h475

HIGH COURT OF JAMMU &KASHMIRAND LADAKH

AT JAMMU

WP(C) No.2580/2022
Cav No.1569/2022

Reserved on : 30.11.2022
Pronounced on: 08.12.2022

Vinkal Sharma and others ...Petitioner(s)

Through:- Mr.Abhishek Gupta,Advocate

V/s

Union Territory of J&K and others ...Respondent(s)

Through:-Mr. Rahul Sharma, Dy. AG for R-1
Mr. Abhinav Sharma, Sr. Advocate with
Mr. Sidhant Gupta, Advocate for R-2

Coram: HON’BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE

JUDGMENT

1. The present writ petition has been filed on behalf of the petitioners,

who claim to be the aspirants, who have responded to the advertisement for

various examinations to be conducted by the Jammu & Kashmir Services

Selection Board (JKSSB) and the two such examinations are Junior

Engineer (civil), Jal Shakti Department and Sub Inspector (Home

Department) to which all the petitioners have responded to and applied.

The petitioners are seeking direction to respondent No.1 not to conduct the

examination through respondent No.2 (M/s Aptech Limited), blacklisted in

the past, which contract was given to respondent No.2 and as per the

petitioners, the examinations are tentatively scheduled to be conducted

from 05.12.2022 to 20.12.2022. Petitioners further seek a direction to

 2 WP(C) No.2580/2022

appoint some other agency, which is not previously blacklisted for

conducting such examinations through Computer Based Test Mode

(CBTM) involving public employment. According to the petitioners, prior

to this, respondent No.1 has previously floated a tender for empanelment of

agency for conduct of its various examinations through Optical Mark

Recognition (OMR) mode exams vide e-NIT No.01 of 2021. In that tender,

one ND Info Systems Private Limited was the successful bidder but

respondent No.1 awarded the contract to one Merit Trac Services Pvt. Ltd.

overlooking the fact that in pre-qualification evaluation for e-NIT No.01 of

2021, the Merit Trac Services Private Ltd. clearly and in unambiguous

terms mentioned itself to be a blacklisted firm. The Merit Track Services

Pvt. Ltd. conducted the examinations of Junior Engineer (Civil) (Jal Shakti

Department) on 20.03.2022 and Sub Inspector (Home Department) on

29.03.2022 and also Finance Account Assistant exam. The malpractice

occurred during the aforesaid examinations and the examination conducted

by the said Merit Trac Services Pvt. Ltd. was compromised as papers were

leaked, as a consequence of which these two examinations among others

were scrapped by respondent No.1. It has been brought to the notice of the

Court that the matter at presently is being investigated by the Central

Bureau of Investigation (CBI) and recently the CBI has filed charge-sheet

in these matters. The further case of the petitioners is that since the contract

was given to a blacklisted agency, this was the precise reason that

malpractices occurred and the matter at presently is being investigated by

the CBI.
 3 WP(C) No.2580/2022

2. It is further pleaded by the petitioners that in spite of the fact that the

aforesaid agency i.e. Merit Trac Services Pvt. Ltd. has indulged in

malpractices and the charge-sheet has been filed by the CBI, yet respondent

No.1 till date has not held them accountable or blacklisted the agency. It

has been contended by the learned counsel for the petitioners that the

JKSSB has issued e-Tender Notice No.18 of 2022 dated 05.09.2022 by

virtue of which tenders were invited for engagement of agency for conduct

of Computer Based Tests/Examinations (End to End) for J&K SSB for a

period of one year. The petitioners have drawn attention of this Court to

Clause 2.8 of the aforesaid tender notice, which specifically provides as

under:-

2.8 Affidavit- The agency must certify A declaration sworn by

that----
the authorized
1. It is not under a Declaration of representative of
Ineligibility for corrupt or
bidding Agency to be
fraudulent practices with any
Government departments/ submitted as Annexure-
agencies/ministries or PSU’s C.
and is not blacklisted by any
government departments/
agency/Ministries or PSUs.

2. If successful, the bidding

agency will undertake the
assignment in accordance with
the Scope of Work and provide
a dedicated, well qualified team
for the purpose.
 4 WP(C) No.2580/2022

3. All the documents enclosed are

True and nothing has been
fabricated.

3. It has further been pleaded by the petitioners that the aforesaid e-

tender notice required the bidder to submit a declaration by way of an

Affidavit in the form as Annexure-C. For facility of reference, relevant

portion of Annexure-C: Affidavit is reproduced hereunder:-

“1.We are not under any Declaration of Ineligibility for

corrupt or fraudulent practices with any Government
departments/agencies/ ministries or PSU’s and we are not
blacklisted by any government departments/agncy/Ministries
or PSUs.

2. If successful, we will undertake the assignment in

accordance with the Scope of Work.

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 Investigating Agency.

4. If successful, we will provide a dedicated, well qualified

team for the purpose.

5. All the documents enclosed/uploaded in response to the

above quoted tender are True and nothing has been fabricated.

6. In the event of the failure of complying with any of the

above condition, we are liable for initiation of necessary
legal/criminal proceeding against us along with forfeiture of
the EMD.”
 5 WP(C) No.2580/2022

4. From a bare perusal of the aforesaid terms and conditions of the

tender notice coupled with declaration in Form-C, it was emphatically clear

that the agency was under an obligation to submit a declaration that it 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.

5. The brief case of the petitioners before this Court is that since

respondent No.2 i.e. M/s Aptech Limited did not fulfill in the aforesaid

criteria, respondent No.1 with a view to award contract in favour of the

said agency, issued a corrigendum No.01 dated 14.09.2022 to e-NIT No.18

of 2022 dated 05.09.2022, wherein amongst other conditions, aforesaid

clause in the affidavit was changed with a view to lift the rider for

Respondent No.2 to participate in the tendering process and ultimately

award contract in its favour and to shower undue benefit on respondent

No.2, conditions were tailor-made, so that the contract is awarded to

respondent No.2 and, accordingly, aforesaid corrigendum was issued. The

petitioners in the writ petition have reproduced para-9 of the aforesaid

corrigendum, which specifically reads thus:-

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

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.”

6. The petitioners have further pleaded that it has been specifically

provided in the aforesaid NIT dated 05.09.2022 in Note 4 of Clause 3 that

any addendum/corrigendum to the e-NIT, if required, shall be uploaded on

 6 WP(C) No.2580/2022

the website www.jktenders.gov.in. It is the specific case of the petitioners

that no such corrigendum was issued by respondent No.1 and it was

published only in one newspaper namely, “State Times”, which did not

have wide circulation. The publication of the corrigendum in the aforesaid

newspaper, which did not have wide circulation, clearly proves the conduct

of respondent No.1 that it was determined to give preference to respondent

No.2 right from the beginning.

7. The further case of the petitioners is that some of the aspirants came

to know about the corrigendum and they started raising voice against the

corrigendum as a consequence of which, respondent No.1 in a hush-up

manner cancelled the tender and shortly floated a new tender in which the

same condition of the corrigendum was added in place of earlier condition,

which finds mention in NIT No.18 of 2022 with a view to favour their

blue-eyed person i.e. respondent No.1. The specific case of the petitioners

is that respondent No.1 with mala fide intention in an arbitrary manner

changed the terms and condition of the earlier NIT. With a view to favour

respondent No.2 the condition was tailor-made so that respondent No.2 can

participate in the tendering process and ultimately the contract can be

awarded to such respondent.

8. It has been specifically pleaded by the petitioners that respondent

No.2 has already been involved in various malpractices and irregularities

and has been blacklisted by the UP Power Corporation Limited (UPPCL).

It has further been contended that respondent No.2 was involved in

malpractices in Rajasthan police constable recruitment exam which was

 7 WP(C) No.2580/2022

cancelled later on. The further case of the petitioners is that vide order

dated 23.05.2019 issued by the UPPCL, respondent No.2 was blacklisted

for award of contract for a period of three years after it was found that it

has resorted to and facilitated hacking and cheating by candidates in public

examination. Feeling aggrieved of the same, respondent No.2 preferred a

writ petition before the Allahabad High Court to assail the black listing

order passed by the UPPCL dated 23.05.2019. The petitioners have

referred to the judgment passed by a Division Bench of the Allahabad High

Court dated 07.08.2019 in Civil Miscellaneous Writ Petition

No.19639/2019 titled M/s APTECH Lt. v. UP Power Corporation and

another. In paragraph No.4 of the judgment of Allahabad High Court, it has

been observed as under:-

“14. He further submits that from a bare perusal of the F.I.R., it is

evident that it contained the averment in regard to Aptech Limited being
the examination conducting agency its failure to ensure that the computer
systems which were installed at the examination centres, namely,
J.K.Public School, Lucknow and Mahabir Prasad Degree College did not
contain any virus/hacking software. Thus, from the F.I.R. it is clear that
the Aptech Limited had not only failed to ensure that the computer
systems were properly sanitized and free from hacking etc. but also
facilitated the accused persons to install AMMY ADMIN software
which gave access to such systems to the hackers to hack the
examination papers and to benefit certain of the candidates illegally. The
report of the S.T.F.U.P. police spells out the technical
shortcoming/anomalies at the end of the petitioner.”

9. Learned counsel for the petitioners has also referred to a judgment

passed by the Delhi High Court in WP(C) No.6922/2020 titled M/s

APTECH LIMITED v. Union of India and another on 11.02.2021

wherein a cost of Rs.10,00,000/- has been imposed upon respondent No.2

 8 WP(C) No.2580/2022

by observing that organizations resorting to or permitting malpractice at an

institutional level should be kept at bay, by bodies conducting public

examination and such conduct ought not to be condoned. Respondent No.2

through the medium of aforesaid writ petition before the Delhi High Court

had challenged disqualification dated 28.08.2020 imposed upon it with a

further direction to allow respondent No.2 to participate in the tendering

process. While dismissing the writ petition of respondent No.2, High Court

of Delhi has observed that the writ petition filed by respondent No.2 was

gross abuse of the process of Court as respondent No.2 (petitioner therein)

has not come to the Court while invoking its discretionary jurisdiction with

clean hands because respondent No.2 has deliberately suppressed from the

Court the judgment of the Allahabad High Court, which has returned a

specific finding about the blameworthy conduct of Respondent No.2,

besides giving false declaration while submitting its bid on a completely

specious premise. Since respondent No.2 did not disclose in its declaration

that it had been blacklisted by UPPCL on 23.05.2019 for a period of three

years and the said blameworthy conduct of respondent No.2 was noticed in

the blacklisting order as well as in the decision of the Allahabad High

Court and respondent No.2 was found guilty of having installed a software

which made it possible for candidates to hack the system and to have

resorted for cheating.

10. Learned counsel for the petitioners has submitted that since

respondent No.2 was conscious of the aforesaid position and sought to

cover its blameworthy conduct and falsity in the declaration given in Form
 9 WP(C) No.2580/2022

“B”. Accordingly, the writ petition filed by respondent No.2 was dismissed

and a cost of Rs.10,00,000/- was imposed upon it.

11. According to the petitioners, when new tender bearing No.19 of

2022 was issued in favour of respondent No.2, the aspirants became

curious of their future and fearing unfair recruitment process, they

approached number of times to respondent No.1 and verbally appraised

about the situation and consequently filed a representation dated

04.11.2022 against respondent No.2 being a blacklisted agency for UP and

further in the State of Assam and Rajastha also respondent No.2 has been

indicted in the process. Further case of the petitioners is that although, two

agencies, namely Aptech Limited and Eduquity Career Technologies Pvt.

Ltd. prequalified for technical presentation and evaluation but the technical

bid was won by Eduquity Career Technologies Pvt. Ltd. and was declared

technically superior agency, who could better handle the online

examination but instead the contract was awarded to respondent No.2, who

has scored better in the financial bid. With a view to fortify their claim, the

petitioners have placed on record the minutes of the meeting showing

technical and financial score of both the bidding agencies, which clearly

proves beyond any shadow of doubt that Eduquity Career Technologies

Pvt. Ltd. has scored better than respondent No.2 in the technical bid.

12. It has also been contended by the learned counsel for the petitioners

that owing to the scam done in the OMR based examination where there

was no check on the standard of procedure adopted for conducting

examination by the service provider, respondent No.1issued tender for

 10 WP(C) No.2580/2022

selection of service provider for review/audit of examination process of

computer based test of agency vide e-Tender No.20 of 2022 dated

17.10.2020 and there too, overlooking poor response from agencies,

agency namely Ernst and Young LLP was given tender on 22.11.2022. It

has been further pleaded that Ernst and Young LLPwas fined 100 million

penalty for employees cheating on CPA Ethics Exams and for misleading

investigation. As per the petitioners, respondent No.1 did not learn from its

past mistakes inspite of the fact that their two examinations were scrapped

and matter was referred to the CBI, yet they awarded the contract for

conducting examination for one year to a Agency, which was blacklisted

and tainted and was involved in malpractices. Feeling aggrieved of the

same, the petitioners, who are young aspirants hailing from different parts

of the Union Territory have come to this Court through the medium of

present writ petition and have sought the following reliefs:-

“a) Writ of Certiorari quashing 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 conduct of its various examinations
through Computer Based Test mode in favour of respondent No.2.
Further also quashing 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 computer bases test (CBT) in favour of
respondent No.3 and direct the respondent No.1 to get it audited by
some government agency or other body and penalizing the culprits in
case of any anomalies of malpractices, cheating found.

b) Writ of Mandamus directing the respondent No.1 not to conduct

its various examinations through respondent No.2 being a blacklisted
agency and to reissue notice inviting tender for conduct of its
 11 WP(C) No.2580/2022

examination (end to end) through Computer Based Test and appoint

only a non blacklisted agency.”

13. With a view to substantiate their claim that respondent No.2 was a

blacklisted agency and should not have been awarded the contract, the

petitioners have also supplied brief synopsis to this Court, which was taken

on record after the matter was being heard at length in which the petitioners

pointed out irregularities committed by respondent No.2, which are as

under:-

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

irregularities and malpractices in appointments, 1188

appointments cancelled out of 1300 post in 2020 after

investigation by STF.

ii) Rajasthan Police constable recruitment scam, Aptech was

hired and exam held in 2017, after complaint investigation

started, director of Aptech infotech with the help of others

aided in hacking IP, irregularities found in 2018.

iii) UPPCL hired Aptech Ltd for exam in 2018 after irregularities

via, system mirroring, and various other modes by STF exam

scrapped and firm blacklisted for three years from May, 2019

to May, 2022.

iv) August, 2020 Aptech conducted exam for Assam Irrigation

Department, irregularities found, court stayed the result.

 12 WP(C) No.2580/2022

v) In 2022 Allahabad High Court NTA awarded contract to M/s

Aptech, allegation of irregularities after exam.

vi) NTA has served a show cause notice to Aptech after an audit

of recently conducted exams for NTA, by auditing partner of

NTA.”

14. Heard learned counsel for the petitioners, Mr. Rahul Sharma, learned

Deputy Advocate General appearing on behalf of respondent No.1 and Mr.

Abhinav Sharma, learned senior counsel along with Mr. Sidhant Gupta,

Advocate appearing on behalf of respondent No.2. However, none has

appeared on behalf of respondent No3. Since learned counsel for the

petitioners submits that the petitioners will not press for any relief against

respondent No.3 in the present petition, therefore, its presence was felt not

necessary.

15. With the consent of learned counsel for the parties, the present writ

petition is admitted to final hearing and taken up for final disposal.

16. Mr. Rahul Sharma, learned Deputy Advocate General, representing

the SSB-Respondent No.1 was directed to produce the original record,

which has been produced by him. Mr. Rahul Sharma has drawn attention of

this Court with respect to the pre-bid queries of M/s Aptech and also

decision thereof, which was agreed by the tendering committee. It is argued

that the terms and conditions were changed pursuant to the decision of the

tendering committee and accordingly, terms of affidavit were recast as

below:-
 13 WP(C) No.2580/2022

“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.
Institution/Board/PSU of the country as on date.”

17. It has further been argued by learned counsel for respondent No.1

that the corrigendum was published not only in State Times but also in The

Hindu, Times of India Delhi Edition, Rising Kashmir and also on the

website. Mr. Rahul Sharma has also taken this Court to the minutes of the

purchase committee held under the chairmanship of the Chairman on

25.10.2022 by virtue of which technical evaluation as per the criteria

specified in the NIT No.19 of 2022 was reflected. Besides, learned counsel

for respondent No.1 has also placed on record the evaluation result of

stage-1 Eligibility of e-NIT No.18 of 2022 dated 05.09.2022 with regard to

engagement of respondent No.2 for conducting computer based tests for

JKSSB.

18. Mr. Abhinav Sharma, learned Senior Counsel appearing on behalf of

respondent No.2, who is on caveat, along with Mr. Mayank gupta,

Advocate vehemently argued that the turnover of the bidding agency,

which was fixed at the minimum average turnover of INR 2000.00 lac for

the last three financial year i.e. 2019-20, 2020-21 and 2021-22 from CBT

examinations at Clause 2.3 was slashed by virtue of fresh tender dated

30.09.2022 to 1000. Lac for the last three financial years with a view to

have maximum competition. Learned Senior counsel has justified that on

the day of the tendering, respondent No.2 was not blacklisted, thus, there

was no legal impediment for respondent No.2 to participate in the tendering

 14 WP(C) No.2580/2022

process. He has further submitted that since the condition in the earlier

tender notice was vague in nature and subsequently terminology of the

affidavit was changed with regard to the blacklisting. Because on the date

of tender, respondent No.2 was not blacklisted by any government agency

and thus, respondent No.2 was having every right to participate in the

bidding process. It has further been argued by the learned counsel that

initially respondent No.2 was blacklisted for three years w.e.f. 23.05.2019

to 22.05.2022 and on the date of the fresh tender, respondent NO.2 was not

disqualified and has every right to participate in the same. It has been

further argued that a transparent procedure has been adopted by respondent

No.1 while awarding contract to respondent No.2 and there is no violation

of the terms and conditions of the tender notice. Relying upon a judgment

of the Supreme Court rendered in the case of Kulja Industries Limited v.

Chief General Manager, Western Telecom Project Bharat Sanchar

Nigam Limited and others, (2014) 14 SCC 731, learned Senior Counsel

argues that the blacklisting signifies a business decision by which the party

affected by the breach decides not to enter into any relationship with the

party committing the breach and any such decision is subject to judicial

review when the same is taken by the State or its instrumentalities. He

further submitted that since as on the date of tender, respondent No.2 has

not been blacklisted by the Government and thus, it is not prevented from

entering into lawful relationship with respondent No.1

19. There is no denying of the fact that JKSSB is a premier recruiting

agency in the Union Territory of J&K having mandate of undertaking

 15 WP(C) No.2580/2022

recruitment in a fair and transparent manner to the non-gazetted positions

including Class-IV vacancies as referred to it by various government

departments and has the power/authority to hold examination/interviews

including skill tests wherever required for carrying out the recruitment to

various posts. From the record, which has been produced by respondent

No.1, it is apparent that the SSB is trying to make efforts to improve the

efficacy of recruitment process by infusing technology-based interventions

like CBT mode of examination which is more secure and transparent than

the traditional OMR based tests. From the record, it is apparent that

respondent No.1 has taken a decision on 10.08.2022 for authorizing the

JKSSB to undertake end to end process including setting of question papers

in computer bases test through authorized agency. Pursuant thereto, a

meeting was held under the chairmanship of the Chief Secretary in which a

decision was taken that the JKSSB shall conduct all the examinations

through CBT mode only. The CBT mode of examinations reduced human

involvement in the process thereby decreasing the chances of paper leakage

as cumbersome process of printing and transportation of examination

material involved in OMR bases examinations is eliminated.

20. Major recruiting agencies like the Staff Selection Commission,

Railway Recruitment Board have also switched to CBT mode of

examination. From the record, it is apparent that in the note-sheet, the SSB

has admitted that the recent developments, which has led to the

cancellation of the examination for the post of Sub Inspector (Home

Department and enquiry in the examination for Accounts Assistant

 16 WP(C) No.2580/2022

(Finance) and Junior Engineer (Jal Shakti Department) has seriously dented

the image and raised eye brow about the efficacy of the recruitment method

adopted by the SSB and, accordingly, the SSB has taken a decision to have

audit of the entire recruitment process as well as agencies involved in

conduct of examinations for respondent No.1. The record further reveals

that the SSB deliberated upon the issue and decided to discontinue the

conduct of CBT examination through NSEIT Ltd in view of the subsequent

developments leading to the cancellation of examination for the post of Sub

Inspector (Home Department) and enquiry into the examination of Account

Assistants (Finance) and Junior Engineer (Jal Shakti Department) and the

decision of the Board was conveyed to the aforesaid agency NSEIT on

24.08.2022. The record further reveals that respondent No.1 constituted a

tendering committee for finalizing a comprehensive Tender Document and

for floating an e-Tender for conducting the computer based tests by the

J&K Services Selection Board.

21. The record further reveals that pursuant to the issuance of e-NIT

No.18 of 2022 dated 05.09.2022, the tendering Committee constituted vide

order No.260 dated 25.08.2022 held a pre-bid meeting with prospective

bidders on 12.09.2022, which is evident from the communication dated

09.09.2022. Pursuant thereto, from the record note of the pre-bid meeting,

it is apparent that the prospective bidders highlighted various issues

including pre bid queries on various clauses and items included in the

Tender Document as uploaded by respondent No.1 The record note further

reveals that the queries were deliberated upon by the members of the
 17 WP(C) No.2580/2022

tendering committee and the copies of the Pre-Bid queries were retained by

the Tendering Committee for its decision, to be recorded against each pre-

bid query on 13.09.2022.

22. I have gone through the original record with regard to the pre-bid

queries of M/s Aptech and other agencies and subsequent decision thereof.

The record nowhere reveals that what weighed with the authorities to

change the terminology of the affidavit and what weighed with the

authorities to re-cast the condition No.3 of the Affidavit by virtue of a

corrigendum and subsequently issuance of a fresh tender dated 30.09.2022

vide e-Tender Notice No.19 of 2022.

23. The record further reveals that by virtue of corrigendum No.02 to e-

NIT No.18 of 2022 dated 05.09.2022 dated 28.09.2022 specified the key

events and dates, which is reproduced hereunder:-

“The “Key Events and Dates” mentioned at serial No.3 in the

above mentioned tender document are hereby revised as

below—

S.No. Event Earlier Revised

Scheduled date Scheduled date

1. Date of opening of 27.09.2022, 2.00 29.09.2022,

Technical Bids PM 11.00 AM

2 Date of Presentation 29.09.2022, 30.09.2022,

11.00 AM 10.00 AM

24. Another Government Order No. 1117-JK(GAD) of 2022 dated

28.09.2022 came to be issued by virtue of which sanction was accorded to

 18 WP(C) No.2580/2022

the constitution of Purchase Committee in J&K SSB specifying the terms

and conditions of the purchase committee.

25. I have gone through the record minutely. How and under what

circumstances, the conditions were tailor-made for respondent No.2 is not

forthcoming from the record and what weighed with respondent No.1 to

carry out changes is also not borne from the record. The record further

reveals that on 29.09.2022 tenders received against e-NIT No.18 of 2022

were opened and it was found that four agencies, namely, Eduquity Career

Technologies Pvt. Ltd., Ava Systems, Cygnus Information Solutions Pvt.

Ltd and Aptech Ltd had participated and on the same day a decision was

taken to cancel the tenders and floating of fresh tenders recommended.

26. On 22.10.2022, Tenders received against e-NIT No.19 of 2022 were

opened and it was found that five agencies namely Ava Systems,

Diversified Business Solutions Pvt. Ltd., Aptech Ltd., Cygnus Information

Solutions Pvt. Ltd. And Eduquity Career Technologies Pvt. Ltd. had

participated. Eligibility document submitted by the agency were evaluated

and it was found that all three agencies have submitted deficient documents

and two agencies namely Aptech and Edquity has submitted all the

required documents and accordingly were declared eligible for stage 2,

Technical evaluation and presentations. On 25.10.2022, Both the stage 1

qualified agencies were evaluated technically and presentations were taken

from them. The technical stage result was issued on 28.10.2022 wherein

respondent No.2 obtained 63/70 and Eduquity obtained 66.5/70. On

31.10.2022, Financial bids of both the agencies opened and as per the
 19 WP(C) No.2580/2022

tender conditions Aptech obtained 30/30 and Eduquity obtained

23.9875/30 points. Final cumulative score obtained by Aptech and

Eduquity were 93 and 90.4875 respectively. The Aptech was declared

successful as per the tender conditions. On 03.11.2022, Final negotiations

on quoted rates held with Aptech Ltd and award of contract in favour of

Aptech Ltd. is recommended by the Govt. constituted Purchase Committee

of JKSSB. On 04.11.2022, Contract was awarded in favour of Aptech Ltd.

and Letter of Intent was issued. On 05.12.2022, Exams of Junior Engineer

(Civil) Jal Shakti Department scheduled to be conducted on 5 th and 6th

December, 2022 in four shifts across different centres in the Union

Territory and admit cards (first stage) have been issued. On 07.12.2022,

Exams of Sub Inspector Home Department is Scheduled to be conducted

from 7th December to 19th December, 2022 in 22 shifts across different

centres in the Union Territory.

Locus Standi of Petitioners

27. By way of the aforesaid mala fide exercise of power, right of the

participants to participate in a selection process for a public post in a fair

and transparent manner has also been infringed and thus, the petitioners,

who are aspiring candidates for such positions have a locus to call in

question the mala fide action of respondent No.1 and, thus, the writ petition

filed by the petitioners is maintainable. Once the right to participate in a

selection process for a public post by aspiring candidates in a fair and

transparent manner has been taken away by the impugned action of

respondent No.1 by awarding contract to a tainted agency, the public

 20 WP(C) No.2580/2022

interest has also suffered in the present case as it is a deliberate attempt on

part of respondent No.1 right from the beginning to award contract to

respondent No.2. Thus, in the present case the legitimate expectations of

the aspiring candidates for participating in a fair and transparent

recruitment process has been infringed, which can be the basis for judicial

review in the present case.

Legal Analysis

28. Whether the process adopted or decision made by the authority is

mala fide or intended to favour someone, also does Arbitrariness exist in

the decision making process: Firstly, This is a rarest of the rare case where

the Jammu and Kashmir Services Selection Board, which is a premier

recruiting agency of the Union Territory of J&K having the mandate of

undertaking recruitment in a fair and transparent manner and its action in

the past leading to cancellation of examination for the post of Sub

Inspectors in Police Department and Junior Engineer in Jal Shakti

Department has seriously dented the image and raised questions about the

efficacy of the recruitment method adopted by the SSB, yet again has

perpetuated its wrong in giving contract to an agency which is

tainted/previously blacklisted for perpetuating fraud in the form of hacking

of question papers.

29. From a perusal of the record, it appears that the SSB in view of the

recent developments, has admitted its fault and accordingly, a conscious

decision was taken for serious audit of the entire recruitment process as

well as the agencies engaged/empanelled for conduct of examination by the

 21 WP(C) No.2580/2022

JKSSB, wherein it was observed that the candidate’s faith was the

paramount importance and a decision was taken that the Board shall

conduct all the examinations through CBT mode only while taking the

decision to float fresh tender for empanelling the most suitable agency for

conducting the examinations.

30. It is not so even, respondent No.2, whose action are being

investigated by the premier agency of the Country i.e. CBI and the challan

has also been produced with regard to the recruitment of Sub Inspectors

and Junior Engineer in Jal Shakti Department, respondent No.1 has yet

again altered/changed the terms and conditions of the NIT with a view to

favour their own blue-eyed persons i.e. respondent No.2 by

annulling/cancelling the earlier tendering process and initiating fresh

process again by issuing a fresh tender by way of changing the conditions,

which were tailor-made just to give benefit to respondent No.2 so that

respondent No.2 is not ousted from the zone of competing or award of

contract. The SSB has, in a way, altered the terms and conditions of the

NIT by incorporating negative conditions and relaxing the terminology of

the affidavit by incorporating that “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. Institution/Board/PSU of the country as on date” when in the earlier

tender notice, which was cancelled, the terminology in the affidavit was

that “the Firm has never been blacklisted in the past, by any Govt./Private
 22 WP(C) No.2580/2022

Institution of the country and there is no case pending in any Investigating

Agency”.

31. Since respondent No.2 was already blacklisted in the past and there

was a case pending with the investigating agency, the aforesaid condition

was relaxed with a view to shower undue benefit on respondent NO.2 and

the conditions were tailor-made so that respondent No.2 is not ousted from

the consideration zone or award of contract.

32. The entire action of the SSB by relaxing the aforesaid conditions

smacks foul play and leads to an irresistible conclusion that the SSB was

bent upon to engage a previously blacklisted/tainted agency when already

SSB’s actions are being investigated/enquired by the CBI for awarding

contract to a tainted agency in the past. By way of aforesaid action, the

fundamental rights of all the participants, which are guaranteed by Article

16 of the Constitution have been infringed i.e. their right to participate in a

fair and transparent manner selection process has been infringed by the

impugned action on part of SSB by awarding contract in favour of a tainted

agency. It goes without saying that right to participate in a selection

process does not mean a mere minimal participation in a process, but which

is fair and transparent and not loathed with mala fide consideration. No

rational whatsoever is forthcoming from the record supplied to this Court

for withdrawing the earlier NIT and initiating the fresh tendering process

by altering the terms and conditions of the NIT with a view to favour a

tainted/blacklisted agency.
 23 WP(C) No.2580/2022

33. The cases involving blacklisting or imposition of penal consequences

on a tenderer/contractor or distribution of State largesse stand on a

different footing as they may require a higher degree of fairness in action.

The Hon’ble Supreme Court of India in a case titled Jagdish Mandal v.

State of Orissa, (2007) 14 SCC 517 has held as under:

“22. Judicial review of administrative action is intended

to prevent arbitrariness, irrationality,

unreasonableness, bias and mala fides. Its purpose is to

check whether choice or decision is made “lawfully”

and not to check whether choice or decision is “sound”.

When the power of judicial review is invoked in matters

relating to tenders or award of contracts, certain

special features should be borne in mind;

 A contract is a commercial transaction.

 Evaluating tenders and awarding contracts are

essentially commercial functions.

 Principles of equity and natural justice stay at a

distance.

If the decision relating to award of contract is bona fide

and is in public interest, courts will not, in exercise of

power of judicial review, interfere even if a procedural

aberration or error in assessment or prejudice to a

tenderer, is made out. The power of judicial review will

 24 WP(C) No.2580/2022

not be permitted to be invoked to protect private interest

at the cost of public interest, or to decide contractual

disputes. The tenderer or contractor with a grievance

can always seek damages in a civil court. Attempts by

unsuccessful tenderers with imaginary grievances,

wounded pride and business rivalry, to make mountains

out of molehills of some technical/procedural violation

or some prejudice to self, and persuade courts to

interfere by exercising power of judicial review, should

be resisted. Such interferences, either interim or final,

may hold up public works for years, or delay relief and

succour to thousands and millions and may increase the

project cost manifold. Therefore, a court before

interfering in tender or contractual matters in exercise

of power of judicial review, should pose to itself the

following questions:

(i) Whether the process adopted or decision made by

the authority is mala fide or intended to favour someone;

OR
 25 WP(C) No.2580/2022

Whether the process adopted or decision made is so

arbitrary and irrational that the court can say: “the

decision is such that no responsible authority acting

reasonably and in accordance with relevant law could

have reached”;

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no

interference under Article 226. Cases involving

blacklisting or imposition of penal consequences on a

tenderer/contractor or distribution of State largesse

(allotment of sites/shops, grant of licences, dealerships

and franchises) stand on a different footing as they

may require a higher degree of fairness in action.

34. Secondly, In contractual sphere as in all other State action, the State

and all its instrumentalities have to conform to Article 14 of the

Constitution of which non-arbitrariness is a significant facet. A public

authority like SSB possesses powers only to use them for public good and a

duty is cast upon the SSB to act fairly and to adopt a procedure, which is

fair play in action. Due observance of this obligation as a part of good

administration raises a reasonable or legitimate expectation in every citizen

 26 WP(C) No.2580/2022

to be treated fairly in his interaction with the State and its instrumentalities,

with this element forming a necessary component of the decision-making

process in all State action. To satisfy this requirement of non-arbitrariness

in a State action, it is, therefore, necessary to consider and give due weight

to the reasonable or legitimate expectations of the persons likely to be

affected by the decision or else that unfairness in the exercise of the power

may amount to an abuse or excess of power apart from affecting the

bonafides of the decision in a given case. The decision so made would be

exposed to challenge to the ground of arbitrariness. Thus, Rule of law does

not completely eliminate discretion in the exercise of power, as it is

unrealistic, but provides for control of its exercise by judicial review.

35. It goes without saying that mere reasonable or legitimate expectation

of a citizen in such a situation may not by itself be a distinct enforceable

right, but failure to consider and give due weight to it may render the

decision arbitraryand this is how the requirement of due consideration of a

legitimate expectation forms part of the principle of non-arbitrariness, a

necessary concomitant of the rule of law.

36. Every legitimate expectation is a relevant factor requiring due

consideration in a fair decision-making process, which is required to be

considered keeping in view larger public interest. I am fortified with the

view of the Supreme Court in a case titled, Food Corporation of India v.

M/s Kamdhenu Cattle Feed Industries, 1993 AIR SCW 1509, wherein it

has held as under:-

 27 WP(C) No.2580/2022

“In contractual sphere as in all other State actions, the

State and all its instrumentalities have to conform

to Article 14 of the Constitution of which non-

arbitrariness is a significant facet. There is no

unfettered discretion in public law: A public authority

possesses powers only to use them for public good.

This impose the duty to act fairly and to adopt a

procedure which is `fairplay in action'. Due

observance of this obligation as a part of good

administration raises a reasonable or legitimate

expectation in every citizen to be treated fairly in his

interaction with the State and its instrumentalities,

with this element forming a necessary component of

the decision making process in all State actions. To

satisfy this requirement of non- arbitrariness in a State

action, it is, therefore, necessary to consider and give

due weight to the reasonable or legitimate expectations

of the persons likely lo be affected by the decision or

else that unfairness in the exercise of the power may

amount to an abuse or excess of power apart from

affecting the bona fides of the decision in a given case.

The decision so made would be exposed to challenge

on the ground of arbitrariness.”

 28 WP(C) No.2580/2022

37. There was an implied impression in the present case that in view of

the past recent developments the SSB will conduct a fair and transparent

recruitment process and the doctrine of legitimate expectation has an

important place in the developing law of judicial review but respondent

No.1 has again given a go by to indulge in malpractices by way of

awarding contract to a tainted/previously blacklisted agency. The

illegalities in the present case are not isolated individual acts of malpractice

but systemic illegalities that raises serious questions regarding the

legitimacy of the entire selection/tender process.

38. The expression “legitimate expectation” appears to have been

originated by Lord Denning, M.R. in the leading decision of Schmidt v.

Secy. of State [(1969) 1 All ER 904. The Court may not insist an

administrative authority to act judicially but insist it to act fairly.

39. The SSB by its own volition has entered into contract with a tainted

agency, which is highly unreasonable and arbitrary and attracts the doctrine

of legitimate expectations in the present case. I am fortified by the

observations of Supreme Court in paragraph No.39 of Bhushan Power &

Steel Limited v. State of Orissa (2012) 4 SCC 246, relevant extract

whereof reads thus:-

“39. The State Government had, on its own volition, entered into the MOU
with Bhushan Limited on 15th May, 2002, and had even agreed to request
the Central Government to allot mining areas and coal blocks for
operating the steel plant. Whatever differences that may have resulted on
account of the dispute within the Bhushan Group, which could have led to
the rethinking on the part of the State Government, have now been laid to
rest by virtue of the settlement arrived at between the Bhushan Limited
(now BPSL) and BSSL. The State Government has also accepted the said
 29 WP(C) No.2580/2022

position. In addition to the above, the action taken by the State

Government appears to us to be highly unreasonable and arbitrary and
also attracts the doctrine of legitimate expectation.”

40. The State and its instrumentalities cannot treat unequal as equals as

that would be in violation of Article 14 of the Constitution. The action of

respondent No.1 to cancel the earlier tender notice was worse than the

problem. Altering the terms and conditions of the tender document and the

affidavit class, respondent No.1, in a way, has put both categories, tainted

and the rest at par, which is highly unjustified, arbitrary and

unconstitutional being violative of Article 14 of the Constitution.

41. Even by virtue of the aforesaid policy by altering the terms and

conditions of the tendering document, tender conditions has violated the

doctrine of level playing field. When tenders were invited, the terms and

conditions must indicate with legal sanctity, norms and benchmarks. This

legal certainty is an important aspect of the rule of law. If there is

vagueness or subjectivity in the said norms it may result in unequal and

discriminatory treatment, which violates the doctrine of “level playing

field”. I am fortified by the view expressed by the Supreme Court in

Reliance Energy v. Maharashtra State Road (2007) 8 SCC 1, wherein it

has held as under:

“38. When tenders are invited, the terms and conditions

must indicate with legal certainty, norms and

benchmarks. This "legal certainty" is an important

aspect of the rule of law. If there is vagueness or

 30 WP(C) No.2580/2022

subjectivity in the said norms it may result in

unequal and discriminatory treatment. It may

violate doctrine of "level playing field".

42. Since there was a specific embargo/rider for the blacklisted/tainted

agency to participate in the tendering process in the earlier NIT and

respondent No.1 subsequently have relaxed the aforesaid condition with a

view to favour respondent No.2 when such conditions cannot be abolished

at the whims and fancies of some officials or members of the tendering

committee when no plausible reasoning or justification is forthcoming from

the record or its noting. What weighed with the authorities to change the

terminology of the tender document is not forthcoming from the record nor

have any reasons been spelt out for the same.

43. It is settled proposition of law that action of the State and its

instrumentalities must have the nexus with the object sought to be

achieved. In award of contract the public interest is paramount and there

should be no arbitrariness in the matter of award of contract and all the

participants in the tendering process should be treated alike. There are three

legal principles, which would weigh with the Court to step in with regard to

award of contract and the procedure adopted, which are enumerated as

under:-

“i) The Government is free to enter into any contract with

citizens but the court may interfere where it acts
arbitrarily or contrary to pubic interest;
 31 WP(C) No.2580/2022

ii) The Government cannot arbitrary choose any person it

likes for entering into such a relationship or to
discriminate between persons similarly situate;

iii) It is open to the Government to reject even the highest

bid at a tender where such rejection is not arbitrary or
unreasonable or such rejection is in public interest for
valid and good reasons.”

44. Hon’ble the Supreme Court in Monarch Infrastructure (P) Ltd. v.

Commissioner, AIR 2000 SC 2272 has observed as under:-

“There have been several decisions rendered by this

Court on the question of tender process, the award of

contract and evolved several principles in regard to the

same. Ultimately what prevails with the courts in these

matters is that while public interest is paramount there

should be no arbitrariness in the matter of award of

contract and all participants in the tender process

should be treated alike”.

45. What was the reasonable nexus with the object sought to be achieved

while altering the terms and conditions of the tendering document is not

forthcoming from the record and the whole action on part of the SSB

smacks foul play and contrary to public interest where career of thousands

of the aspirants are at stake by awarding the contract to a tainted/blacklisted

agency. Thus, the change of the conditions in the tender document by

relaxing the standards by way of policy has no nexus with the object sought

to be achieved, which is loathed with mala fide consideration.

 32 WP(C) No.2580/2022

46. It is settled proposition of law that action of the State and its

instrumentalities must reflect an approach informed by reasons. I have

gone through the record supplied by the SSB minutely and found that no

reasons have been assigned while taking a decision to relax the terms and

conditions of the tender document or issuing fresh NIT. Failure to give

reason amounts to denial of justice. The reasons are live links between the

mind of the decision taker to the controversy in question and the decision

or conclusion arrived at. The reasons substitute subjectivity by objectivity.

One of the salutary requirements of natural justice is to spelling out reasons

for altering the decision.

47. Since the reasons are the links between the materials on which

certain conclusions are based and the actual conclusion. They disclose how

the mind is applied to the subject matter for a decision whether it is purely

administrative or quasi-judicial. The reasons should reveal the real nexus

between the facts considered and the conclusions reached. Only in that

eventuality, the decision recorded be shown to be manifestly just and

reasonable.

48. In the present case, the record does not speak what weighed with the

authorities to alter the terms and conditions of the tender document or

going for fresh tendering process.

49. The public authority even in contractual matters like SSB is not

having unfettered discretion but the same should be exercised reasonably.

Merely that the SSB has certain elbow room available for use of discretion

in accepting offer in contracts, the same is still bound by and ought to be

 33 WP(C) No.2580/2022

done within the four corners of the requirements of law, especially Article

14 of the Constitution. Today the Government and its instrumentalities in a

welfare state is the regulator and dispenser of the special services and

provider of a large number of benefits, including jobs, contracts, licenses,

quotas and mineral rights etc. The discretion of such instrumentality like

the SSB is not unlimited while distributing state largesse in its monetary

discretion or at its sweet will as it does not stand in the same position as a

private individual. Whatever its activity, the Government and its

instrumentalities will be subject to restraints, inherent in its position in a

democratic society. It cannot lay down arbitrary and capricious standards

for the choice of persons with whom alone it will deal, like it has happened

in the present case where the contract has been awarded by the SSB to

respondent No.2.

50. The action of the State and its instrumentalities must be in

conformity with the standards or norms which is not arbitrary, irrational or

irrelevant. The power of discretion of the government and its agencies in

the matter of grant of state largesse including award of job, contracts,

quotas, licenses etc must be confined and structured by rational, relevant

and non-discriminatory standard or norms in any particular case as it has

happened in the present case, the action of the government and its agencies

would be liable to be struck down in the absence of any reasoning to depart

on valid principle.

51. There is no denying the fact that the government and its agencies has

a freedom of contract but a fair play in the joints is a necessary concomitant

 34 WP(C) No.2580/2022

for an administrative body functioning in an administrative sphere or quasi-

administrative sphere. The decision must not only be tested by the

application of Wednesbury principle of reasonableness but must be free

from arbitrariness not affected by bias or actuated by mala fides. I am

fortified by the judgment in Tata Cellular v. Union of India (1994) 6 SCC

651. The relevant extract of the judgment reads thus:-

“The Government must have freedom of contract. In

other words, a fair play in the joints is a necessary

concomitant for an administrative body functioning in

an administrative sphere or quasi-administrative sphere.

However, the decision must not only be tested by the

application of Wednesbury principle of reasonableness

(including its other facts pointed out above) but must be

free from arbitrariness not affected by bias or actuated

by mala fides.”

52. Monarch Infrastructure (P) Ltd. (supra) and Union of India v.

Dinesh Engineering Corporation, AIR 2001 SC 3887 are the instances,

where the Court intervened in exercise of judicial review. In Dinesh

Engineering Corporation (supra), it was held as follows:-

“a public authority even in contractual matters should not

have unfettered discretion and in contracts having
commercial element even though some extra discretion is to
be conceded in such authorities, they are bound to follow the
norms recognized by courts while dealing with public
property. This requirement is necessary to avoid unreasonable
 35 WP(C) No.2580/2022

and arbitrary decisions being taken by public authorities

whose actions are amenable to judicial review. Therefore,
merely because the authority has certain elbow room
available for use of discretion in accepting offer in contracts,
the same will have to be done within the four corners of the
requirements of law, especially Article 14 of the
Constitution.”

53. In State of U.P. v. Johri Mal, AIR 2004 SC 3800, the Supreme
Court held as follows:-

“where administrative action is challenged under Article

14 as being discriminatory, equals are treated unequally or

unequals are treated equally, the question is for the

constitutional courts as primary reviewing courts to consider

the correctness of the level of discrimination applied and

whether it is excessive and whether it has a nexus with the

objective intended to be achieved by the administrator. For

judging the arbitrariness of the order, the test of

unreasonableness may be applied.”

54. In such eventuality, the Court can interfere when the policy or the

decision with regard to the award of contract is arbitrary,

discriminatory/mala fide and having no nexus with the object sought to be

achieved.

55. The sweep of Article 14 of the Constitution covers all State action.

Non-arbitrariness andfairness are the two immobile and unalterable

cornerstones of a legal behavioral baseline. The discretion, although, lies

 36 WP(C) No.2580/2022

with the SSB to change the policy but the same must be applied fairly and

should not give an impression that it was so done arbitrarily or by any

ulterior criteria to favour a particular party. The basis requirement of

Article 14 is fairness in the action of the State and non-arbitrariness in

essence and substance is the heartbeat of fair play, as has been held by the

Supreme Court in the case of Union of India v. International Trading

Co, (2003) 5 SCC 437. The relevant extract of the judgment is reproduced

hereunder:-

“15. While the discretion to change the policy in exercise of the

executive power, when not trammelled by any statute or rule is
wide enough, what is imperative and implicit in terms of Article
14 is that a change in policy must be made fairly and should not
give impression that it was so done arbitrarily on by any ulterior
criteria. The wide sweep of Article 14 and the requirement of
every State action qualifying for its validity on this touchstone
irrespective of the field of activity of the State is an accepted tenet. The
basic requirement of Article 14 is fairness in action by the state, and
non-arbitrariness in essence and substance is the heart beat of fair
play…….”

56. It is settled proposition of law that the Court does not sit as a court of

appeal over the decision taken by the authority to award contract in a

tendering process but merely reviews the manner in which the decision was

made, as has been held by the Supreme Court in Tata Cellular v. Union of

India, (1994) 6 SCC 651. Besides, the decision must not only be tested by

the application of Wednesbury principle of reasonableness but must be free

from arbitrariness not affected by bias or actuated by mala fides.

57. Admittedly, in the present case the Court is reviewing the decision of

respondent No.1 for awarding contract to respondent No.2, which is

 37 WP(C) No.2580/2022

tainted/blacklisted agency and on whose 10,00,000/- penalty was imposed

by the High Court of Delhi for indulging in malpractices and misleading

the Court by suppressing the material facts. Judicial review of the

administrative action is intended to prevent arbitrariness, irrational,

unreasonableness, bias and mala fide and its purpose is to check whether

the decision made is lawful or not. In the present case the alteration

effected by the decision making authority smacks foul play loathed with

mala fide consideration and intended to favour a blacklisted agency which

was tainted and blacklisted in the past right from the very inception.

58. There is no denying the fact that the State or its agencies like the

SSB has the power to relax or waive the terms and conditions of the tender

document but the waiver/relaxation of a particular rule/condition cannot be

with a view to favour one particular bidder which will create doubt in the

minds of the other bidders and would impair the rule of transparent and

fairness and provide room for manipulation to suit the whims of the State

agencies in picking and choosing a bidder for awarding contracts as in the

case of distributing bounty or charity. In my view such approach should

always be avoided.The very purpose of issuing rules/instructions is to

ensure their enforcement lest the rule of law should be a casualty. I am

fortified by the judgment of Hon’ble Supreme Court in the case of W.B.

State Electricity Board v. Patel Engineering Co., (2001) 2 SCC 451. It

is essential to maintain the sanctity and integrity of process of tender/bid

and also award of contract. The relevant extract of the observation of the

Supreme Court in Patel Engineering Co.(Supra) is reproduced hereunder:-

 38 WP(C) No.2580/2022

“The very purpose of issuing Rules/instructions is to ensure

their enforcement lest the Rule of law should be a causality.

Relaxation or waiver of a rule or condition, unless so provided

under ITB, by the State or its agencies (the appellant) in favour

of one bidder would create justifiable doubts in the minds of

other bidders, would impair the rule of transparency and fairness

and provide room for manipulation to suit the whims of the State

agencies in picking and choosing a bidder for awarding

contracts as in the case of distributing bounty or charity. In our

view such approach should always be avoided. Where power to

relax or waive a rule or a condition exists under the Rules, it

has to be done strictly in compliance with the Rules.”

59. The State has to confer equal treatment to parties which are similarly

placed so as to provide a level playing field, ensuring fair competition.

Article 14 of the Constitution embodies the principle of “non-

discrimination”. It has to be read in conjunction with rights conferred by

other article like Article 21 of the Constitution. Article 21 refers to “right to

life”. It includes “opportunity” to all. A Constitution Bench of nine Judges

in I.R.Coelho v. State of Tamil Nadu,(2007) 2 SCC 1has held that

Articles 21 and 14 are the heart of the chapter on fundamental rights and

they cover various aspect of life. Level Playing Field is an important

concept while construing Article 19(1)(g) of the Constitution and the said

doctrine is subject to public interest. This is because the said doctrine

provides space within which equally placed competitors are allowed to bid

so as to subserve the larger public interest.

 39 WP(C) No.2580/2022

60. In the present case, from the record it appears that whole action of

respondent No.1 from the very beginning till award of contract is to favour

respondent No.2 at the cost of other bidders, who have equal rights to

participate by providing a level playing field ensuring fair competition.

Thus, action of respondent No.1 in restricting the zone of consideration by

manipulating the terms and conditions of tender notice is violative of

Article 14, 21 and 19(1)(g) of the Constitution for all other competing

bidders. Paras 36 of Reliance Energy Limited v. Maharashtra State Road

Development Corporation Limited, (2007) 8 SCC 1.

“36. We find merit in this civil appeal. Standards applied by courts in

judicial review must be justified by constitutional principles which

govern the proper exercise of public power in a democracy. Article

14 of the Constitution embodies the principle of "non-discrimination".

However, it is not a free- standing provision. It has to be read in

conjunction with rights conferred by other articles like Article 21 of the

Constitution. The said Article 21 refers to "right to life". In includes

"opportunity". In our view, as held in the latest judgment of the

Constitution Bench of nine-Judges in the case of I.R. Coelho vs. State of

Tamil Nadu (2007) 2 SCC 1, Article 21/14 is the heart of the chapter on

fundamental rights. It covers various aspects of life. "Level playing

field" is an important concept while construing Article 19(1)(g) of the

Constitution. It is this doctrine which is invoked by REL/HDEC in the

present case. When Article 19(1)(g) confers fundamental right to carry

on business to a company, it is entitled to invoke the said doctrine of

"level playing field". We may clarify that this doctrine is, however,

subject to public interest. In the world of globalization, competition is

an important factor to be kept in mind. The doctrine of "level playing

 40 WP(C) No.2580/2022

field" is an important doctrine which is embodied in Article 19(1)(g) of

the Constitution. This is because the said doctrine provides space within

which equally-placed competitors are allowed to bid so as to subserve

the larger public interest. "Globalization", in essence, is liberalization

of trade. Today India has dismantled licence-raj. The economic reforms

introduced after 1992 have brought in the concept of "globalization".

Decisions or acts which results in unequal and discriminatory

treatment, would violate the doctrine of "level playing field" embodied

in Article 19(1)(g). Time has come, therefore, to say that Article

14 which refers to the principle of "equality" should not be read as a

stand alone item but it should be read in conjunction with Article

21 which embodies several aspects of life. There is one more aspect

which needs to be mentioned in the matter of implementation of the

aforestated doctrine of "level playing field". According to Lord

Goldsmith - commitment to "rule of law" is the heart of parliamentary

democracy. One of the important elements of the "rule of law" is legal

certainty. Article 14 applies to government policies and if the policy or

act of the government, even in contractual matters, fails to satisfy the

test of "reasonableness", then such an act or decision would be

unconstitutional.”

61. It is trite law that Article 14 of the Constitution applies to the matters

of policy and if the policy or any action of the Government and its agencies

in contractual matters fails to satisfy the test of reasonableness, it would be

unconstitutional. The basic requirement of Article 14 is fairness in action of

the State and its instrumentalities and non-arbitrariness in essence and

substance is the heartbeat of fair play. Actions of the authorities like SSB

are amenable in the panorama of judicial review only to the extent that the
 41 WP(C) No.2580/2022

State and its agencies must act validly for a discernible reason, not

whimsically for any ulterior motive. In the case of Union of India and another

vs. International Trading Co. and another - (2003) 5 SCC 437, the Supreme Court

held thus :-

"14. It is trite law that Article 14 of the Constitution applies also

to matters of governmental policy and if the policy or any action
of the Government, even in contractual matters, fails to satisfy
the test of reasonableness, it would be unconstitutional.”

62. What weighed with the authorities to change the policy by altering

the terms and conditions of the tender document is not forthcoming from

the record.

63. The SSB, as per their own admission, was in the process of adopting

confidence building measures amongst students and various aspirants as

their action in the past was already under cloud and matter of investigation

by the CBI but respondent No.1 has again perpetuated the illegality and

procedural impropriety by way of awarding the contract to respondent

No.2, which is a tainted and blacklisted agency. Awarding contract to a

blacklisted agency does not fall within the realm of confidence building

measures or to restore the glory of SSB for which it was known in the past.

64. It is settled proposition of law that the State and its instrumentalities

stand at a higher footing than a private party in contractual matters. The

State or its instrumentalities cannot conduct themselves like ordinary

businessmen playing games with others for monetary gains. State cannot

behave like a man in the street and indulge in arm twisting tactics. Its
 42 WP(C) No.2580/2022

conduct and actions have to be exemplary and decisions have to be free

from bias and unreasonableness.

65. From the record, it appears that in the technical evaluation of the

bidders, which participated in the NIT No.19 of 2022 dated 30.09.2022,

respondent No.2 has scored 90 points and on the other hand Eduquity

Career Technologies Pvt. Ltd. has scored 95 points in total and the said

agency has an edge in the technical evaluation, yet the purchase committee

after evaluating technical bid had allowed the contract to respondent No.2

by giving undue weightage to the commercial value ignoring the public

interest, which was paramount and also ignoring the reputation of

respondent no.2, which was tainted.Every action of the Government and its

instrumentalities has to pass the rigorous inquisition of fair play, lack of

arbitrariness and its being founded on good and sound reasons. The State or

its instrumentalities cannot conduct themselves like ordinary businessmen

playing games with others for monetary gains. State cannot behave like a

man in the street and indulge in arm twisting tactics. Its conduct and

actions have to be exemplary and decisions have to be free from bias and

unreasonableness.

66. In Michigan Rubber v. State of Karnataka, (2012) 8 SCC 216, the

Supreme Court has held as under:-

“23. From the above decisions, the following principles emerge:

(a) The basis 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
 43 WP(C) No.2580/2022

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 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 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 fundamental right
to carry on business with the government.”

67. As it has been stated in the preceding paragraphs coupled with which

emerges from the record, the terms and conditions of the tender have been

tailor-made to suit respondent No.2, infact this is a reverse process evolved

to achieve that objective by relaxing the tender conditions having negative

impact on a tainted/blacklisted agency in the past with a view that only one

party may fit in the said process. Such an endeavour has been categorized

as “Decision Oriented Systematic Analysis” (DOSA).

 44 WP(C) No.2580/2022

68. The Apex Court in various authoritative pronouncements has

interpreted the word “blacklisting and its effect insofar as contractual

matters are concerned. Blacklisting has the effect of preventing a person

from the privilege and advantage of entering into lawful relationship with

the Government or its agencies 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 while grating/awarding

contract.

69. Merely that respondent No.2 has excelled in financial bid will not be

the sole criteria to award contract, when admittedly in the technical

evaluation the Respondent No.2 was not upto mark. The public interest has

to give way to commercial interest because in the present case it involves

career of so many aspiring candidates, who will compete in the process of

selection and the award of contract in such like cases can, in no way, be

given to an agency, which is tainted and already blacklisted in the past.

70. In the present case, a blacklisted agency has been allowed to

compete in the tendering process and the commercial interest has

outweighed the public interest and, thus, the decision taken by respondent

No.1 to award contract in favour of respondent No.2 cannot sustain the test

of law, as there is every likelihood of biasness, favourtism and unfairness

in the said process.

71. What was the larger public interest in altering the terms and

conditions of the NIT issued by respondent No.1, initially by way of a

 45 WP(C) No.2580/2022

corrigendum and subsequently by way of issuing fresh NIT, is not borne

out from the record nor any reason has been spelt out from the record

supplied to this Court. Respondent No.2 has already been involved in

various malpractices and irregularities and was blacklisted by UPPCL.

Besides, respondent No.2 was also involved in malpractices in Rajasthan

Police constable recruitment, in Irrigation Department of the State of

Assam, Allahabad High Court NTA, UPPCL etc. Even High Court of Delhi

has imposed fine of Rs.10,00,000/- on respondent No.2. While passing the

aforesaid judgment, High Court of Delhi has observed that the organization

resorting to or permitting malpractices at institutional level should be kept

at bay by bodies conducting public exams. Yet inspite of the clear cut

direction issued by the Delhi High Court, contract has been given to

respondent No.2 without any justifiable cause.

72. Respondent No.2 in the present case has been granted permission to

conduct the examination on behalf of respondent No.1 and the unfairness in

the selection process and the anomalies keeping in view the past conduct of

respondent No.2 cannot be ruled out, which will be against the basic

principle of fairness and equity, as envisaged under Article 16 of the

Constitution of India. The nature of conducting public examinations

requires high degree of secrecy/fairness as future of lacks of aspirants

would depend upon such examination. The conduct of public examination

by the Government or any instrumentality like respondent No.1 is a matter

of trust and utmost faith and what impression can be gathered if such

contract is given to a agency, which was blacklisted in the past, to conduct

 46 WP(C) No.2580/2022

the selection process where career of lacks of aspirants are at stake. It is

pertinent to mention here that a fair and reasonable selection process is a

fundamental requirement under Article 14 and Article 16 (1) of the

constitution. Respondent No.1 ought to have acted in public interest

outweighing the commercial interest even if it costs more to the State

exchequer.

73. Keeping in view the past incidents, which have occurred and are

subject matter of investigation by the CBI, again respondent No.1 has

given the contract to a tainted service provider to conduct the public

employment examinations, I completely agree with a view taken by Delhi

High Court in a case titled M/s Aptech Limited, supra that organizations

resorting to, or permitting malpractice at an institutional level should be

kept at bay, by bodies (SSB in the present case) conducting public

examination and such conduct ought not to be condoned. It would be a

different matter if there are stray incidents where an employee, or some

employees, may show weakness of character and indulge in isolated acts of

malpractice. However, if such malpractices are adopted by an organization

(M/s Aptech Limited) itself, or are facilitated by the organization itself, it is

very different matter, and is indeed a serious matter since it reflects

adversely on the intent of the management of the organization itself.

CONCLUSION:

74. Keeping in view the aforesaid peculiar facts and circumstances of the

case and for the foregoing reasons, I am of the opinion that the process

adopted /decision made by the awarding contract to Respondent No. 2 (M/s

 47 WP(C) No.2580/2022

Aptech Limited) is malafide and change of condition in tender was

intended to favour Respondent No.2 and these decisions will have an effect

on public interest as the Respondent No. 2 has been assigned to conduct

examinations, wherein the selectees will be appointed to hold public posts,

accordingly this writ petition is allowed and the contract awarded by

respondent No.1 in favour of respondent No.2 pursuant to e-NIT No.19 of

2022 dated 30.09.2022 for conduct of its various examinations through

computer based tests mode is quashed. Consequently, all the exams viz

Junior Engineer-civil (Jal Shakti Department) and Sub Inspector (Home

Department) held by respondent No.1 through respondent no. 2 in

furtherance of the aforementioned “award of contract to conduct

examinations” are also set aside/cancelled at whatever stage they are as on

date.

75. The Government is hereby directed to constitute a high level

Committee headed by not less than a retired High Court Judge to enquire

into the conduct of Jammu and Kashmir Service Selection Board for the

their brazen irregularities/illegalities in changing the terms/conditions of

the tender, also as to what weighed with them to award a contract to

conduct an examination by an organization which has previously facilitated

malpractices in public examinations and accordingly appropriate action be

initiated against those found guilty.

76. Further, I would like to say that the by its own act of omission and

commission, the functioning of Jammu and Kashmir Service Selection

Board does not inspire confidence in holding public examinations. It has

 48 WP(C) No.2580/2022

become incumbent on all stake holders to review the functioning of the

Board.

77. Disposed of alongwith connected CM. The caveat shall also stand

discharged.

78. Record be returned to the learned State counsel.

(Wasim Sadiq Nargal)

Judge
Jammu.
08.12.2022
Vinod.

Whether the order is speaking : Yes

Whether the order is reportable: Yes