HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

WP(C) No. 2580/2022

CM No. 3213/2023

Reserved on: 18.08.2023

Pronounced on: 31.08.2023

Vinkal Sharma and others …. Petitioner/Appellant(s)

Through:- Mr. Rohit Matoo, Advocate.

Mr. Abhishek Gupta, Advocate.

V/s

UT of J&K and others …..Respondent(s)

Through:- Mr. Amit Gupta, AAG.

Mr. Abhinav Sharma, Sr. Advocate
with Mr. Sidhant Gupta, Advocate.
Mr. Pranav Kohli, Sr. Advocate with
Mr. Arun Dev Singh, Advocate.
CORAM: HON’BLE MRS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
01. 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."

02. 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.

03. 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

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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.

04. 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.

05. 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:

06. 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 MeritTrac Services Pvt. Ltd., overlooking the fact that it was

already blacklisted.

07. The result of three examinations conducted by MeritTrac Services

Pvt. Ltd., i.e., Junior Engineer(Civil), Jal Shakti Department, Sub-

Inspectors, Home Department and Finance Account Assistant (FAA) were

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scrapped, owing to various malpractices, cheating and irregularities in

which the CBI has already filed its charge-sheet.

08. 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
Govt./Private Institution of the country and there is no case pending
in any Investigation agency.”

09. Later the corrigendum No. 01 dated 14.09.2022 was issued and

this condition was changed to that the agency must not be blacklisted „as

on date‟. The said amendment is reproduced below:

“9. At Annexure C-Affidavit (page No. 38), Condition no. 3 is

recasted as "The Firm/ Agency is not involved in any ongoing
investigation by any investigating agency related to conduct of
CBT exams. Further, Firm/ Agency is not blacklisted/ debarred by
any govt. Body/ Govt Institution/ Board/ PSU of the country as
on date”.

10. The aspirants raised concern over the corrigendum issued and

approached respondent No. 1, accordingly, the e-Tender Notice No. 18 of

2022 was cancelled and fresh e-Tender Notice No. 19 of 2022 dated

30.09.2022, was issued with the same condition as in Corrigendum No. 01

dated 14.09.2022. Condition No. 2.8 of the Evaluation Criteria of e-Tender

No. 19 of 2022 being relevant is reproduced as under:

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Affidavit- The agency must certify that –

1. It is not under a Declaration of Ineligibility for

corrupt or fraudulent practices with any

Government departments/agencies/ministries or

PSU‟s and is not blacklisted by any government

departments/agency/Ministries or PSU‟s. A declaration sworn by the

2.8 2. If successful, the bidding agency will undertake authorized representative of

assignment in accordance with the scope of work bidding Agency to be submitted

and provide a dedicated, well qualified team for the as Annexure C.

purpose.

3. All the documents enclosed are true and nothing

has been fabricated.

11. The tender has been allotted to respondent No. 2, being the lowest

bidder.

12. It is stated by the petitioners that M/s Aptech Ltd. has already been

involved in various malpractices and irregularities and has been

blacklisted by the Uttar Pradesh Power Corporation Limited (UPPCL). It

is stated that after this, it was also involved in malpractices in the

Rajasthan Police Constable Recruitment Exams, which were cancelled.

Later, large-scale anomalies were also found in the exams of the Assam

Irrigation Department and the Allahabad High Court paper leak of

Assistant Review Officers and Review Officers. The examinations of the

Delhi University LLB Course conducted by M/s Aptech Ltd. was also

cancelled due to leak of examination papers and the said firm was

imposed a fine of Rs. 10,00,000/- by the Delhi High Court.

13. The petitioners filed a representation on 04.11.2022 before

respondent No. 1, stating irregularities and malpractices being conducted by

respondent No. 2 in past and sought cancellation of the allotment of tender in

favour of respondent No. 2. It is also stated by the petitioners that tender for
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audit of the CBT mode examinations has also been allotted in favour of a

tainted agency, which was recently fined a $100 Million penalty for cheating

on CPA Ethics Exams and for misleading the investigation.

14. It is stated that the nature of conducting public examinations

requires secrecy and fairness, as the future of millions of aspirants

depends upon the examination and if respondent No. 2 conducts the

examination for respondent No. 1, then fairness in the selection process

and anomalies cannot be ruled out. It is stated that the selection process to

be initiated by respondent No. 1 is against the basic principles of fairness

and equality. The conduct of public examinations by Government or any

of its instrumentalities is a matter of trust and utmost faith and the

aspirants cannot repose any confidence in a blacklisted agency for

conducting a selection process.

15. Per contra, respondent No. 1 has raised a preliminary objection with

respect to the locus standi of the petitioners. It is stated that the JKSSB is the

prime recruiting agency in the Union Territory of Jammu and Kashmir and

has been making constant efforts to improve the efficacy of the recruitment

process by infusing technology-based interventions like CBT mode of

examination, which is relatively more secure and transparent than the

traditional OMR-based test. The CBT mode of examination reduces human

involvement in the process, thereby decreasing the chances of paper leakage,

as the cumbersome process of printing and transportation of examination

material involved in OMR-based examination is eliminated. Major

examination-conducting agencies like the Staff Selection Commission

(SSC), Railway Recruitment Board (RRB), Institute of Banking Personnel

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Selection (IBPS), National Testing Agency (NTA) etc. have all shifted to

CBT mode of examinations.

16. The respondent No. 1, with regard to the amendment in the

blacklisting clause, has stated that in the pre-bid meeting, the participant

agencies highlighted the issue of blacklisting clause in the tender document

and requested that the clause must mention the time limit of the blacklisting

and should be re-casted as „not blacklisted as on date‟ instead of „never

blacklisted in past‟. The agencies, in support of their claim, produced the

tender documents of Railway Recruitment Board, Income Tax Department,

Controller General of Defence Accounts, Uttarakhand Public Service

Commission, Bihar Technical Service Commission etc., wherein all these

agencies have used „as on date‟ phrase in the blacklisting clause.

17. It is stated that the said issue was discussed by the Committee in

the light of the guidelines on Debarment of Firms from Bidding issued by

the Ministry of Finance and GFR 2017, Rule 151, wherein the maximum

upper limit of debarment is mentioned as three years only and the

Ministry of Finance vide O.M. No. F.1/20/2018-PD dated 02.11.2021 has

further clarified that the „blacklisting of a firm/agency by a

Ministry/Department shall be applicable only for the procurements made

by such bodies.‟ Further, where a Ministry/Department is of the view that

business dealings with a particular firm should be banned across all the

Ministries/Department by debarring the firm from taking part in any

bidding procedure floated by the Central Govt. Ministries/Departments,

the Ministry/Department concerned should, after obtaining the approval of

the Secretary concerned, forward it to DoE, a self-contained note stating

out all the facts of the case and justification for the proposed debarment,
WP(C) No. 2580/2022 __ Page 7 of 30

along with all the relevant papers and documents and the DoE will issue

the necessary orders after satisfying itself that the proposed debarment

across the Ministries/Departments is in accordance with Rule 151 of

GFRs, 2017 but in the instant case, DoE has not issued any order which

reflects that the said debarment/blacklisting was restricted to the Uttar

Pradesh Power Corporation Ltd. (UPPCL) only.

18. This effectively means that M/s Aptech Ltd. was not barred from

participating in the bidding process initiated by any other Government

Body, accordingly, the pre-bid queries were taken into consideration and

Corrigendum No. 01 to e-Tender No. 18 of 2022 was issued, which

included a re-casting of the condition with respect to the blacklisting

along with eight other conditions based on the suggestions made by the

prospective bidders during the pre-bid meeting.

19. It is further stated by respondent No. 1 that the bids received against

e-Tender No. 18 of 2022 were cancelled as all the four agencies, who

participated in the bidding process, were found ineligible at the technical

qualification stage and, consequently, the tender was cancelled, however,

M/s Aptech Ltd‟s tender was rejected for the reason that the affidavit filed

by it was attested by a Notary instead of the First Class Magistrate, whereas

the other participating agencies had submitted many deficient documents

and also as per the eligibility conditions, only M/s Aptech Ltd. had a

turnover exceeding Rs. 20 Crore out of the four agencies.

20. After the cancellation of the said tender, fresh tender, i.e., e-Tender

Notice No. 19 of 2022 dated 30.09.2022 was issued and the turnover clause

was relaxed from 20 Crores to 10 Crores, in order to invite more

competition. Five agencies filed their bids in response to the fresh tender but
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out of these, only two agencies namely M/s Aptech Ltd. and Eduquity

Career Technologies Pvt. Ltd. were found eligible for Stage II, i.e.,

Technical Evaluation and Presentations. Accordingly, both agencies were

evaluated as per the terms and conditions of the tender and based upon the

scores obtained in the Technical and Financial Stages of the bid, the

Purchase Committee constituted by the General Administration Department

vide Government Order No. JK (GAD)-1117 dated 28.09.2022

recommended awarding the contract in favour of M/s Aptech Ltd., being the

highest-scoring agency as per the tender conditions.

21. The respondent No. 1 has further stated that disallowing any agency

who has completed the period of blacklisting would mean permanent

blacklisting for any such agency, which is impermissible in law, as held by

Hon‟ble Apex Court in ‘B.C. Biyani Projects Pvt. Ltd. Vs. State of

Madhya Pradesh and others’, passed in Civil Appeal No. 6632 of 2016

decided on 22.07.2016, that the order of blacklisting a company permanently

is impermissible in law.

22. It is further stated that the agency hired by respondent No. 1, i.e., M/s

Aptech Ltd. has been and is executing prime projects in other Government

Bodies also and has successfully completed many CBT-based examinations

for the JKSSB namely Horticulture Technician Grade-IV, Junior Scale

Stenographer, Junior Engineer (Jal Shakti), Sub-Inspectors (Home

Department), Labour Inspector/Labour Officer/Driver/Election

Assistant/Inspector Fisheries/Deputy Inspector Fisheries, where lacs of

candidates have participated and these examinations were conducted in fair

and transparent manner and the results of the candidates for the post of
WP(C) No. 2580/2022 __ Page 9 of 30

Horticulture Technician Grade-IV and Junior Scale Stenographer stands

declared and select list is being finalized.

23. It is stated that these examinations were conducted in a transparent

and secure manner after taking into account many steps, i.e., (i) necessary

inputs were obtained from CID and some centres were deleted from the list

and exams were not conducted at such centres; (ii) a third party namely Ernst

and Young LLP was engaged for reviewing/auditing the examination

processes; (iii) low frequency Jammers were installed after obtaining

requisite permission from the authority concerned; (iv) Civil & Police

Administration supervised the conduct of examinations; (v) Senior Officers

were appointed as Observers for overseeing the conduct of these exams; (vi)

the concerned Deputy Commissioners were appointed technical persons as

Observers for each examination centre, moreover, Magistrates were also

deployed for each centre and; (vii) I.T Department appointed Technical

persons for assisting the Board in conducting the CBT examination to ensure

transparency and safety.

24. Mr. Amit Gupta, learned AAG, appearing on behalf of respondent

No. 1, has placed reliance on the judgment of the Hon‟ble Apex Court in

‘M/s Chauhan Builders Raibareli Vs. State of U.P and others’, 2022

LiveLaw (SC) 694, ‘State of Odisha and others Vs. M/s Panda

Infraproject Ltd.’, 2022 LiveLaw (SC) 206 and ‘Pooja Thapaliyal and

another Vs. State of Uttarakhand and others’, passed by the High

Court of Uttarakhand in Writ Petition (S/S) No. 1165 of 2021, decided on

10.09.2021.

25. It is further stated that the blacklisting in its commercial sense is a

decision taken by a particular tendering authority/employer, not to work with

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a company/firm for any reason, for a specific period. However, once said

specified period of blacklisting is over, the right of such company/firm to

participate in the tender gets revived and the tender inviting authorities are

well within their rights to allow such companies to participate in the

tendering process. In the instant case also, the respondent‟s taking into

consideration this very concept of blacklisting allowed the companies/firms

which were not blacklisted „as on date‟ to participate in the tendering

process. It is also stated that the tender conditions were uniformly applied to

all the bidders and wide publicity was given to the tender so that more and

more bidders could participate and maximize the competition. Besides

floating of tenders on e-Tendering portal, i.e., www.jktenders.gov.in , the

notice inviting tender was also published in two local newspapers and two

national newspapers. The entire tendering process was transparent and fair

and there were no mala fides, at any stage of the tendering process, as

contended by the petitioners.

26. The respondent No. 1 has stated that the instant writ petition is

based only on apprehensions and no writ can be issued on the basis of

apprehensions. The petitioners have no locus to challenge the contract

already executed between the two contracting parties and the fact that

none of the bidder has raised any doubt about the tendering process which

itself speaks about the transparency of the procedure and also the process

was governed by general financial rules. Based upon

deliberations/interaction with the Exam Conducting Agencies, the tender

was issued on Quality-cum-Cost Based Selection (QCBS) basis for CBT

mode and in the QCBS process, the technical bid submitted by the agency

is not only qualifying in nature but due weightage is given to the technical
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parameters. The respondent further submits that if the writ petitioners are

entertained at the instance of persons having apprehensions, it would

seriously impact on the freedom of the Government to formulate the

tender conditions and enter into contracts.

27. The respondent No. 2, in his reply, has stated that the writ petition

is not maintainable as it is based on factually incorrect aspersions cast

upon respondent No. 2 which are far away from the actual situation. It is

stated that the petitioners did not comprehend the true important scope of

the evaluation process, technical as well as financial, that was conducted

by the JKSSB. The respondent-Board issued a Tender Notice on

05.09.2022 on Quality-cum-Cost Based Selection (QCBS) basis. In the

QCBS process, the technical bid submitted by the agency is not only

qualifying in nature but due weightage is given to the technical parameters

viz. technical capabilities, prior experience, prior turnover, technical,

certifications, technical presentations, etc.

28. The weightage of technical and financial bid was set at 70% and

30% respectively. The respondent-Board, after following due process of

pre-bid meetings and its queries, amended and substituted several terms

and conditions based on commercial and contractual purposes and issued

corrigendum as per process to bring more competition amongst bidding

parties and hence the tendering process initiated against the tender notice,

i.e., e-NIT No. 18 dated 05.09.2022 was subsequently cancelled by the

JKSSB in view of deficient documents being submitted by all the bidders

which shows that since the beginning the respondent-Board was following

due process thereafter, for the same scope of work, the JKSSB invited

fresh tenders vide e-NIT No. 19 dated 30.09.2022 and out of several
WP(C) No. 2580/2022 __ Page 12 of 30

participants, respondent No. 2-Company was declared as successful

bidder by respondent-Board and the contract was awarded to respondent

No. 2 after following the due process.

29. It is stated that in e-NIT No. 18 of 2022, one of the tender

conditions was that bidder must have an average turnover of Rs. 20 Crores

for conducting the CBT exams. The respondent No. 2 was the only

company which was qualifying in the aforesaid turnover and rest of the

firms, who participated in the e-NIT No. 18 of 2022, were not qualifying

the said turnover condition. It is stated that if the intention of the

respondent-Board was to award contract in favour of respondent No. 2

only, then it would have retained the original tender condition to ensure

that no other company qualifies even first stage of technical evaluation.

30. It is stated that the writ petition deserves to be dismissed on the

ground that the same is based only on mere apprehensions and

assumptions. The petitioners have no locus standi to challenge the

contract already executed between the two contracting parties. It is further

stated that the petitioners without any factual as well as legal basis have

misinterpreted the concept of blacklisting qua respondent No. 2-

Company, thereby causing severe prejudice to the reputation and integrity

of the respondent No. 2-Company. It is settled principle of law that once

the period of blacklisting is over, the party cannot be made to face further

consequences of the same as an order of debarment operates to the

prejudice of a commercial person not only in presenti but also puts a taint

which attaches far beyond and may well spell the death knell of the

organization/institution for all times to come and is generally associated

with civil death.

WP(C) No. 2580/2022 __ Page 13 of 30

31. It is stated that during the period of debarment, respondent No. 2-

Company has in fact delivered/conducted several successful examinations

for several Central/State agencies and undertakings, High Courts,

Government Departments and other across various States and Union

Territories in India. It is stated that principles of judicial review have been

deliberately ignored and intentionally overlooked by the petitioners while

challenging the contract executed between the respondent-Board and

respondent No. 2-Company.

32. Mr. Abhinav Sharma, learned Senior Advocate, appearing on

behalf of respondent No. 2, has relied upon the judgments of the Hon‟ble

Apex Court in ‘M/s Chauhan Builders Raebareli Vs. State of Uttar

Pradesh and others’, (2022) Live Law (SC) 694, and „M/s Kulja

Industries Ltd. vs. Chief General Manager W.T. Proj. BSNL and

others’, (2014) 14 SCC 731.

33. It is stated by the respondent No. 2 that the debarment order has

ceased to operate from May 2022 and respondent No. 2-Company is

expunged from such order of blacklisting as on date. It is stated that the

debarment, in its commercial sense, is a decision taken by a particular

tendering authority/employer, not to work with the company/firm for any

reason and for a specific period. However, once the said specified period

of debarment is over, the right of such company/firm to participate in the

tender gets revived and order for debarment is automatically revoked,

which is also given in the Guidelines on Debarment of Firms from

Bidding dated 02.11.2022 issued by the Department of Expenditure,

Ministry of Finance vide OM No. F.1/20/2018-PDD

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34. The respondent Nos. 4 to 62, who have been impleaded by this

Court, have stated in their reply that they are also the aspirants who have

applied for the post of Sub-Inspectors in Jammu and Kashmir Police,

advertised by Advertisement No. 06 of 2021 dated 21.10.2021. It is stated

that the private respondents, being eligible in all respects, were issued

admit cards by the Service Selection Board for appearing in the CBT for

the post of Sub-Inspectors which was held on 07.12.2022 and 08.12.2022,

in which some of the private respondents participated, however, before

CBT as scheduled on other dates could be completed, this Court by its

judgment dated 08.12.2022, allowed the writ petition and issued several

directions, inter alia cancelling the conduct of examination to be

conducted by the Service Selection Board through respondent No. 2, for

all the posts, including the post of Sub-Inspectors.

35. However, the said judgment was challenged by respondent No. 1,

before the Division Bench of this Court in LPA No. 141 of 2022, which

vide order dated 09.12.2022, allowed the Service Selection Board to

proceed with the selection process of Junior Engineer (Jal Shakti) and

Sub-Inspector (Home Department). Accordingly, the CBT of leftover

candidates, including some of the private respondents for the post of Sub-

Inspectors (Home Department) was conducted on notified dates but the

result has not been declared till date, in view of interim direction passed

by this Court.

36. It is stated that the private respondents have done fairly well in

CBT and have highest probability of making it to the Physical Test, which

could not be conducted till date, in view of the matter being subjudice

before this Court.

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37. It is further submitted that the petitioners have levelled allegations

of malpractices in allotment of tender to respondent No. 2 by respondent

No. 1, however, the private respondents while participating in the CBT

have not seen or observed any suspicious activity which would make them

to believe that there were any malpractices or anomalies in conduct of

examination. As a matter of fact, the security arrangements in the

examination centres were unparalleled and the private respondents who

had earlier also participated in various examinations, have not witnessed

such security arrangements and strictness, as such, there is no reason for

them to doubt credibility of the examination conducted.

38. Mr. Pranav Kohli, learned Senior counsel for the respondents, has

relied upon the judgment of the Hon‟ble Apex Court in ‘M/s N.G.

Projects Ltd. vs. Vinod Jain and others’, 2022 LiveLaw (SC) 302.

39. The petitioners have filed the rejoinder to the objections filed by

respondent Nos. 1 and 2 and have stated that a fair and reasonable selection

process is a fundamental requirement under Articles 14 and 16 (1) of the

Constitution of India. The petitioners seek an equal opportunity and

participation in public employment which is not possible, if an agency,

having tainted record, is given the contract and conducts examination

involving public employment. The instant case not only revolves around

M/s Aptech Ltd. but also casts a huge shadow of doubt on the conduct of

Jammu and Kashmir Service Selection Board which conducts various

public employment examinations involving lacs of aspirants, as such, it

requires a thorough investigation by an independent agency.

40. The petitioners have also mentioned various irregularities found in

the different examinations which were conducted by M/s Aptech Ltd. and
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the same reflects that M/s Aptech Ltd. was involved in various

malpractices done in examinations around the country, some of them are

as follows:

(i) UP Jal Nigam recruitment scam, Aptech hired in 2016, mass

irregularities and malpractices, 1188 appointments cancelled out of
1300 posts in 2020 after investigation by the Special Task Force
(STF).
(ii) Rajasthan Police Constable Recruitment scam, Aptech was hired
and exam held in 2017, irregularities found in 2018, FIR filed,
exam was cancelled.
(iii) UP Power Corporation Ltd. (UPPCL) hired Aptech Ltd. for exam
in 2018 and after irregularities via system monitoring and various
other modes reported by STF exam was scrapped and Aptech was
blacklisted for a period of three years from May 2019 to May 2022.
(iv) Assam Irrigation Department, Aptech conducted the exam in
August 2020, irregularities were found, investigation is under
process.
(v) Delhi University LLB exam 2018 conducted by Aptech was also
cancelled due to leak of papers.
(vi) Fined Rs. 10,00,000/- by the Delhi High Court due to concealment
of the fact by Aptech Ltd. in their blacklisting clause showing
malpractice and involvement being at the top tier level of Aptech
Ltd.
(vii) CBSE – Central Teacher Eligibility Test (CTET), January 2023
exam conducted by Aptech, paper was leaked and irregularities
came out in Meerut and Lucknow. State Task Force arrested person
in this regard. Paper was rescheduled.
(viii) Kendriya Vidyalaya Sangathan – KVS PGT, KVS TGT, KVS PRT
all three exams were conducted by Aptech Ltd. on behalf of CBSE,
KVS in February 2023. All three papers were leaked. Irregularities
came out in Bihar, Varanasi (22 arrested), Ambala (9 arrested), Leh
(3 arrested) and Panipat, Haryana (5 arrested), including arrest of
City Head Varanasi of Aptech Ltd.
(ix) Securities & Exchange Board of India (SEBI), in the year 2021, on
30th April slapped Rs. 1 Crore penalty on Aptech for violating
insider trading rules.
WP(C) No. 2580/2022 __ Page 17 of 30

(x) In Kanpur, in the year 2021, Aptech Learning Institute, a subsidiary

of Aptech Ltd. cheated around 200 students with lacs of rupees,
closed its office and ran away.
(xi) UGC NET paper was also leaked.

41. Heard learned counsel for the parties, considered the submissions

and perused the material on record.

42. In the present petition, these pivotal issues fall for consideration of

the Court:

(i) Whether the writ petition, under Article 226 of the Constitution of

India is maintainable, in absence of any locus standi or without being

covered under the definition of an “aggrieved person”?

(ii) Whether a company blacklisted for a specific period of time can be

allowed to participate in the tendering process after completion of the

period of debarment?

(iii) Whether the writ petition is maintainable under Article 226 of the

Constitution of India with respect to the judicial scrutiny of the

eligibility criteria/tender conditions on the basis of apprehension and

allegations by the aspirants?

43. Locus standi is a legal concept that is intended to ensure that only

those who have a legitimate interest in the case can bring a legal action. It

is a fundamental principle in every legal system. A person has to establish

the essentials of locus standi which includes injury in fact, causation and

redressability. It is a legal concept that is intended to ensure that only

those who have a legitimate interest in a case can bring a legal action. The

question as to maintainability of the writ petition under Article 226 of the

Constitution of India, seeking a writ to certiorari or a writ of mandamus

by a person who is not aggrieved as on date and has no locus standi has
WP(C) No. 2580/2022 __ Page 18 of 30

been a subject matter of discussion in number of cases before the Hon‟ble

Supreme Court.

44. The Hon‟ble Apex Court in ‘Jasbhai Motibhai Desai vs. Roshan

Kumar and others’, 1976 (1) SCC 671, has held as under:

“10. Article 226 of the Constitution empowers the High Court to issue to
any person or authority, including the Government, within its territorial
jurisdiction, directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari for
the enforcement of fundamental rights and for any other purpose.
11. As explained by this Court in 286300 the founding fathers of the
Constitution have designedly couched the article in comprehensive
phraseology to enable the High Court to reach injustice wherever it is
found. In a sense, the scope and nature of the power conferred by the
Article is wider than that exercised by the writ courts in England. However,
the adoption of the nomenclature of English writs, with the prefix "nature
of" superadded, indicates that the general principles grown over the years
in the English Courts, can. shorn of technical procedural restriction and
adapted to the social conditions of this vast country, in so far as they do
not conflict with any provision of the Constitution, or the law declared by
this Court, be usefully considered in directing the exercise of this
discretionary jurisdiction in accordance with well-recognised rules of
practice.
12. According to most English decisions, in order to have the locus standi
to invoke certiorari jurisdiction, the petitioner should be an "aggrieved
person" and in a case of defect of jurisdiction, such a petitioner will be
entitled to a writ of certiorari as a matter of course, but if he does not fulfil
that character and is a "stranger", the Court will, in its discretion, deny him
this extraordinary remedy, save in very special circumstances. This takes us
to the further question: Who is an "aggrieved person"? And what are the
qualifications requisite for such a status? The expression "aggrieved
person" denotes an elastic, and, to an extent, an elusive concept. It cannot
be confined within the bounds of a rigid, exact and comprehensive
definition. At best, its feature can be described a broad tentative manner.
Its scope and meaning depends on diverse, variable factors such as the
content and intent of the statute of which contravention is alleged, the
specific circumstances of the case, the nature and extent of the
petitioner’s interest and the. nature and extent of the prejudice or injury
suffered by him. English Courts have sometimes put a restricted and
sometimes a wide construction on the expression "aggrieved person".
However, some general tests have been devised to ascertain whether an
applicant is eligible for this category so as to have the necessary locus
standi or ''standing'' to invoke certiorari jurisdiction.
13. We will first take up that line of cases in which an "aggrieved person"
has been held to be one who has a more particular or peculiar interest of
his own beyond that of the general public, in seeing that the law is
properly administered. The leading case in this line is (1870) 5 QB 466
Queen v. Justices of Surrey decided as far back as 1870. There, on the
application by the highway board the Justices made certificates that
WP(C) No. 2580/2022 __ Page 19 of 30

certain portion of three road were unnecessary. As a result, it was ordered

that the roads should cease to be repaired by the parishes.”

45. In ´Ghulam Qadir vs. Special Tribunal and others’, 2002 (1)

SCC 33, the Hon‟ble Apex Court has held that:

“There is no dispute regarding the legal proposition that the rights

under Article 226 of the Constitution of India can be enforced only by an
aggrieved person except in the case where the writ prayed is for habeas
corpus or quo warranto. Another exception in the general rule is the
filing of a writ petition in public interest. The existence of the legal right
of the petitioner which is alleged to have been violated is the
foundation for invoking the jurisdiction of the High Court under the
aforesaid Article. The orthodox rule of interpretation regarding the
locus standi of a person to reach the court has undergone a sea-change
with the development of constitutional law in our country and the
constitutional courts have been adopting a liberal approach in dealing
with the cases or dislodging the claim of a litigant merely on hyper-
technical grounds. If a person approaching the court can satisfy that the
impugned action is likely to adversely affect his right which is shown to
be having source in some statutory provision, the petition filed by such
a person cannot be rejected on the ground of his having not the locus
standi. In other words, if the person is found to be not merely a stranger
having no right whatsoever to any post or property, he cannot be non-
suited on the ground of his not having the locus standi.”

46. The Hon‟ble Apex Court in ‘A. Subash Babu vs. State of

Andhra Pradesh and another, (2011) 7 SCC 616, held as under:

“The expression "aggrieved person" denotes an elastic and an elusive

concept. It cannot be confined within the bounds of a rigid, exact and
comprehensive definition. Its scope and meaning depends on diverse,
variable factors such as the content and intent of the statute of which
contravention is alleged, the specific circumstances of the case, the
nature and extent of complainant’s interest and the nature and the
extent of the prejudice or injury suffered by the complainant. Section
494 does not restrict right of filing complaint to the first wife and there
is no reason to read the said Section in a restricted manner as is
suggested by the learned Counsel for the Appellant. Section 494 does
not say that the complaint for commission of offence under the said
section can be filed only by wife living and not by the woman with
whom subsequent marriage takes place during the life time of the wife
living and which marriage is void by reason of it taking place during the
life of such wife. The complaint can also be filed by the person with
whom second marriage takes place which is void by reason of it taking
place during the life of first wife.”
WP(C) No. 2580/2022 __ Page 20 of 30

47. In „Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra

and others’, (2013) 4 SCC 465, the Hon‟ble Supreme Court has held as

under:

“9. It is a settled legal proposition that a stranger cannot be permitted

to meddle in any proceeding, unless he satisfies the Authority/Court,
that he falls within the category of aggrieved persons. Only a person
who has suffered, or suffers from legal injury can challenge the
act/action/order etc. in a court of law. A writ petition under Article 226
of the Constitution is maintainable either for the purpose of enforcing a
statutory or legal right, or when there is a complaint by the appellant
that there has been a breach of statutory duty on the part of the
Authorities. Therefore, there must be a judicially enforceable right
available for enforcement, on the basis of which writ jurisdiction is
resorted to. The Court can of course, enforce the performance of a
statutory duty by a public body, using its writ jurisdiction at the behest
of a person, provided that such person satisfies the Court that he has a
legal right to insist on such performance. The existence of such right is a
condition precedent for invoking the writ jurisdiction of the courts. It is
implicit in the exercise of such extraordinary jurisdiction that, the relief
prayed for must be one to enforce a legal right. In fact, the existence of
such right, is the foundation of the exercise of the said jurisdiction by
the Court. The legal right that can be enforced must ordinarily be the
right of the appellant himself, who complains of infraction of such right
and approaches the Court for relief as regards the same. (Vide: State of
Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad &Anr. v.
State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd.
v. State of West Bengal &Ors., AIR 1962 SC 1044; Rajendra Singh v. State
of Madhya Pradesh, AIR 1996 SC 2736; and Tamilnad Mercantile Bank
Shareholders Welfare Association (2) v. S.C. Sekar &Ors., (2009)
2 SCC 784).
13. This Court, even as regards the filing of a habeas corpus petition,
has explained that the expression, ‘next friend’ means a person who is
not a total stranger. Such a petition cannot be filed by one who is a
complete stranger to the person who is in alleged illegal custody.
(Vide: Charanjit Lal Chowdhury v. The Union of India &Ors., AIR 1951 SC
41; Sunil Batra (II) v. Delhi Administration, AIR 1980 SC 1579; Mrs.
Neelima Priyadarshini v. State of Bihar, AIR 1987 SC 2021; Simranjit
Singh Mann v. Union of India, AIR 1993 SC 280; Karamjeet Singh v.
Union of India, AIR 1993 SC 284; and Kishore Samrite v. State of U.P.
&Ors., JT (2012) 10 SC 393).
14. This Court has consistently cautioned the courts against entertaining
public interest litigation filed by unscrupulous persons, as such
meddlers do not hesitate to abuse the process of the court. The right of
effective access to justice, which has emerged with the new social rights
regime, must be used to serve basic human rights, which purport to
guarantee legal rights and, therefore, a workable remedy within the
framework of the judicial system must be provided. Whenever any
public interest is invoked, the court must examine the case to ensure
that there is in fact, genuine public interest involved. The court must
maintain strict vigilance to ensure that there is no abuse of the process
WP(C) No. 2580/2022 __ Page 21 of 30

of court and that, “ordinarily meddlesome bystanders are not granted a

Visa”. Many societal pollutants create new problems of non-redressed
grievances, and the court should make an earnest endeavour to take up
those cases, where the subjective purpose of the lis justifies the need
for it. (Vide: P.S.R. Sadhanantham v. Arunachalam & Anr., AIR 1980 SC
856; Dalip Singh v. State of U.P. &Ors., (2010) 2 SCC 114; State of
Uttaranchal v. Balwant Singh Chaufal & Ors., (2010) 3 SCC 402;
and Amar Singh v. Union of India &Ors., (2011) 7 SCC 69)
15. Even as regards the filing of a Public Interest Litigation, this Court
has consistently held that such a course of action is not permissible so
far as service matters are concerned. (Vide: Dr. Duryodhan Sahu &Ors.
v. Jitendra Kumar Mishra &Ors., AIR 1999 SC 114; Dattaraj Natthuji
Thaware v. State of Maharashtra, AIR 2005 SC 540; and Neetu v. State
of Punjab &Ors., AIR 2007 SC 758).”

48. In the instant case, the petitioners have not been able to establish

their locus standi to challenge the process being conducted by the

respondents for allotment of tender for conduct of various examinations

through CBT mode in favour of respondent No. 2. If at all, anyone had

any reason to challenge the process of allotment of tender to respondent

No. 2, then only the company who has not been selected and allowed

tender had a right to challenge the allotment but not the petitioners herein.

The petitioners are also not covered under the expression of „aggrieved

person‟ on account of the fact that the petitioners have not only responded

to the advertisements issued by the respondents but have also participated

in the said process.

49. As far as blacklisting is concerned, it is settled by the Supreme

Court that one cannot be blacklisted for life. The order of blacklisting has

to be specified for a particular period of time. The debarment is never

permanent and the period of debarment would invariably depend upon the

nature of offence committed by erring contractor.

50. The Hon‟ble Apex Court in ‘M/s Chauhan Builders Raebareli

Vs. State of Uttar Pradesh and others’, (2022) Live Law (SC) 694, has

held as under:
WP(C) No. 2580/2022 __ Page 22 of 30

“6. One cannot be blacklisted for life. The order of blacklisting to the
extent that it has not specified the period cannot be sustained. Since
the order was passed way back in 2013 and the writ petition was
dismissed on 05.09.2018, we deem it appropriate to exercise the
powers under Article 142 of the Constitution to pass an order of
blacklisting the appellant for a period of five years from the date the
order was passed.”

51. In „M/s Kulja Industries Ltd. vs. Chief General Manager W.T.

Proj. BSNL and others’, (2014) 14 SCC 731, the Hon‟ble Apex Court

has held as under:

“17. That apart the power to blacklist a contractor whether the contract be for
supply of material or equipment or for the execution of any other work whatsoever
is in our opinion inherent in the party allotting the contract. There is no need for
any such power being specifically conferred by statute or reserved by contractor.
That is because ‘blacklisting’ simply signifies a business decision by which the party
affected by the breach decides not to enter into any contractual relationship with
the party committing the breach. Between two private parties the right to take any
such decision is absolute and untrammeled by any constraints whatsoever. The
freedom to contract or not to contract is unqualified in the case of private parties.
But any such decision is subject to judicial review when the same is taken by the
State or any of its instrumentalities. This implies that any such decision will be open
to scrutiny not only on the touchstone of the principles of natural justice but also
on the doctrine of proportionality. A fair hearing to the party being blacklisted thus
becomes an essential pre-condition for a proper exercise of the power and a valid
order of blacklisting made pursuant thereto. The order itself being reasonable, fair
and proportionate to the gravity of the offence is similarly examinable by a writ
Court. The legal position on the subject is settled by a long line of decisions
rendered by this Court starting with Erusian Equipment & Chemicals Ltd. v. State of
West Bengal and Anr. (1975) 1 SCC 70 where this Court declared that blacklisting
has the effect of preventing a person from entering into lawful relationship with the
Government for purposes of gains and that the Authority passing any such order
was required to give a fair hearing before passing an order blacklisting a certain
entity. This Court observed:

“20. Blacklisting has the effect of preventing a person from the privilege
and advantage of entering into lawful relationship with the Government
for purposes of gains. The fact that a disability is created by the order of
blacklisting indicates that the relevant authority is to have an objective
satisfaction. Fundamentals of fair play require that the person concerned
should be given an opportunity to represent his case before he is put on
the blacklist.”
24. Suffice it to say that ‘debarment’ is recognized and often used as an effective
method for disciplining deviant suppliers/contractors who may have committed
acts of omission and commission or frauds including misrepresentations,
falsification of records and other breaches of the regulations under which such
contracts were allotted. What is notable is that the ‘debarment’ is never permanent
and the period of debarment would invariably depend upon the nature of the
offence committed by the erring contractor.”

52. Admittedly, respondent No. 2 was blacklisted by UPPCL in the

year 2019 for a period of three years, which expired on May 2022, as
WP(C) No. 2580/2022 __ Page 23 of 30

such, the respondent No. 2 was fully eligible before the tender notice was

issued in the month of September, 2022.

53. It is also stated by the learned counsel for the respondents that the

other company, i.e., Eduquity was also blacklisted at one point of time,

therefore, the respondent No. 2 could not have been debarred for being

blacklisted by UPPCL which had already outlived its life in May 2022.

54. Learned counsel for the respondent No. 1 has placed on record the

affidavit filed by respondent No. 2, wherein it is stated that the firm/agency is

not involved in any ongoing investigation by any central investigating agency

related to conduct of CBT exams as on date and further the firm/agency is not

blacklisted/debarred by any Government Body/Government

Institution/Board/PSU of the country as on date of bid submission.

55. As far as maintainability of the writ petition under Article 226 of the

Constitution of India with respect to the judicial scrutiny is concerned, it is a

settled principle of law that the owner or the employer of a project having

authored the tender document is the best person to understand and

appreciate its requirements and interpret its documents. It is not for the

Court to substitute its opinion and should refrain itself from imposing its

decision over the decision of the employer.

56. It is well settled by the Apex Court that the terms and conditions

of the invitation to the tenderer are within the domain of tenderer/tender–

making authority and are not open to judicial scrutiny, unless they are

arbitrary, discriminatory or mala fide. The Government/ tender-making

authority must have a free hand in setting the terms of the tender. The

Courts cannot interfere with the terms of the tender prescribed by the

Government because it feels that some other terms in the tender would
WP(C) No. 2580/2022 __ Page 24 of 30

have been fair, wiser or logical. Furthermore, it is also been held that the

Courts does not have the expertise to examine the terms and conditions,

the present-day economic activities of the State and should be even more

reluctant in interfering with contracts involving technical issues as there is

requirement of necessary expertise to adjudicate upon such issues.

57. The Hon‟ble Supreme Court in ‘M/s N.G. Projects Ltd. vs. M/s

Vinod Kumar Jain and others’, 2022 LiveLaw (SC) 302,

“23. In view of the above judgments of this Court, the Writ Court should
refrain itself from imposing its decision over the decision of the
employer as to whether or not to accept the bid of a tenderer. The
Court does not have the expertise to examine the terms and conditions
of the present day economic activities of the State and this limitation
should be kept in view. Courts should be even more reluctant in
interfering with contracts involving technical issues as there is a
requirement of the necessary expertise to adjudicate upon such issues.
The approach of the Court should be not to find fault with magnifying
glass in its hands, rather the Court should examine as to whether the
decision-making process is after complying with the procedure
contemplated by the tender conditions. If the Court finds that there is
total arbitrariness or that the tender has been granted in a mala fide
manner, still the Court should refrain from interfering in the grant of
tender but instead relegate the parties to seek damages for the
wrongful exclusion rather than to injunct the execution of the contract.
The injunction or interference in the tender leads to additional costs on
the State and is also against public interest. Therefore, the State and its
citizens suffer twice, firstly by paying escalation costs and secondly, by
being deprived of the infrastructure for which the present-day
Governments are expected to work.”

58. It is clear from the judgment (supra) that the judicial scrutiny is

very limited to the extent of eligibility criteria/tender conditions laid by

the Government is concerned.

59. In ‘Tata Motors Limited vs. The Brihan Mumbai Electric

Supply & Transport Undertaking (Best) and others’, 2023 LiveLaw

(SC) 467, the Hon‟ble Apex Court has held that:

“48. This Court being the guardian of fundamental rights is duty-bound

to interfere when there is arbitrariness, irrationality, mala fides and
bias. However, this Court has cautioned time and again that courts
should exercise a lot of restraint while exercising their powers of
WP(C) No. 2580/2022 __ Page 25 of 30

judicial review in contractual or commercial matters. This Court is

normally loathe to interfere in contractual matters unless a clear-cut
case of arbitrariness or mala fides or bias or irrationality is made out.
One must remember that today many public sector undertakings
compete with the private industry. The contracts entered into
between private parties are not subject to scrutiny under writ
jurisdiction. No doubt, the bodies which are State within the meaning
of Article 12 of the Constitution are bound to act fairly and are
amenable to the writ jurisdiction of superior courts but this
discretionary power must be exercised with a great deal of restraint
and caution. The courts must realise their limitations and the havoc
which needless interference in commercial matters can cause. In
contracts involving technical issues the courts should be even more
reluctant because most of us in Judges' robes do not have the
necessary expertise to adjudicate upon technical issues beyond our
domain. The courts should not use a magnifying glass while scanning
the tenders and make every small mistake appear like a big blunder. In
fact, the courts must give “fair play in the joints” to the government
and public sector undertakings in matters of contract. Courts must also
not interfere where such interference will cause unnecessary loss to
the public exchequer.”

60. In ‘Airport Authority of India vs. Centre for Aviation Policy,

Safety and Research (CAPSR) and others’, 2022 LiveLaw (SC) 814,

the Hon‟ble Supreme Court has held as under:

“7. While considering the scope and ambit of the High Court under
Article 226 of the Constitution of India with respect to judicial scrutiny of the
eligibility criteria/tender conditions, few decisions of this Court are required to
be referred to, which are as under:
In the case of Maa Binda Express Carrier (supra), in paragraph 8, this
Court observed and held as under:
“8. The scope of judicial review in matters relating to award of
contracts by the State and its instrumentalities is settled by a long line
of decisions of this Court. While these decisions clearly recognise that
power exercised by the Government and its instrumentalities in regard
to allotment of contract is subject to judicial review at the instance of
an aggrieved party, submission of a tender in response to a notice
inviting such tenders is no more than making an offer which the State
or its agencies are under no obligation to accept. The bidders
participating in the tender process cannot, therefore, insist that their
tenders should be accepted simply because a given tender is the
highest or lowest depending upon whether the contract is for sale of
public property or for execution of works on behalf of the
Government. All that participating bidders are entitled to is a fair,
equal and nondiscriminatory treatment in the matter of evaluation of
their tenders. It is also fairly well settled that award of a contract is
essentially a commercial transaction which must be determined on the
basis of consideration that are relevant to such commercial decision.
This implies that terms subject to which tenders are invited are not
open to the judicial scrutiny unless it is found that the same have been
tailor-made to benefit any particular tenderer or class of tenderers. So
WP(C) No. 2580/2022 __ Page 26 of 30

also, the authority inviting tenders can enter into negotiations or grant
relaxation for bona fide and cogent reasons provided such relaxation is
permissible under the terms governing the tender process.”

In the case of Michigan Rubber (India) Ltd. (supra), after considering

the law on the judicial scrutiny with respect to tender conditions, ultimately it
is concluded in paragraph 23 as under:
“23. From the above decisions, the following principles emerge: (a)
The basic requirement of Article 14 is fairness in action by the State,
and non-arbitrariness in essence and substance is the heartbeat of fair
play. These actions are amenable to the judicial review only to the
extent that the State must act validly for a discernible reason and not
whimsically for any ulterior purpose. If the State acts within the
bounds of reasonableness, it would be legitimate to take into
consideration the national priorities; (b) Fixation of a value of the
tender is entirely within the purview of the executive and the courts
hardly have any role to play in this process except for striking down
such action of the executive as is proved to be arbitrary or
unreasonable. If the Government acts in conformity with certain
healthy standards and norms such as awarding of contracts by inviting
tenders, in those circumstances, the interference by courts is very
limited; (c) In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is required to be
conceded to the State authorities unless the action of the tendering
authority is found to be malicious and a misuse of its statutory powers,
interference by courts is not warranted; (d) Certain preconditions or
qualifications for tenders have to be laid down to ensure that the
contractor has the capacity and the resources to successfully execute
the work; and (e) If the State or its instrumentalities act reasonably,
fairly and in public interest in awarding contract, here again,
interference by court is very restrictive since no person can claim a
fundamental right to carry on business with the Government.”
In the aforesaid decision, it is further observed that the Government
and their undertakings must have a free hand in setting terms of the tender
and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the
courts would interfere. It is further observed that the courts cannot interfere
with the terms of the tender prescribed by the Government because it feels
that some other terms in the tender would have been fair, wiser or logical.
Similar views have been expressed in the case of Educomp Datamatics
Ltd. (supra) and Meerut Development Authority (supra).”

61. It is also settled by the Hon‟ble Supreme Court that no writ petition

can be filed on apprehension or without any cause of action which admittedly

has not been accrued to the petitioners as on date in the present case.

62. The Hon‟ble Apex Court in ‘Kumaon Mandal Vikas Nigam

Ltd. vs. Girja Shankar Pant,’ AIR 2001 SC 24, has held as under:

“The test, therefore, is as to whether a mere apprehension of bias or

there being a real danger of bias and it is on this score that the
surrounding circumstances must and ought to be collated and
WP(C) No. 2580/2022 __ Page 27 of 30

necessary conclusion drawn there from - In the event however the

conclusion is otherwise inescapable that there is existing a real danger
of bias, the administrative action cannot be sustained: If on the other
hand, the allegations pertaining to bias is rather fanciful and otherwise
to avoid a particular court, tribunal or authority, question of declaring
them to be unsustainable would not arise. The requirement is
availability of positive and cogent evidence and it is in this context that
we do record our concurrence with the view expressed by the Court of
Appeal in Loca bail case (supra).
Having discussed the issue as above in the contextual facts, we do feel
it expedient to record that the action of the Managing Director in the
matter of withdrawal of authority as noticed above and subsequent
introduction of charges, in particular, the last of the charges as noted
above and the further factum of issuance of an eighteen page letter of
termination on the self same date and within a few hours after the
pretended hearing was given, cannot but be ascribed to be wholly and
totally biased.”

63. The plea of alleged bias against respondents is a plea permissible

in law to impugned action, however, such a plea has to be found on

substantial material and by a person who is aggrieved and has any locus

standi. This petition is based on apprehensions and assumptions that

respondent No. 2 would fail in conducting the examination fairly on the

basis of alleged malpractices and irregularities and also having been

blacklisted once by UPPCL in the past, in the year 2019. As far as

aspirants, i.e., private respondent Nos. 4 to 62 are concerned, they have

absolute faith on the respondents.

64. Learned counsel for the petitioners has placed on record Government

order No. 487-JK (GAD) of 2023 dated 22.04.2023, whereby sanction has

been accorded to the constitution of a High-Level Committee to review the

functioning of the Jammu and Kashmir Service Selection Board.

65. The Committee was directed to examine whether the process of

tendering followed by JKSSB, in which the examination conducting

company, namely, M/S Aptech Ltd. which was selected to conduct the

examinations was consistent with the extant Financial Rules/Acts, and, if

WP(C) No. 2580/2022 __ Page 28 of 30

all the relevant norms were fully complied with. The Review Committee

has been directed to submit its report within fifteen days.

66. Learned counsel for respondent No. 1 has stated that no report

could be submitted in terms of the order dated 22.04.2023 because of the

pendency of the writ petition.

67. The Apex Court in ‘Adi Saiva Sivachariyargal Nala Sangam vs.

The Government of Tamil Nadu, (2016) 2 SCC 725, has observed that

institution of writ proceedings need not await actual prejudice and adverse

effect and consequences. In the said case, the writ petitioners had assailed

certain orders and ordinances issued by the Government of State of Tamil

Nadu. Relevant extract of the judgment, for the facility of reference, is

reproduced below:

“It is difficult for us to accept the contentions advanced on behalf of the

respondents with regard to the maintainability of writ petitions on two
counts. Firstly, it is difficult to appreciate as to why the petitioners should be
non-suited at the threshold merely because the G.O. dated 23.05.2006 has
not been given effect to by actual orders of the State Government. The
institution of a writ proceeding need not await actual prejudice and adverse
effect and consequence. An apprehension of such harm, if the same is well
founded, can furnish a cause of action for moving the Court. The argument
that the present writ petition is founded on a cause relating to appointment
in a public office and hence not entertainable as a public interest litigation
would be too simplistic a solution to adopt to answer the issues that have
been highlighted which concerns the religious faith and practice of a large
number of citizens of the country and raises claims of century old traditions
and usage having the force of law. The above is the second ground, namely,
the gravity of the issues that arise, that impel us to make an attempt to
answer the issues raised and arising in the writ petitions for determination
on the merits thereof.”

68. Though, the instant petition is only based on allegations and

apprehensions but the appointments to public posts should be made

strictly in consonance with Articles 14 and 16 of the Constitution of India.

A fair and reasonable process is a fundamental requirement of equality of

opportunity. As on date, no prejudice has been caused to the petitioners

but they have an apprehension of adverse consequences from the selection

WP(C) No. 2580/2022 __ Page 29 of 30

process conducted by the respondents. The grievance of the petitioners

has already been taken note of by the Government by constituting the

Review Committee to look into the conduct of JKSSB and M/S Aptech

Ltd., in order to build confidence of the aspirants. The Review Committee

should have submitted the report by now, which could have either washed

away the apprehensions of the petitioners or enhanced faith in the

respondents.

69. The Hon‟ble Apex Court in ´Sachin Kumar and others vs. Delhi

Subordinate Service Selection Board (DSSSB) and others’, LiveLaw

2021 SC 128, held as under:

“A fair and reasonable process of selection to posts subject to the norm of

equality of opportunity under Article 16(1) is a constitutional requirement.
A fair and reasonable process is a fundamental requirement of Article 14
as well. Where the recruitment to public employment stands vitiated as a
consequence of systemic fraud or irregularities, the entire process
becomes illegitimate. On the other hand, where it is possible to segregate
persons who have indulged in mal-practices and to penalize them for their
wrongdoing, it would be unfair to impose the burden of their wrong-doing
on those who are free from taint. To treat the innocent and the wrong-
doers equally by subjecting the former to the consequence of the
cancellation of the entire process would be contrary to Article 14 because
unequals would then be treated equally. The requirement that a public
body must act in fair and reasonable terms animates the entire process of
selection. The decisions of the recruiting body are hence subject to judicial
control subject to the settled principle that the recruiting authority must
have a measure of discretion to take decisions in accordance with law
which are best suited to preserve the sanctity of the process. Now it is in
the backdrop of these principles that it becomes appropriate to advert to
the precedents of this Court which hold the field.”

70. Since the Government has already addressed the apprehensions

alleged by the petitioners by constituting the Review Committee vide

Government Order No. 487-JK (GAD) of 2023 dated 22.04.2023, therefore,

it would be appropriate to direct the Review Committee to submit its report

after deliberating into the issues in the said Government Order, as such, this
WP(C) No. 2580/2022 __ Page 30 of 30

Court is refraining from exercising its extraordinary jurisdiction under

Article 226 of the Constitution of India.

71. In view of the factum of the constitution of the Review Committee

by the Government and keeping in view the fact that the said decision has

neither been challenged by the petitioners nor by the aspirants, this Court

deems it appropriate to dispose of the writ petition to a limited extent as

indicated above by directing as under:

(i) The Review Committee constituted in terms of Government

Order No. 487-JK (GAD) of 2023 dated 22.04.2023, shall

submit its report within a period of ten days from the date of

passing of this judgment.

(ii) The Chief Secretary shall take a decision on the basis of the

report/recommendations made by the Review Committee

within a period of ten days thereafter.

(iii) The decision of the Chief Secretary shall be communicated

to the Secretary, JKSSB, who is directed to proceed strictly

in accordance with the decision taken by the Government.

(iv) However, till the final decision is taken by the Government,

the JKSSB shall not proceed with the selection process.

72. Disposed of accordingly.

(Moksha Khajuria Kazmi)

Judge

Jammu:
31.08.2023
Michael Sharma

Whether approved for speaking : Yes

Whether approved for reporting : Yes