Jammu & Kashmir High Court - Srinagar Bench
Jammu & Kashmir Public Service ... vs Dr. Shaawaz Umer Khan on 8 July, 2015
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA No. 217/2013,
CMP no. 350/2013
Date of Order: 08.07.2015
1. Jammu & Kashmir Public Service Commission through its
Secretary, Polo View, Srinagar/ Pragati Bhawan, Jammu.
2. Chairman, J&K Public Service Commission,
Polo View Srinagar/ Pragati Bhawan Jammu.
3. Controller of Examinations, J&K Public Service Commission,
Polo View Srinagar/ Pragati Bhawan Jammu.
......Appellants.
Versus
1. Dr. Shaawaz Umer Khan Aged about 25 years S/O Mohammad
Shafi Khan R/O Barzulla Srinagar.
2. Fayaz Ahmad Sheikh aged about 27 years S/O Ghulam
Mohammad Shiekh R/O Margund P/O Kangan District Ganderbal.
3. Asiya Nazir aged about 25 years D/O Nazir Ahmad R/O Balgarden
Srinagar.
4. Irfan Ashraf aged about 26 years S/O Mohammad Ashraf Rather
R/O H.16 Sec. A Near Hotel Manoranjan Indira Nagar, Srinagar.
5. Dr. Abdul Rakeeb aged about 26 years S/O Abdul Hakeem Wani
R/O Firdous Enclave Baghat Srinagar near SSM College.
6. Shahzada Mudasir Rashid aged about 28 years S/O Abdul Rashid
Shah R/O House No. 43 Sec. 1, Govt. Housing Colony Ompora,
Budgam..
7. Iqbal Rafiq Vakil Aged about 27 years S/O Rafiq Ahmad Vakil R/O
Police Colony Qamarwari, Srinagar.
8. Muzzam Ali aged 29 years S/O Ali Mohammad R/O Panthachowk
Srinagar.
9. Reshi Singh aged 29 years S/O Sunder Singh R/O Doda presently
at Srinagar.
.....Respondents........
10. State of Jammu and Kashmir through Commissioner cum Secretary to Govt. General Administration Department, Civil Secretariat, Jammu/ Srinagar .
2
.....(Proforma-Respondent) Coram:
Hon'ble Mr. Justice N. Paul Vasanthakumar, Chief Justice Hon'ble Mr. Justice Ali Mohammad Magrey, Judge Appearing counsel:
For the Appellant(s) : Mr. Azhar-Ul Amin, Advocate. For the Respondent(s) : Mr. M. Y. Bhat, Advocate.
Mr. R. A. Gadda, Advocate.
N. Paul Vasanthakumar, CJ
1. This appeal is filed by the J&K Public Service Commission, questioning the order of the learned Single Judge made in SWP no. 2456/2011 dated 07.08.2013, wherein the learned Single Judge has granted liberty to the writ petitioners to make representation voicing their grievance with regard to the selection made and accord consideration to their representation by giving them liberty of hearing and thereafter pass orders warranted under facts and in light of the averments made in the representation in compliance with Rule 33 (1) of the Jammu and Kashmir Public Service Commission (Conduct of Examination) Rules, 2005 with further direction to take care of the claim of 6 th writ petitioner, namely, Shahzada Mudasir Rashid, as he obtained 32.67 marks in Paper-I, General English, which has to be rounded off to 33% and he be declared eligible to be 3 called for oral interview. The said directions were ordered to be complied with within eight weeks.
2. The case of the respondents/writ petitioners before the learned Single Judge was that the J&K Public Service Commission-appellant vide advertisement notification dated 01.05.2010 invited applications from eligible candidates for consideration and appointment against the advertised posts of Junior Scale of Jammu and Kashmir Administrative Service, J&K Police (Gazetted) Service and J&K Accounts (Gazetted) Service. The applicants have to appear in the preliminary and main written examination. Those who qualify in main examination will have to appear for viva voce. The date of preliminary examination was notified as 29.08.2010 and the main examination was notified for 01.02.2011. The qualification prescribed was that the applicant must hold a Bachelor's Degree in any subject from a recognized University in India or from a Foreign University declared by Government as equivalent. Writ petitioner nos. 1 to 8 applied under Open Merit category and writ petitioner no.9 applied under Resident of Backward Area (RBA) category before the cutoff date. The Public Service Commission entertained the applications of the writ petitioners and issued admit cards for taking the 4 preliminary examination. According to the writ petitioners, on qualifying the preliminary examination they applied for the main examination which was conducted by the Commission from 03.03.2011 to 28.03.2011 and all the writ petitioners appeared in the main written examination also. As per the marks certificates issued all the writ petitioners have secured between 996 to 1137 marks and as per the writ petitioners the cut off marks for short listing for purposes of interview was 991. The writ petitioners were not called for the viva voce test on the ground that they had failed to secure the qualifying marks in the English paper I (Matriculate or Equivalent Standard) of the Main Examination of 2010. The marks secured by the writ petitioners in English paper I were 98, 77, 77, 97, 92, 98, 95, 93 and 91 respectively out of 300. The select list was published in Greater Kashmir Daily dated 03.09.2011. The writ petitioners having expected more marks in English Paper I of the main examination 2010, contended that the evaluator failed to apply the uniform standards in awarding the marks to all the competing candidates and as per Rule 33 of the J&K Public Service Commission (Conduct of Examination) Rules, 2005 ( for brevity '2005 Rules' hereafter), the candidates are entitled 5 to have a right to seek scrutiny of marks and rechecking of results.
3. The writ petitioners applied in the prescribed form to the Controller of Examination for scrutiny of marks and rechecking of their results, however, no action was taken, hence the writ petitioners filed the writ petition praying for direction to scrutinize their English Paper I by Scrutinizers/Evaluators/Examiners well equipped in the subject of English with sufficient experience and based on the scrutiny of the marks, consider them for inviting for viva voce test and grant them selection against the advertised posts as per their preference.
4. The said writ petition was opposed by the appellants/Public Service Commission by contending that Rule 31 and 33 of 2005 Rules nowhere give entitlement for re-evaluation of the answer papers and the Controller of Examination has scrutinized the answer papers of the writ petitioners and noticed no change in the results which was also intimated to the writ petitioners. The writ petitioners having failed to secure the cut off marks for short listing, they were rightly not called for the viva voce test. It is also stated in the reply that out of 6945 candidates who had taken the examination, more than 600 candidates had secured 50% or more marks in 6 English. The minimum qualifying marks are always fixed by the Commission after due deliberations and taking note of the relevant factors the Commission fixed 33% as qualifying marks for General English Paper-I. It was also stated that 6500 candidates had secured 49% or less marks. Compared to the said position in in Combined Competitive Examination 2010 out of 4463 candidates about 500 candidates have secured 50% or more marks and 1920 candidates have secured 33% or above marks, 1920 candidates have secured 40% or above marks and 3312 candidates have secured 33% or above marks and prayed for dismissing the writ petition.
5. The learned Single Judge considered the points raised and referring to Rule 31 to 37 of 2005 Rules, granted liberty to the writ petitioners, other than the 6 th writ petitioner, to submit representation before the Chairman of the Public Service Commission viz. appellant no.2, and the Chairman was directed to consider the same in accordance with Rule 33(c) of the Rules. The learned Single Judge also gave direction to round off the marks of the 6th writ petitioner as he secured 32.67 % marks in Paper-I of General English.
6. The contention of the learned counsel for the appellant-
Public Service Commission in this appeal is that the 7 direction issued by the learned Single Judge to round off the marks of 6th writ petitioner from 32.67% to 33% is illegal as the examination rules or selection Rules nowhere provides for rounding off and unless there is a provision for rounding off the marks, no direction can be issued to the Commission to round off the marks, therefore, the said direction is liable to be set aside. He has relied on a judgment of Hon'ble the Supreme Court reported in (2011) 8 SCC 108 (Orissa Public Service Commission and anr v. Rupashree Chowdhary and anr) to substantiate his argument.
7. Insofar as the liberty granted to the other writ petitioners to submit representation before the Chairman and the direction to Chairman to consider the said representation is concerned, the learned counsel submitted that there is no provision available to seek re-evaluation and as such no direction could have been issued by the learned Single Judge.
8. In answer to the said submissions, the learned counsel appearing for the writ petitioners- private respondents contended that the 6th writ petitioner having secured 32.67 % marks, the learned Single Judge was right in directing round up of 32.67% to 33% and as per Rule 33 (c), discretion is vested with the Chairman of the Public 8 Service Commission to consider the grievance of the candidate and take such action as may be appropriate, which is a plainnary power available to even order for re- evaluation. Learned counsel also relied on the judgment of Hon'ble the Supreme Court reported in AIR 2009 SC 879 (Sahiti and ors v. Chancellor, Dr. N.T.R. University of Health Sciences and ors) to support his contention.
9. We have considered the rival submissions, perused the Rules as well as the decisions cited.
10. The following issues are to be considered in this appeal:-
(1) Whether the learned Single Judge was right in granting liberty to the writ petitioners except 6 th writ petitioner to approach the 2nd appellant with their grievance in the light of Rule 33 (c ) of 2005 Rules;
and (2) Whether the learned Single Judge was right in ordering the round off of the marks of the 6 th writ petitioner from 32.67% to 33%.
11. The admitted facts in this case are that the writ petitioners applied for the posts of their choice pursuant to notification issued by the appellants dated 01.05.2010. They appeared for the preliminary examination and thereafter they also appeared for the main written 9 examination. In the main examination in Paper-I General English the writ petitioners have secured less than 99 marks out of 300 marks i.e. 33% marks which was fixed by the Commission as minimum marks in Paper-I General English for short listing. According to the writ petitioners they have performed well in Paper-II, namely, Essay in English and secured high marks than the minimum marks and, therefore, their performance in Paper-I has not been properly assessed and they have applied for re-checking in terms of Rule 31 of the 2005 Rules. The said Rule reads as follows:-
"31. Checking of scripts:
(a) After the answer scripts are received back duly evaluated these will be checked in the Secrecy Section to determine whether the Evaluator has made any error in totaling marks awarded by him or has left any Question unmarked.
(b) If it is found that the Evaluator has left any question unmarked, the Controller of Examination, with the approval of the Chairman shall with the approval of Chairman send such Answer Scripts to the Evaluator for marking. On receipt of the same, after rectification by the Evaluator necessary change/modifications shall be made for tabulation by the Controller of Examinations with the approval of the Chairman. However the Evaluator shall not alter the marks already awarded by him nor shall he be competent to add any mark/marks.
Provided that where the number of examinees in any paper relating to an examination otherwise than objective type test/ preliminary examination is large or it is otherwise considered necessary by the Chairman, he may appoint the head examiner to exercise a random check ( not less than 10% of the answer script). The head examiner shall submit his report to the Controller of Examinations. If the report of head examiner warrants any alteration in the marks awarded the decision shall be taken by the Commission.
(c) All arithmetical error and omissions in totaling or awarding marks inconsistent with the instruction issued 10 shall be rectified by the Controller of Examinations, with the approval of the Chairman.
(d) In case any tampering or overwriting is noticed during the course of checking by the Controller of Examinations and such overwriting or tampering has prima facie been effected subsequently, only the marks originally awarded by the Evaluator shall be taken into account for purposes of tabulations.
12. In the light of the said rule position the writ petitioners applied before the Controller of Examination for scrutiny of their answer scripts of Paper-I General English. Rule 33 of 2005 Rules is also relevant to be extracted hereunder:-
"33. Scrutiny of marks:
Any candidate, who has taken the Examination, may apply to the Controller of Examinations for scrutiny of marks and rechecking of his results. Such applications shall be made within one month of the date of publication of the result in the J&K Government Gazette.
(a) All such applications shall be accompanied by a demand draft drawn from any branch of the Jammu and Kashmir Bank Ltd., on account of rechecking fee as may be prescribed by the Commission from time to time.
(b) On receipt of such applications the Controller of Examinations will examine the Answer Books of the candidate concerned and see whether the Evaluator has made any error in totaling the marks awarded by him or has left any question unmarked.
(c) If the Controller of Examinations finds that the Evaluator has not while examining the scripts committed any such error or omission as mentioned in sub-rule (c) he shall reject the application and communicate the result of the scrutiny to the candidate. A report in this regard shall be placed before the Commission at the end of each examination:
Provided that in case a candidate still feels aggrieved, he/she may make a representation to the Chairman who may if necessary give an opportunity of being heard to such a candidate and take such action as may be appropriate.
(d) If it is found that the Evaluator has left any question unmarked, the Controller of Examination shall send back the answer book of the candidate to the Evaluator for marking, and after receipt of the report of the Evaluator if the result involves any change, modification or the same shall be published in the J&K Government Gazette.11
(e) A candidate shall be entitled to the refund of rechecking fee in case the recheck has materially changed the outcome of the result in favour of the candidate, of the paper(s), declared.
(f) On receipt of the answer book under rule (e) the Evaluator shall not alter the marks already awarded by him, to the answer not shall he be competent to add any mark(s).
(g) Examinee of a competitive examination can avail the opportunity under the rule within one month of the date of publication of the notification relating the candidates who have qualified for vive voce test."
13. As per Rule 33 extracted above, a candidate is entitled to apply to the Controller of Examination for scrutiny of marks and re-checking of results within one month from the date of publication of the result in the Government Gazettee with a demand draft as re-checking fee which may be fixed by the Commission from time to time and the Controller of Examination will have to examine the answer script of the candidate concerned and see as to whether the evaluator has made any error in totaling the marks awarded to him or has left any question un-marked. If there is no error, he may reject the application and communicate the same to the candidate and submit the report to the Commission. Proviso to Rule 33 ( c) contemplates a further remedy to the candidate, stating that if a candidate still feels aggrieved, he/she may make a representation to the Chairman who may if necessary give an opportunity of being heard to such a candidate and take such action as may be appropriate. 12
14. The learned Single Judge has considered the implication of Rule 31(c) and 33 (c). Rule 33 (c ) is a plainery power given to the Chairman to meet any exigency and if any injustice done is noticed the Chairman is empowered to take action as may be appropriate. Considering the said power available with the Chairman of the Commission, the learned Single Judge granted liberty to the writ petitioner nos.1 to 5 and 7 to 9 to submit representation before the Chairman stating their grievance and the Chairman was directed to take appropriate decision in terms of Rule 33( c) of the 2005 Rules.
15. The grievance of the appellants is that the learned Single Judge in the order has stated that re-evaluation is permissible under the statute. The issue as to whether the highest authority is entitled to take a decision which may be required according to the situation, considering the facts of the matter, was considered by Hon'ble the Supreme Court in the decision reported as AIR 2009 SC 879 ( Sahiti and ors v. Chancellor, Dr. N.T.R. University of Health Sciences and ors). In the said case the implication/purport of Section 12(2) and 12(3) of the N.T.R. University of Health Sciences Act, 1986, particularly as to whether the Vice Chancellor has any authority to order re-evaluation of the answer script in the 13 absence of any specific provision, came up for consideration. In paragraph, 30 and 32, Hon'ble the Supreme Court considered the issue and held thus:-
"30. The Vice-Chancellor has right to regulate the work and conduct of officers and other employees of the University. He has also emergency powers to deal with any untoward situation. The power conferred under Section 12(2) and 12(3) is indeed significant. If the Vice-Chancellor believes that a situation calls for immediate action, he can take such action as he thinks necessary though in the normal course he is not competent to take that action. However, he must report to the concerned authority or body, who would, in the ordinary course, have dealt with the matter. That is not all. His pivotal position as the principal executive officer also carries with him certain implied powers. It is the magisterial power which is plainly to be inferred. This power is essential for him to maintain domestic discipline in the academic and non-academic affairs. In a wide variety of situations in the relationship of tutor and pupil he has to act firmly and promptly to put down indiscipline and malpractice.
31. As per the Statutes of university, the Vice-Chancellor is whole-time Officer of the university and by virtue of his office, is a Member and Chairman of the Executive Council and of the Academic Council. He has power to convene meetings of the Executive Council and the Academic Council.
32. The plea that there is absence of specific provision enabling the Vice-Chancellor to order re-evaluation of the answer scripts and, therefore, the Judgment impugned should not be interfered with, cannot be accepted. Re- evaluation of answer scripts in the absence of specific provision is perfectly legal and permissible. In such cases, what the Court should consider is whether the decision of the educational authority is arbitrary, unreasonable, mala fide and whether the decision contravenes any statutory or 14 binding rule or ordinance and in doing so, the Court should show due regard to the opinion expressed by the authority."
16. In paragraph nos. 37, 38 and 39 it is further held thus:-
"37. Award of marks by an examiner has to be fair and considering the fact that re-evaluation is not permissible under the Statute at the instance of candidate, the examiner has to be careful, cautious and has the duty to ensure that the answers are properly evaluated. Therefore, where the authorities find that award of marks by an examiner is not fair or that the examiner was not careful in evaluating the answer scripts re-evaluation may be found necessary.
38. There may be several instances wherein re- evaluation of the answer scripts may be required to be ordered and this Court need not make an exhaustive catalogue of the same. However, if the authorities are of the opinion that re-evaluation of the answer scripts is necessary then the Court would be slow to substitute its own views for that of those who are expert in academic matters.
39. Under the circumstances the plea advanced on behalf of the respondents that Vice-Chancellor of the N.T.R. University of Health, Sciences had no authority to order re- evaluation of the answer scripts, cannot be upheld. Therefore, this Court does not agree with the finding recorded by the Division Bench of the High Court that the Vice-Chancellor of the University had no power or jurisdiction to order the re-verification of answer scripts. However, the facts indicate that the Vice- Chancellor had exercised power to order re-verification of answer scripts under pressure and coercion from the students and their parents and not independently on merits."
(Emphasis added)
17. Thus the right of the Vice Chancellor to have plainnary power is up held by Hon'ble the Supreme Court by setting 15 aside the judgment of the Division Bench of Andhra Pradesh High Court.
18. It is relevant to observe here that the writ petitioners cannot seek for re-evaluation as a matter of right as there is no specific provision. However, if the Chairman decides to order re-evaluation after noticing injustice if any, the same cannot be declared as unauthorized. The said power is an exceptional power assigned to the Chairman to meet extraordinary situations on the facts and circumstances of each case. If patent injustice is noticed the person in control cannot say that he has no power to remove the injustice. Thus the enabling power is vested with the Chairman to decide the matter in just and appropriate manner.
19. Applying the said principle laid down in the above case and findings arrived above in the said case the need to have such proviso is specifically held in paragraph 37 extracted above and having regard to the statutory provisions, namely, proviso to Rule 33(c), the Chairman of the Commission is vested with the power to take appropriate decision after satisfying himself and after affording opportunity to the person/candidate approaching him. Hence the direction issued by the learned Single Judge, granting liberty to the writ petitioner nos. 1 to 5 16 and 7 to 9 to approach the Chairman for explaining their grievance and direction to the Chairman to consider the same in accordance with Rules is perfectly legal and we are unable to find any error in the said direction issued. Consequently the issue No. (1) is answered against the appellant-Public Service Commission.
20. Insofar as issue No.(2), namely, direction issued by the learned Single Judge to round off 32.67% marks obtained by writ petitioner no.6 in Paper-I of General English to 33% is concerned, no rule of the Public Service Commission is either relied on or shown before this Court. The rounding off the marks is permissible only if rule permits so and not otherwise. The said issue has already been settled by Hon'ble the Supreme Court in the decision reported in (2011) 8 SCC 108 (Orissa Public Service Commission and anr v. Rupashree Chowdhary and anr). In paragraph no. 9 to 11 it is held thus:-
"9. The appointment to the post of Civil Judge (J.D.) under the Orissa Judicial Services is guided by Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 and Rule 24 thereof specifically deal with the criteria for determining of candidates for interview. Rule 24 reads thus: -
"24. Determination of number of candidates for interview:
The Commission shall call the candidates for interview who have secured not less than forty-five 17 per centum of marks in aggregate and a minimum of thirty three per centum of marks in each paper in the Main written examination."
10. A bare reading of the aforesaid rules would make it crystal clear that in order to qualify in the written examination a candidate has to obtain a minimum of 33% marks in each of the papers and not less than 45% of marks in the aggregate in all the written papers in the Main examination. When emphasis is given in the Rules itself to the minimum marks to be obtained making it clear that at least the said minimum marks have to be obtained by the concerned candidate there cannot be a question of relaxation or rounding off. There is no power provided in the statute/Rules permitting any such rounding off or giving grace marks so as to bring up a candidate to the minimum requirement. In our considered opinion, no such rounding off or relaxation was permissible. The Rules are statutory in nature and no dilution or amendment to such Rules is permissible or possible by adding some words to the said statutory rules for giving the benefit of rounding off or relaxation.
11. We may also draw support in this connection from a decision of this Court in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, v. M. Tripura Sundari Devi reported in (1990) 3 SCC 655. In the said judgment this Court has laid down that "6..........when an advertisement mentions a particular qualification and an appointment is made in disregard of the same then it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement."
21. In the said judgment rounding off ordered by the High Court was set aside by Hon'ble the Supreme Court. 18 Applying the said judgment to the facts of this case the direction of the learned Single Judge to round off the marks of the 6th writ petitioner from 32.67% to 33%, cannot be sustained and said portion of the order is set aside. Issue no.2 is decided in favour of the appellants.
22. The learned counsel for the 6th writ petitioner at this stage pleaded that his client may also be permitted to submit a representation like other writ petitioners which is not opposed by the learned counsel for the appellants.
23. In fine all the writ petitioners are permitted to submit representation before the 2nd appellant, namely, Chairman, J&K Public Service Commission, explaining their grievance within a period of two weeks, if not already submitted and the 2nd appellant is directed to take a decision as directed by the learned Single Judge, keeping in mind the power conferred on him under Rule 33 (c), within a period of six weeks from today.
24. With the above findings, the appeal stands disposed of. No costs.
(Ali Mohammad Magrey) (N. Paul Vasanthakumar)
Judge Chief Justice
SRINAGAR
08.07.2015
Anil Raina, Secy