Associate Professors Of Institutes Of Technology Not Experts Recognized Under Information And Technology Act: Allahabad High Court

While dealing with dispute regarding appointment on various posts in U.P. Jal Nigam, the Allahabad High Court has held that Associate Professors of Institutes of Technology are not experts recognized under the Information and Technology Act, 2000 for the purposes of examination of electronic evidence.

Justice Ajit Kumar held,

“expert opinions that were sought from the Associate Professors of Institutes of Technology were neither the experts recognized under the Information and Technology Act, 2000, nor these opinions could have been termed to be admissible within the legal framework as prescribed for under the Act, 2000 besides the fact that opinions were not conclusive.”

Case Background

When the UP Jal Nigam split into Urban and Rural entities, applications for employment at various levels were taken out in 2016. Computer Based Tests (CBT) were conducted for each post in various shifts where different sets of question papers were made. After the result, Interview Boards were constituted separately for each class of employee. Certain discrepancies were seen in the timing of the interview process.

Eventually, the selection for the post of stenographer was cancelled whereas select lists for the posts of Assistant Engineers, Junior Engineers and Routine Grade Clerks were issued along with appointment letters.

M/s Aptech Limited is a private agency, who had been outsourced the entire selection process. As per the Data Retention Agreement between Aptech and UP Jal Nigam, all data was to be stored for 6 months at the secondary centre. The Court noted that the master answer key was never published till an RTI was filed requesting the same and then Jal Nigam asked Aptech to publish the answer keys of CBT online.

The publication of answer keys led to candidates approaching the High Court claiming that they had been wrongly ousted from the selection list. Since various discrepancies were found in the answer key and question paper for all grades, Corporation started 2 in-house inquiries in 2017. Subsequently, the entire selection process and appointments were annulled due to which the already appointed candidates approached the High Court. The High Court set aside the order impugned on grounds that each petitioner was entitled to give her explanation before removal from service. Corporation was directed to pass fresh orders.

The Supreme Court did not interfere with the order of the High Court, however, gave liberty to the Corporation to raise the plea for reworking the merit list. The High Court declined to entertain the review petition holding that while passing fresh orders, the Corporation had the power to look into every aspect of the matter.

After investigation, proceedings under IPC, Prevention of Corruption Act and Information and Technology Act were launched against the officials of Aptech. The Apex Court, in SLP against the review petition, ordered the Corporation to comply with the order of the High Court.

In pursuance to this order, in 2020, the Corporation concluded that it could not save the selection process and segregate tainted and untainted candidates in respect of Assistant Engineers, Junior Engineers and Routine Grade Clerks. These orders were challenged before the High Court.

High Court Verdict

Reliance was placed on Section 79-A of the IT Act to hold that CFSL, Hyderabad was a notified forensic agency by the Central Government and thus, its report held evidentiary value. It was held that the report of CFSL was “sufficient evidence to identify and segregate tainted candidates.”

Further, it was held that Aptech was not in breach of contract by providing data through secondary storage as there was nothing in the contract between the parties which prohibited Aptech from the same. It was held that deletion of data from cloud server was not violating any agreement.

“Thus, in absence of any challenge to the CFSL report, nor anything coming out in the CFSL report questioning correctness of the data stored in the storage device, namely, 6 hard disks which also contained one hard disk having direct mirror image of data taken from the cloud server CtrlS, it can be safely concluded that the data in absence of any dispute as retrieved from the hard disks were the true data taken from primary source cloud server.”

Observing that only 1.4 to 8% questions were wrong in the CBT for the three posts, the Court held that the entire examination could not be nullified for such errors.

“Thus, there is only a very miniscule percentage or number of doubtful questions and doubtful answers and this cannot be said to be sufficient ground itself to hold that the entire selection process insofar as conduct of CBT is concerned was compromised.”

The Court stood with Aptech on the aspect that it was not involved in the preparation of question paper and answer key and had outsourced the same to experts. It specifically held that the statements recorded by the police of various persons, based on which the SIT report was formed, were inadmissible evidence. It was held that the SIT report had no evidentiary value itself.

Holding that the Court was bound by the earlier decision of the Division Bench, Justice Kumar held that

“those questions qua exercise of power by the Chairman of the Board, question of availability of vacancy, issue regarding sanction/ permission from the state government to carry out recruitment drive etc. were no more available for the respondent Corporation to look into. The corporation was only to find out whether there was a systemic fraud committed in the process of selection so as to hold that the entire selection process stood compromised and, therefore, the selections had to go and so also the consequential appointments and so there remained no scope of identifying and isolating tainted candidates and giving them show cause notices individually.”

Applying the principles of Wednsebury Law of Reasonableness, the Court held that electronic evidence must be examined only by experts as per procedure under the IT Act and Rules. The Court raised questions as the examination of evidence done by Assistant Professors of Institutes of Technology from the CDs.

Further, the Court held that in absence of examination of the original records, the decision based on expert opinion was unsustainable. It was held that arguments regarding deep rooted fraud by Aptech were unsustainable.

“Data surfaced out must be in respect of majority of candidates and must also count to abnormal score to establish a case of systemic breach,” held Justice Kumar.

However, the Court noted that as per CFSL Report 169 candidates were given undue advantage and held that selectors cannot be allowed to take advantage of fraud which is based on extraneous considerations. It was held that the mischief was played by the officers of Jal Nigam who had access to password and login id to go through the processed result and final CBT merit list.

The Court emphasised that based on the CFSL Report, the candidates named therein ought to have been interrogated by the SIT, which was not done. Trusting the CFSL Report, the Court held that 169 candidates named in the report do not deserve any opportunity of personal hearing regarding cancellation of their appointment as their appointment was tainted.

“In the circumstances except for those 169 candidates' own efforts no one else would have changed their marks in select list after it was forwarded to Managing Director U.P. Jal Nigam to be transmitted back to agency M/s. Aptech Ltd. for publication. Thus according to me these persons do not deserve even a notice and their candidature, therefore, deserves to be rejected/ cancelled including their appointment orders and, accordingly, their claims deserves to be rejected.”

Accordingly, the orders impugned were set aside with respect to all petitioners, expect the 169 candidates named in the CFSL Report.

Case Title: Samrah Ahmad v. State Of U.P. And 3 Others [WRIT - A No. - 7076 of 2021]

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