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2017 DIGILAW 113 (JK)

Shabir Nazir v. State of J&K

2017-03-03

DHIRAJ SINGH THAKUR, N.PAUL VASANTHA KUMAR

body2017
JUDGMENT : N. Paul Vasantha Kumar, J. 1. Heard Mr. C.S. Azad, learned counsel appearing for the petitioners and Mr. D.C. Raina, learned senior counsel appearing for the Public Service Commission. With the consent of both the learned counsel the writ petition is taken up for final hearing and disposal. 2. This writ petition is filed praying to quash notification dated 15.12.2015 along with notice dated 19.12.2015, notifying the schedule for interview to be held from 26.12.2015 to 01.01.2016 and direct the respondents to allow the petitioner to appear in the interview directly on the basis of their higher qualification i.e., M. Tech under and in terms of Rule 40(vi) of Public Service Commission (Conduct of Examination) Rules, 2005, whereby candidates having higher qualification have to be exempted to appear in the screening test and prohibiting the respondents from conducting interview on the basis of the declaration of the screening test result by notification dated 15.12.2015. 3. The case of the petitioners is that the 1st petitioner after completing his Bachelor of Technology, in Civil Engineering acquired Master's degree of Science in Construction Project Management in Birmingham City University and the 2nd petitioner after completing his Bachelor of Engineering acquired Post-graduate Diploma in Construction Management from national Institute of Construction management and Research Pune. The 1st petition is claiming reservation under RBA category and the 2nd petitioner is claiming selection in open merit category for the post of Assistant Engineer (Civil). 4. The petitioners appeared in the screening test, however, they could not reach the cut-off marks to be called for viva voce, hence this writ petition is filed on three grounds, namely; (i) the publication of screening test result dated 15.12.2015 be declared invalid due to the mistake in question/key answers of 21 questions; (ii) even in the experts findings/report, there were mistakes and therefore, they have made representation for verifying the same but the same has not been acceded to by the Public Service Commission; and (iii) they having possessed higher qualification are entitled to be called for viva voce without reference to any screening test in terms of Rule 40(vi) (a) of Public Service Commission (Conduct of Examination) Rules, 2005. 5. 5. The issue regarding conduct of re-examination i.e. screening test, which is raised in this writ petition has already been considered in SWP No. S-2768/2015 today i.e. 03.03.2017, wherein it is held that only one question out of 120 was deleted and official key/answer key of 20 question was corrected before evaluation and as per corrected key only evaluation was carried out and there is no merit in the said ground raised. Applying the said reasons the said issue is held against the petitioners. 6. The second issue raised in this writ petition is that even in the experts finding/report, there were mistakes and therefore, they have made representation for verifying the same but the same has not been acceded to by the Public Service Commission. In this respect the Public Service Commission has pointed out the Rule position, particularly Rule 12B(iii), which states that Controller of Examinations after scrutiny of all such representations shall refer them to a Committee of two experts in the relevant subject and the opinion of the expert Committee shall be final. It is also stated in Rule 12 B(ii) that the candidates can represent the Controller of Examinations if they feel that the official key to any of the question(s) is/are wrong within three days from the date of notification of key. 7. In light of the said Rule position, namely, the expert Committee's opinion is final and within three days of the notification of key, objections are to be filed, the petitioners are not entitled to urge such ground as it is prohibited under the said Rule. 8. Insofar as contention of the petitioner, which was emphatically argued by the learned counsel for the petitioners that even though they could not get the cut off marks in the screening test, having possessed higher qualification they are entitled to be called for viva voce for selection in terms of Rule 40(vi) of the Rules of 2005. The said Rule relied on by the petitioners is of 2005. The said Rule was amended in the year 2011 by notification No. PSC/EX/11/37, dated 20.03.2011 amending Rule 40, stating that in every notification inviting applications for a post, it shall be mentioned that the prescribed qualifications are the minimum and mere possession of the same does not entitle candidates to be called for interview. 9. The said Rule was amended in the year 2011 by notification No. PSC/EX/11/37, dated 20.03.2011 amending Rule 40, stating that in every notification inviting applications for a post, it shall be mentioned that the prescribed qualifications are the minimum and mere possession of the same does not entitle candidates to be called for interview. 9. As per the amended Rule, there is no provision to call for candidates, if short listing was carried out by conducting the screening test, merely because candidates are in possession of higher qualification. Admittedly, the notification against which the petitioners have applied was issued after the amendment issued on 20.03.2011. In such circumstances, we are of the view that the grounds raised by the petitioners in the writ petition are unsustainable and same are held against the petitioners. There is no merit in the writ petition, hence the same is dismissed. No costs.