Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Sanjaya Kumar Mishra, CJ. and Ramesh Chandra Khulbe, J. allowed a petition which was filed by an aspirant seeking a direction to respondents to allow the petitioner to appear for the mains examination of the Assistant Conservator of Forest.

The petitioner had applied for the post of Assistant Conservator of Forest, and in pursuance of the application, she was allowed to appear in the preliminary examination. Subsequently, she qualified the preliminary examination. As per the requirement of the advertisement, the petitioner was supposed to deposit the requisite fee and documents for the main examination by 01-02-2020.

The Uttarakhand Public Service Commission (the Commission) had issued two advertisements and keeping in mind the second one the Court had passed an order directing the petitioner to provisionally appear in the mains however it was directed that result of the petitioner shall be declared only after seeking a prior permission of this Court. Result of the petitioner was filed in this Court in a sealed cover, and this Court recorded that the petitioner had passed the main examination as per the result produced by the respondent-Commission.

Counsel for the petitioner submitted that appropriate directions may be given to the Commission to publish the result and proceed with the process of selection.

The Court was of the view that if the petitioner had qualified the preliminary examination, and on some technical ground her application was rejected by the Commission, and denied her the chance to appear in the main examination, and by virtue of the order passed by this Court in the interim, as quoted above, she has appeared in the examination, and has come out successful, then in the interest of justice and also in the interest of competition, the result should be declared by the Commission considering the decision dated 17-12-2019 of the Supreme Court in Petition for Special Leave to Appeal (C) No. 29799 of 2019.

Writ petition was allowed with the direction that the respondent-Commission shall declare the result of the recruitment process, as early as possible, treating the petitioner to be a qualified candidate to sit in the main examination, and proceed further with the same, and complete the same within a reasonable time.[Vibhu v. Uttarakhand Public Service Commission, Writ Petition (S/B) No. 178 of 2020, decided on 23-03-2022]


Counsel for the petitioner: Mr Abhijay Negi

Counsel for the respondent: Mr B.D. Kandpal


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a breather to the candidates challenging the RAS Pre-examination result, the bench of KM Joseph and Hrishikesh Roy, JJ has confirmed the Rajasthan High Court’s division bench directing Rajasthan Public Service Commission (RPSC) to go ahead with the RAS/RTS Combined Competitive Examination-2021 mains examination. It has, however, allowed the 243 candidates, who had approached the Courts, to sit in the Mains Examination to be conducted on March 20-21, 2022.

The Controversy

243 candidates, who had failed to secure position in the list of candidates eligible to appear in the mains examination of RAS/RTS Combined Competitive Examination-2021 had approached the Single Bench of the Rajasthan High Court. It was the case of the candidates that as per the answer key published by the RPSC, some of the answers were marked wrong in the key and hence, it had affected their result.

Single Bench’s order

Mahendar Kumar Goyal J. partly allowed the writ petitions and quashed the final answer key dated 22-11-2021 and result dated 19-11-2021. The RPSC was directed to revise the result of the preliminary examination and to prepare a fresh list of candidates eligible to appear in the mains examination accordingly. This order dated February 22, 2022, came 3 days before the Main Examination was originally scheduled to take place i.e. February 25-26, 2022, not leaving much choice with the RPSC but to reschedule the examination.

Division Bench’s order

The Bench of Akil Kureshi CJ and Sudesh Bansal J. stayed the impugned Single Bench order and left it open for RPSC to conduct a written main examination on the rescheduled date.

Noticing that generally the scope of judicial review against expert’s opinion is extremely limited, the Court observed,

“We have strong prima facie belief that the learned Judge had exceeded the scope of writ jurisdiction in the present case. No legal or factual malafides are demonstrated nor procedural illegality established. It may be that in some cases there is a grey area. That by itself would not be sufficient for the writ court to upturn the decision of the expert’s body.”

Hence, the RPSC had made out a strong prima facie case not only for further hearing of the appeals but also for staying the judgment of the Single Judge.

Supreme Court’s order

The Court refused to interfere with the Division Bench’s order noticing in particular that the order is one granting interlocutory relief and the main matter is pending adjudication.

RPSC had submitted before the Court that the 243 persons before the learned Single Judge in the High Court including the petitioners before this Court can be permitted to participate in the main examination subject to certain safeguards.

The Court, hence, directed that the petitioners in both these cases and also the rest of the persons who approached the Single Judge shall be permitted to sit in the Mains examination to take place on 20th and 21st March, 2022.

The Court, however, made clear that it will be subject to the result of the appeals pending adjudication before the High Court.

“The result of this group shall be kept in a sealed cover and a further decision in regard to them will abide by the result of the appeals before the High Court.”

The Court, hence, directed RPSC to take necessary steps for facilitating the participation of the 243 candidates.

[Ankit Sharma v. Rajasthan Public Service Commission, Special Leave to Appeal (C) Nos. 4270-4271/2022, order dated 14.03.2022]


Counsels

For Candidates: Senior Advocate Guru Krishna Kumar

For RPSC: Senior Advocates Dr. A. M. Singhvi and V. Giri


Also Read:

Raj HC | It would be open for RPSC to conduct written main examination on the rescheduled date, Single Judge bench order stayed

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Akil Kureshi CJ and Sudesh Bansal J. stayed the impugned judgment and left it open for RPSC to conduct a written main examination on the rescheduled date.

Being dissatisfied with the answer key published by the respondent-Rajasthan Public Service Commission i.e. the RPSC’, this batch of writ petitions was filed by the candidates who have failed to secure position in the list of candidates eligible to appear in the mains examination of RAS/RTS Combined Competitive Examination-2021. Mahendar Kumar Goyal J. partly allowed the writ petitions and quashed the final answer key dated 22-11-2021 and result dated 19-11-2021. The RPSC was directed to revise the result of the preliminary examination and to prepare a fresh list of candidates eligible to appear in the mains examination accordingly. The instant appeal arise out of this impugned judgment of Single Judge dated 22-02-2022.

Counsel for petitioners submitted that the Single Judge has examined all the concerned questions carefully and when it was found that the decision of RPSC was wholly incorrect, interference was made. In majority of the cases the direction is only for reconsideration by the experts committee.  originally the written main examination was scheduled on 25.02.2022 and 26.02.2022 however in view of the decision of the learned Single Judge the same has been cancelled and would be rescheduled for later.

Counsel for respondents submitted that the Single Judge has committed serious error in interfering with the decision of the experts body. RPSC had entertained all objections and examined the same carefully before coming to its final conclusions. Whenever it was found necessary experts committees were formed. In cases where the questions were found to be ambiguous or no clear cut single answer was correct the RPSC decided to delete the question to avoid any injustice. In some cases even the correct answer was changed  accepting the objections of the candidates. Once this exercise is completed, the scope of judicial review is extremely limited. Unless the decision of the experts body such as RPSC is tainted with malafides or suffers from material procedural irregularity or is totally irrational, no intereference is demanded from the Courts.

The Court relied on the judgment of Uttar Pradesh Public Service Commission v. Rahul Singh, (2018) 7 SCC 254 and observed that not only the onus is on the candidates to demonstrate that the key answer is incorrect, but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong.

The court stated that broadly the approach in such situation is that the scope of judicial review against expert’s opinion is extremely limited. There is a requirement of finality to the process of public employment. This is not to suggest that judicial review is completely shutout; it cannot be. However unless the situation presents a clear cut, black and white, open and shut choice of the decision of the expert body being palpably wrong, the Court would not interfere. An element of tolerance to the minor error or calibration is discernible since achieving certainty and finality is also important. The finality and perfection are sworn enemies.

The Court observed “we have strong prima facie belief that the learned Judge had exceeded the scope of writ jurisdiction in the present case. No legal or factual malafides are demonstrated nor procedural illegality established. It may be that in some cases there is a grey area. That by itself would not be sufficient for the writ court to upturn the decision of the expert’s body.”

The Court held “we find that the appellants have made out a strong prima facie case not only for further hearing of the appeals but also for staying the judgment of the learned Single Judge. Under the circumstances impugned judgment is stayed. Resultantly it would be open for RPSC to conduct written main examination on the rescheduled date.” [RPSC v. Ankit Sharma, D.B. Special Appeal Writ No. 429/2022, decided on 23-02-2022]


Appearances

For Appellant(s) : Mr. M.S. Singhvi, Mr. Sheetanshu Sharma, Mr. Siddhant Jain, Mr. Yash Joshi and Mr. Pranav Bhansali, Mr. M.F. Baig and Mr. Amit Lubhaya

For Respondent(s): Mr. R.N. Mathur, Mr. Shovit Jhajharia, Mr. Raghunandan Sharma with Mr. Abhinav Srivastava, Mr. Ram Pratap Saini

Patna High Court
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]

Jammu and Kashmir and Ladakh High Court
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]