Jammu & Kashmir High Court
Unknown vs For The on 24 May, 2019
Bench: Chief Justice, Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
RPLPA No.16/2016
IA No.1/2016
c/w
RPLPA No.17/2016
Date on which case reserved:28.02.2019
Date of decision: 22.05.2019
Atul Verma and anr. v. State of J&K and others.
Coram:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
Appearance:
For the petitioner (s) : Mr.P.N.Raina, Sr. Advocate with
Mr. J.A.Hamal, Advocate.
For the Respondent(s) : Mr. F.A.Natnoo, AAG.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
(Gita Mittal-CJ)
1. The present case is yet another instance of challenge to a selection process being dragged unreasonably.
2. The direct recruitment to the post of Junior Scale of J&K Administrative Services, J&K Accounts Gazetted Services, pursuant to notification dated 30 th of December, 2008, became subject matter of challenge in writ petitions being SWP No.2454/2010 and SWP No.2570/2010 and other identical writ petitions. The challenge raised by the writ petitioners came to be rejected by the judgment dated 9th of February, 2011.
RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 1 of 123. The judgment of the learned Single Judge was assailed before the Division Bench by the unsuccessful candidates by way of two appeals being LPA Nos.66/2011 and 70/2011.
These appeals were dismissed vide judgment dated 19th of May, 2016.
4. The judgment of the Division Bench was assailed by the private parties by way of Special Leave to Appeal(C)Nos.20277-20278/2016. The Special Leave to Appeal came to be listed on n 28th October, 2016, when the same was withdrawn by the petitioners. Inasmuch as Mr. P.N.Raina, learned senior counsel appearing for the review petitioners before us has strongly relied upon the order recorded on 28th October, 2016 by the Supreme Court, we extract the same hereunder in extenso:-
"After some arguments, Mr. P.P.Rao, learned Senior Counsel appearing for the petitioners, seeks permission to withdraw these petitions with liberty to file review petition before the high Court.
Permission, as sought for, is granted.
Accordingly, the special leave petitions are dismissed as withdrawn with the liberty aforesaid.
Needless to mention that in case such a review petition is filed, the High Court shall consider and dispose it of on its own merit and in accordance with law."
5. Before us, placing reliance on the above observations of the Supreme Court, Mr. P.N.Raina, learned Senior Counsel has contended that the Supreme Court has permitted the petitioners to press the review petitions on "own merit". This observation has been read by the review petitioners to re-open its entire case which was pressed by them by way of the Letters Patent Appeals which stands rejected by the Division Bench vide judgment dated 19th of May, 2016.
RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 2 of 12The present review petitions have, thus, been filed by the review petitioners and pressed before us on the very grounds which were urged before the Division Bench seized of the letters patent appeals.
6. Let us first note the undisputed basic facts which deserve to be noted are that the review petitioners had applied for selection pursuant to the notification dated 30th December, 2008 in reserved categories and their names were not in the list of candidates shortlisted for viva voce. There is no dispute that the direct recruitment to the reserved categories had to be made in accordance with Rule 4 of the J&K Reservation Rules, 2005 and that as per the scheme of selection, the Public Service Commission is entitled to shortlist the candidates to be called for viva voce in the ratio of 1:3.
7. It is also an admitted position that so far as conduct of the Combined Competitive Examination by the Public Service Commission is concerned, the Rules there under were notified by the Governor of the State vide Notification being SRO 387 dated 01st of December, 2008. While para 8 of SRO 387 provides that the examination shall consist of two successive stages i.e. a combined Competitive (preliminary) Examination (Objective Type) for the selection of candidates for the main examination and thereafter a Combined Competitive (Main) Examination (written and interview) for the selection of candidates for the various services and posts. We may extract para 8 in extenso hereafter as follows:
"8.Examination-(1) The examination shall consist of two successive stages:-
(a) Combined Competitive (Preliminary) Examination (Objective Type for the selection of candidates for the main examination; and
(b) Combined Competitive (Main) Examination (written and interview) for the selection of candidates for the various services and posts.
(2) The preliminary examination will consist of two papers of objective type (multiple choice questions) and carry 450 marks in the subjects set RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 3 of 12 out in Appendix-I. This examination is meant to serve as a screening test only. The marks obtained in the preliminary examination shall count only for shot-listing of the candidates for the Main Examination.
Subject to the minimum qualifying marks as may be fixed by the Commission at its discretion, the number of candidates to be admitted to the Main Examination shall be, as far as practicable, 1/3rd of the total number of candidates who appeared in the preliminary examination or twenty five times the total number of vacancies to be filled in the various services and posts, whichever be lower".
(3) The main Examination shall consist of a written test and an interview. The written test shall consist of question papers of descriptive type, out of which one paper shall be of qualifying nature only, from the subject set out in Appendix-I as per the detailed syllabus of Appendix-II.
Provided that the Commission may revise or update the syllabi for the Combined Competitive (Preliminary/Main) examination from time to time.
(4) Candidates who obtain such minimum qualifying marks in written part of the Main Examination as may be fixed by the Commission in any or all the papers at their decision shall be summoned by them for interview.
Note:- The interview test is intended to judge the mental caliber of a candidate. In broad terms, this is really an assessment of not only his intellectual qualities but also social traits and his interest in current affairs. Some of the qualities to be judged are mental alertness, critical powers of assimilation, clear and logical expositions, balance of judgment, variety and depth of interest, ability for social cohesion and leadership, intellectual and moral integrity.
(5) A candidate who fails to secured such minimum number of marks as are fixed by the Commission in their discretion in more than one subject shall not be eligible to be called for interview.
(6) A candidate must write the papers in his own hand. In no circumstances, will anybody be allowed the help of a scribe to write the answer for him.
(7) If a candidate's handwriting is not easily legible a deduction will be made on this account from the total marks otherwise accruing to him.
(8) Marks will not be allotted for mere superficial knowledge.
(9) Credit will be given for orderly, effective and exact expression combined with due economy of words in all subjects of the examination.
RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 4 of 12(10) A candidate shall specify in his application form the optional paper/papers in which he wants to appear. The option once made shall be final. Failure to specify any or all the optional papers shall render the form liable to be rejected.
(11) A candidate shall have to write the compulsory papers and optional papers (except language papers in English)."
8. So far as the manner in which the candidates were required to be called and a merit list to be drawn up, para 9 and 10 of SRO 387 are relevant which read thus:-
"9. (1) The number of candidates to be summoned for interview will not be more than thrice the number of vacancies to be filled. The interview will carry a maximum of 250 marks (with no minimum qualifying marks). Failure to appear in the interview shall render a candidate ineligible for being recommended for appointment notwithstanding the marks obtained by him in the written examination.
(2) The candidates shall be short-listed for interview on the basis of overall merit obtained by them in the Main Examination irrespective of the category(ies) to which he/she/they belong:
Provided that if the number of candidates belonging to any reserved category, who qualify for the interview on the basis of the above short-listing criteria, falls short of upto three times the number of vacancies reserved for such a category, the Commission shall call the candidates belonging to such category over and above the number short-listed for interview.
10. Merit List.-Marks thus obtained by the candidates in the Main Examination (written part as well as interview) would determine the final order of merit. Candidates shall be allotted to the various services keeping in view their inter-se merit in the examination and the preferences expressed by them for the various services and posts.
"The allotment of candidates to various services shall be made by the Commission".
Provided that a candidate belonging to a reserved category, though not qualifying by the standard prescribed by the Commission may be declared suitable for appointment thereto by reduced standards with due regard to the maintenance of efficiency in administration, and recommended for appointment to vacancies reserved for members of such class in that service;
RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 5 of 12Provided that physically challenged candidates shall be considered for selection in the services and against the posts identified for their respective categories in terms of Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2003 and in accordance with their merit-cum-preference, if otherwise found suitable for selection."
9. In the present case, total number of vacancies advertised were 398 which were to be distributed in the following manner:-
Name of the Service Number of posts advertised to be filled up Junior Scale of J&K Administrative 210 Services, Police Gazetted Services 84 Accounts Gazetted Services 104
10. The preliminary examination in which the review petitioners participated was conducted on 23rd and 24th May, 2010 in which 33449 candidates out of 39362 applicants appeared. The review petitioners qualified the preliminary examination as per the laid down criteria and were declared eligible to appear in the main examinations for selection to the advertised posts. A total of 6945 candidates, including the review petitioners, appeared in the main examination, the result whereof was declared on 30th of September, 2010.
11. The review petitioners, who belong to the reserved categories, were aggrieved because their names were not in the short-list.
12. So far as short-listing for the viva voce is concerned, in terms of Rule 9, the cut off marks initially fixed by the Commission for short-listing of all categories was 907 and 1194 candidates were called for viva voce.
RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 6 of 1213. For drawing up the final merit after the interview the cut off marks for SC candidates was reduced to 862 marks and for ST category candidates 875 marks to enable the Commission to call sufficient number of candidates in these two categories to fill up the reserved vacancies.
14. The judgment dated 19th of May, 2016 records that out of 1194 short-listed candidates, 715 belong to Open Merit category, 149 belong to RBA category, 43 belong to SC category, 78 belong to ST category, 50 belong to ALC category and 55 belong to SLC category. It has also noted that the last candidate had secured 907 marks.
15. The grievance which is pressed before this Court is that the reservation should have been followed in the ratio of 1:3 even while short-listing or candidates for viva voce in each category. According to the review petitioners, 675 candidates only could have been called for viva voce from the Open Merit category, 240 candidates from RBA category, 93 candidates from SC category, 120 candidates from ST category, 50 candidates from ALC category and 24 from SC category.
This submission stands specifically rejected by the Single Judge and the Division Bench by the judgment dated 19th May, 2016.
16. The further grievance of the review petitioners is that the open merit category must contain all category candidates and the reserved category candidates who are so considered would not be counted while short-listing the reserved category candidates. It is submitted that therefore, there has to be a separate cut off in the viva voce for open merit category and each of the reserved categories. It is contended by Mr. P.N.Raina that the failure of the respondents to short-list candidates in this manner was contrary to law, therefore, the judgment dated 19th May, 2016 is erroneous and requires to be reviewed.
RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 7 of 1217. We find that in para 7 of the order dated 19th May, 2016, this Court has noted that the last candidate called for viva voce by applying 1:3 ratio had secured 907 marks and that this position was admitted by the learned Senior Counsel who appeared for the appellants(review petitioners) as well as Commission. The Court has noted that the review petitioners/appellants have admitted that none of them have secured 907 marks or more in the written examination. It is also an admitted position that none of the review petitioners had secured more than the above marks in the main written examination. No Scheduled Caste category candidate securing less than 862 marks or Scheduled Tribe candidates securing less than 875 marks have been short-listed for attending the viva voce test.
18. So far as preparation of the select list is concerned, Rule 7(8) of the J&K Reservation Rules, 2005 is relevant and extracted hereunder in extenso:-
"7. Preparation of the Select List. - (l) The selection authority shall draw up, in order of merit, a consolidated list of all the eligible candidates irrespective of class to which they belong. The list shall show classification of the candidates categorywise XXXXXXXXXXXXXXXXXXX (8) For purposes of services to which Combined Competitive Examination is conducted, the reserved category candidates if selected against open merit vacancies may also be considered for allotment of services allotted to their respective category as per their inter-se-merit/own preference and the resultant left over vacancies in the services in open merit shall be allotted to those reserved category candidates only, as per merit-
cum-preference, against whose vacancies the reserved category candidates qualifying in the open merit are considered."
19. Perusal of the above extract shows that this Rule governs the preparation of the select list and the same does not apply to the short-listing of the candidates for the viva voce. Sub Rule 1 of Rule 7 clearly shows that "merit has to be after the full selection process."
RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 8 of 1220. In terms of para 8 of SRO 387, the examination consists of the Objective Type Preliminary Examination, while the main examination consists of the written as well as the interview. Thus, the merit list has to be drawn after the entire main examination is concluded.
21. It has been pointed out that the writ petition was filed by the review petitioners at the stage when short-listing of the candidates in terms of Rule 9 was underway. The learned Single Judge noted this fact and consequently while dismissing the writ petitions vide judgment dated 9th of February, 2011, gave liberty to the review petitioners to challenge the final selection.
It is an admitted position that the review petitioners did not challenge the final selection.
Today, we are informed by Mr. Natnoo that the selection process stands long completed and appointments have been duly effected.
22. In this background, Mr. F.A.Natnoo, learned counsel for the respondents, has raised a preliminary objection to the maintainability of the review petitions submitting that the review jurisdiction is to be exercised within narrow limits and that the review petitioners have to satisfy that the judgment, review whereof is sought, suffers from error(s) apparent on the face of the record. It is submitted that it is not open to the review petitioners to press the grounds in support of the review petitions, as if the main appeals are being heard de novo.
23. In support of his submissions, Mr. Natnoo, relied on a decision of the Supreme Court reported at (1997) 9 Supreme 25, Parsion Devi and ors. V. Sumitri Devi and others wherein it was held thus:-
"9. Under Order-47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 9 of 12 process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
(Emphasis supplied)
24. So far as the scope of review jurisdiction is concerned, Mr. P.N.Raina, learned Senior Counsel appearing for the review petitioners has placed reliance on a decision of the Supreme Court reported at (2013) 10 SCC 359 (Union of India v. Namit Sharma), wherein the Supreme Court has held as follows:-
"21. Review of a judgment or order of this Court under Article 137 of the Constitution is confined to only errors apparent on the face of the record as provided in Order XL Rule 1 of the Supreme Court Rules, 1966. A three Judge Bench of this Court has held in Commissioner of Sales Tax, J & K and Others v. Pine Chemicals Ltd. and Others [(1995) 1 SCC 58] that if a reasoning in the judgment under review is at variance with the clear and simple language in a statute, the judgment under review suffers from a manifest error of law, an error apparent on the face of the record, and is liable to be rectified. Hence, in these Review Petitions, we have to decide whether the reasoning and directions in the judgment under review is at variance with the clear and simple language employed in the different provisions of the Act and accordingly whether the judgment under review suffers from manifest errors of law apparent on the face of the record."
(Emphasis by us) It needs no further elaboration that review jurisdiction is limited. It is not open to the review petitioners to argue the grounds in the review, as if the main matter (as decided by the judgment under review) was to be heard afresh or as if the review petitioners were arguing an appeal against the judgment under review. The present petitions have to be tested by these limitations.
25. In its judgment rendered in the case reported at (2005) 4 SCC 741 Board of Control for Cricket in India and another v. Netajit Cricket Club and others the Supreme Court has held thus:-
RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 10 of 12"89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".
(Emphasis by us)
26. In its later decision reported at (2008) 8 SCC 612 State of West Bengal and others v. Kamal Sengupta and another the Supreme Court held that the review cannot partake the character of appeal. Para 21 and 22 of the judgment are extracted hereunder:-
"21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.
22. The term `mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while RPLPA No.16/2016 c/w RPLPA No.17/2016 Page 11 of 12 exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision."
(Emphasis by us)
27. We find substance in the contentions of Mr. Natnoo, learned counsel for the respondents that the present review petitions are an attempt by the review petitioners to reargue the appeals filed by them which is legally impermissible. The entire thrust of the submissions on behalf of the review petitioners is not that there is an error apparent on the face of the record but that the view taken by the Division Bench in the judgment dated 19th of May, 2016 was erroneous and contrary to the applicable rules. This contention cannot be the subject matter of review of the judgment. By the order dated 28th October, 2016, the Supreme Court has directed this Court to dispose of the review petitions in accordance with law.
In view of the above, both the review petitions are dismissed.
(Tashi Rabstan) (Gita Mittal)
Judge Chief Justice
Jammu
22 .05.2019
Vinod.
Judgment is pronounced by me in terms of Rule 138(4) of the Jammu and Kashmir High Court Rules, 1999.
(Dhiraj Singh Thakur) Judge Jammu 24 .05.2019 RAJ KUMAR 2019.05.30 08:04 RPLPA No.16/2016 c/w RPLPA No.17/2016 I attest to the accuracy and Page 12 of 12 integrity of this document