Case BriefsHigh Courts

Patna High Court: The Division Bench of Amreshwar Pratap Sahi, CJ and Anjana Mishra, J. rejected an appeal filed by a candidate who had appeared for the Bihar Public Service Commission (BPSC) examination in 2015, but failed to qualify the same; holding that the decision of Commission could not be faulted on legal or any other ground.

The dispute herein was centered around marking of OMR sheet and marks obtained by the petitioner in examinations for the post of Assistant held by BPSC. The appellant herein, had filed a writ petition before this Court contending that he had obtained 132 marks, and since cut-off for the category to which he belonged was 130 marks, he was entitled to be selected. The respondent Public Service Commission’s case was that the appellant had erased six questions in the OMR sheet due to which six marks were deducted and he was awarded 126 marks instead of 132. The learned Single Judge dismissed the writ petition; aggrieved whereby the instant petition was filed.

Mr P.N. Shahi, learned counsel for the respondent, drew the attention of Court towards condition nos. 10 and 12 of instructions contained in the leaflet of Commission which clearly mentioned that ‘any eraser or change is not allowed’ and that ‘failure to comply with any of its instructions would render the candidate liable to such action or penalty as the Commission may decide at their discretion’. He placed reliance on the Division Bench’s judgment in Pushpa Kumari v. State of Bihar, 2016 SCC OnLine Pat 2668 where such a condition imposed by the Commission in another examination was held to be mandatory. Further, appellant’s OMR sheet was produced before the Court and it was pointed out that whitener had been used for erasing the answers already attempted by him for six questions.

The Court opined that Clause 10 of the respondent Commissions instructions clearly provided that any eraser or change is not allowed. The said condition was mandatory in view of the reasoning in Pushpa Kumari case. It was held that any attempt to answer a question a second time after erasing the first answer, results in disallowing the said answer, necessary consequence whereof is a deduction of marks for the said answer.

In view of the above, the appeal was rejected.[Abhishek Kumar v. State of Bihar, 2019 SCC OnLine Pat 479, Order dated 10-04-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., allowed a writ petition filed against the order of Respondent 1 whereby Respondent’s 3 & 4 were appointed to the post of lecturer in the health and medical department through back door entry.

The main issue that arose before the Court was whether the order of appointment and subsequent order of promotion, passed by the respondent authorities was valid?

The Court observed that in the case of J&K Public Service Commission v. Narinder Mohan; 1994 (2) SCC 630, it was held by the Supreme Court that appointment to gazetted posts should be only done through direct recruitment and the public service commission must fill up 100% of such posts through direct recruitment. In case if there is no exception given under the rules as per which the appointments are done, then no departure must be made from the general rule of completing the recruitment process through public service commission.

The Court held that the appointment of respondent 3 & 4 was contrary to the provisions of J&K Medical Education (Gazetted) Services Recruitment Rules, 1979 and Section 133 (Article 320 of the Constitution of India) of the J&K Constitution, which makes it mandatory for the Government to have consultation with the Public Service Commission in the matter of appointment of the employees to the Gazetted Services of the State. However, since 17 years had passed since the appointment of respondents and they were also given due promotions, hence the Court did not interfere with their respective positions. The Court directed the respondent 1 to treat the petitioner senior to the respondents 3 & 4 and provide him all the consequential benefits of assistant professor with effect from 2001. Resultantly, the Court allowed the petition. [Sudha Sharma v. State of J&K,2018 SCC OnLine J&K 771, order dated 25-10-2018]

Case BriefsHigh Courts

Karnataka High Court: In the instant case wherein the issue arose regarding the power of the Governor to suspend a member of the State Public Service Commission under Article 317 (2) of the Constitution, the Division Bench of Subhro Kamal Mukherjee, C.J., and Budihal R.B., J., referring to the decision, In the matter of Reference under Article 317(1) of the Constitution of India v. Unknown, (1983) 4 SCC 258 held that the language of Article 317 clearly states that the power of suspension can only be exercised by the Governor in accordance with the aid and advice of the Council of Ministers and when the President of India has referred the matter to the Supreme Court of India. The Court noted that in the present matter, the charges against the appellant and the recommendation to suspend her had not yet been referred by the President to the Supreme Court; therefore the decision of the Governor to suspend the appellant was unconstitutional.

As per the facts of the present case, the appellant had been embroiled in charges of corruption which resulted in her suspension from the Karnataka Public Service Commission by the Governor in ‘exercise’ of his powers under Article 317(2) of the Constitution via issuing an Order to the effect dated 14.05.2014. The impugned Order was challenged by appellant in a previous writ petition, which was subsequently dismissed by the Single Judge; therefore the present appeal came up before the Court. Questions were raised by the appellant’s counsel Sajan Poovayya upon the extent of the exercise of power of suspension by the Governor. It was questioned as to whether the Governor can pass an order of suspension prior to the recommendation made by the President to the Supreme Court. Another issue that the Court deemed fit to address was  whether the Governor while exercising powers under Article 317(2) can act at his discretion or is he bound by the aid and advice of the Council of Ministers under Article 163 of the Constitution.

Perusing the contentions, the case laws on the point and the constitutional provisions, the Court observed that member of a Public Service Commission is a constitutional functionary and not a post that is held at the pleasure of the Governor, therefore exercise of Power under Article 317 should not be discretionary and whimsical. Referring the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831, the Bench noted that exercising powers under Article 317(2) will have to be done in accordance with the aid and advice of the Council of Ministers. The nature of exercise of powers enshrined in Article 317 is not equivalent to the emergency provision under Article 356, where the Governor of a State can exercise discretion. Observing thus, the Court therefore set aside the Suspension Order of the appellant on the ground of it being unconstitutional. [Mangala Sridhar v. State of Karnataka, 2017 SCC OnLine Kar 928, decided on 06.03.2017]