In March last year, the hashtag #SSCExamScam did the rounds on the Internet after aspirants alleged a leak in the entrance exam of the Staff Selection Commission (SSC). The SSC is one of the country’s biggest recruitment agencies, registering almost 2 crore applicants every year who compete for 8,000 odd vacancies across 35 ministries.

When an institution of the SSC’s scale faced allegations of leak—which purportedly involved its own officials—all heads turned towards its chairman, Ashim Khurana. Khurana decried the allegations as “baseless”, but had to slip in a “recommendation” for a CBI investigation after meeting BJP leaders the very next day.

When he retired last May, the SSC under Khurana was under a CBI investigation. He faced malicious hate campaigns online, allegedly from miffed SSC aspirants. But in a surprising move, Prime Minister Modi and Home Minister Rajnath Singh decided to extend Khurana’s tenure at the SSC, even amending the rules pertaining to retirement at the institution.

A series of official documents obtained through RTI by Kanhaiya Kumar, a 23-year old SSC aspirant from Bihar, sheds more light on the backstory of Khurana’s extension, one that spans several high offices and ministries. Kumar had moved the Delhi High Court in July 2018 to quash Khurana’s extension of tenure. He is being represented by senior advocate Prashant Bhushan.

These documents were made public on Monday in a press conference headed by politician-activist Yogendra Yadav and other members of the Yuva Halla Bol, a movement that focuses on unemployment issues. With the event being covered by several media houses, Yadav raised questions about Khurana’s problematic extension of tenure and PM Modi’s alleged personal stakes in the matter.

It would be helpful at this juncture to get a little background on what exactly happened.

The alleged leak

The Combined Graduate Level (CGL) exam is conducted annually by the SSC to recruit candidates across ministries and several departments under the Government of India. According to an Indian Express report, “Nearly 30.26 lakh candidates had registered for the Combined Graduate Level examination … while about 15.43 lakh candidates appeared for the Tier-I exam in August 2017, about 1.89 lakh candidates were shortlisted for the Tier-II exam. Of these, 1.41 lakh candidates appeared for the exam, conducted at 206 venues in 68 cities.”

On February 21, 2018, students alleged that answers to the CGL Tier-II exam had been leaked online. An FIR registered with the CBI in May 2018 cited a preliminary enquiry which revealed that questions and answers of the entrance exam were leaked beforehand on social media. In addition, the FIR alleged that several students used a “remote access software” to solve the question papers.

The CBI booked 17 individuals in the FIR, including 10 employees of Sify Technologies, the private vendor in charge of conducting the examination. Sify was entrusted with identification and preparation of test centres across the country, preparation of question paper sets, and sanitising each computer and laboratory used in the examination. According to a LiveMint report, the CBI case was registered for criminal conspiracy and criminal misconduct.

The FIR stated: “This fact shows that the above candidates used remote access software for solving their question papers by means of outside help from unknown persons.” It also went on to peg the blame on “unknown officers/officials of SSC”.

Since December 2015, the SSC has been headed by Ashim Khurana, a 1983 batch IAS officer from the Gujarat cadre. Khurana came under scrutiny after hundreds of SSC aspirants took to streets in March last year demanding re-examination and a CBI probe into the leaks, alleging that SSC was involved in a scam and terming the exams as “mass cheating”. In an interview to NewsNation that month, Khurana had denied that there were any leaks and called the allegations “baseless”.

However, the very next day, after a meeting between Khurana and BJP Delhi chief Manoj Tiwari, the SSC recommended that its parent agency, the Department of Personnel and Training (DoPT), “request the Government to conduct a CBI enquiry into all the allegations pertaining to conduct of CGL (Tier-II) Examination 2017”.

Two months later, on May 12, 2018, Khurana retired from his position as chairman of the SSC. He was turning 62 the next day and thus, according to the SSC (Chairman and members) Recruitment Rules 2007, met the institution’s upper age limit. On May 14, Khurana’s tenure was extended by an additional year by the Prime Minister himself, who also amended the upper age limit in the Recruitment Rules to 65 retrospectively.

Responding to Khurana’s extension, the Congress party lashed out at the government, accusing PM Modi of “crowning those who play with the future of the youth”. Party spokesperson Jaiveer Shergill said: “The Prime Minister, rather than giving a punishment, has given an extension to the Gujarat-cadre IAS officer.”

How Khurana’s tenure was extended

On May 8, 2018, the DoPT at the Ministry of Personnel, Public Grievances and Pensions (MoPP) sent a proposal to the Prime Minister for the “enhancement of age for holding office for Chairman, SSC from 62 years to 65 years”.

Just a day before, on May 7, it was reported that the Delhi Police had arrested a state government official on the “suspicion that he was the mastermind of a syndicate that helped students cheat in the Staff Selection Commission examinations”.

The proposal argued that the two other major recruiting agencies under DoPT—the Union Public Service Commission (UPSC) and Public Enterprises Selection Board (PESB)—set the upper age limit for the chairman’s retirement at 65. “In order to bring parity among the Heads of the organisations under the administrative jurisdiction of DoPT, it is proposed that the person appointed as Chairman, SSC may also be allowed to hold office till he/she attains the age of 65 years,” it said.

It further pointed out that the SSC was going to conduct the first ever computer-based Common Eligibility Test (CET) for graduate-level applicants in February 2019, which would be in line with Finance Minister’s pronouncements during his budget speech in 2017. “In view of the above, the functions and responsibilities of Chairman, SSC, would be greatly enhanced. As the proposed conduct of CET in a huge exercise, a close supervision and control would need to be exercised by Chairman, SSC. Hence it is proposed that the tenure of Chairman, SSC be enhanced upto the age of 65.”

This proposal was six pages long, and also included signatures by the secretary of MoPP and the Minister of State Jitendra Singh. The space below is reserved for the signature and remarks of the Prime Minister, which is missing. And so is the next page, which the RTI authorities refused to disclose, saying that it is “confidential” and therefore “can’t be provided”.

The missing signature and notings of the Prime Minister.

However, nowhere did this document propose that the tenure of the incumbent chairman—Ashim Khurana—be extended. On May 14, the Appointments Committee of the Cabinet (ACC), comprising PM Modi and Home Minister Rajnath Singh, approved this proposal. In addition, they also extended Khurana’s tenure till May 12, 2019.

An MoPP document from May 14, 2018 stating that the amendment had been cleared and that Khurana’s tenure had been extended by another year by the ACC.

The amendment was then furnished in technical terms in a separate document. Here’s how the original and the proposed amendment of rule 4(1) read:

Original: The Chairman or Member of the Staff Selection Commission shall hold office for a period of five years or till he attain the age of 62 years, which is earlier. In case an officer appointed as Chairman or Member of the Staff Selection Commission, retires on superannuation [that is at the age of 60] before completing the tenure of five years, he shall be deemed to be on re-employment terms for the remaining period of tenure subject to the upper age limit of 62 years.

Proposed: Any person appointed at the Chairman of the Staff Selection Commission shall hold office for a term of five years from the date of taking over the charge as Chairman, Staff Selection Commission. In case an officer appointed as Chairman of the Staff Selection Commission retires on superannuation before completing the term of five years, he shall be deemed to be on re-employment terms for the remaining period of tenure subject to the condition that he shall demit office on completion of term of 5 years before he attains the age of 65 years. [emphasis added]

This meant two things: first, that if the SSC Chairman retired at the age of 60, he could be re-employed for the position until he completed a five-year tenure. While the original rule had subjected this re-employment to an age limit of 62, the amendment sought to push this to 65. Second, if Khurana were to continue, not only did the Recruitment Rules have to be amended, but that they had to be applied retrospectively.

The proposal—which now included Khurana’s extension—was then sent to the Union Public Service Commission (UPSC) for consultation in mid-June 2018. While the UPSC did not oppose the push in the upper age limit, it did note that “RRs are not approved by the commission from a retrospective date other than in pursuance of Court’s directions and hence UPSC has no comments to offer in this regard”. It additionally advised the DoPT that the Ministry of Law be consulted.

This was not the first time that the idea of consulting the Ministry of Law had arisen. A DoPT document from May 21, 2018, carried similar handwritten instructions from the Joint Secretary at DoPT: “A provision may also be made in the RR for application of the enhanced age-limit with retrospective effect to regularise the extension granted to the present incumbent, in consultation with [the] Ministry of Law.” This obviously implied that Khurana’s extension was irregular.

The Joint Secretary’s notings to ‘regularise’ Khurana’s extension.

In July 2018, the Legislative Department at the Ministry of Law and Justice (MoLJ) declined to comment on the retrospective aspect of the amendment to the SSC Recruitment Rules, directing it further to the Department of Legal Affairs.

On August 16, 2018, the Department of Legal Affairs at the MoLJ issued an advice to the DoPT. This document reveals two important mid-way developments.

One, that the DoPT had approached the MoLJ first on August 2, 2018. Following this, they had reworded the draft of the amendment and had referred it to the MOLJ for reconsideration on August 6.

Reworded proposal: “The Chairman of the Staff Selection Commission shall hold office for a period of five years’ or till he attains the age of 65 years, whichever is earlier:

“Provided that where a serving officer is appointed as Chairman, he shall be on deputation until he attains the age of superannuation and thereafter he may be considered for extension of tenure on re-employment terms subject to upper age limit and tenure prescribed herein.”

On August 6, the MoLJ advised the DoPT that its reworded amendment, especially the proviso, is “violative of the provisions of Article 14 and 16 of the Constitution as it prescribes arbitrary discretion i.e. indirectly reserves the post for the incumbent i.e. existing officer, after attaining the age of superannuation, for remaining part of the five years subject to upper age limit of 65 years by way of extension of tenure on re-employment terms, and denies equality of just & fair opportunity in matters of public employment.”

The department reiterated this violation of constitutional provisions when it was consulted for the third time on August 16. It added that “we may agree” to the retrospective part of the amendment “so long as somebody’s vested right is not adversely affected”. On a more critical note, it noted that the amendment was problematic because of the “irregularity which is being planted in the Rule and intends to perpetuate the irregularity”. It asked the DoPT to seek the advice of the Attorney General.

A MoLJ document claiming that the amended rule ‘intends to perpetuate irregularity’.

This raises two important questions: why was this “irregularity” that the MoLJ mentioned being “planted”? And in whose interest was it being perpetuated?

Writing back on August 23, Attorney General KK Venugopal stated that the proviso does not violate Articles 14, 16, or 39 of the Constitution. Citing a previous case in the State Bank of India, he argued that “the extension would only be granted by the competent authority on the basis of an assessment of the performance of the incumbent, as well as the necessity and desirability of his/her continuance in office”. This meant, he added, that there was  arbitrary discretion. “Equally, no question of denial of equality or a just & fair opportunity in public employment would also arise,” he wrote.

As a caveat, the Attorney General ended with the following: “Needless to add, the case stated to be pending before the Delhi High Court [Kumar’s case] would have to be defended by the Government on its own merits, applying the rule as it stood at the relevant time. I advise accordingly.”

In another MoLJ document dated September 20, the Law Secretary noted that the Attorney General “has expressed that his opinion may not be produced before the tribunal/court and that the case be defended on its own merit.”

When the amendment draft was sent to the MoLJ for the fourth time in September 2018, the Department of Legal Affairs stated once again that “though [the amendment] appears non-discriminating but it is in fact violative of Article 14 & 16 of the Constitution…The Ld. AG’s opinion appears to be at variance from our views…”.

A MoLJ document from September 7, 2018: ‘…it is violative of Article 14 & 16 of the Constitution…’

On October 18, the amendment’s official ratification was confirmed by a gazette notification.

Aftermath

In September last year, the Supreme Court stayed the declaration of results for the Combined Graduate Level Exam, 2017. The apex court observed: “Prima facie entire SSC system and examination are tainted.” A month later, it favoured cancelling the 2017 SSC examination.

Given this observation by the SC and the history of leaks at SSC exams during Khurana’s tenure (see here, here and here), it is perplexing why PM Modi and Home Minister Rajnath Singh went to the extent of amending the recruitment rules to retain him as the institution’s chairman. The appointment of a new official to the position would seem to be a more appropriate decision, especially in the interest of competence and efficiency.

Speaking at the Press Club while addressing the media on April 1, 2019, Swaraj India chief Yogendra Yadav questioned the PMO’s direct interest in extending Khurana’s tenure. “Why is it that an appointment like this is being pursued violating constitutional provisions and every advice from the relevant authorities? And if it is indeed in larger interest, why is PM’s noting not being made public? Under which clause is it confidential?”

When asked whether this had to do with PMO’s disproportionately large appointments of bureaucrats from the Gujarat cadre, Yadav hinted that this might be a strong possibility. “There seem to be a coterie of special officers whose loyalty does not lie with country or the constitution, but with a person,” he said.

A report published in The Print in October 2018 noted that only four per cent of all IAS officers belonged to the Gujarat cadre—18 of the total 492. However, it pointed out that most of these officers bagged plum positions in the government: “four of these 18 are in the all-powerful Prime Minister’s Office, four in the finance ministry, and two in the home ministry”. The report also quoted an unnamed Rajasthan-cadre officer: “It is obviously not unheard of for politicians to appoint officers they like. But in this government, this trend has been taken to another level.”

Harping a similar tune, another report published in The New Indian Express in April 2018 tethered this fact to the examination leaks: “What is common between Ashim Khurana, Chairman of the Staff Selection Commission, and Anita Karwal, Chairperson of the Central Board of Secondary Education? Firstly, both are under fire for the leakage of question papers—Khurana for the SSC entrance examination and Karwal for the Class X and XII Board exams. Secondly, both are Gujarat cadre Indian Administrative Service (IAS) officers.”

Kanhaiya Kumar told Newslaundry that the Delhi High Court had asked the government to respond to respondent’s questions about Khurana’s competence to hold his office. “They were asked to provide an answer within 4 weeks on August 14, 2018. The judge’s absence during two consecutive hearings meant that this got pushed to November 30. They amended the SSC rules in October,” he said.