Ashok Bhushan, J.
1. Heard Sri K. Ajeet, learned Counsel for the petitioners and Dr. Sri Y.K. Srivastava, learned standing counsel.
2. By this writ petition the petitioners have prayed for quashing the result dated 5.10.2001 with respect to written test of Lekhpal. Prayer for quashing the order dated 28.10.2005 passed by the District Magistrate, Kanpur Dehat cancelling the candidature of the petitioners has also been permitted to be added by order dated 22.2.2006. A writ of mandamus has also been sought commanding the respondents No. 1 and 2 to issue appointment orders to the petitioners for the post of Lekhpal.
3. Brief facts necessary for deciding the writ petition are;
An examination for Lekhpal training was conducted by the Board of Revenue, U.P. Lucknow on 5.11.2000. The said test contained objective questions of four subjects. The evaluation of the answer sheets was entrusted by the Board of Revenue to an outside agency namely, I.V.P.S. Mumbai. After evaluation of answer sheets the result was forwarded which was published in news paper on 5.10.2001. The petitioners' result were noted to have been cancelled due to use of unfair means in the examination. The writ petition was filed in this Court on 11.10.2001 challenging the said cancellation of result. This Court passed an interim order on 6.12.2001 staying the order cancelling the result. It was however, left open to the respondents to pass fresh order after giving opportunity to the petitioners. The petitioners were permitted to be called for interview provisionally but the result was directed not to be declared. A show cause notice was issued by the District Magistrate, Kanpur Dehat on 18.2.2005 to both the petitioners asking the petitioners to show cause as to why their candidature be not cancelled. Petitioners submitted a reply to the show cause notice vide letter dated 21.10.2005. The District Magistrate passed an order on 28.10.2005 cancelling the candidature of the petitioners as well as the result on the ground of using unfair means in the examination. Petitioners' case in the writ petition is that when the result was declared on 5.10.2001 no opportunity was given before cancelling the result of the petitioners. The petitioners have not adopted any unfair means in the examination. The petitioners were not seated next to each other rather there was one more examinee in between them. Petitioners' result has been cancelled only on suspicion.
4. A counter affidavit has been filed by the respondents in which respondents brought on record a copy of the guide lines prepared by the out side agency who was entrusted evaluation of the answer sheets for finding out the cases of use of unfair means. The said guide lines have been filed as Annexure C.A. ll. Paragraph 3 and 4 of the guide lines which is relevant for the present case is extracted below :
3. After examination, IBPS attempts to detect cases of unfair means on the basis of analysis of responses given by the candidates.
THEORETICAL CONSIDERATIONS IN DETECTING AND ESTABLISHING COPYING CASES
In multiple choice objective type ;tests used by IBPS there are 5 choices/alternative answers in each question out of which only one is the right answer and the other 4 are wrong answers. As far as possible all choices are made attractive enough. Therefore, if the candidate does not happen to know the correct answer, he would select one of the 4 wrong answers by chance. Thus probability of picking a particular wrong answer is 1 out of 4 or 1/4 or 0.25. Similarly, if the other candidate of the pair also does not happen to know the right answer to the same question he would also select one of the 4 wrong answers. In such a case there will be 16 possible combinations of wrong answers for the pair candidate. Therefore, the occurrence of one question with identical wrong answers by a pair of candidates will be = 1/16 = (1/4) = (0.25)2. Similarly the probability of a pair of candidates having two questions with identical wrong answers would be (0.25)2 =(0.25)4. If it is continued in the same way, the probability of the pair marking wrong answers to 12 questions will be (0.25) 24 i.e. 0.00000000000000035. It means that one can be certain that such an event just cannot occur by chance.
It may also be noted that all the wrong answers may not be equally attractive. A popular wrong answer may be chosen by more than 25% of the candidates. Even if one assumes that 50% of these candidates answering a question pick up the particular wrong answer, the probability will be 0.50. Thus probability of each of the wrong answer for every question can be found out empirically also on the basis of actual answer papers of a sample of say about 10,000 candidates. Even with this probability of 0.50 for a wrong answer, the probability of a pair candidates selecting identical wrong answers (IWW) in 12 or more questions is very low and leads to the above conclusion. Besides, if the pair of candidates also has very few questions with different responses of Mismatches (i.e. different wrong answers), it further supports the conclusion regarding the pairs of candidates having copied from each other or one another.
4. Based on the above considerations while establishing a case for use of unfair means, we consider the following two important criteria:
(A) 1. The pair of candidates has 12 or more questions with identical wrong answers in a test (i.e. IWW 12 or more)
2. The number of questions with different responses is small i.e. less than5 in the test. (Mismatches 5 or less)
The above criteria leaves out some candidates who might have resorted to unfair means but may have very high score on the test(s). For example, a pair scoring 39 or above in a test of 50 items will have 11 or less questions wrongly answered. In this case IWW cannot exceed 11. In order to examine whether high scoring candidates have resorted to unfair means, different criteria are used. Those pairs of candidates are picked up who have 90% or above questions (45 out of 50) with matching answers. This group is considered on the following two criteria:
(B) 1. IWW5 or more (for 50 items test).
2. IWW 7 or more (for 75 items test).
3. Mismatch 5 or less (for 50 items test).
4. Mismatch 7 or less (for 75 items test)
The candidates under criteria (A) are established cases of use of unfair means beyond all reasonable doubts.
In the cases of candidates under criteria (B) use of unfair means is suspected. The Board/Organisation may further scrutinise these cases on the basis of :-
1. Performance in the Descriptive Paper (if any)
2. Performance in the interview.
5. Allegations against both the petitioners are that in paper of Hindi out of 50 objective questions both have given same answers for 49 questions and both have given 17 same wrong answers. There is only one question which has been differently answered by both the petitioners. With regard to general knowledge paper, it has been stated that out of 46 questions have been similarly answered by both the petitioners and there are 7 same wrong answers by both the petitioners and there are only two mismatches. These allegations were clearly mentioned in the show cause notice issued to the petitioners. The notices were replied stating that the seating arrangements were such that there was one student in between both the petitioners. Further the book- let were in four different series and it was not possible to copy from each other.
6. Learned Counsel for the petitioners, challenging the order, in support of the writ petition raised following submissions:
1. The guide lines for detecting the unfair means cases has been framed by the IVPS, Mumbai and has not been adopted by the District Magistrate and those guide lines being not statutory cannot be relied for cancelling the candidature of the petitioners.
2. The candidature of the petitioners have been cancelled only on account of suspicion and probability. The result cannot be cancelled only on suspicion of unfair means. Reliance has been placed on a judgment reported in (1998) 3 UPLBEC 2202 Kumari Shailja Bhalla and Ors. v. Secretary Madhvhamic Shiksha Parishad, U.P. Allahabad and Ors..
3. The order impugned also declares that the petitioners are unfit for government service which is nothing but serious stigma on the career of the petitioners. It was not open for the District Magistrate to observe that the petitioners are not fit for government service.
7. Learned standing counsel replying the submission of the petitioners contended that the guide lines framed by the IVPS are guide lines which have been prepared on scientific basis and has been uniformly applied in all cases of unfair means. It is contended that the guide lines have been prepared by the Experts which have been applied by the respondents and does not suffer from any infirmity. It is contended that the decision of the examining body regarding cancellation of the result has to be respected and given due weightage by the Court. Reliance has been placed on the judgments of the apex Court in Chairman J & K. State Board of Education v. Feyaz Ahmed Malik and Ors.; (1979) 2 Supreme Court Cases 339 Dr. M.C. Gupta and Ors. v. Dr. Arun Kumar Gupta and Ors.; 2001 (4) A.W.C. 2805 Sumit Kumar and Ors. v. U.P. Public Service Commission, Allahabad and Ors. and 2004 (2) A.W.C. 1385 (SC) U.P. Public Service Commission v. Subhash Chandra Dixit and Ors..
8. I have considered the submissions of counsel for both the parties and have perused the record.
9. The first submission of the counsel for the petitioners is that the guide lines framed by the IVPS for detecting of unfair means cases in the objective type of answers are the guide lines not framed by the District Magistrate or the State Authority hence cannot be applied. The respondents in the counter affidavit themselves have brought on record the copy of guide lines framed by the IVPS. Annexure C.A.I are the copy of guide lines along with the list of candidates established/suspected to have used unfair means. From the order of the District Magistrate dated 28.10.2005 it is clear that the examination for Lekhpal training has been conducted by the Board of Revenue U.P. Lucknow. Evaluation of the answer sheets have been admittedly done by the IVPS, Mumbai who along with the result has also submitted the list of suspected/established cases of. unfair means which result was implemented by the respondents. The submission pressed by the petitioners is that the guide lines having not been framed by the State cannot be pressed in service. It is relevant to note that in the writ petition at no where the petitioners have challenged the guide lines framed by IVPS nor there is any pleading that the said guide lines have not been adopted by the State respondents whereas the writ petition was also permitted to be amended by this Court vide order dated 22.2.2006. There being no pleadings in the writ petition challenging the factum of adoption of guide lines by the State Authorities, it is difficult to accept the submission that the guide lines were never approved/adopted by the State authorities. Furthermore, the result submitted by the IVPS Mumbai has implemented by the respondents and in the show cause notice issued to the petitioners by the District Magistrate dated 18.10.2005 the guide lines have been relied, the report of the IVPS on the basis of the guide lines has also been relied, it is clear that the said guide lines have found approval by the State Authorities in conducting of the examination as well as with regard to cases of unfair means adopted in the examination. The report submitted by the IVPS pertaining to unfair means has been uniformly applied and action has been taken by the respondents. The authority or body which is conducting the examination in absence of any statutory rules can regulate the conduct of examination by administrative instructions and evaluation having been entrusted to an outside agency no error has been committed by the respondents in accepting the recommendation of the said agency and acting thereon. Thus the submission of the counsel for the petitioners that the guide lines framed by the IVPS cannot be relied upon or acted upon, cannot be accepted.
10. The submission next pressed by the counsel for the petitioners is that the petitioners' result has been cancelled only on basis of suspicion and probability. He submits that there was no report of invigilator against the petitioners adopting unfair means in the examination. There is no grounds to accept the claim of the respondents. Paragraphs 3 and 4 of the guide lines as quoted above indicates that two criteria have been provided i.e. criteria A and B. The answers being only objective type, it cannot be said that there is any error in formulating mechanism for detecting use of unfair means. It is admitted position that the petitioners were sitting in the same room and there was only one student in between them. It is true that there was no report of invigilator against the petitioners but the criteria (A) and (B) as noted above have been framed for detecting those cases where invigilator could not detect any unfair means in the examination Hall. The petitioners' counsel has much emphasised and contended that the book let given to the petitioners were of different series, there was no question of copying from each other. This ground was also emphasised by the petitioners in their reply. The District Magistrate in the impugned order has noted this fact and has observed that even though the answer sheets of the petitioners were different but each answer book contained the same questions. The criteria adopted for detecting the unfair means can neither be said to be arbitrary nor unreasonable.
11. The apex Court in Chairman J. & K. State Board of Education v. Feyaz Ahmed Malik and Ors. (supra) has observed that the reports of Experts with regard to cancellation of examination has to be respected by the courts following was observed by the apex Court in paragraph 18 :
18. While judging the authority or otherwise all steps taken by authorities of the Board to take action against candidates taking resort to mass malpractice it should be borne l;in mind that the Board is entrusted with the duty of maintaining higher standards of education and proper conduct of examinations. It is an expert body consisting of persons coming from different walks of life who are engaged in or interested in the field of education and have wide experience. The decision of such an expert body should be given due weightage by Courts. This Court in the case of Bihar School Examination Board v. Subhash Chandra reported in AIR 1970 SC1269 observed:(at p. 1273).
The universities are responsible for their standards and the conduct of examinations. The essence of examinations is that the worth of every person is appraised without any assistance from an outside source. if at a centre the whole body of students receive assistance and manage to secure success in the neighbourhood of 100% when others at other centres are successful only at an average of 50%, it is obvious that the university or the Board must do something in the matter. It cannot hold a detailed quasi judicial inquiry with a right to its alumni to plead and lead evidence etc. before the results are withheld of the examinations cancelled. If there is sufficient material on which it can be demonstrated that the university was right in its conclusion that the examinations ought to be cancelled then academic standards require that the university's appreciation of the problem must be respected. It would not do for the Court to say that you should have examined all the candidates or even their representatives with a view to ascertaining whether they had received assistance or not. To do this would encourage indiscipline if not also perjury.
12. Two more judgments cited by the learned standing counsel i.e. Sumit Kumar and Ors. v. U.P. Public Service Commission, Allahabad and Ors. (supra) and U.P. Public Service Commission v. Subhash Chandra Dixit and Ors. (supra) were cases in which scaling of marks was done by the U.P. Public Service Commission in examination of Combined State/Subordinate Services pre examination 2001 and the examination of U.P. Civil Judge (Junior Division) was upheld. It is true that the Commission has obtained report from various Experts from out side which were approved by the Commission. As observed above, there being no pleading by the petitioners regarding adoption of the guide lines by the State respondents, the issue cannot further be pondered. Adoption of unfair means in all examinations may be competitive examination, for appointment in service or for training or for a degree, is a well known phenomena. Different mechanism, different procedure and measures have been adopted by the different examining body for tackling the menace of unfair means in examination. Unless the criteria adopted by the examining body is found to be absolutely arbitrary, unreasonable or contrary to any statutory provision, this Court will not readily interfere in such process or measures adopted by the examining body. This Court's judgment relied by the counsel for the petitioner in Kumari Sahilja Bhalla and Ors. v. Secretary, Madhyamic Shiksha Parishad, U.P. Allahabad and Ors. (supra) was a case in which the Examiner has reported that there was common mistake in respect of one answer i.e. answer 3-B of a candidate who appeared in the High School examination. This Court noted in the said judgment that there was nothing on record to indicate that the petitioners were seated together in the examination Hall. The Court further observed that there was some resemblance in the answer of question No. 3-B but the resemblance of certain mistake or spelling would not be sufficient to conclude that the petitioners having actually copied the answer of each other particularly when there is resemblance of only few words. Present is not a case of some resemblance of same answer but is a case where out of 50 questions 49 answers were same which contained 17 same wrong answers in the paper of General Hindi. One more factor which has been noted in Kumari Sahilja Bhalla and Ors. v. Secretary, Madhyamic Shiksha Parishad, U.P. Allahabad and Ors. (supra) was that all the five girls students had succeeded in first Division, some of them had secured distinctions also. The Court observed that such brilliant students would not resort to mass copying in respect of an answer to a fraction of question which carries very little marks. Thus the case of Kmari Shailja Bhalla was on its own facts and does not help the petitioner in the present case.
13. Coming to the last submission of the petitioner that the District Magistrate committed error in casting an stigma in the impugned order that they are not fit for government service. The said observations was made by the District Magistrate after coming to the conclusion that the petitioners have adopted unfair means in the examination. On the basis of the said finding the District Magistrate proceeded to observe that such persons are not fit for government service. The result of the petitioners having been cancelled on the ground of unfair means, it was not necessary for the District Magistrate for deciding the claim to make such observation that the petitioners are not fit for government service. In view of this I am inclined to agree with the submission of the counsel for the petitioners that such observation was not necessary for passing order against the petitioner. Thus the observation in the order dated 28.10.2005, in so far as it is to the effect that the petitioners before entering into service having adopted unfair means in the examination, they are not fit for government service, shall stand deleted. It was sufficient for the District Magistrate to have cancelled candidature of the petitioners after recording finding that they have adopted unfair means in the examination, no further observation in the order was needed in the facts of the present case.
14. In view of foregoing discussions the petitioners have not made out a case for grant of any relief as prayed in the writ petition. Excepting deletion of observation as directed above, the writ petition is dismissed.