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Jammu & Kashmir High Court

Atta-Ur-Rehman And Others vs State Of J&K; And Others on 13 October, 2017

             HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU

SWP No. 2281/2017
MP No. 01/2017

                                                     Date of order : 13.10.2017
Atta-ur-Rehman and others            vs.               State of J&K and others
Coram:
                Hon'ble Mr. Justice Janak Raj Kotwal, Judge
Appearance:

For the petitioner(s) :     Mr. Abhinav Sharma, Adv.
For the respondent(s):      Mr. D. C. Raina, Sr. Adv. with

Mr. F. A. Natnoo, Adv.

1. The Jammu and Kashmir Public Service Commission (for short the Commission), by virtue of Notification No. PSC/EXAM/2016/52 dated 18.06.2016 invited online applications for J&K Combined Competitive (Preliminary) Examination, 2016. Petitioners claim to have applied for the said examination and to have appeared in the preliminary examination held on 19.03.2017. The Commission declared the result of the preliminary examination vide Notification No. PSC/Exam/2017/22 dated 23.04.2017 and thereby declared 6925 candidates to have qualified for the main examination. The Notification also disclosed that 270.477 marks was the last cut off point in the preliminary. By a subsequent Notification dated 09.05.2017 the Commission, however, kept in abeyance the SWP No. 2281/2017, MP No. 01/2017 Page 1 of 8 result notified vide Notification dated 23.04.2017. The Commission issued revised result vide Notification No. PSC/Exam/2017/44 dated 09.08.2017. As per the revised result, the revised cut off point was shown as 277.275 marks. 429 candidates, who were declared qualified vide the earlier Notification dated 23.04.2017 could not make to the revised cut off and therefore, do not find place in the revised result. Instead, 429 other candidates, who did not figure in the earlier result, were declared as qualified for the main examination. Petitioners do not figure in the list of qualified candidates in either of the two results.

2. In this writ petition, petitioners have challenged the entire process and procedure adopted by the Commission in holding the preliminary examination and evaluating the paper and have inter alia sought quashing of the revised result on various grounds, including the deletion of Rule 12B of the Jammu and Kashmir Public Service Commission (Conduct of Examinations) Rules, 2005 (for short the Rules of 2005), which provided for issuance of official key after completion of the examination/test and thereby non issuance of the official key by the Commission after the completion of the preliminary examination. It is noticed that Rule 12B has been deleted vide Notification No. 7-PSC (DR-P) of 2016 dated 14.03.2016, quashing whereof is one of the reliefs sought in this writ petition.

3. I have heard learned counsel, Mr. Abhinav Sharma, appearing on behalf of the petitioners and learned Senior Advocate, Mr. D. C. Raina, appearing on behalf of the Commission with Mr. F. A. Natnoo, Advocate.

4. The pith and substance of the submissions made by the learned counsel appearing on behalf of the petitioners laid stress on sub clauses iv and v of clause (b) of Rule 12A of the Rule of 2005. It was argued that in most of the questions all the options provided vis a vis a question were wrong and likewise, more than one options were correct. The petitioners, however, were unable to make representation within three days of completion of the preliminary examination due to non issuance of the official answer key by the Commission. Contextually, it was submitted by Mr. Sharma that deletion of Rule 12B, which provided for notification of the official answer key, was illegal and unjustified as notification of official key is necessary for making clause (b) of Rule 12A workable. Learned counsel, thus, submitted that Rule 12B is required to be restored and the entire evaluation process to be revised after declaring the official answer key and fresh result to be notified.

5. In the course of arguments it emerged as common ground of both the sides that the revised result, notified by the Commission SWP No. 2281/2017, MP No. 01/2017 Page 3 of 8 vide Notification dated 09.08.2017, has been challenged by some of the candidates, who were declared successful in the earlier result but have been omitted in the subsequent result, in a writ petition before the Srinagar Wing of this Court. In that petition, a learned Single Bench of this Court has as interim relief permitted them to appear in the main examination and in appeal the learned Division Bench has directed the Single Bench to dispose of the writ petition expeditiously. Two similar writ petitions have been filed by some of those candidates before this Court in SWP No. 2283/2017 and SWP No. 2292/2017 in which similar interim relief has been granted and both the matters have been listed for consideration for 23.10.2017. It needs to be noticed that common factor in this writ petition and aforementioned three writ petitions is the challenge to the revised result notified vide notification dated 09.08.2017. It being so, possibility of conflict in judgments on this score may arise, if this petition is finally heard and disposed of at this stage. Learned counsels on both sides too had not shown their aversion in this regard when pointed out in the course of their submissions.

6. Viewed thus, conclusion of hearing in this matter is deferred for the time being and it is ordered that this writ petition shall be listed along with SWP Nos. 2283/2017 and 2292/2017 for analogous hearing. It shall be open for learned counsel on both SWP No. 2281/2017, MP No. 01/2017 Page 4 of 8 the sides to make fresh submissions in this case also and in that the matter shall not be treated as part heard.

7. The petitioners as interim measure seek stay of the operation of impugned Notification No. PSC/Exam/2017/44 dated 09.08.2017, whereby the Commission has issued the revised result. They also seek stay of Notification No. PSC/Exam/2017/49 dated 25.08.2017, whereby and whereunder applications have been invited for the main examination from the candidates, who have qualified the preliminary examination and injunction against the Commission from proceeding ahead with the selection process. Besides, learned counsel for the petitioners made a prayer in the course of his submissions that petitioners may also be permitted to take part in the main examination on the analogy of the candidates, who have challenged the revised result in separate writ petitions before this Wing as well as in the Srinagar Wing of this Court and as interim measure have been permitted to take part in the main examination.

8. In view of the facts and circumstances of the case and the relief sought, case for grant of interim relief as sought is not made out nor necessity of granting such a relief arises for the following reasons:

a) Clause (b) of Rule 12A of the Rules of 2005, sub-

clauses iv and v whereof have been mainly relied upon on behalf of the petitioners, in a case of grievance of a candidate on this score in regard to any question or questions in a question paper, contemplates filing of representation by such a candidate within three days commencing from the day following the day of conduct of examination in that paper. No such representation was made by any of the petitioners. Justification given in this regard is that such representation could not have been made in absence of the declaration of the official answer key by the Commission. Question thus, raised is whether declaration of the official answer key is sine qua non for making a representation in terms of clause

(b) of Rule 12A. This question though would be considered in detail in main petition but prima facie does not carry much substance for the reason that on a plain look at clause (b), an objection contemplated under this clause is based on "prima facie" opinion of the invigilation staff, officials/officers of the examination wing of the Commission or of a candidate. Also for the reason that under Rule 12B (now deleted) the official answer key was to be uploaded by the Commission after conclusion of the examination/test or on the working day following the day of the test, SWP No. 2281/2017, MP No. 01/2017 Page 6 of 8 whereas representation in terms of clause (b) is to be made within three days of the paper in question. That apart, it is noticed that Rule 12B was deleted prior to the notification for the preliminary examination. Contextually, it is noticed that grievance of the petitioners is of general nature, without reference to the questions, the options of answers whereof have caused prejudiced to each one of them.

b) Petitioners do not figure in the list of successful candidates either in the result declared earlier vide Notification dated 23.04.2017 or in the revised result declared vide impugned Notification dated 09.08.2017. In the writ petition they have challenged the entire process and procedure adopted by the Commission on various grounds including the deletion of Rule 12B of the Rules of 2005 and thereby non declaration of the official answer key. They have sought inter alia and primarily quashing of the revised result and redrawal of the entire result after releasing the official answer key or in alternative holding of the preliminary examination afresh. If petitioners succeed in the writ petition, their appearing in the main examination will become meaningless. Same would be the position, if their petition fails because appearing in the main SWP No. 2281/2017, MP No. 01/2017 Page 7 of 8 examination without having cleared the preliminary examination will not confer any right on them.

9. The purpose of granting interim relief in a writ petition is to ensure that the ultimate result of the petition in favour of the petitioners may not become meaningless and fruitless for them and no prejudice is caused to them. In this case grant of interim relief, either by staying the main examination and further selection process or by allowing the petitioners to take part in the main examination, would be rendered infructuous if writ petition succeeds, whereas the grant of relief in the main writ petition would not be rendered infructuous even if interim relief is not granted.

10. Viewed thus, interim relief as sought by the petitioners is refused. It is, however, provided, which goes without saying, that the future selection process including selection and appointment, if any, shall remain subject to outcome of this writ petition.

11. MP disposed of.

(Janak Raj Kotwal) Judge Jammu:

13.10.2017 Rakesh SWP No. 2281/2017, MP No. 01/2017 Page 8 of 8