Sekarreporter1: https://twitter.com/sekarreporter1/status/1339526043036569600?s=08 [12/17, 16:31] Sekarreporter1: [12/17, 16:30] Sekarreporter1: Justice Audinatham Justice V Parthiban appoints retired Justice. …. to into Alleged irregularities

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    [12/17, 16:31] Sekarreporter1: [12/17, 16:30] Sekarreporter1: Justice Audinatham

Justice V Parthiban appoints retired Justice. …. to into Alleged irregularities and alleged grievances of the candidates in the examination centres – held as per notification of Teacher Recruitment Board.
[12/17, 16:30] Sekarreporter1: W.P.35198 OF 2019

1 N.SRIRANJINI [ PETITIONER ]
W/o. R. Srinivasan 11/2 5th Street
Subburayan Nagar Kodampakkam chennai 600
024

Vs

1 Teachers Recruitment Board [ RESPONDENT ]
Rep. by the Chairman 4th Floor EVK Sampath
Maligai DPi campus College Road Chennai
600 006

2 The Director of School Educa
tion O/o the Directorate of School
Education College Road Nungambakkam Chennai

——
Prayer

Call for the records pertaining to the Impugned final Selection List for the Certificate Vertification dated 28.11.2019 for the direct Recruitment of Computer Instructors Grade I (Post Graduate Cadre) based on notification dated on 01.03.2019 as online computer Bsed Examinatin on the file of the Respondent No. 1 and quash the same as illegal and further direct the Respondent No. 1 to and quash the same as illegal and further direct the Respondent No. 1 to conduct Re examination for all the candidates who appeared the examination conducted by the
Respondent No. 1 on 23.06.2019 and 27.06.2019
__________________________________________________________________

W.P.Nos.35198, 35202 & 35539 of 2019
and W.P.Nos.693, 2549 & 2640 of 2020
and
W.M.P.Nos.35985, 35988, 36388, 36390, 36391 of 2019
and W.M.P.Nos.838, 840 841 & 2965 of 2020

V.PARTHIBAN,J.

The matter is taken up through web hearing.
This batch of writ petitions is in relation to the notification issued by the Teachers Recruitment Board, hereinafter referred to TRB in No.9/2019 dated 01.03.2019 inviting applications from the eligible candidates for recruitment to the post of Computer Instructor Grade-I (Post Graduate Cadre). Earlier to the notification, the Government issued G.O.Ms.No.26 (School Education) Department dated 12.02.2019 sanctioning 814 posts of Computer Instructor Grade-I. The notification was issued in furtherance of the G.O. to fill up the vacancies in relation to the sanctioned posts.

2. In response to the notification, 26,882 candidates applied for consideration. According to the TRB, for the first time, on line examination was introduced for the said recruitment, as the Board found that the earlier method of recruitment, namely OMR type written examination, there were mal-practices and to avoid such irregularity and also to infuse more transparency and credibility in the recruitment process, on-line examination was introduced. In pursuance of the above notification, the examination was held on 23.06.2019 in 119 centres identified by the TRB and all the candidates were directed to participate in the examination in the respective allotted centres. According to the TRB, in the examination conducted on 23.06.2019, it was brought to the knowledge of the Board that in some centres, there were server issues and the candidates could not complete their examination. There were also protest by the candidates concerned, complaining of certain discrepancies in the conduct of the examination namely, that no CCTV cameras were placed in the examination centres and several candidates were allowed to carry their mobile phones and many candidates were allowed to complete the examination in fact, in excess of 3 hours duration of the examination. The protest was also widely televised in various television channels and in that regard, the Chairman of the Board had also given interview acknowledging that there were certain technical glitches in few centres where the on-line examination could not be concluded properly.

3. Several writ petitions were filed before the Madurai Bench and also before the Principal Bench by the candidates, who claim to have been aggrieved by the manner in which the examination was conducted in few centres. In the meanwhile, the Board identified three centres where there were technical problems relating to working of the server and also in those three centres re-examination was conducted on 27.06.2019 after rectifying the server problems. The Board announced the date of re-schedule of the examination in its website on 24.06.2019 informing the candidates that who were not able to complete the examination due to the server problem, were directed to appear for the re-examination which was scheduled on 27.06.2019.

4. While the matter stood thus, in one writ petition vide W.P.(MD)No. 14362/2019 dated 26.06.2019, this Court directed the Board to conduct personal enquiry by the Chairman along with the Director of Government Examination. The Court further directed the Chairman to take appropriate action on the complaints filed by the candidates after enquiry. According to the Board, as per the above order of this Court, a detailed enquiry was conducted and ultimately, it was found that the allegations of the candidates were without basis and according to the Board, none of the aggrieved candidates was able to produce any evidence or material that there was any large scale violation of the examination procedure. The Board also requested the District Magistrate concerned to conduct enquiry in that regard and ultimately, after scrutiny of the report, the Board finally concluded that no malpractice was reported in any of the centres.

5. In view of the fact that several writ petitions were filed and pending before this Court alleging various irregularities in the examination, the Board could not finalise the list for considerable time, despite the fact that out of 119 centres, the complaints were only in relation to few Centres. In those centres server failure appeared to be the major cause for complaints, resulting in confusion and disappointment among the candidates who participated in the said Centres. Other than computer related issues, there was hardly any allegation of any malpractice attributed to any officials in that connection.

6. Be that as it may, subsequently, certificate verification was conducted in various Districts from 08.01.2020 to 10.01.2020. This Court, after hearing the present batch of writ petitions, questioning the validity of the examination on the basis of multifaceted allegations, has granted interim injunction on 08.01.2020 restraining the Board from finalising the subject appointments. This order was passed in W.P.Nos.453, 266, 271, 272 and 276/2020. In view of the injunction granted by this Court, no further progress could be made, despite the fact that examination was over and the final result were published on 25.11.2019 itself.

7. However, the interim order of injunction granted by this Court on 08.01.2020 was subsequently, modified by this Court on 26.08.2020, by permitting the respondents to go ahead with the appointment process, pursuant to the notification and the respondents were cautioned not to favour appointment to any one who was not eligible or qualified as on 10.04.2019. The modification order was issued in the context of the challenge, namely that the Board did not follow the cut off date prescribed in the notification for acquiring the eligible qualification by the candidates and some of the candidates who had acquired the qualification after the cut off date i.e., 10.04.2019 had been given appointments. Thereafter, the respondents were also directed to file a report for the action taken by the Board in regard to the candidates appointment who had acquired qualification after the cut off date. This direction was issued on the basis of the submission made by the learned Additional Advocate General appeared on that day that already action had been initiated to cancel such appointments.

8. Subsequently, this Court was deluged with requests by various counsels representing several candidates that the cut off date issue was not the only dispute in the impugned selection but there was so many other irregularities which have crept in, in the selection and the irregularities were widely reported and televised. The defective selection was therefore on the public domain. In the circumstances, the counsels requested that the injunction originally granted by this Court to be continued as the aspiring candidates ought not be deprived of the fair opportunity to compete in the selection. On consideration of the submission of the learned counsel , this Court on 29.09.2020, clarified that the direction issued on 26.08.2020 modifying the original injunction order is to be restricted only to the issue of cut off date and such clarification would not be made use of by the respondents to complete the process of the entire recruitment. Thereafter, the writ petitions were heard on a few occasions and the arguments were advanced by the learned counsels highlighting the irregularities happened in various centres. All the counsels who were representing the aggrieved and the unsuccessful candidates uniformly and vociferously submitted before this Court that in view of the large scale discrepancies noticed in the conduct of the examination, the subject recruitment ought not be allowed to fructify into its final phase of granting of appointment from the so-called selection list. According to these counsels that any appointment to be issued in the face of the allegations of irregularities would not be in order and would be against public interest.

9. Mrs.Dhakshayini Reddy, learned counsel in particular, pointed out that some irregularities like the candidates carrying cell phones in the examination centres, candidates freely conferring with each other without being supervised by any invigilator and also the candidates were allowed to complete the examination well outside the three hour duration etc.. According to her, some of the candidates were in the examination centre upto 6.00 p.m. or more when the scheduled time of the examination was 10.00 a.m to 1.00 p.m. In her writ petition, W.P.No.35539/2019, she had listed out 18 centres which according to her, such irregularities had taken place.

10. In fact, when the respondents themselves have identified three centres for re-examination, after noticing certain server related problems during the time of examination, it was argued by the learned counsels that during the re-examination, no uniform method was adopted. Even in the said centres, some candidates were able to complete the examination and some of them could not. When the re-examination, was conducted in those centres not all the candidates were subjected to re-examination. According to the counsels, in view of the allegations being partially admitted by the respondents, the recruitment process and the selection have to be revisited from all over again.

11. Per contra, the learned Advocate General appearing for the respondents would submit that the allegations of the aggrieved candidates are absolutely without any basis and since these candidates being unsuccessful in the examination, have come up with exaggerated case of irregularities in the conduct of the examination. According to him, out of 119 centres, only 3 centres where the Board noticed server related problems and the Board took immediate and effective steps to rectify the same and conducted re-examination immediately on 27.06.2019. The result of the re-examination was also considered along with the result of the original examination held on 23.06.2019 and as per the notification, normalisation method had also been adopted and followed. It is pertinent to mention here that the method of normalisation adopted by the Board is also one of the challenges in Writ Petition No.2640/2020 which is also taken together for disposal along with the present batch of writ petitions.

12. Learned Advocate General would submit that it was not the case of any of the petitioners that there were any malpractices in the disputed centres. There were of course protests and commotion in the centres due to faulty working of the server and no ill motive could be attributed against any official towards the technical hitches unfortunately surfaced during the time of the examination.

13. According to the learned Advocate General, even in respect of the disputed centres which were identified by the Board itself, namely the following centres:
(1) KSR College of Engineering, Tiruchengode, Namakkal District (2) Annai College of Engineering & Technology, Kumbakonam, Thanjavur District.
(3)Kongunadu College of Engineering & Technology, Thiruchirappalli District.
re-examination was conducted without any further technical problems. Therefore, it does not lie in the mouth of these petitioners to continue their allegations and impede, the respondents from going ahead in completing the recruitment process. According to him that the selected candidates have been waiting for more than a year due to pendency of the challenge before this Court. The fact of the matter is out of 119 centres baring the 3 centres, no problem was noticed or atleast no complaints with any material evidence was brought to the knowledge of the Board. The candidates selected from the undisputed 116 centres have not been issued appointment order as on date at the instance of a few unsuccessful candidates. He would therefore, submit that it is not fair for handful of unsuccessful candidates to hold up the entire appointment of the selected candidates.

14. Learned counsel, particularly, Ms.Dhakshayini Reddy, appeared for some of the writ petitioners would submit that some of the candidates have taken visual footage in one or two of the disputed centres to substantiate the allegations and impressed upon this Court to have a look at the footage to appreciate the challenge. At this suggestion, this Court earlier directed the footage to be seen by some of the counsels appeared for the petitioners and also the learned Special Government Pleader Mr.C.Munusamy, on behalf of the respondents in order to ascertain as to the validity of the challenge of these petitioners. The suggestion was carried forward and then ultimately, this Court was requested to view the footage to ascertain the magnitude and genuineness of the challenge.

15. This Court in response to the above request has watched the footage taken by the candidates relating to one of the centres, KSR College of Engineering, Tiruchengode, Namakkal District and found that the allegations in respect of that centre appeared to have some substance. Although, it cannot be conclusively established whether the candidates moved around freely in the examination centre, conferring with each other carrying mobile phones happened during the examination hours or outside the examination hours or not. This Court has also watched the protest of candidates in some centres questioning the procedure and the manner in which the examination was held and conducted. This Court has also watched the television interview given by the Chairman himself acknowledging the fact that there were technical problems in some centres and immediate steps taken by the Board to rectify the same.

16. Learned counsels for the petitioners would therefore, submit that the sample footage shown is only tip of the ice berg and lot more could be guaged, if CCTV footages in respect of several other centres could be summoned and watched. According to these counsels that on enquiry it was found that the Board has not installed CCTV cameras in several centres and therefore, factually what happened in those centres cannot be verified at all. Therefore, the counsels requested to draw adverse inference against the respondents and set aside the entire selection.

17. Although it cannot be ruled out that there was no problem at all in some examination centres, yet to hold the entire selection as null and void in face of the fact that this dispute is in relation to only 3 centres out of 119 centres would amount to throwing the baby out with the bath water. This Court in the fitness of things is not inclined to accept the self-serving averments of the unsuccessful candidates and embark upon a speculative exercise as to whether the centres which did not have CCTV cameras could have also witnessed the kind of so called irregularities in respect of the centres where re-examination was conducted. It is always easier to make allegations and malign the entire recruitment process, but unless the allegations are supported by unimpeachable material evidence, this Court is not persuaded to be swayed in favour of the unsuccessful candidates. This Court is inclined act on the basis of mere allegations against the recruitment and unsettle the entire recruitment itself which would be gravely detrimental to the interest of the hundreds of selected candidates from the centres where there was no dispute at all.

18. As rightly submitted by the learned Advocate General, out of total 119 centres, where the examination was conducted on 23.06.2019, though some of the petitioners have alleged violations in 18 centres, ultimately, the problem was noticed only in 3 centres and in those centres, re-examination was also conducted after rectification of the technical hitches. In agreement with the submission of the learned Advocate General, this Court is not proposed to expand its area of concern beyond the identified 3 centres viz.,(1)KSR College of Engineering, Tiruchengode, Namakkal District, (2)Annai College of Engineering & Technology, Kumbakonam, Thanjavur District, & (3) Kongunadu College of Engineering & Technology, Thiruchirappalli District.

19. This Court confronted the learned Advocate General and the learned Special Government Pleader as to what the respondents have proposed to do in the disputed centre, as some of the petitioners/unsuccessful candidates were not satisfied with the re-examination conducted, as they alleged irregularities even in the conduct of the re-examination. Learned Advocate General and the learned Special Government Pleader would revert to this Court after instructions that the complaining petitioners have no legitimate cause, since they were unsuccessful and disgruntled candidates, unwilling to reconcile to their failure to clear the examination and are now attempting to stall the entire recruitment with the wild and baseless allegations. It was submitted on behalf of the respondents that the Board has taken immediate and effective steps to rectify the mistake and thereafter, there cannot be any further issues on the recruitment. On behalf of the respondents, a request is made that even assuming there were irregularities in those three Centres, the selected candidates from other majority of centres could be favoured with the appointments as their appointments have not come under cloud at all.

20. The narrative thus far impells this Court to confine its consideration only in respect of 3 disputed centres. Although the allegations were made against the Board for improper conduct of the examination in several centres, in the absence of any material evidence, the allegation remained as allegation and therefore, no credence could be attached. Therefore, the bone of contention is only in respect to the centres where re-examination was conducted on 27.06.2020. A submission made on behalf of the respondents that in those three Centres, the discrepancies were immediately attended to and re-examination was conducted. But this Court finds that there appears to be some substance in the allegation against those centres and their misgivings and apprehensions expressed by the candidates concerned may have to be addressed fairly and justly. This Court, while exercising its extraordinary jurisdiction under Article 226 of the Constitution, cannot enter into the multi layered factual controversies in relation to the conduct of the examination in those centres.

21. It is trite in law to hold that in a dispute of this nature where there are factual competing claims, Article 226 jurisdiction is not an efficacious remedy as this Court may not be competent to come to a conclusion as to which party is on the right side. Nevertheless, this Court cannot be a mute spectator and abdicate its Constitutional responsibility when allegations have been made by some of the stakeholders against public recruitment, when fundamental rights of the candidates have been involved, as they being denied fair and just opportunity to compete in the examination. Therefore, this Court has to strike a balance between the public interest which the Government seek to represent and interest of the candidates who have participated in the examination and were unsuccessful because of certain irregularities that have taken place during the examination in the centres concerned. Whether the aggrieved candidates have any legitimate cause for complaining as being truly affected by the irregularities or not, yet as a matter of principle of extending a fair opportunity to the unsuccessful candidates towards redressal of their nurturing grievances, this Court is of the considered view that a thorough enquiry is to be initiated and conducted and a report to be obtained as to the veracity of the allegations of the candidates concerned. Further, the response of the respondents to the allegations and the remedial action taken in that regard, the stand of the Board that the allegations did not survive, immediately after the technical problems were attended to and rectified by the conduct of the re-examination is also to be examined in order to decide the fate of the candidates who were ultimately selected or denied selection from these Centres.

22. At the same time, this Court is also in agreement with the submission made by the learned Advocate General that when the allegations are confined to three examination centres as indicated above, the selected candidates from the other centres need not be kept waiting in the wings as those candidates would be fervently hoping to be favoured with the appointments on the basis of their selection. In consideration of their interest, this Court does not think it is fair and just to hold up their appointment in the bargain, pending finalisation of the enquiry in respect of the three centres. The hope as defined by Greek philosopher Aristotle is a ‘A Waking Dream’ and therefore, the Dream of the selected candidates must not be allowed to remain as dream but must be allowed to be transformed into reality.

23. In that benign view, leaving aside three centres, the respondents are at liberty to go ahead with the appointments of the selected candidates from other centres and in that process, they should ensure that none of the candidates from the disputed three centres should be favoured with the appointments. To that extent, the writ petitions challenging the entire recruitment shall stand dismissed.
24. When the orders are being pronounced, the learned Advocate General submitted that in respect of the same selection, there are several writ petitions filed before the Madurai Bench and the Madurai Bench has granted interim orders against the selection and appointment.

25. Since this Court has issued directions in this batch of writ petitions giving liberty to the Government to go ahead with the appointment in respect of the undisputed 116 Centres, the interim orders passed by the learned Single Judges of the Madurai Bench in respect of the present selection stand clarified/modified to the extent of the directions as contained herein.
26. ‘To err is human’ is the old saying but, in new age after the advent of computerisation, the saying is appended with ‘To complicate you require a computer’. As far as the three centres are concerned, though from the respondents, it was argued that even in those centres no irregularities could said to have happened after the re-examination, as stated above, this Court finds that there is substance in the allegation and this Court has seen the footage and therefore, this Court is of the view that corrective measures is required to be initiated and completed by an impartial enquiry mechanism to allay the residuary apprehensions of some of the unsuccessful and aggrieved candidates. In that view of the matter, this Court appoints a retired Judge of this Court, Justice Mr.N.Authinathan (Retd.), to be a One-man Committee to conduct a thorough enquiry into the allegations of the aggrieved candidates in the following centres, viz.,
1. KSR College of Engineering, Tiruchengode, Namakkal District
2. Annai College of Engineering & Technology, Kumbakonam, Thanjavur District.
3. Kongunadu College of Engineering & Technology, Thiruchirappalli District.
27. The learned Judge is requested to receive the objections from the aggrieved candidates confining to the above three Centres and also to receive appropriate response from the respondents’ side and thereafter, prepare and submit a report to this Court. In the process, the learned Judge is also requested to evolve his own procedure for receiving the complaints from the candidates concerned by proper announcement through media.

28. The respondents are directed to provide a modest office space to the learned Judge with Secretarial and administrative assistance to aid the learned Judge for smooth completion of the enquiry. The learned Judge may also take into consideration the views of the selected candidates as well from these centres. The respondents are directed to provide adequate facilities and effective assistance to the learned Judge to enable him to discharge his function without any impediment. The learned Judge is requested to submit his report on or before 01.02.2021.

29. The learned Special Government Pleader Mr.C.Munusamy, is directed to co-ordinate with the learned Judge and the officials towards completion of the task.

30. On the basis of the report of the learned Judge, further orders will be issued by this Court in respect of the three examination Centres coming under the purview of the present enquiry.

31. The remuneration of the learned Judge for undertaking the enquiry and completing of the same is fixed at Rs.3,50,000/-(Rupees Three Lakhs and Fifty Thousand only). This remuneration is exclusive of the actuals, the learned Judge may incur in discharge of his function.
32. The respondents are directed to pay 50% of the remuneration to the learned Judge on receipt of the order and the remaining 50% shall be settled on completion of the enquiry. The learned Judge is requested to accept his assignment at once, after the order is made available to him and may commence his process of enquiry immediately with due communication to the respondents.

Post all the Writ Petitions on 02.02.2021 for further hearing.

17.12.2020
vsi

 

Copy to

Justice Mr.N.Authinathan (Retd.)
No.37, A Block,
Lakshmi Nivas Apartments,
Marshalls Road,Egmore, Chennai – 600 008.
Cell No.9443084123

Note:
Issue order copy and upload today itself(17.12.2020)

 

 

V.PARTHIBAN,J.

vsi

 

 

Pre-delivery order made in
W.P.Nos.35198, 35202 & 35539 of 2019
and W.P.Nos.693, 2549 & 2640 of 2020
and
W.M.P.Nos.35985, 35988, 36388,
36390, 36391 of 2019
and
W.M.P.Nos.838, 840, 841
& 2965 of 2020

 

 

 

17.12.2020

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