklisting on eligibility for tenders, and whether the petitioners had locus standi to challenge the contracting process.
Ratio Decidendi: The court ruled that the petitioners lacked locus standi as they had participated in the examinations, reinforcing the rule that blacklisting should not perpetuate indefinitely.
Result: Writ petition disposed of, directing a Review Committee to submit its report on the recruitment process.
| Table of Content |
|---|
| 1. need for secrecy in recruitment process (Para 1 , 2) |
| 2. challenge to contracts with tainted companies (Para 3 , 4 , 5) |
| 3. previous irregularities in exam processes (Para 6 , 7) |
| 4. modification of tender terms regarding blacklisting (Para 8 , 9 , 10) |
| 5. concerns about fairness in public examinations (Para 12 , 14) |
| 6. defense of tender process by respondent (Para 15 , 16) |
| 7. measures taken for fair examination conduct (Para 22 , 23) |
| 8. private respondents' experiences with examination conduct (Para 36 , 37) |
| 9. issues for judicial consideration (Para 41 , 42) |
| 10. maintainability of writ petition based on locus standi (Para 46 , 48 , 50) |
| 11. court directives based on committee report (Para 64 , 71 , 72) |
JUDGMENT :
MOKSHA KHAJURIA KAZMI, J.
1. There can be no better prologue to this judgment than the words of George Orwell:
“If you want to keep a secret, you must also hide it from yourself.”
2. By this petition, the petitioners herein are seeking a fair process of recruitment with absolute secrecy, not only by the recruiting agency but also by the agency conducting the examination. They have raised this Orwellian concern about the alleged possibility of modern technology being misused and abused by respondent Nos. 2 and 3.
3. The petitioners, who are 40 in number and are aspirants, have responded to the advertisement for various examinations to be conducted by the Jammu and Kashmir Service Selection Board (hereinafter to be referred to as “JKSSB”). The petitioners, during the pendency of the petition, have already participated in two examinations, i.e. Junior Engineer (Civil), Jal Shakti Department and Sub-Inspectors, Home Department. This Court has been called upon to examine the apprehensions with respect to the alleged abuse or misuse by respondent No. 2, i.e. M/s Aptech Limited.
4. The petitioners have called into question the contract given by respondent No. 1 in favour of respondent No. 2 pursuant to e-Tender Notice No. 19 of 2022 dated 30.09.2022, for the conduct of various examinations through online Computer Based Test (hereinafter to be referred to as “CBT”) in favour of respondent No. 2 on the ground that respondent No. 2 has a tainted past record and has also been blacklisted once.
5. The petitioners have also challenged the contract given by respondent No. 1 in favour of respondent No. 3, pursuant to e-Tender Notice No. 20 of 2022 dated 17.10.2022, for selection of service provider for review/audit of examination process of CBT in favour of respondent No. 3.
Factual matrix:
6. In the year 2021, the tender was allotted by respondent No. 1 for conduct of its various examinations through CBT mode in favour of NSEIT Ltd. Company and after the complaints of various irregularities and malpractices were pointed out by the aspirants in the conduct of exam, the mode was shifted from CBT to Optimal Mark Recognition (OMR) mode. Accordingly, fresh tenders were floated for conduct of examinations based on OMR mode on 07.12.2021. The tender was allotted to Merit-Trac Services Pvt. Ltd., overlooking the fact that it was already blacklisted.
7. The result of three examinations conducted by Merit-Trac Services Pvt. Ltd. i.e. Junior Engineer (Civil), Jal Shakti Department, Sub-Inspectors, Home Department and Finance Account Assistant (FAA) were scrapped, owing to various malpractices, cheating and irregularities in which the CBI has already filed its charge-sheet.
8. The mode of examination was shifted from OMR to CBT and fresh e-Tender Notice No. 18 of 2022, dated 05.09.2022, was issued by respondent No. 1, for the conduct of examinations through CBT mode in which one of the conditions in affidavit was that the agency must not be previously blacklisted. The said condition of the affidavit is reproduced as under:
“3. The firm has never been blacklisted in the past by any Government/Private Institution of the country and there is no case pending in any Investigation agency.”
9. Later the corrigendum No. 01 dated 14.09.2022 was issued and this
