Andhra Pradesh High Court - Amravati
Shahid Babu Shaik vs Andhra Pradesh Public Service ... on 22 March, 2022
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
WRIT PETITION No.41208 OF 2018
ORDER:(Per Hon'ble Sri Justice Ravi Cheemalapati) Un-successful applicant in Original Application No.536 of 2018 on the file of the Andhra Pradesh Administrative Tribunal at Hyderabad (hereinafter called, 'the Tribunal) is the petitioner in the present Writ Petition, filed under Article 226 of the Constitution of India. By way of the order under challenge dated 08.10.2018, the Tribunal dismissed the Original Application. With the grievance that the Andhra Pradesh Public Service Commission (hereinafter called, 'the APPSC') Authorities changed the total number of marks which made the petitioner to secure less number of marks and made him to forego the post of Regional Transport Officer and made him to accept the post of District Social Welfare Officer, the petitioner herein approached the Tribunal by filing Original Application No.536 of 2018 under Section 19 of the Administrative Tribunal Act, 1985. The APPSC as well as respondent No.3 contested the Original Application by way of filing counter affidavits.
2. The Tribunal, by way of an order dated 08.10.2018, dismissed the Original Application. This Writ Petition calls in question the validity and the legal sustainability of the said order passed by the Tribunal. In this Writ Petition, counter and additional counter affidavits have been filed by the APPSC, resisting 2 the Writ Petition and in the direction of justifying the impugned action.
3. Heard Sri C.Srinivasa Baba, learned counsel for the petitioner, Sri N.A.Ramachandra Murthy, learned Standing Counsel for the APPSC, and Sri C.L.N.Gandhi, learned counsel for respondent No.3, apart from perusing the entire material available on record.
4. Sri C.Srinivasa Baba, learned counsel for the petitioner contends that the order passed by the Tribunal is highly erroneous, contrary to law and that the APPSC resorted to the impugned action without jurisdiction. It is further contended that once the process of evaluation comes to an end, APPSC loses its power to carry out any sort of corrections in the OMR sheets and cannot tinker the figures mentioned in the OMR sheets. It is further submitted that Clause-11 of the instructions prohibits either revaluation or recounting and the said prohibition is required to be applied to APPSC also. Learned counsel further contends that because of the impugned action petitioner lost the post of Regional Transport Officer and the unofficial third respondent got the said post. It is further contended that the impugned action taken by the respondents is not traceable to any provision of law, as such, the same suffers from inherent lack of jurisdiction.
5. Per contra, Sri N.A.Ramachandra Murthy, learned Standing Counsel for the APPSC contends that there is absolutely 3 no illegality nor there exists any infirmity in the impugned action and, in the absence of any such contingencies, the questioned action is not amenable for any judicial review under Article 226 of the Constitution of India; that though the difference in marks obtained by the petitioner in between first and second valuation is less than 15%, reference to third valuer was unwarranted but by mistake the paper was sent to third valuation. It is further contended by the learned counsel that before publication of the results, on noticing that there was wrong calculation of total number of marks and the resultant reference to the third valuation, the errors were corrected by the valuation team and took into consideration the first two valuations and accordingly awarded the marks and according to the said marks petitioner secured the post of District Social Welfare Officer and respondent No.3 secured the post of Regional Transport Officer.
6. Sri C.L.N.Gandhi, learned counsel for respondent No.3, while totally adopting the arguments of Sri N.A.Ramachandra Murthy, learned Standing Counsel for the APPSC, submits that respondent No.3 secured more number of marks than the petitioner and got appointment as RTO in the year 2018 and working in the said capacity till date as such apart from lack of illegality in the impugned action, it is not equitable to meddle with the impugned order at this length of time.
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7. In the above back ground, now the issue that emerges for consideration of this Court is:-
"Whether the order passed by the Tribunal, having regard to the facts and circumstances of the case, is sustainable and tenable and whether the same warrants any interference of this court under Article 226 of the Constitution of India?"
8. The information available before this Court reveals that the APPSC initiated the process by issuing a notification for recruitment to Group-A category posts in the year 2011 and after completion of preliminary and written examinations, conducted interviews, wherein the petitioner as well as respondent No.3 also participated and thereafter in the month of May, 2018, they were appointed as District Social Welfare Officer and the Regional Transport Officer respectively and are working as such till date.
9. The essence of the case of the petitioner is that in view of changes carried out by the APPSC after the valuation in the OMR sheet the petitioner lost the post of RTO and respondent No.3 got the same. According to the petitioner, the changes effected by the APPSC are without jurisdiction. The justification sought to be offered by the APPSC, on the other hand, is that the said changes made in the OMR sheet are bonafide and the Examiner also did put his signature before final publication of the result. In fact, a copy of the OMR sheet, which, according to the petitioner, had un- authorisedly been tinkered, is placed on record along with the Writ 5 Petition as a material paper. The said OMR sheet consists of three parts, namely, valuations-1, 2 and 3. It is not in dispute that as per the modalities approved by the APPSC, the average of first two valuations are required to be taken into consideration for awarding marks and unless the difference between first and second valuations is more than or equal to 15%, there cannot be any reference to third valuation. Each part contains horizontal and perpendicular columns. Horizontal columns indicate subject-wise marks and perpendicular column indicates total of such marks. This Court does not find any sort of corrections in the figures shown in the horizontal columns, i.e., marks and finds correction only with regard to total number of marks and by way of the said correction, total came to be correctly mentioned and this Court finds the signature of the Examiner at the marks which came to be wrongly mentioned and rounded off. According to the petitioner the said action is totally one without jurisdiction. In the considered opinion of this Court, the said correction is obviously a bonafide one and cannot be the basis for upsetting the appointment of respondent No.3 from the post of RTO. Contention of the learned counsel for the petitioner with reference to Clause-11 of the instructions is not tenable as the said clause prohibits the candidates from applying either for revaluation or recounting and in the considered opinion of this Court, the same does not come in the way of APPSC from correcting bonafide mistakes. Even assuming that the impugned action is irregular, the same cannot 6 be interfered under Article 226 of the Constitution of India, in view of the settled principle of law that under Article 226 of the Constitution of India in the name of setting aside one irregularity, this Court cannot pave the way for revival of another irregularity and, in fact, the APPSC correctly mentioned the total marks by way of impugned action of correction.
10. In this connection, it may be appropriate to refer to the judgment of the Hon'ble Supreme Court in the case of Syed Yakoob v. K.S.Radhakrishnan & others1, wherein the Hon'ble Apex Court held as follows:--
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact 1 1964 AIR 477 SC 7 reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art.226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque(1), Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam(2), and Kaushalya Devi v. Bachittar Singh(3). It is, of course, not easy to define or adequately describe what an error of law apparent on the face of (1) [1955] 1 S.C.R. 1104. (2) [1958] S.C.R. 1240. (3) A.I.R. 1960 S.C. 1168. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manliest or 8 clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-
interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases. the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
11. It is very much evident from the aforesaid judgment that invocation of the jurisdiction of this Court, praying for a writ in the 9 nature of writ of certiorari, is impermissible unless the action/order impugned suffers from jurisdictional error, patent perversity and taken/passed in violation of the principles of natural justice. In the impugned order, this Court does not find the existence of any one of such contingencies. A perusal of the order of the Tribunal shows that the Tribunal, after elaborately and extensively considering all the aspects and by assigning cogent and convincing reasons, allowed the Original Application. Therefore, this Court is not inclined to meddle with the well-articulated order passed by the Tribunal.
12. Accordingly, this Writ Petition is dismissed. There shall be no order as to costs of the Writ Petition.
As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed.
___________________ A.V.SESHA SAI, J ___________________________ RAVI CHEEMALAPATI, J Date: 22.03.2022 Note: LR copy to be marked B/O siva 10 THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI WRIT PETITION No.41208 OF 2018 Date: 22.03.2022 siva