High Court Orders Probe Into Conduct Of J&K Service Selection Board After It Appoints 'Blacklisted' Agency For Conducting Exams

The pronouncement to the effect was made by a bench comprising Justice Wasim Sadiq Nargal while hearing a petition in terms of which the petitioners sought direction upon J&K Service Selection Board (JKSSB) to not to conduct the examination through M/s Aptech Limited, blacklisted in the past, and to appoint some other agency, which is not previously blacklisted for conducting such examinations.

In their petition the petitioners pleaded that respondent JKSSB had previously floated a tender for empanelment of agency for conduct of its various examinations through Optical Mark Recognition (OMR) mode exams in terms of which one ND Info Systems Private Limited was the successful bidder but JKSSB awarded the contract to one Merit Trac Services Pvt. Ltd. overlooking the fact that in pre-qualification evaluation for e-NIT No.01 of 2021, the Merit Trac Services Private Ltd. clearly and in unambiguous terms mentioned itself to be a blacklisted firm.

Petitioners further submitted that the said Merit Track Services Pvt. Ltd. conducted the examinations of Junior Engineer (Civil) (Jal Shakti Department) on 20.03.2022 and Sub Inspector (Home Department) on 29.03.2022 and also Finance Account Assistant exam, wherein a malpractice of paper leak by the said Merit Trac Services Pvt. Ltd occured, as a consequence of which these two examinations among others were scrapped by JKSSB. Subsequently the matter was pending investigation by the CBI.

The petitioners further contended that in spite of the above fact JKSSB issued another e-Tender by virtue of which another company M/s Aptech Limited was selected despite not fulfilling the criteria of not having been blacklisted in the past.

The petitioners further submitted that in order to bypass the rules governing the field certain clauses in the affidavit were changed with a view to lift the rider for Ms Aptech Ltd to participate in the tendering process and ultimately award contract in its favour.

In order to substantiate their claim that respondent No.2 was a blacklisted agency and should not have been awarded the contract, the petitioners also supplied brief synopsis to the Court, which pointed out irregularities committed by respondent M/s Aptech Limited.

Adjudicating upon the matter Justice Nargal observed that this is a rarest of the rare case where the Jammu and Kashmir Services Selection Board, which is a premier recruiting agency of the Union Territory of J&K having the mandate of undertaking recruitment in a fair and transparent manner and its action in the past leading to cancellation of examination for the post of Sub Inspectors in Police Department and Junior Engineer in Jal Shakti Department has seriously dented the image and raised questions about the efficacy of the recruitment method adopted by the SSB, yet again has perpetuated its wrong in giving contract to an agency which is tainted/previously blacklisted for perpetuating fraud in the form of hacking of question papers.

Deliberating on the issue of conferring contract on M/s Aptech Limited the bench observed that after going through the original record with regard to the pre-bid queries of M/s Aptech and other agencies and subsequent decision thereof the record nowhere reveals that what weighed with the authorities to change the terminology of the affidavit and what weighed with the authorities to re-cast the condition No.3 of the Affidavit by virtue the respondent fetched the contract.

Expressing displeasure the bench recorded that M/s Aptech Limited, whose action are being investigated by the premier agency of the Country i.e. CBI and the challan has also been produced with regard to the recruitment of Sub Inspectors and Junior Engineer in Jal Shakti Department, yet JKSSB again altered/changed the terms and conditions of the NIT with a view to favour their own blue-eyed persons i.e. M/s Aptech Limited by annulling/cancelling the earlier tendering process and initiating fresh process again by issuing a fresh tender by way of changing the conditions, which were tailor-made just to give benefit to M/s Aptech Limited so that it is not ousted from the zone of competing or award of contract.

"SSB by its own volition has entered into contract with a tainted agency, which is highly unreasonable and arbitrary and attracts the doctrine of legitimate expectations in the present case", said the court.

Expounding on the liberty enjoyed by the state in such issues the bench observed that there is no denying the fact that the State or its agencies like the SSB has the power to relax or waive the terms and conditions of the tender document but the waiver/relaxation of a particular rule/condition cannot be with a view to favour one particular bidder which will create doubt in the minds of the other bidders and would impair the rule of transparent and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In my view such approach should always be avoided.

Keeping in view the aforesaid factual matrix the bench allowed the writ petition and the contract awarded by respondent JKSSB in favour of respondent M/s Aptech Limited was quashed. Consequently, all the exams viz Junior Engineer-civil (Jal Shakti Department) and Sub Inspector (Home Department) held by respondent No.1 through respondent no. 2 were also set aside/cancelled at whatever stage they are as on date.

The Government is hereby directed to constitute a high level Committee headed by not less than a retired High Court Judge to enquire into the conduct of Jammu and Kashmir Service Selection Board and appropriate action be initiated against those found guilty, the bench concluded.

Case Title : Vinkal Sharma & Ors Vs UT of J&K and Ors.

Citation : 2022 LiveLaw (JKL) 240

Coram : Justice Wasim Sadiq Nargal