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2019 DIGILAW 36 (JK)

Court of its own motion v. State of J&K

2019-01-30

ALI MOHAMMAD MAGREY, SANJEEV KUMAR

body2019
JUDGMENT : Ali Mohammad Magrey, J. This PIL was commenced pursuant to order dated 21.12.2018 on the representation dated 17.12.2018 of 83 applicants alleging irregularities on account of alleged data corruption and huge human error in the digital marking adopted for evaluation of answer scripts in the Combined Competitive (Mains) Examination held by the J&K Public Service Commission from 02.07.2018 to 08.08.2018. 2. Notice of the PIL was accepted by Mr. Azhar-ul-Amin, appearing for J&K Public Service Commission (hereinafter, the Commission). He was directed to file detailed counter affidavit meeting the objections pointed out by the aggrieved candidates and show cause why the PIL be not admitted to hearing. The Court also directed that meanwhile, till next date of hearing, there shall be stay of further selection process and the case was posted for today. 3. It may be mentioned here that against the aforesaid order, the Commission filed a petition for Special Leave to Appeal (C) No. 1493/2019 before the Supreme Court titled J&K Public Service Commission v. The Registrar, Jammu and Kashmir High Court, and anr. The Supreme Court on 21.01.2019, while issuing notice, directed that selection process can be completed and no appointment will be made. The Supreme Court also made it clear that the High Court would be free to decide the PIL on merits on the date fixed. 4. The Commission has filed a detailed reply in which it has not only furnished detailed information seeking to meet the points raised by the aggrieved persons who had filed the representation dated 17.12.2018, but has also taken preliminary objections to the maintainability of the PIL, citing certain judgments of the Apex Court and various High Courts to the effect that public interest litigation cannot be entertained in service matters. 5. It is worthwhile mentioning here that some candidates have filed three IAs seeking to intervene in this PIL. Some of these candidates are those who have been declared successful in the Mains Examination and some are those who have failed therein. For instance, IA no.02/2018 has been filed by seven candidates. They are stated to have qualified the Mains Examination, the result whereof was declared by the Commission vide notification no.PSC/Exam/80/2018 dated 04.12.2018. They have prayed for impleadment as party respondents in the PIL. For instance, IA no.02/2018 has been filed by seven candidates. They are stated to have qualified the Mains Examination, the result whereof was declared by the Commission vide notification no.PSC/Exam/80/2018 dated 04.12.2018. They have prayed for impleadment as party respondents in the PIL. Similarly, IA No.01/2019 has been filed by 27 candidates, who are stated to have passed the mains examination and have now to be interviewed by the PSC. It is their case that because of the order passed by the Court on 21.12.2018 the PSC has stayed further selection process. These interveners have sought their impleadment as respondents in the PIL and vacation of the interim direction dated 21.12.2018 which, according to them, is greatly prejudicing their interests. IA no.03/2019 has been filed by two candidates who are aggrieved of the methodology/procedure of Digital Evaluation/On Screen Marking (DE/OSM) introduced and adopted by the PSC, and are seeking to intervene in the PIL. 6. We heard learned counsel for the parties and considered the matter. 7. Mr. Azhar-ul-Amin, learned counsel for the Commission and, M/s Jehangir Iqbal Ganai, learned Sr. Advocate, and Mr. Tubail, learned Advocate, representing the applicants in IA Nos.02/2018 and 01/2019 during the course of hearing today prayed for closure of the PIL on the ground that the same is not maintainable. In this connection, reliance was placed on the judgment of the Supreme Court in Girjesh Shrivastava v. State of M.P., (2010) 10 SCC 707 and a Division Bench decision of this Court in PIL no.14/2018, entitled People’s Welfare Society v. Chancellor University of Jammu, decided on 28.11.2018. 8. Mr. Z. A. Shah, learned Court Counsel, submitted that in terms of the Supreme Court order dated 21.01.2018 this Court is required to decide the PIL on merits. While Mr. R. A. Jan, learned counsel, representing the aggrieved candidates submitted that the Court on considering the seriousness of the matter with reference to the change in the standard of examination by shifting to Digital Evaluation/On Screen Marking (DE/OSM) has entertained the suomoto PIL for ascertaining as to how the Commission has made such a change in the procedure, which is stated to be full of errors. Mr. Jan, learned Sr. Mr. Jan, learned Sr. Advocate when asked as to how the PIL was maintainable on the subject of selection on behalf of the aggrieved candidates, as the same amounts to adversary litigation based on challenge to the enlisted qualifying candidates, submits that when the selection is found to be based on fraud or full of errors and data corruption, Court has power to deal the matter in PIL. 9. Mr. Javed Iqbal, representing the applicants/candidates in IA no.03/2019 submitted that some of the aggrieved candidates have already challenged the action of the PSC in SWP No. 07/2019 with reference to shifting of mode and method of the evaluation of the answer papers from manual to digital screen evaluation and the same is expected to be listed for consideration before the Single Bench of this Court within a day or so. He submitted that the writ petition may be considered along with this PIL for consideration. 10. Having considered the matter, we are of the view to deal with the preliminary objection of this PIL as supported by decisions of the Hon’ble Supreme Court and the Division Bench of this Court. Let these judgments be referred to. 11. In Girjesh Shrivastava v. State of M. P. (supra), the Supreme Court has laid down as under:— “14. However, the main argument by the appellants against entertaining WP (C) 1520/2001 and WP (C) 63/2002 is on the ground that a PIL in a service matter is not maintainable. This Court is of the opinion that there is considerable merit in that contention.It is common ground that dispute in this case is over selection and appointment which is a service matter. 15. In Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, [ (1998) 7 SCC 273 ], a three judge Bench of this Court held that a PIL is not maintainable in service matters. This Court, speaking through Srinivasan, J. explained the purpose of administrative tribunals created under Article 323-A in the backdrop of extraordinary jurisdiction of the High Courts under Articles 226 and 227. This Court held: (SCC p. 281, para 18) ‘18. ... This Court, speaking through Srinivasan, J. explained the purpose of administrative tribunals created under Article 323-A in the backdrop of extraordinary jurisdiction of the High Courts under Articles 226 and 227. This Court held: (SCC p. 281, para 18) ‘18. ... If public interest litigations at the instance of strangers are allowed to be entertained by the (Administrative) Tribunal, the very object of speedy disposal of service matters would get defeated.’ Same reasoning applies here as a Public Interest Litigation has been filed when the entire dispute relates to selection and appointment. 16. In B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees’ Assn. [ (2006) 11 SCC 731 (2)], this Court held that in service matters only the non-appointees can assail the legality of the appointment procedure (See SCC p. 755, para 51 of the Report). 17. This view was very strongly expressed by this Court in Dattaraj Nathuji Thaware v. State of Maharashtra [ (2005) 1 SCC 590 ], by pointing out that despite the decision in Duryodhan Sahu (supra), PILs in service matters ‘continue unabated’. This Court opined that High Courts should ‘throw out’ such petitions in view of the decision in Duryodhan Sahu (supra) (Para 16, page 596). 18. Same principles have been reiterated in Ashok Kumar Pandey v. State of W.B., [ (2004) 3 SCC 349 ] (SCC at p. 358, para 16). 19. In a recent decision of this Court delivered on 30.8.2010, in Hari Bansh Lal v. Sahodar Prasad Mahto, (MANU/SC/9654/2010), it has been held that except in a case for a writ of ‘Quo Warranto’, PIL in a service matter is not maintainable (See SCC para 15)”. (Underlining supplied) 12. Similarly, a Division Bench of this Court of which one of us (Sanjeev Kumar, J) was a member, in People’s Welfare Society v. Chancellor University of Jammu (supra) held as under:— “1. ...It is trite that no Public Interest Litigation is maintainable in service matters except by way of writ of quo-warranto for which the appointment has to be shown contrary to the statutory provision. It was so held by the Supreme Court in its judgment reported as (2010) 9 SCC 655 titled Hari Bansh Lal v. Sahodar Mahto and others. ...It is trite that no Public Interest Litigation is maintainable in service matters except by way of writ of quo-warranto for which the appointment has to be shown contrary to the statutory provision. It was so held by the Supreme Court in its judgment reported as (2010) 9 SCC 655 titled Hari Bansh Lal v. Sahodar Mahto and others. The Supreme Court has clearly held that in absence of violation of statutory rules, the Court cannot go into the suitability or otherwise of the candidates because that is the prerogative of the executive. .... 5. In views of the principle of law laid down by the Supreme Court so far as the maintainability of the Public Interest Litigation in service matters is concerned, the instant writ petition is completely misconceived and misdirected.” 13. Admittedly, the case at hand is a service matter, therefore, needs a decision first to be taken on preliminary objection, but the only impediment is pendency of the SLP as we are not clear as to whether the Hon’ble Supreme Court has left this Court free to proceed ahead with the case notwithstanding Special Leave Petition pending before that court and deal with the preliminary objection. In our view, the order cannot be read in essence that the Hon’ble Supreme Court directed this Court to decide the PIL on its merits whether or not it is maintainable, therefore, we thought it proper to await further orders with reference to clarification from the Hon’ble Supreme Court which may be sought by the parties in appearance. 14. In light of the above, we defer further consideration of the matter till clarification is sought either by Public Service Commission or by any aggrieved party from the Hon’ble Supreme Court as to whether in view of the pendency of Special Leave Petition this court can proceed to deal with the preliminary objection regarding maintainability of PIL. 15. The matter shall be listed immediately on further orders from the Hon’ble Supreme Court.