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2022 DIGILAW 146 (JK)

Khan Aatif Abdullah v. UT of J&K

2022-04-01

DHIRAJ SINGH THAKUR

body2022
JUDGMENT : Dhiraj Singh Thakur, J. WP(C) No.255/2022 & WP(C) No.396/2022 1. With a view to understand the background in which the present controversy has arisen, it is necessary to state the material facts in brief. 2. The petitioners responded to notification No. 2-PSC of 2021 dated 26.02.2021, whereby the Public Service Commission invited applications from eligible candidates for the J&K Combined Competitive Preliminary Examinations 2021. The scheme of examination comprised of the following:- (i) Combined Competitive (Preliminary) Examination for the selection of candidates for main examination; (ii) Combined Competitive main examination written & interview, and (iii) Personality test. 3. The preliminary examination consisted of two papers i.e. GS-I & GS-II. Paper GS-II was in the nature of a qualifying examination, inasmuch as, the candidate had to secure a minimum of 33% marks in the said paper. In regard to the GS-I, the Public Service Commission was given the discretion to fix the minimum qualifying marks as it deemed appropriate. According to the learned counsel for the Public Service Commission, Mr. Azhar-ul-Amin, marks obtained in GS-1 would also contribute to determining the merit of a candidate who appeared in the main examination. 4. With a view to take care of an eventuality, where the questions in the question papers suffered from vagueness or the same were incomplete, or out of syllabus or where the options recorded vis-à-vis the questions were wrong or more than one option recorded was correct, the rules, namely, the Jammu & Kashmir Public Service Commission (Conduct of Examination) Rules, 2005 (hereinafter referred to as the “Rules of 2005”) provide for a remedy where inter-alia a candidate is given an option to make a representation within three days commencing from the date following the date of the conduct of the examination, to the Controller of Examination, who eventually has to refer the same to a team of two experts, in the subject, whose findings are then deemed to be final. 5. 5. By virtue of notification dated 13.05.2015, there was an amendment incorporated to Rule 12A and by virtue of the same amendment Rule 12B was inserted, which reads as under:- “It is hereby notified for the information of the general public that the existing Rule 12A of the Jammu & Kashmir Public Service Commission (Conduct of Examination) Rules, 2005 shall be substituted as under:- 12A: Detention of wrong Question/Answers/Keys procedure for Rectification and Evaluation: (a) During the course of examination, if it is revealed on scrutiny or in consequences of an representation made by the examinee(s) that:- (i) the question paper has printing errors, misprint or that the material printed is not legible; (ii) the question(s) have been repeated; and (iii) the question(s)/answer(s)/part thereof have escaped printing and the serial numbers have in consequence been disturbed. The matter shall immediately be reported to the Controller of Examinations who on verification of the report shall authorize the rectification of the error through an on spot announcement in all the examination centres for which a certificate of rectification shall be recorded by the Supervisor concerned and forwarded to the Controller of Examinations for record; (b) If the scrutiny of the question paper by the Invigilation staff, officials/officers of the Examination wing of the Commission or on a representation received from the candidates within three days commencing from the day following the day of conduct of examination in that paper, it is prima-facie found that: (i) the formulation/text of the question is admissible to different interpretations because of vagueness; (ii) the question(s) recorded in the paper is incomplete; (iii) the question(s) is out of syllabus notified for the purpose; (iv) that all the options recorded vis-à-vis a question are wrong; (v) that more than one options recorded are correct; and The Controller of Examinations shall in that eventuality refer all these representations to a team of experts constituted with the approval of the Chairman for the purpose. The team shall comprise not less than two experts of eminence in the subject and their findings shall be final. (c) In case the team of the experts confirm the incorrectness of the questions/answers/options, the concerned questions shall be deleted from the paper and the marks allocated therefore shall be redistributed equally amongst the rest of the questions on prorata basis to ensure that the marks allocated for the question paper as a whole remain unchanged. (c) In case the team of the experts confirm the incorrectness of the questions/answers/options, the concerned questions shall be deleted from the paper and the marks allocated therefore shall be redistributed equally amongst the rest of the questions on prorata basis to ensure that the marks allocated for the question paper as a whole remain unchanged. Provided that, where the number of question so to be deleted exceeds 10% of the total number of questions in that paper, the examination shall be cancelled and fresh examination in that paper shall be held. Further Rule 12B shall be inserted as under:- 12B: (i) The Controller of Examinations will release the key of question paper preferably immediately after the conclusion of the Examination/Test or on the working day following the day of the test. The keys will be uploaded on the website of the Commission. (ii) The candidates can represent to 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 day of notification of key. (iii) The Controller of Examinations after scrutiny of all such representations shall refer them to a Committee of two Experts in the relevant subject. This Committee shall be formed with the approval of the Chairman. In case of General Studies Paper the questions will be referred to the subject experts of the field relevant to the question (e.g. a question in History will be referred to an expert in the History). The opinion of the expert committee shall be final. The Controller of Examinations shall accordingly finalize the key(s) of relevant question(s) and notify the same for evaluation as well as the information of the examinees.” 6. Subsequently, by virtue of notification dated 25.03.2021, Rule 12A(c) was substituted, which is as under:- “12A(c):- In case the team of the experts confirm the incorrectness of the questions/answers/options, the concerned questions shall be deleted from the paper and the marks allocated therefore shall be individually added to the marks secured by the individual candidates to ensure that the marks allocated for the question paper as a whole remain unchanged.” 7. In the backdrop of the above, it is stated that the Public Service Commission published the provisional key on 25.10.2001 and the candidates were asked to submit their objections, if any within three days. In the backdrop of the above, it is stated that the Public Service Commission published the provisional key on 25.10.2001 and the candidates were asked to submit their objections, if any within three days. Objections submitted by the applicants were placed before the panel of experts and based upon recommendations made by them the final answer key was published vide notification dated 13.11.2021. In the final answer key so published, the following was done:- (a) In paper GS-I, 04 questions were deleted being wrong and key regarding 05 questions was corrected. (b) In paper GS-II one question was deleted and answer key in respect of 01 question was corrected. 8. The case set up by the petitioners is that they filed representations with the Public Service Commission, stating therein that number of questions/answer keys were wrong and incorrect. This is stated in paragraph 11 of both the writ petitions bearing WP(C) No. 255/2022 & WP(C) No. 396/2022. 9. The petitioners also placed on record the representations purported to be filed by them with the Public Service Commission. The case set up by the petitioners in the present writ petitions is that :- (i) All 09 questions in GS-1 ought to have been deleted instead of just 04, meaning thereby, that those 05 five questions in regard to which the key was corrected ought to have also been deleted and marks of all 09 questions allotted to the petitioners. (ii) Apart from the above, 06 more questions referred to in table C of the petitions ought to have been deleted, as the questions were either vague or incorrect or the options were vague or incorrect. 10. It is in the backdrop of the aforementioned claims that the petitioners seek a relief, as has been prayed for in the writ petitions. 11. The Public Service Commission, on the other hand, submitted that none of the petitioners had filed representations with the Public Service Commission in terms of Rule 12A or Rule 12B. It was stated that copies of representations referred to in paragraph 11 of the petitions and annexed with the petitions were in fact not filed by the petitioners but one Naved Ahmed. It was stated that copies of representations referred to in paragraph 11 of the petitions and annexed with the petitions were in fact not filed by the petitioners but one Naved Ahmed. It was stated that the bank drafts in the representations relied upon by the petitioners have been superimposed and was a clear case of misrepresentation and fraud perpetrated by the petitioners on this count, as no representation were filed at all by the petitioners, as had been asserted. 12. It was further urged by the learned counsel for the Public Service Commission that none of the petitioners in these two writ petitions had represented any point of time in respect of questions which had been highlighted in the present petitions. It was stated that 03 of the petitioners namely, Tufail Ahmed, Adnan Hussain Lone & Alia Farooq had represented against some other questions of GS-II paper, which representations and objections had been dealt with by the panel of experts but not found sustainable. It was also urged that some other candidates represented against the six questions highlighted in Table-C, but the experts having considered the objections had not found the objections to be sustainable. 13. It was, therefore, urged that having failed to file a representation against any of the questions/answers and the keys in terms of Rule 12A & 12B, the petitioners are now estopped in law to throw a challenge to the process of selection being conducted by the Public Service Commission. 14. With a view to verify whether the petitioners had infact filed the representations with the Public Service Commission, as was reflected in the writ petitions, in regard to the questions highlighted in the writ petitions, record was called. From the record, it does transpire that the petitioners infact had not filed any representation, as had been alleged by them. It also could be seen from the record that the so called representations of the petitioners were infact filed by some other candidates. On the fact of it, therefore, the assertion of the petitioners that they had filed representations is, therefore, totally false and incorrect. 15. It also could be seen from the record that the so called representations of the petitioners were infact filed by some other candidates. On the fact of it, therefore, the assertion of the petitioners that they had filed representations is, therefore, totally false and incorrect. 15. In my opinion, the petitioners having failed to avail the remedy of filing a representation must be deemed to have accepted and acquiesced in the action of the Public Service Commission in either deleting the requisite number of questions or correcting the answer keys to that extent and waived their right to throw a challenge to the process of selection and the procedure adopted by the PSC. 16. Even otherwise, it appears that the objections raised by the candidates other than the petitioners in regard to the six questions highlighted in Table-C had already been considered by the subject experts and found to be unsustainable. During the course of arguments, learned counsel for the petitioners vehemently urged that notwithstanding the view expressed by the subject experts, the writ Court could interfere to declare a particular question as vague or hold a particular answer or the option as incorrect, if the same was on the face of it perverse in nature. 17. The extent of judicial review in academic matters is no longer res integra. In “University of Mysore Vs C. D. Govinda Rao,” reported in AIR 1965 SC 491 , a Constitution Bench of the Apex Court held that the Courts should be slow to interfere with the opinions expressed by the experts particularly in a case when there is no allegation of mala fides against the experts. It was held that it would be safe and wise for the Courts to leave the decisions of academic matters to the experts who have the relevant expertise and knowledge in the relevant field. 18. In “Dalpat Abasaheb Solunke Vs Dr. B. S. Mahajan, reported in (1990) 1 SCC 305 , the Apex Court reiterated the following principles by holding as under:- “12. It is needles to emphasize that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction.” 19. In “J&K State Board of Education Vs Feyaz Ahmed Malik, reported in (2000) 3 SCC 59 , the Court emphasized that the decision of the expert does bodies should be given due weightage by Courts, inasmuch as, the same consisted of persons coming from different walks of life having wide experience in the field of education and entrusted with the duty of maintaining higher standards of education. 20. In “Vikesh Kumar Gupta and another Vs State of Rajasthan and others,” reported in 2021 (6) SCC 309, the Apex Court held: 16. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to conclusion different from that of the Expert Committee in its judgement dated 12.03.2019. Reliance was placed by the Appellants on Richal & Ors. Vs Rajasthan Public Service Commission & Ors, reported in (2018) 8 SCC 81 . In the said judgement, this Court interfered with the selection process only after obtaining the opinion of an expert committee but did not enter into the correctness of the questions and answers by itself. Therefore, the said judgement is not relevant for adjudication of the dispute in this case. 17. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. Therefore, the said judgement is not relevant for adjudication of the dispute in this case. 17. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the court itself to arrive at correct answers is not permissible……………………………………………..……………………………………………………………………” 21. In “Kanpur University Vs Samir Gupta,” reported in (1983) 4 SCC 309 , the Apex Court held that: “16 …………………………………………. the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. In other words, the onus is on the candidate to clearly demonstrate that the key answer is incorrect and that too without any inferential process or reasoning. The burden on the candidate is therefore rather heavy and the constitutional courts must be extremely cautious in entertaining a plea challenging the correctness of a key answer. ……………………………………………………………………………………………………………………” 22. In the present case, in view of the fact that the subject experts have already opined on the 06 questions, which had been highlighted in Table-C and rejected the objections so raised (by the candidates other than the petitioners) and in view of the fact that the petitioners had not raised even a murmur and failed to file any representation in regard to the aforementioned 06 questions, I do not deem it necessary to even venture to determined as to whether the questions so highlighted on the face of it were either vague or the answers/options to those questions were incorrect. Even otherwise, keeping in view the ratio of the judgments referred to herein above, this Court cannot substitute its view for the view expressed by the experts in regard to the questions so highlighted in the Table-C. 23. One of the issues, which was highlighted by the learned counsel for the petitioners was that 05 questions in regard to which the answer key was corrected ought to have been infact deleted in terms of Rule 12A(c). One of the issues, which was highlighted by the learned counsel for the petitioners was that 05 questions in regard to which the answer key was corrected ought to have been infact deleted in terms of Rule 12A(c). However, this argument on the face of it, is unsustainable in view of the fact that the correction of key is a matter which is covered not by Rule 12A but Rule 12B, which envisages filing of a representation in regard to the answer keys within three days from the date of notification of the original key, which is then required to be sent to the Expert Committee, consisting of two experts, based upon whose opinion the Controller of Examination is required to notify the same for evaluation as also information of the examinee. It can be seen that in terms of Rule 12A based upon the opinion of the experts, if a question/answer or option is held to be incorrect, the same has to be deleted from the paper and marks allocated and distributed according, whereas in terms of Rule 12B no such deletion of questions is envisaged, much less, is there any provision for allocation of the marks individually to the candidates. 24. The purpose and intent of the two provisions is quite clear, inasmuch as, under Rule 12A, the wrong question or a wrong answer to the proposed question can directly affect the candidate’s performance in the examination and, therefore, the need to delete that question and the allocation of marks to the individual candidates. As against this, an incorrect answer in the key if corrected does not affect the result of the candidate if the performance of the candidate is evaluated based upon such a corrected key. In my opinion, therefore, the argument that the 05 questions instead of being corrected in the key ought to have been deleted, is an argument which is unsustainable and is, accordingly, rejected. 25. As discussed in the preceding paragraphs, the petitioners had clearly made a wrong statement in the writ petitions regarding the filing of the representations in terms of Rule 12B with the Public Service Commission, which upon verification has been found to be totally false and incorrect. The representations relied upon by the learned counsel for the petitioners clearly appear to have been filed by the candidates other than the petitioners. 26. The representations relied upon by the learned counsel for the petitioners clearly appear to have been filed by the candidates other than the petitioners. 26. In “Smt. Shrisht Dhawan Vs M/s Shah Brothers,” reported in AIR 1992 SC 1555 , the Apex Court in paragraph 20 held as under:- “20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct………….” 27. In “S.P. Chengavaraya Naidu (dead) by L.Rs Vs Nagannath (dead) by L.Rs,” reported in AIR 1994 SC 853 , the Apex Court observed that “Fraud avoids all judicial acts, ecclesiastical or temporal.” Paragraph 8 of this judgement is relevant and reproduced as under:- “8. ………………………………………. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage ….…………………………………………………….………………………..” 28. In “United India Insurance Co. Ltd. Vs Rajendra Singh and others,” reported in AIR 2000 SC 1165 , the Apex Court in paragraph 3 of the judgement observed as under:- “3. “Fraud and justice never dwell together” (fraus et just nunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that “no judgement of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything” (Lazars Estates Ltd. Vs Beasley, (1956) 1 QB 702 ).” 29. Notwithstanding the fact that the petitioners had not come to this Court with clean hands but considering the fact that the petitioners are unemployed and some of them belong to far-flung areas with humble backgrounds and considering the fact that their future may be adversely affected, I propose not to take any serious action against the petitioners except impose cost of Rs.50,000/- to be paid by the petitioners collectively, out of which Rs. 25,000/- shall be deposited in the Advocates’ Welfare Fund and the rest of Rs. 25,000/- to be deposited into the account of the Public Service Commission within two weeks from the date of passing of this order. 30. Having considered the matter in its entirety, the aforementioned two petitions are found to be without any merit and are, accordingly, dismissed along with connected applications. 25,000/- to be deposited into the account of the Public Service Commission within two weeks from the date of passing of this order. 30. Having considered the matter in its entirety, the aforementioned two petitions are found to be without any merit and are, accordingly, dismissed along with connected applications. CCP(S) No.58/2022 In view of the dismissal of the aforesaid two writ petitions, the contempt petition also stands dismissed.