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2023 DIGILAW 645 (JK)

UT of J&K v. Ashiq Ahmad Magray

2023-10-19

JAVED IQBAL WANI, N.KOTISWAR SINGH

body2023
JUDGMENT : N. Kotiswar Singh, J. 1. The present petition has been filed against the order dated 23.05.2022, passed by the Central Administrative Tribunal (referred to as CAT), in Transfer Application No. 3469/2020. 2. The learned CAT allowed the application filed by the applicant, respondent herein, and directed the respondents, petitioners herein, to treat the applicant as having secured the original 66 marks, call him for viva-voce cum Personality Assessment Test and based on his overall performance, place him in his appropriate merit position in the selection list for the appointment to the post of Prosecuting Officer. 3. The learned CAT further directed that if the applicant is found to have secured more marks than the last person selected in RBA category, the applicant should also be considered for appointment with notional consequential benefits. 4. Before we examine the grounds raised in this petition and the rival contentions of the parties, it may be necessary to refer briefly to the relevant facts of the case at hand. 5. Pursuant to the State Government’s Order No. Home/947(P) of 2012 dated 23.11.2012, the Police HQ issued an advertisement notice dated 29.12.2012 for filing up of 49 Posts of Prosecuting Officers. Subsequently, through two more notifications dated 11.06.2013 and 23.08.2013, the number of posts was increased from 49 to 98, out of which 19 posts were earmarked for RBA category. 6. The applicant was one of the candidates who took part in the recruitment process, which consisted of a written test, physical test and viva-voce cum Personality Assessment test. According to the applicant, he had performed satisfactorily in the written test and was expecting his name to be shortlisted for an interview. However, he was not called for an interview, and accordingly, he made an application under the Right to Information Act, 2005, seeking information regarding the cut-off marks category-wise. The information provided revealed that the cut-off marks for OM category were 67 and for RBA, it was 65.05. 7. Since the applicant was awarded 64 marks in the written test and had doubt about the same, he obtained the answer script under the RTI Act. In the information received under RTI Act, he discovered that he actually had obtained 66 marks in the written test but this score was reduced by 02 marks during re-evaluation. 7. Since the applicant was awarded 64 marks in the written test and had doubt about the same, he obtained the answer script under the RTI Act. In the information received under RTI Act, he discovered that he actually had obtained 66 marks in the written test but this score was reduced by 02 marks during re-evaluation. According to the applicant, the said reduction of 02 marks is tampering aimed at depriving him of being called for Viva-voce cum Personality Assessment Test. 8. It has been submitted that on verification, it was discovered that the applicant had initially been awarded 08 marks for one of the questions, but this score was subsequently reduced to 06 marks by way of correction/tampering. According to the applicant, if this mark reduction had not occurred due to tampering, he would have secured a place on the merit list and subsequently been called for a Viva-voce cum Personality Assessment Test. 9. Accordingly, the applicant, being aggrieved by the tampering/reduction in the marks, approached the Writ Court by filing a writ petition being SWP No. 1839/2017, which was disposed of by the Writ Court on 13.09.2017, directing appellant No. 2 to consider his representation and make a decision based on merit. 10. In terms of the aforesaid direction of the Court, the appellant No. 2, on considering the representation, rejected the same by order dated 31.08.2018. In the said order of rejection, it was determined that the applicant’s answers had been correctly evaluated, and his marks were appropriately adjusted to 06 marks from the initially awarded 08 marks. It was also mentioned in the rejection order that the said question was about “fundamental rights and fundamental duties,” each carrying 05 marks, for a total of 10 marks. The applicant had answered just in one line for fundamental duties but had answered more elaborately for fundamental rights. Consequently, the evaluator awarded 05 marks for the answer on fundamental rights and 01 mark for fundamental duties after revaluation, which was attested by the evaluator. Therefore, there is no question of tampering. 11. The applicant had answered just in one line for fundamental duties but had answered more elaborately for fundamental rights. Consequently, the evaluator awarded 05 marks for the answer on fundamental rights and 01 mark for fundamental duties after revaluation, which was attested by the evaluator. Therefore, there is no question of tampering. 11. It was also mentioned in the impugned consideration order dated 31.08.2018, that contrary to what the applicant had maintained in the writ petition, he had requested in his representation that he may be appointed as Prosecuting Officer in the department against any of the posts that may become vacant after some of the PO’s who were selected as Judicial Magistrates, chose not join as PO’s. 12. It was also mentioned in the said impugned consideration order that the select list was issued on 30.11.2015, and the information sought by the applicant was provided to him in the month of February 2016. However, the applicant disputed the re-evaluation of his answer script approximately one and a half years later. Thus, the claim was belated. 13. Being aggrieved by the aforesaid consideration order dated 31.08.2018, the writ petition being SWP No. 2286/2018, was filed by the applicant. The said writ petition was transferred to the CAT after the J&K Reorganization Act, 2019, came into force. 14. The CAT after hearing the parties and considering the materials on record, held that the appellant had not denied that the re-evaluation of the applicant’s paper was undertaken by them. The CAT also observed that the applicant had never sought re-evaluation of his paper, and as such, it is obvious that the appellant had done the re-evaluation suo motu, for which they had no authority, inasmuch as there is no such procedure prescribed under rules without a request from the candidate. 15. The CAT also considered the plea taken by the non-applicant, petitioner herein, that after the establishment of the Directorate of Prosecution in the Union Territory of Jammu and Kashmir, the Government had taken various steps to strengthen and streamline the Jammu and Kashmir Prosecution Service, which among other things, include upgradation of the post of Prosecution Officer from non-gazetted to gazetted level with the concurrence of the Finance Department, and as such, there is no post of Prosecuting Officer available as advertised earlier in 2012. 16. 16. As regards this objection raised by the official respondents, petitioners herein, the CAT observed that this objection can be taken care of by treating the applicant at par with all other candidates who had been earlier selected in the selection, and in case, if the applicant is found to be suitable after his interview, he may be given appointment with immediate effect. 17. The petitioners have questioned the correctness of the decision of the CAT on the ground that there was no tampering of the applicant’s answer script and that the re-evaluation of the answer script was done legitimately which the examiner could do on his own to ensure a proper assessment of the answers. Furthermore, it has been argued that given the non-existence of the post of Prosecuting Officer as advertised in 2012, no direction should have been issued to appoint the applicant as Prosecuting Officer at this stage. 18. It has been submitted that there is no post of Prosecuting Officer. At the relevant time, the appointment to the post of Prosecuting Officer was made by the Prosecution Wing of the Police Department. However, subsequent to the enactment of Jammu and Kashmir Reorganization Act, 2019, the said post of Prosecuting Officer has now become a gazetted post, which is to be filled up by the Directorate of Prosecution in accordance with the rules. 19. Learned counsel appearing for the applicant, respondents herein, has reiterated his submission that the manipulation of the answer script is clearly evident. If the answer script had been manipulated by reducing his marks so as to keep him out from the competition, the CAT had every right to correct the said error, as has been done in the present case. 20. It has been submitted and reiterated that there is no provision for re-evaluation, and the applicant had never requested for re-evaluation. The fact remains that if the marks had not been reduced by 02 due to tampering, the applicant would have scored within the cut-off marks prescribed for the RBA category, which would have entitled him to be called for an interview. Unfortunately, this opportunity was denied to him due to the tampering/correction in the answer script. 21. The fact remains that if the marks had not been reduced by 02 due to tampering, the applicant would have scored within the cut-off marks prescribed for the RBA category, which would have entitled him to be called for an interview. Unfortunately, this opportunity was denied to him due to the tampering/correction in the answer script. 21. Keeping the aforesaid position in mind we have to examine whether the reduction of marks by 02 in respect of the applicant’s paper, which led to his exclusion from the competition, is a tampering or an unauthorized action. For this purpose, we have requisitioned the original answer script and have perused the same. On perusal of the answer script, we observed a clear change in the marks allocated for the question regarding “fundamental rights and fundamental duties,”. The initial score of 08 had been reduced to 06, and we also noted the presence of initials in the said reduction of marks. 22. We have also noticed that on the cover page accompanying the answer script, the marks were reduced to 63, although it had been increased to 64. We have been informed that additional 01 mark was given to all the candidates because of certain mistake in the question paper. On the cover page of the answer script, the total marks have been shown as 23 out of 30, which later were reduced to 21 out of 30 with the examiner’s signature. Similarly, on the cover page accompanying the answer script, the marks have been shown to be reduced from 65 to 63, but were subsequently raised to 64 by adding 01 mark. We were informed that the additional 01 mark was given not only to the applicant but to all the candidates due to a certain defect in one of the questions. 23. From the perusal of the original answer script, the correction and reduction of marks by 02 is clearly evident. The question is whether such reduction amounts to tampering or manipulation so as to prejudice the case of the applicant. 24. Considering the above submission, this Court would proceed to examine as to whether the said reduction in the marks of the applicant was a tampering or a bona fide exercise undertaken by the examiner. There can be no doubt that when an examiner assesses an answer script, he has the discretion to determine how many marks to be awarded. 24. Considering the above submission, this Court would proceed to examine as to whether the said reduction in the marks of the applicant was a tampering or a bona fide exercise undertaken by the examiner. There can be no doubt that when an examiner assesses an answer script, he has the discretion to determine how many marks to be awarded. The assessment is typically within the examiner’s domain, and no changes can be made to it by any authority unless the rules so provide. However, during the assessment process, the examiner does have the liberty to make adjustments of marks. It is important to note that once the examiner concludes his assessment, and the answer script is subsequently passed to another authority for verification or safekeeping, he becomes functus officio as an examiner and any further changes become impermissible, as the examiner has already fulfilled his role as assessor. 25. Therefore, this Court would hold that if there is any change in the marks during the process of assessment by the examiner before he concludes his assessment work, such a change in the marks cannot be considered as tampering. However, if the examiner alters the marks after completing the assessment process, it can certainly amounts to an unauthorized act, regardless of whether it is referred to as re-evaluation, reassessment or re-examination, as the case may be. 26. Therefore, we have to examine whether the marks were reduced in course of the assessment process by the examiner or after the assessment process was completed by the examiner and became functus officio. This ascertainment is important because if the marks were reduced during the assessment, which is something an examiner has power to do, whether it is called re-evaluation, reassessment, or re-examination, it wouldn’t be considered tampering. However, if the reduction occurred after the examiner completed the assessment and became functus officio, it can amount to tampering. 27. Further, it is essential to determine whether the aforementioned reduction of 02 marks was made before or after the establishment of cut-off marks for various categories including RBA category. If the reduction of marks was done after the cut-off marks were set for the various categories of candidates, certainly the applicant can make a claim that his marks were deliberately reduced to prevent him from meeting the eligibility criteria set by the examining authority. If the reduction of marks was done after the cut-off marks were set for the various categories of candidates, certainly the applicant can make a claim that his marks were deliberately reduced to prevent him from meeting the eligibility criteria set by the examining authority. However, if the cut-off marks for various categories were determined after the reduction in marks, it cannot be said to be tampering intended to debar or exclude the applicant from competition. 28. Therefore, it is important to ascertain whether reduction in marks by the examiner, whether through re-evaluation, reassessment or re-examination occurred before the cut-off marks for various categories were set. If it occurred before the cut-off marks were set, it cannot be considered as tampering. However, if the same took place after the cut-off marks were determined, the applicant can reasonably claim that the reduction was done merely to keep him out of the competition. 29. Unfortunately, there is no such determination by the CAT. In our view, such determination would be essential to come to a conclusion whether the reduction in 02 marks of the applicant’s score amounts to tampering, so as to deprive him of being called in the interview. What appears from the record is that the CAT passed the impugned order merely on the ground that there is no provision for re-evaluation and the applicant did not request for re-evaluation, and such re-evaluation and reduction in marks amounts to tampering, which in our view, for the reason discussed above, does not appear to be correct. 30. In view of the above, we are of the opinion that it is important to determine whether the reduction in the applicant’s marks occurred before or after the establishment of the cut-off marks for various categories, so that appropriate order can be passed. 31. We, accordingly, deem it appropriate to remand the matter to the CAT to determine this issue after permitting both parties to submit additional affidavits or documents concerning the aforesaid issue and pass an order in accordance with rules after hearing all the parties. 32. 31. We, accordingly, deem it appropriate to remand the matter to the CAT to determine this issue after permitting both parties to submit additional affidavits or documents concerning the aforesaid issue and pass an order in accordance with rules after hearing all the parties. 32. As regards the contention raised by the official respondents, the petitioners herein, that as the post of Prosecuting Officer is a gazetted post following the enactment of J&K Reorganization Act, 2019, no such vacant post as advertised does not exist anymore, we are of the view that if it is found that the applicant had been wrongly denied consideration for appointment, particularly if it is determined that the reduction of the marks of the applicant occurred after the determination of the cut-off marks, he would have a legitimate claim to make, and his right cannot be defeated by subsequent changes in the status of the post. 33. Under such circumstances, if the applicant is able to prove that the reduction in marks by the examiner took place after the cut-off marks for various categories was determined, necessary consequential orders can be passed by the CAT as was done in the impugned order. 34. With the above observations and direction, the petition is allowed by remanding the matter to the CAT for reconsideration and passing appropriate orders in terms of our observations.