Mohammad Rafiq, J
This special appeal seeks to challenge the judgment of the learned Single Judge dated 31.07.2018, whereby the writ petition filed by writ-
petitioner/appellant Kamlesh Kumar Meena (hereinafter referred to as ‘the appellant’) has been dismissed.
The appellant in the writ petition prayed for issuance of a writ of mandamus to the respondents to get the leakage of question paper of the REET-2017
Level-II examination investigated by the Central Bureau of Investigation or Special Operation Group or any other equivalent premier investigating
agency, with the further prayer for a direction to respondent no.3 Board of Secondary Education for Rajasthan, Ajmer, (for short, ‘the respondent-
Board’) not to declare the result of REET-2017 Level-II examination till completion of investigation. Further prayer was made that the said
examination be cancelled and the respondent-Board, which was entrusted with the task of conducting REET-2017 Level-II examination-2017, be
directed to conduct fresh examination.
Mr. S.N. Kumawat, learned counsel for the appellant, has submitted that the appellant received a message on WhatsApp (a messenger app) of his
cellphone number 9785937091 at 09:05 AM on 11.02.2018 while he was proceeding towards his examination center at Shaheed Amit Bhardwaj Senior
Secondary School, Manak Chowk, near Badi Chopar, in front of Hawamahal, Jaipur, from a WhatsApp group named ‘Namo-Lakhya’,
containing 37 pages of the question paper of G-Series. He did not pay any heed to the same and proceeded to timely reach the examination center as
the candidates were required to reach latest by 09:00 AM. However, when the appellant was served with the question paper of H-Series at 10:00 AM
in the examination center, he was shocked to see that several questions therein were from the same paper he received on his WhatsApp. When the
appellant made enquiry from other candidates after examination, he learnt that eight more candidates received similar WhatsApp message of GSeries
question paper on their cellphones. Their names with cellphone number were mentioned by the appellant in the rejoinder to the reply of the
respondents filed in the writ petition. This clearly proves that the question papers of the REET examination was leaked and the sanctity of the
examination became doubtful. Many undeserving candidates, by virtue of such leakage, were able to steal a march over genuine and deserving
candidates.
The learned counsel for the appellant argued that the learned Single Judge has erred in law in attaching too much significance to the fact that
Yashwant Kumar Saini, in whose name the complaint was made, in his statement before the committee of the respondent-Board, has denied having
made such complaint and even disputed his signature on such complaint. The learned Single Judge as also three-member-committee of the
respondentBoard has read only one part of the statement of Yashwant Kumar Saini and ignored the other part. The earlier part of his statement that
has been relied by the learned Single Judge to dismiss the writ petition is that Yashwant Kumar Saini has denied that he made the complaint dated
11.02.2018 to the respondent-Board and that the complaint was not in his handwriting. The complaint did not even contain his signature. His name and
cellphone number have been misused by someone and further that he did not receive any WhatsApp message on his cellphone number. But in latter
part of the statement of the said Yashwant Kumar Saini, he stated that such message was received by his companion Kamlesh Kumar Meena, i.e.,
the appellant herein, who informed him about the leaked paper, has been completely ignored. The said Yashwant Kumar Saini also stated that after
the examination, the appellant came to him and they compared the paper of GSeries received on WhatsApp group with the virtual question paper,
which substantially matched and they got its print out and informed the media persons about it.
The learned counsel for the appellant further argued that the examination committee of the respondent Board and the learned Single Judge could not
have selectively considered only one part of the statement of Yashwant Kumar Saini and such statement has to be read as a whole. Apart from
Yashwant Kumar Saini, a complaint was also received from one Naina Ram in the Chief Minister office. According to the respondents, they twice
called the said Naina Ram by sending notice at his e-mail address but he did not appear and therefore, no action could be taken on that complaint. It is
argued that learned Single Judge was not justified in accepting the submissions of the respondents about outcome of the enquiry without the report
thereof being placed on record, which deprived the appellant of the right to controvert the same. The learned Single Judge has erred in law in rejecting
the argument of the appellant only because he was served with the question paper of H-Series and the question paper received on WhatsApp
message by the appellant was of G-Series, by overlooking the fact that the question papers were distributed to the candidates in four series. Though
the number of questions were same but only their sequence was changed in different series. This factor cannot be relied to hold that there was no
leakage of question paper.
It is argued that the question paper of G-Series was leaked not only in Jaipur but also in Pali as also in Sidhmukh of Churu district and Nohar of
Hanumangarh district. The police conducted investigation with regard thereto, but failed to reach the conclusion as to wherefrom the question paper
originated as no help was taken from the cyber cell of the Police Department. The learned Single Judge was wholly unjustified in rejecting the writ
petition questioning the locus standi of the appellant, ignoring the fact that the appellant was only a whistle blower and his duty was to bring the
incident of leakage to the notice of the respondent authorities. The view taken by the learned Single Judge that the writ petition could not be filed by
the appellant as he was not aggrieved person and, therefore, he has no locus standi and that the writ petition could not be filed without serving notice
for demand of justice on the respondents and that the appellant has not come with clean hands, is wholly perverse and erroneous. The inability of the
respondent-Board to maintain the secrecy and sanctity of the examination was a serious lapse on their part. The leaked question paper went viral one
hour before the beginning of the examination and was found to have been circulated in different parts of the State, thus vitiating the entire process of
examination.
Mr. S.N. Kumawat, the learned counsel, submitted that while in the REET examination-2016, the cut off mark of English subject was 65.88% but in
this examination, the cut off mark in English has increased to 67.93%. There has been a similar increase in all other subjects by 3% to 5%. The
internet services were also suspended by the State of Rajasthan only from 10:00 AM and that means the examination paper was freely circulated on
WhatsApp groups in different parts of the State prior to that. Even as per the investigation conducted by the police, the Station House Officer, Sadar
Police Station, Pali, received information at 08:55 AM on 11.02.2018 about certain persons being seen in suspicious circumstances at Hanuman Sagar
Agriculture Farm at Pali with laptops, printers, etc., and when the said farm house was raided, 11 out of 20 printed pages were recovered, which
contained questions from paper of G-Series. The police eventually filed the charge-sheet in that case against six accused with remaining absconding,
for offence under Sections 4, 6 and 6A of the Rajasthan Public Examinations (Prevention of Unfair Means) Act, 1992 and Section 120B of the Indian
Penal Code. Similarly, a WhatsApp message was also received by one Rahul S/o Kaur Singh of Sidhmukh of Churu district at 08:49 AM on
11.02.2018 with 37 pages. This WhatsApp message was found originated from Nohar Industrial Area of Hanumangarh from one Ashok Kumar, a
cousin of the said Rahul. The police during investigation found involvement of as many as eight named candidates, who were beneficiaries of such
leakage of the question paper. Mr. S.N. Kumawat, learned counsel for the appellant, therefore, submitted that the impugned judgment be set aside and
the writ petition be allowed in terms of the prayer made therein.
In support of the arguments, the learned counsel for the appellant has relied on Chairman, All India Railway Recruitment Board Vs. K. Shyam Sundar
â€" (2010) 6 SCC 614, and Nidhi Kaim Vs. State of Mahdya Pradesh and Others â€" (2016) 7 SCC 615, which were also cited before the learned
Single Judge to argue that even a minute leakage of question paper would be sufficient to contaminate the written examination, requiring the re-test in
order to achieve the ultimate object of fair selection. In addition thereto, learned counsel for the appellant has also relied on the judgment of the
Supreme Court in Gohil Vishvaraj Hanubhai and Others Vs. State of Gujarat and Others â€" (2017) 13 SCC 621. Mr. N.M. Lodha, learned Advocate
General, appearing for the respondents State, opposed the appeal and submitted that as per the documents submitted with the writ petition, the
complaint was made by one Yashwant Kumar Saini about the leakage of the question paper of G-Series. No complaint was submitted by the
appellant. The enquiry committee constituted by the respondentBoard summoned Yashwant Kumar Saini, who appeared before the committee on
23.02.2018 and made a statement. He stated that he did not appear in the REET examination. He denied having made any such complaint, which was
filed with the writ petition. He rather stated that his name and mobile number have been used by someone else. Apart from him, one Naina Ram also
made a complaint in the name of ‘Berojgar Sangh’, which was received in the office of the Chief Minister on 15.02.2018, which was sent to the
Principal Secretary to the Government, Education Department, on 22.02.2018, who, in turn, conveyed the same to the respondent-Board. The Board,
by order dated 06.03.2018, constituted a high level committee with its Chairman and two members to inquire into the complaint. Notice was sent to the
said Naina Ram on his email address mentioned in the complaint asking him to appear before the Committee on 09.03.2018 but he did not appear. On
his failure to appear, the Committee again sent notice to him to appear on 16.03.2018 but on that date also he did not turn up. The Committee,
therefore, did not find the allegations substantiated. No other material was even otherwise placed before the Committee to substantiate the allegation.
Mr. N.M. Lodha, learned Advocate General, submitted that even the police investigation conducted in the incident at Pali, Nohar and Sidhmukh and
also at Jaipur did not find any substance in the allegation that there was leakage of the question paper and it went viral and was circulated widely. In
fact, the police investigation revealed that those found involved in the leakage of the question paper, did not appear in the examination. Moreover, no
other complaint was received from any part of the State of Rajasthan. The appellant in the writ petition alleged that he received the question-paper of
G-Series in examination center but actually the question paper supplied to him was of H-Series and, therefore, it was a false plea on his part.
Moreover, as per the allegation, the leakage of question paper was of G-Series at three places. As per own showing of the appellant, he did not pay
any heed to the question paper received through WhatsApp message on his cellphone on 11.02.2018 at 09:05 AM and proceeded to reach the
examination center on time. The alleged leaked question paper had thus no impact on the examination. It is argued that the internet services were
suspended in the entire State of Rajasthan before and during the examination inasmuch as the candidates were not allowed to carry any mobile phone,
bluetooth, pager or any other device in the examination center. Jammers were also fixed at the examination centers to stop receiving signals. CCTV
cameras were fixed and photographs were taken to rule out any cheating or use of unfair means. All the candidates were required to reach the
examination center at 09:00 AM on 11.02.2018, i.e., one hour before the scheduled time for start of the examination.
It is submitted that the appellant, by way of an afterthought, gave the cellphone numbers of eight more persons in the rejoinder, which he did not
mention in the writ petition, stating that on enquiry made after the examination, he learnt that these eight persons also received the alleged leaked
question paper through the WhatsApp message. But if that were true, there was no reason why the appellant would not make such assertion in the
memorandum of the writ petition. This shows that the allegation is nothing but an afterthought. Moreover, only four persons out of eight persons,
appeared in the examination. One failed to secure the passing marks and could secure only 73 marks, which were far less than the required 90 marks
for qualifying the examination, and other three respectively secured 99, 102 and 102 marks only (including bonus marks), and those marks were less
than the cut off marks to qualify the selection process. There was thus no impact of the alleged leakage on the examination.
The learned Advocate General, in support of his arguments, has relied on the judgments of the Supreme Court in East Coast Railway and Another Vs.
Mahadev Appa Rao and Others â€" (2010) 7 SCC 678, Union of India and Others Vs. Rajesh P.U., Puthuvalnikathu and Another â€" (2003) 7 SCC
285 and Ran Vijay Singh and Others Vs. State of U. P. and Others AIR 2018 SC 52. Mr. Anoop Dhand, learned counsel appearing on behalf of the
successful candidates, opposed the writ petition. He submitted that there is no truth in the allegation that the examination paper was leaked at 09:05
AM in the morning of 11.02.2018. Had it been so, the appellant would have immediately informed the police thereabout. Filing of the writ
petition/appeal by the appellant lacks bona-fides. The appellant did not make any complaint to the Invigilator, the Principal of the School or the Police
Official before or during or immediately after the examination about the alleged leakage. The learned counsel relied on the judgment of the Punjab and
Haryana High Court in Mannat Kaur (Minor) Vs. Central Board of Secondary Education & Others â€" Civil Writ Petition No.5657/2014, delivered on
01.07.2014, in which it was alleged that there was leakage of a question paper of the Senior Secondary Examination confined to limited area of Imphal
in the State of Manipur. The examination of only Manipur center was cancelled as there was no proof of the examination of any other part of the
country being affected or leaked paper having reached there.
The learned counsel argued that the appellant has approached this court only because he was sure of not securing 60% passing/qualifying marks. The
appellant has backing of many other candidates, who were either still appearing in the eligibility academic examination or who had not yet completed
study course and wanted the examination to be cancelled. Even then, the allegation of the appellant at best is that the leakage was confined to Manak
Chowk area of Jaipur and that too happened after the candidates had already reached the examination center. In such like scenario, no case arises for
interference by this court. The learned counsel cited the order passed by the Supreme Court on 04.04.2018 dismissing the Writ Petition (Civil)
No.279/2018 â€" Mahindar Pratap Singh and Others Vs. Central Board of Secondary Education, wherein allegation was about leakage of CBSE
paper of Economics of 12th standard in the month of March/April, 2018. The Supreme Court refused to interfere. The argument of the learned
counsel is that the entire examination ought not be cancelled for the benefit of the appellant alone as thousands of the unemployed youth are in queue
of securing appointment with the Government.
We have given our anxious consideration to rival submissions and perused the material on record and also respectfully gone through the cited
judgments.
We may at the outset express our disagreement with the view taken by the learned Single Judge, by relying on the judgments of the Supreme Court in
Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and Others â€" (2013) 4 SCC 465, and Renu and Others Vs. District and Sessions Judge
Tis Hazari and Another â€" (2014) 15 SCC 731, that the appellant did not have the locus to maintain the writ petition as he cannot be said to be an
aggrieved person. Once the appellant had shown that he appeared in the examination, he has to be considered as an aggrieved person. He could very
much maintain the writ petition. We also do not concur with the view taken by the learned Single Judge, relying on the judgment of the Supreme Court
in the State of Haryana and Another Vs. Chanan Mal etc. - AIR 1976 SC 1654, Ramswaroop Bagari Vs. State of Rajasthan and Others â€" AIR
2002 Raj. 28, that the appellant could not maintain the writ petition as he failed to serve notice for demand of justice on the respondents, calling upon
them to discharge their legal obligation. We also do not find any justification for the finding recorded by the learned Single Judge that the appellant was
guilty of suppression of the fact as there was mismatch in the series of the question paper which, according to him, was leaked and the one which was
supplied to him in the examination center. Reliance in support of this finding was placed by the learned Single Judge on the judgments in Dalip Singh
Vs. State of Uttar Pradesh & Others â€" (2010) 2 SCC 114, Manohar Lal (Dead) by Lrs. Vs. Ugrasen (Dead) By Lrs. And Others - (2010) 11 SCC
557, and Welcome Hotel and Others Vs. State of Andhra Pradesh and Others - (1983) 4 SCC 575, and with regard to the conduct of the petitioner,
reliance was placed on the judgment of the Supreme Court in Messrs. Pannalal Binjraj and Others Vs. Union of India and Others â€" AIR 1957 SC
397. In our considered view, reference to all these judgments was not necessary particularly when the learned Single Judge has eventually in the latter
part of the judgment gone on to examine the matter on merits, although eventually dismissed the writ petition even on merits.
Be that as it may, the decision of this matter should depend on answer to the questions - (i) whether there was any leakage of the question paper?, (ii)
what was the spread of such leakage inasmuch as the sweep of such leakage so wide as to have effect of all pervasive nature undermining the
sanctity of whole of the examination process?, (iii) what was the timing of leakage and on that basis, if the time gap between leakage and
commencement of the examination was so large as could possibly affect the secrecy of the examination?, (iv) whether the State agencies were alive
to the situation and had maintained the necessary vigil and precautions to ensure that secrecy of the examination was maintained?, and (v) whether
the investigation conducted by the police in regard to the incident reported at different parts of the State found any substance in the allegation of the
examination process being vitiated?
Before we proceed to examine the merits of the case, we deem it appropriate to briefly refer to the cited precedents, which may serve as the
guidance to answer the questions posed above.
The Supreme Court in Nidhi Kaim Vs. State of Madhya Pradesh and Others â€" (2016) 7 SCC 615, the judgment relied on by the learned counsel for
the appellant, arose out of famously known ‘Vyapam Scam’ in the State of M.P., held that where there are allegations that the students had
resorted to unfair means on large scale in an examination, the court would not insist upon registration of formal complaint. Any reliable information
suggesting adoption of such malpractices in the examination is sufficient to authorize the examining body to take action as they consider just and
proper because such bodies are responsible for their standards and conduct of examinations. It was held that the scope of judicial review of decision
of the examining body is very limited. If there is some reasonable material before the body to come to the conclusion that unfair means were adopted
by the students on a large scale, neither such conclusion nor the evidence forming the basis thereof could be subjected to scrutiny on the principles
governing the assessment of evidence in a criminal court. In that case, it was also held that the public policy of the country and the larger public
interests would be more appropriate guides than the considerations of equity to decide these questions in the absence of statutory principles applicable
to such controversy. But that was a converse case where the examination was cancelled by the authorities on receiving complaint of use of unfair
means by the students on large scale. Apart from the principle of law laid down above, the factual background in the context of which these
observations were made by the Supreme Court were entirely different.
In Union of India and Others Vs. Rajesh P.U., Puthuvalnikathu and Another, supra, relied on by the learned Advocate General, the dispute pertained
to the recruitment to 134 posts of Constables in the Central Bureau of Investigation. Therein the Supreme Court refused to interfere with the judgment
of the High Court relying on the report of the Special Committee constituted by the Central Bureau of Investigation, which identified 31 candidates
who were otherwise ineligible but were included in the select list undeservedly and directed the appointment of the remaining selected candidates. The
Supreme Court in those facts, held as under:-
“Applying an unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31
of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be
carried away by irrelevancies, giving a complete go bye to contextual considerations throwing to winds the principle of proportionality in going farther
than what was strictly and reasonably required to meet the situation. In short, the Competent Authority completely misdirected itself in taking such an
extreme and unreasonable decision of canceling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and
totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational.â€
The Supreme Court in East Coast Railway and Another Vs. Mahadev Appa Rao and Others, supra, yet another judgment relied by the learned
Advocate General, considered the challenge to the judgment of the High Court, which, while setting aside the judgment of the Tribunal, had reversed
the decision of the Railways to cancel the typewriting test for recruitment to the post of Chief Typists. In para 26 and 31 of the report, the Supreme
Court held as under:-
“26. If a test is cancelled just because some complaints against the same have been made howsoever frivolous, it may lead to a situation where no
selection process can be finalized as those who fail to qualify can always make a grievance against the test or its fairness. What is important is that
once a complaint or representation is received the competent authority applies its mind to the same and records reasons why in its opinion it is
necessary to cancel the examination in the interest of purity of the selection process or with a view to preventing injustice or prejudice to those who
have appeared in the same. That is precisely what had happened in Dilbagh Singh's case (supra). The examination was cancelled upon an inquiry into
the allegations of unjust, arbitrary and dubious selection list prepared by the Selection Board in which the allegations were found to be correct.
…..
…..
31. So also whether the competent authority ought to have conducted an enquiry into or verification of the allegations before passing an order of
cancellation is a matter that would depend upon the facts and circumstances of each case. It may often depend upon the nature, source and credibility
of the material placed before the authority. It may also depend upon whether any such exercise is feasible having regard to the nature of the
controversy, the constraints of time, effort and expense. But what is absolutely essential is that the authority making the order is alive to the material
on the basis of which it purports to take a decision. It cannot act mechanically or under an impulse, for a writ court judicially reviewing any such order
cannot countenance the exercise of power vested in a public authority except after due and proper application of mind. Any other view would amount
to condoning a fraud upon such power which the authority exercising the same holds in trust only to be exercised for a legitimate purpose and along
settled principles of administrative law.â€
Another judgment relied by the appellant in Chairman, All India Railway Recruitment Board Vs. K. Shyam Sundar, supra, arose out of a case where
the Railway Board directed the Railway Recruitment Board to conduct retest for recruitment to Group-D posts of those candidates who had obtained
minimum qualifying marks in the first written examination, in which large scale irregularities and malpractices were noticed. This was one of the three
alternatives available with the Railways. The High Court by applying the Wednesbury principle of unreasonableness as also doctrine of proportionality
held the decision of the Board to be illegal and arbitrary and directed to finalize the selection on the basis of first written test except of those 62
candidates against whom there were allegations of impersonation. The observations of the Supreme Court that were made in that context are quite
germane even for the present case. Para 36 and 37 of the report, which read thus:-
“36. Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible
person who had applied his mind to the issue to be decided could have arrived at it. proportionality as a legal test is capable of being more precise and
fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to
`assess the balance or equation' struck by the decision maker. proportionality test in some jurisdictions is also described as the ""least injurious means
or ""minimal impairment"" test so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest.
Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight
jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current
trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to
happen in the near future.
37. Proportionality, requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action
which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decisionmaker and whether the decision-
maker has achieved more or less the correct balance or equilibrium. Courts entrusted with the task of judicial review has to examine whether decision
taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent court may indulge in a merit review and if the court finds that
the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it
is not well balanced or harmonious and does not stand to reason it may tend to interfere.â€
In K. Shyam Sundar, supra, the Supreme Court held that the High Court committed a grave error in taking the view that the order of the Railway
Recruitment Board could be judged only on the question of reasonableness stated in the impugned order passed on the report of the Vigilance and not
on subsequent material furnished by the CBI. It held that the decision-maker can always rely upon subsequent materials to support the decision
already taken when larger public interest is involved. In holding so, the Supreme Court relied on its earlier judgment in Madhyamic Shiksha Mandal,
M.P. v. Abhilash Shiksha Prasar Samiti and Ors. - (1998) 9 SCC 236. It held that the contrary principle laid down in Mohinder Singh Gill and Anr. v.
The Chief Election Commissioner, New Delhi and Anr. - (1978) 1 SCC 405 is not applicable where larger public interest is involved and in such
situation, additional grounds can be looked into to examine the validity of an order. The Supreme Court in that case also disapproved of the reasoning
of the High Court that copy of the Vigilance report should have been made available to the candidates at least when the matters came up for hearing,
and held that the copy of the report, if at all to be served, need to be served only if any action is proposed against the individual candidates in
connection with the malpractices alleged.
Adverting now to the facts of the case, no doubt, the learned Single Judge has overlooked that part of the statement of Yashwant Kumar Saini where
he stated that when, after examination, appellant Kamlesh Kumar returned back, they compared the questions of the paper from those of G-Series
received in WhatsApp message and found that 90 of them matched and they took the printout and they informed the media persons, but again, the
core question would be whether leakage of the question paper was so wide spread that it covered the entire spectrum of the State throughout its width
and length, or if leakage was confined to only two or three centers in few isolated places, few minutes before start of examination, and actually did not
affect the sanctity thereof. The respondents have in this behalf placed on record the enquiry conducted by the Committee constituted by the Board of
Secondary Education, to which reference has already been made above, but, at the same time, the respondents have also placed on record the result
of investigation carried out by the police at Pali, Sidhmukh in Churu district and Nohar in Hanumangarh district and also at Jaipur.
In regard to Pali, the S.H.O., Police Station Industrial Area, Pali, had received the information from reliable sources at 08:49 AM on 11.02.2018 about
the presence of 10-12 boys with laptops and printer at Hanuman Sagar Agriculture Farm behind Bajrang Colony. The S.H.O. with the police team
raided the aforesaid farm house at 09:30 AM. The boys present there ran away from there. A person named Laxman Das present there, who, on
being enquired, disclosed the names of those boys. The laptops and printer of Scon company were seized. Twenty printed pages were also seized with
a mobile phone of Nokia make, another mobile phone of Mi make and a SIM card of Airtel and another SIM card of Jio. Two admission cards, one
Sohan Lal and another of Naina Ram, of REET-2017 Level-II examination, were also seized. Twenty printed pages were sent to the Secretary of the
Board of Secondary Education, Ajmer, who in the enquiry report found that 11 out of them were containing few questions out of 96 pages of G-
Series. Two candidates, namely, Sohan Lal and Naina Ram, whose admission cards remained absent in the examination. On further investigation, it
was found that apart from Sohan Lal and Naina Ram, Pappu Singh S/o Kesa Ram Prajapat, Rajuram @ Rajveer, Sohanlal S/o Salagram, Nema Ram
S/o Mohanlal, Jaspal Jat, Hari Shankar Prajapat, Suresh S/o Ummeda Ram Patel, Ashok Patel, Shrawan Ram Patel, Rajveer Jangu, Kishna Ram
Jangu and Uddharam, were also present at the farm house. Charge-sheet against Rajuram, Suresh, Krishna Kumar, Pappu Singh and Ashok, who
were arrested, was filed for offence under Sections 4, 6 and 6A of the Act of 1992, and investigation against remaining was kept pending. The
conclusion of the investigation was that six candidates, namely, Suresh, Ashok, Sohanlal, Nema Ram, Jaspal and Hari Shankar, who were otherwise
appearing in the REET2017 Level-II examination, fled away and were absent from the examination. They were, therefore, unable to make use of any
part of the leaked question paper and the examination at Pali was conducted in peaceful manner.
In regard to the incident of Sidhmukh of Churu district, Kaur Singh, a teacher in the Government Senior Secondary School, Sidhmukh, informed the
Convener of the REET-2017 Level-II examination of the District Churu, on cellphone that his son Rahul has received copy of the examination paper
on WhatsApp of his mobile number. The information of this person was passed on to the Superintendent of Police, Churu, who, in turn, required the
S.H.O. Police Station, Sidhmukh, to enquire into the matter. On enquiry, Rahul told that he received the WhatsApp message from his cousin Ashok
from Nohar, who had gone to Nohar for appearing in the said examination in the Government College, Nohar. Ashok told him on telephone that he has
received this examination paper on WhatsApp. The S.H.O., Police Station Nohar, was immediately informed. Since the internet services on that day
were suspended, he could not send the WhatsApp message any further. The conclusion of the police, as conveyed by the Superintendent of Police,
Churu, to the Inspector General of Police, CID Crime Branch of the State, vide letter dated 11.06.2018, was that this did not in any manner affect the
process of REET-2017 Level-II examination and that the examination was conducted peacefully. The Superintendent of Police, Hanumangarh, also
sent a similar letter to the D.I.G., CID (CB), on 09.07.2018. Ranveer Singh, the S.H.O., Police Station Nohar, received a telephonic message from the
S.H.O., Police Station Sidhmukh that interrogation of Ashok be conducted, who is said to have received the leaked examination paper by WhatsApp
message on his mobile phone. The police seized the mobile phone not only of Ashok Kumar but also of Rakesh Kumar and Kanhaiyalal. The
conclusion of the police in the investigation was that the part of the examination paper that was found on the WhatsApp message of these candidates,
was faint and was not legible and, therefore, it could not be determined whether or not the examination paper pertained to REET-2017 Level-II
examination, however, that has not affected sanctity of the examination in any manner, which was peacefully conducted.
The Deputy Commissioner of Police, Jaipur West, Jaipur, sent a communication on 12.06.2018 to the Inspector General of Police, CID (CB),
Headquarters, Jaipur, that one Shriram Sain S/o Shri Nand Kishore, R/o Plot No.43, Indra Verma Colony, Police Station Shastri Nagar, Jaipur,
submitted a report to him on that date that his brother-in-law Rajendra Sain had appeared in the REET-2017 Level-II examination. One Bhoma Ram
Jat, who was studying with his younger brother Brijendra Sain, assured him that he could get Rajendra Sain passed in the REET-2017 Level-II
examination, as he knew someone who could help him, and that person was Ashish Kumar, R/o Jhunjhunu, who has taken the guarantee to get the
examination passed for a consideration of Rs.3,00,000/- (Rupees three lakh). The complainant Shriram Sain stated that he, on being misled by him,
gave original documents of Rajendra Sain with blank Cheque and a cash amount of Rs.34,000/-, to Brijendra Sain in Panipech area of Jaipur, who
later stated that the same were given by him to Ashish. On 10.02.2018 Brijendra Sain further summoned complainant in Panipech area and demanded
more money. On refusal by the complainant to give more money, Bhoma Ram avoided returning the original documents of his brother-in-law. He told
the complainant that he has given those documents to one Satyendra Singh and C.R. Choudhary who was the Director of the Shekhawati Coaching
Center. The investigation revealed that Bhoma Ram Jat had in this manner cheated 25 students and obtained their original documents and signed blank
Cheques, which were recovered from the possession of Satyendra Singh, Ashish Kumar and Rajesh Kumar and thereafter the charge-sheet was filed
against them on 09.04.2018. However, this did not affect the examination in any manner.
Significantly enough, apart from appellant Kamlesh Kumar Meena, no other candidate from any part of the entire State of Rajasthan has come
forward to allege the leakage of the REET2017 Level-II examination. The incident reported at all the four places, namely, Jaipur, Pali, Nohar of
Hanumangarh district and Sidhmukh of Churu district, indicates that the examination paper through WhatsApp message was circulated to a limited
number of persons at about 09:00 AM, within one hour before the commencement of the examination, on the same day on which the examination was
to take place. The appellant himself has stated that he did not pay any heed when he received few pages of the examination paper of G-Series
through WhatsApp message on his cellphone at 09:05 AM and he rather proceeded to enter the examination center. Obviously, the appellant was not
allowed to take the cellphone inside the examination center. The investigation by the police with regard to the cellphone recovered with 11 printed
pages having few of the questions of G-Series from Pali, eventually led to arrest of six candidates, who too received the WhatsApp message at 09:00
AM on the very same day of the examination and none of them could appear in the examination and fled away. They were later arrested and charge-
sheet against them was filed. The WhatsApp message received on the cellphone of three candidates at Nohar (Hanumangarh) was found not legible
and it was this WhatsApp message, which was passed on to one Rahul in Sidhmukh (Churu), whose father happened to be a teacher in the
Government Senior Secondary School, who immediately informed the police. From that end also, the WhatsApp message did not circulate. This is the
entire material on which the whole process of the examination is sought to be questioned with the demand to cancel the same.
Even going by the allegation of the appellant that the leakage of question paper has resulted in marginal increase in average percentage of the marks
secured by the candidates, this issue has been examined by the Board of Secondary Education even from this angle. The minutes of the meeting of
the Coordination Committee of the respondent Board held on 24.04.2018, which was attended by all its 14 Members, have been placed on the record.
The Coordinate Committee did not find any such material reflecting that the fairness of the examination was in any manner affected by the said
leakage. The maximum marks secured by the candidates in the Child Psychology and two language papers of each of the languages, namely, Hindi,
English, Sanskrit, Urdu, Sindhi, Punjabi, Gujrati, were analyzed and it was found that while in the subject of child psychology only one candidate could
secure full marks, in the other language papers than Gujrati and Sindhi, maximum two or three candidates could secure full marks. Only in second
paper of Gujrati, 10 candidates and second paper of Sindhi, five candidates secured full marks and the candidates who secured full marks are not
confined to merely G-Series but they are spread in all different Series.
In this manner, the Board analyzed the data and concluded that out of total 30 marks of child psychology, the percentage of candidates securing 25 or
more marks was hardly 0.20 and in other language papers except Urdu, Sindhi, Punjabi, the percentage of such candidates ranged between 0.61 to
4.63. However, since number of candidates taking Urdu, Sindhi, Punjabi subjects were very minimal, the percentage of those securing 25 and more
marks in them was 16.23, 33.31 (one candidate only) and 29.26 (139 candidates). The analysis made by the Board thus also indicates that
performance of the candidates, who wrote their examination on the question papers of all four Series, namely, E, F, G and H, have also been found
almost equal. The Board has tried to explain all the aforesaid data in two different tables and two graphs. Elaborate steps taken by the Board have
been detailed out in the minutes of the meeting of the Full Board that was held on 25.04.2018. It has been mentioned at agenda item no.10 of its
minutes that Committees were constituted headed by the District Collectors in each of the Districts, the Special Operation Group of the Police was
kept alert. The Superintendent of Police, Pali, informed the Board at 09:30 AM on 11.02.2018 itself about the recovery of incriminating material. The
investigation did not reveal whether such material was used by anyone outside the farm house. There was no prima facie evidence to that effect. With
regard to the complaint received in the office of the Chief Minister, the complainant was repeatedly informed to appear before the Committee but he
failed to appear. Yashwant Kumar Saini, with whose signatures the complaint was made, was called by the Committee of the Board, but he denied
having made any such complaint. The analysis of the data aforementioned and the marks secured by the candidates in papers of different series, were
placed before the Full Board meeting.
The significance of the REET-2017 Level-II examination can be understood from this that a total 8,04,122 candidates submitted on-line applications,
however, 7,31,323 candidates finally appeared in this examination in as many as 2253 examination centers. The duration of the examination was
twoand-a-half-hour, which was conducted on 11.02.2018 between 10:00 AM and 12:30 PM. During the pendency of the writ petition, the respondent-
Board was restrained from declaring the result, however, on dismissal of the writ petition, the result has been declared on 31.07.2018. A total of
2,53,239 candidates were declared pass, which is 36.24% of the total number of candidates writing the examination. The paper carried total 150 marks
and minimum 60% marks were required to clear the examination, meaning thereby 90 marks out of 150 were required to be secured to qualify the
examination. The Director, Elementary Education, Rajasthan, Bikaner, by order dated 03.09.2018 declared the cut off marks of different categories
for the purpose of appointment. While declaring the cut off marks, 70% weightage was given to the marks secured in REET/RTET plus 30% to those
of the graduation. Only such candidates who, secured cut off or more marks, are eligible to apply for appointment on the post of General Teacher
Gr.III Level-II. As per the data furnished by the respondents in reply to the stay application, there are total 27632 vacancies of the Teachers Gr.III
Level-II. Marks secured by the candidates in the REET/RTET thus played a vital role in the ultimate appointment of so large number of unemployed
youths in the State and therefore the significance and sanctity of the examination is writ large.
In Gohil Vishvaraj Hanubhai, supra, the Supreme Court with reference to its earlier decision in Nidhi Kaim, supra, held that “where there are
allegations of occurrence of large-scale malpractices in course of conduct of examination process, the State is entitled to cancel the
examination…..â€. Those were the cases in which action of the State or its instrumentalities to cancel the examination on the basis of some
reasonable material to indicate that the same was vitiated, was upheld. But the present one is the case where the appellant is the lone candidate who
has come forward to seek issuance of writ of mandamus to cancel the entire examination. And here, we may again refer to useful observations of the
Supreme Court in para 18 of the judgment in Gohil Vishvaraj Hanubhai, supra, while relying on its earlier decision in K. Shyam Kumar, supra, which
read as under:-
“18. Normally while exercising the power of judicial review, the courts would only examine the decisionmaking process of the administrative
authorities but not the decision itself. ….â€
This court, in the realm of its power of judicial review, has to therefore decide whether the decision taken by the respondentBoard in going ahead with
the result of the REET-2017 Level-II examination, was so proportionate and balanced, which a reasonable person of ordinary prudence, on available
material would have taken. Out of two options available with the respondent authorities, namely, whether to cancel the whole examination or to go
ahead with the same by declaring its result, applying the test of Wednesbury principle of unreasonableness, we do not find that the decision of the
respondent authorities not to cancel the entire examination on the basis of whatever material was available with them, is so reprehensible that it defies
the logic or accepted moral and ethical standards, which no reasonable person of ordinary prudence could, on the given material, take. This court
would be justified to interfere with the decision of the respondents in not cancelling the entire examination only if it finds that the decision is
disproportionate, i.e., if the court feels that it is not well balanced or harmonious and does not stand to reason. Even when the proportionality test is
applied, it has to be accepted that the principle of proportionality is more concerned with the aims of the decision-maker. It has to be seen whether the
decision-maker has achieved the correct balance. While therefore keeping in mind the larger public interest and considerations of the welfare State,
the court has to consider the relative weightage of both the options; whether to go ahead with the result of the examination to make appointments or
whether to cancel whole of the examination to hold the retest. When the one option is weighed against another, we find that the decision of the
respondents in not cancelling the entire examination, to use the words of the Supreme Court in K. Shyam Kumar, supra, “has achieved more or
less the correct balance or equilibrium.â€
Considering the magnitude of the examination and keeping in view the number of candidates appearing therein, cancellation of the entire examination
would result in enormous exercise undertaken and huge efforts put in by all the functionaries of the State going waste. This would have catastrophic
affect on future of large number of unemployed youths waiting for appointments that are going to be made on that basis and would derail the entire
process of selection by a year or so. The material that has been placed on the record by the appellant or otherwise collected by the police, applying the
test of Wednesbury principle of unreasonableness as also the doctrine of proportionality, is not so convincing and compelling as to justify such an
extreme step. We thus answer all the questions posed above accordingly.
In view of the aforesaid discussion, although we differ with the reasons given by the learned Single Judge in dismissing the writ petition filed by the
appellant but agree with the final conclusion arrived at by him in dismissal of the writ petition.
Consequently, the appeal fails and is hereby dismissed. This also disposes of stay application.
