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2013 DIGILAW 348 (JK)

Yogeshwar Singh v. State Of J&K

2013-05-30

BANSI LAL BHAT, MUZAFFAR HUSSAIN ATTAR

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Muzaffar Hussain Attar, J. 1. Respondent - Public Service Commission (PSC) issued two notifications bearing No. 03-PSC of 2010 dated 28.05.2010 read with Notification No. 14-PSC of 2010 dated 24.09.2010 wherein the applications were invited from eligible candidates for seeking consideration for being selected and appointed on the posts of Assistant Legal Remembrancer/Public Law Officers. 15(fifteen) posts were notified by PSC as the request for making selection was made by the State Law Department in respect of 15 posts only. 800 candidates filed Application Forms and sought consideration for being selected and appointed on the said posts. Since posts were less and large number of candidates had responded to the advertisement notifications, a view was taken by the respondent-PSC that it would not be convenient for it to interview all the candidates. PSC took decision to hold Screening Test for short listing of the candidates for calling them for interview. Rule 14 of the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules, 1980 authorizes PSC to conduct Screening Test in case posts are less and candidates seeking consideration for selection and appointment on such posts are large in number. In pursuance of such decision of PSC, Screening Test was conducted in which 612 candidates participated. The result of the Screening Test, conducted by PSC, was declared on 08.03.2011 vide notification No. PS/Exams/11/34. Appellants-writ petitioners, eight in number, also sought consideration for being selected and appointed on the advertised posts as Open Merit Candidates and one under Scheduled Tribe Category. The cutoff-marks for calling the candidates for interview were fixed at 92 for the open merit candidates. PSC issued notification dated 06.04.2011 wherein Roll Nos. and Names of those candidates were given who were called for interview. The schedule for interview was fixed by this notification. Writ Petition was filed on April 08, 2011 by appellants-writ petitioners wherein they prayed for issuance of writ of certiorari quashing the notification No. PSC/DR/ALR-PLO/2-1- dated 06.04.2011 and for issuance of writ of certiorari quashing the written examination held for short listing of the candidates in terms of Notification No. PSC/Exam/11/34 dated 08.03.2011. It was further prayed that respondents be directed to conduct the exam as per syllabus prescribed strictly. 2. The writ petition was filed on the principal ground that the some questions in the question booklet were out of syllabus. It was further prayed that respondents be directed to conduct the exam as per syllabus prescribed strictly. 2. The writ petition was filed on the principal ground that the some questions in the question booklet were out of syllabus. As per claim of the appellants-writ petitioners, out of 120 questions more than 43 questions were out of syllabus. On notice respondent PSC filed objections/reply affidavit to the writ petition. 3. Learned Single Judge after hearing learned counsel for the parties dismissed the writ petition in terms of order dated 11.04.2012. It is this decision/order which is called in question in this Letters Patent Appeal. 4. Mr. S. S. Lehar, learned Senior Advocate submitted that 43 questions which figured in the question booklet were completely out of syllabus. Learned counsel submitted that legal notice was sent to respondent-PSC on March 22, 2011 wherein they were informed that 43 questions of the question booklet were out of syllabus. Respondent-PSC was requested to conduct examination afresh. Learned counsel further submitted that the Screening Test conducted by PSC is not in accordance with law as questions beyond the notified syllabus figured in Booklet. Learned counsel while referring to Jammu and Kashmir Public Service Commission (Conduct of Examinations) Rules, 2005 (for short Rules of 2005) submitted that admittedly the questions which were out of syllabus exceeded 10% of the total number of questions in the question booklet as such in view of the mandate contained in proviso appended to Rule 12-A, respondent-PSC was required to cancel the examination and also conduct fresh examination. Learned counsel further submitted that wrong finding of fact has been recorded in the impugned judgment by the learned Single Judge where it is stated that, "it has been specifically denied by respondent-PSC in their objections that some of the questions in the question booklet were out of syllabus", when respondent-PSC has not specifically denied the averment of the writ petition that some questions were out of syllabus. Learned counsel accordingly submitted that the impugned judgment has been passed on wrong assumption and would require to be set aside. Learned counsel accordingly submitted that the impugned judgment has been passed on wrong assumption and would require to be set aside. Learned counsel also referred to the Judgment of the Delhi High Court in case titled Gunjan Sinha Jain v. Registrar General which case is decided on 09.04.2012 and submitted that in similar circumstances Delhi High Court while cancelling the examination, directed for holding fresh examinations and even issued directions to the respondents to remain careful in future in conducting examinations. Learned counsel made specific reference to Paragraph Nos. 7 and 77 of the said judgment and submitted that in view of the law laid down by Delhi High Court the appeal as also the writ petition deserves to be allowed. 5. Mr. D. C. Raina, learned Senior counsel appearing for PSC also referred to rule 12(A) of the Rules of 2005 and further referred to Condition No.5 of the question booklet, of the Screening Test, conducted in respect of short listing of the candidates for calling them for interview and submitted that writ petitioners-appellants, if had any grievance in respect of the questions of the question booklet then they had to represent against the same within three days. Learned counsel submitted that the result of Screening Test was declared on 08.03.2011 and legal notice was sent on 22.03.2011. Learned counsel submitted that in this situation it can be said that the appellant-writ petitioners had no grievance against the questions contained in the question booklet. Learned counsel also referred to Rule 28 of Rules of 2005 and submitted that the said Rule refers to instructions for candidates and the candidates had to strictly act upon the instructions recorded on the cover page of the answer booklet and said instructions are to be deemed to form part of the Rules of 2005. Learned counsel also submitted that the appellants-writ petitioners who were eight in number besides attempting other questions also attempted all the 43 questions which they claim to be out of syllabus. Learned counsel while referring to the objections/ reply-affidavit filed by PSC submitted that the appellants secured more marks in the questions which they claim to be out of syllabus, than in other attempted questions. Learned counsel submitted that after conducting Screening Test and attempting all the questions, appellants are precluded from challenging the notifications and Screening Test conducted by the PSC. Learned counsel submitted that after conducting Screening Test and attempting all the questions, appellants are precluded from challenging the notifications and Screening Test conducted by the PSC. Learned counsel submitted that in the facts of this case appellants were not prejudiced and prayed for dismissal of the appeal. Learned counsel further submitted that the persons who have been short listed for interview and who have been in fact subjected to selection process have not been made party to the writ petition and on this score also, appeal and writ petition, merits dismissal. 6. Mr. Gagan Basotra, learned Senior Additional Advocate General appearing for the State of Jammu and Kashmir while supporting the arguments of Mr. D. C. Raina, learned Senior Advocate, submitted that there is dire need of filing the posts notified in terms of the notifications and these posts are of vital importance to the State Government. 7. In order to appreciate contentions raised by learned counsel for the parties, Rule 12 (A) and 28 of the Rules of 2005 are taken note of. "12. A Deletion of wrong questions and methodology in evaluating such questions: If during the course of examination/completion of examination, any question is reported to be admittedly wrong or has wrong options/more than four options or is having a major printing error in questions/options, and which could not be rectified through on spot announcement through respective Supervisors in the examination halls by the Commission, such of the questions shall be deleted after obtaining opinion from the subject Experts and shall not be evaluated before declaration of results. However, the marks of such questions shall be allocated equally to the rest of questions on prorate basis so that the maximum marks of the question paper remain the same. Provided that, where the number of admittedly wrong to be deleted exceeds 10% of the number of questions in that paper, the examination in that paper shall be cancelled and a fresh examination in that paper be held. 28. Instructions for candidates: Candidates shall answer questions in a clear and legible hand strictly act upon the instructions printed on the cover page of the answer books. Such instructions shall be deemed to form part of these rules." Paragraph 5 of the instructions appearing on the first page of the test booklet in respect of Screening Test -2010 and Paragraph VI of the reply affidavit are taken note of. Such instructions shall be deemed to form part of these rules." Paragraph 5 of the instructions appearing on the first page of the test booklet in respect of Screening Test -2010 and Paragraph VI of the reply affidavit are taken note of. "5. In case you find any discrepancy, in this test booklet in any questions or the Responses, a written representation explaining the details of such alleged discrepancy, be submitted within three days, indicating the Question Nos and the Test Booklet Series, in which the discrepancy is alleged. Representation not received within time shall not be entertained at all. VI. That the writ petition filed by the petitioners also deserves on outright dismissal because notwithstanding the aforementioned submissions the answering respondents with a view to ensure that no prejudice is caused to any candidate including the petitioners herein has carefully examined the answer sheet (OMR response sheet) of all the petitioners and it has emerged that the petitioners have attempted all the 44 questions allegedly out of syllabus and have also responded correctly in most of the questions which they claim to be out of syllabus. In fact, the performance of most of the petitioners in these 44 questions has been far better than the remaining 76 questions. For kind perusal of his Hon'ble Court the statistical date prepared by the answering respondent is reproduced as under: S.No. Roll No. Total questions attempted Total marks obtained Questions attempted out of 77 questions (not disputed by the candidates) Correct questions out of 76 questions Questions attempted out of 43 (Disputed questions) Correct questions out of disputed questions 1 1200451 120 57 77 32 43 25 2 1200679 120 90 77 58 43 32 3 1200684 120 89 77 57 43 31 4 1200505 120 80 77 55 43 25 5 1200682 120 82 77 48 43 34 6 1200547 120 74 77 44 43 30 7 1200722 120 82 77 51 43 30 8 1200720 120 77 77 49 43 28 The claim of the appellants-writ petitioners is that 43 questions in the question book let were out of syllabus which has affected their chance of being subjected to selection process by calling them for interview. The reliance placed upon Rule 12 (A) of the Rules of 2005 is completely misplaced. The reliance placed upon Rule 12 (A) of the Rules of 2005 is completely misplaced. Rule 12(A) of Rules of 2005 deals with questions which are reported to be admittedly wrong or have wrong options/more than four options or have major printing error with questions/options which could not be rectified through on spot announcement. The issue involved in this case is about questions being allegedly out of syllabus, which however, is not covered by Rule 12(A). Rule 12(A) deals with different contingencies, i.e., if the question is reported to be admittedly wrong or have wrong options or more than four options. Rule 12(A) does not include that category of questions which may be claimed to be out of syllabus. Thus, Rule 12(A) cannot be invoked for the decision of this case. The whole hog reliance placed on proviso appended to Rule 12(A) would not be attracted on the facts of this case. It appears that if the candidates had grievance of the questions being out of syllabus then such a discrepancy would be apparently governed by instruction 5 and the aggrieved person on the basis of same was required to represent within three days. Instruction No.5 says if representation is not received in time it shall not be entertained at all. Admittedly in this case result of the Screening Test was declared on 08.03.2011 and legal notice was sent on 22.03.2011. On the plain language of instruction 5 it is concluded that no representation was filed in respect of grievance of writ petitioners. The Court for facts of this case alone has expanded meaning of expression "discrepancy" to bring within its fold those questions also which are claimed to be out of syllabus. This only is assumed for the purpose of this case. This expression "discrepancy" in all circumstances may not include the claim that the some of the questions in the book let were out of syllabus. But assuming that expression "discrepancy" include out of syllabus questions, there being no representation filed within three days, as already stated, the grievance on this score cannot be entertained. Another aspect which warrants dismissal of the appeal is that the appellant have participated in the Screening Test without any protest. They have attempted the questions which they now claim to be out of syllabus. Another aspect which warrants dismissal of the appeal is that the appellant have participated in the Screening Test without any protest. They have attempted the questions which they now claim to be out of syllabus. In view of Clause VI extracted from objections/reply affidavit filed by PSC what emerges is that the appellants-writ petitioners have secured more marks in the questions which they allege to be out of syllabus than the other attempted questions. In this peculiar factual position, appellants-writ petitioners were not prejudiced even if it is assumed that some of the questions were out of syllabus. In Gunjan Sinha Jain v. Registrar General claim was made by petitioners that question paper contained many questions which were out of syllabus. The said Court after examining the issue ordered for removing /deleting of 12 questions from the questions of Delhi Judicial Service. They also ordered seven questions would require correction in the Answer Key and seven questions would require no change in Answer Key. It is not brought to the notice of Court that there were similar instructions as is contained in booklet of Screening Test -2010 figuring at Serial No.5. Such an instruction which has statutory flavour makes entire difference in the facts of the two cases. For our above referred reasons, this appeal is dismissed. Interim direction, if any, stands vacated.