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Judgment
ORDER
By Hon’ble Mr. Anand Mathur, Member (A)
Mr. M.A. Beigh, learned counsel for the applicant and Mr. Muzaffar Kirmani, learned counsel for the respondents are present.
The facts of the case, as per T.A., are as under:-
Learned counsel for the applicant stated that pursuant to the State Government Order No.Home/947 (P) of 2012 dated 23.11.2012, Police HQ issued advertisement notice dated 29.12.2012, inviting applications from the residents of J&K State for filling 49 posts of Prosecuting Officer. Two more notifications dated 11.06.2013 and 23.08.2013 were issued by which the number of vacancies were later on increased from 49 to 98 (OM-56, RBA-19, ST-10, SC-08, ALC-03, SUPC 02).
The applicant applied for the post of Prosecuting Officer. The respondents conducted the physical test and issued notice dated 01.03.2015 by which the written examination for the said post was notified to be held on April 14, 2015.
After conducting the written test, the respondents issued a notification for Viva-voce-cum-Personality Assessment Test of qualified candidates. The applicant was, however, not shown in the said notice despite having fared well in the written test. Thereafter, the respondents issued a provisional selection list of the candidates.
The applicant not having been called for Viva-voce-cum Personality Assessment Test, submitted an application under RTI seeking information regarding cut off merit, category-wise, as also furnishing him a Xerox copy of his answer script. The information sought by the applicant was however provided to him only after completion of the selection process.
In the information received under RTI Act, it reveals that the cut off merit for OM category was 67, for RBA 65.05 and that the applicant had secured 64 marks in the written test. However, after checking the answer script, the applicant found that he had actually obtained 66 marks in written test and as such was eligible to be called for Viva-voce-cum Personality Assessment Test but to his utter surprise, visible tampering had been made in his answer script by reducing his marks by 2 in order to oust him from being called for Viva-voce-cum Personality Assessment Test. It also appeared that the tampering had been made in short answer-type questions, wherein, the applicant had actually secured 23 marks out of 30, which had been reduced to 21 by making corrections. It was also found that in one question the applicant had secured 8 marks, which had been reduced to 6 by corrections/tampering so as to deprive him of his right of being called for the Viva-voce-cum-Personality Assessment Test.
Thereafter, the applicant submitted various representations to the respondents for considering him against the post of Prosecuting Officer as he had been wrongly deprived of his selection and appointment by not calling him for Viva-voce-cum Personality Assessment Test. However, when those representations were not considered by the respondents, the applicant filed SWP No.1839 of 2017 before the Hon’ble Court and the Hon’ble High Court vide its order dated 13.09.2017, directed respondent No.2 to accord consideration to the representation/complaint of the applicant and take a decision on its own merits within a reasonable period preferably within a period of six weeks from the date of receipt of the copy of the order.
Pursuant to the order passed by the Hon’ble High Court respondent No.2 has rejected the representation of the applicant by the impugned order on the ground that there is no cogent ground to accept the claim of the applicant as the same is neither covered under Rules nor any rational circumstances/genuine grounds have been put forth by the petitioner, which would warrant the acceptance of this claim.
Aggrieved by the aforesaid order dated 31.08.2018 passed by respondent No.2, the applicant has filed the present TA with the following relief(s):-
(a)By a writ of certiorari or any other writ, order or direction, the impugned order bearing No.4418 of 2018 dated 31.08.2018 is issued by the respondent No.2, be quashed and set aside.
(b)By a writ of mandamus or any other writ, order or direction, the respondents be directed to select and appoint the petitioner against the post of Prosecuting Officer on the basis of merits and on account of having obtained 66 marks in the written test.
(c)The Hon'ble Court may also pass any other order or direction as it may deem fit and proper under the facts and circumstances of the case.”
On notice, learned counsel for the respondents has filed a counter reply. He has submitted that the main contention of the applicant is that the cut off marks for RBA category was 65.05 whereas, the applicant had secured only 64 marks in the written test. However, on checking up from the answer script the applicant had actually obtained 66 marks but had been given only 64 marks by tempering with the marks allotted to the answers. The applicant had originally secured 08 marks in a particular answer which was reduced to 06 by making corrections/tempering in order to oust the applicant from the viva voce. In response to the points raised by the applicant, the following position is brought out:-
That the contents of the answer referred to by the petitioner had been evaluated correctly and an award of 06 marks was an appropriate assessment of the answer instead of 08 marks allotted initially. The question was to discuss about “fundamental rights and fundamental duties” which carried 10 marks 05 each for rights and duties, to which the petitioner had answered in just one line for fundamental duties while he had elaborated on fundamental rights. The evaluator awarded 05 full marks for the answer on fundamental rights and 01 marks for fundamental duties after re-evaluation and the same has been attested by the evaluator, hence no question of any tampering arises.
The petitioner, contrary to what he has maintained in the SWP before the Hon’ble Court of law, had in his representation requested that he may be appointed as Prosecuting Officer in the department against the posts likely to become vacant after some of the PO’s, who stood selected as Judicial magistrates, were relieved. He claims this on the strength of the fact that he has appeared in the written examination conducted by the Police Department for recruitment of PO’s for which appointments were ordered on 01.12.2015.
The selection list was issued on 30.11.2015 and information sought by the petitioner was provided to him in the month of February, 2016 and after a gap of 1 ½ years he disputed the evaluation of his answer script. On one hand, he filed instant SWP challenging therein the evaluation of his answer script and on the other hand he beseeches that he may be bestowed with an appropriate post against any of the posts of PO likely to become vacant following the selection of some of the PO’s as Judicial Officers, the contentions of the petitioner (i.e. maintained in SWP and in representation) sans any basis and logic, are unjust and unreasonable.
On going through the briefs submitted by both the parties and hearing them at length, we find that the following facts have come out:-
The applicant had not been considered eligible to be called for the viva voce on the ground that he had secured only 64 marks whereas, the cut off marks for RBA category was 65.05.
The answer script reveals that he had been originally allotted 08 marks for one of the answers which was later reduced to 06 marks and the corrections are clearly visible both in the individual answer as well as in the total marks. The reasoning/logic given by the respondents to these modifications is that on ‘re-evaluation’ it was found that the candidate deserved to get only 06 marks in place of 08 marks allotted earlier.
It is a fact that the respondents had resorted to ‘re-evaluation’ of marks as can be seen from the language of the speaking order passed by Director General of Police, J&K-Srinagar vide his order no.Estt/pros-27/2015/59760-61 dated 31.08.2018 a portion of which is reproduced below:-
“……………… Whereas, the contents of the answer referred to by the petitioner has been evaluated correctly and an award of 6 marks was an appropriate assessment of the answer instead of 8 marks allotted initially. The question was to discuss about “fundamental rights and fundamental duties” which carried 10 marks 05 each for rights and duties, to which the petitioner had answered in just one line for fundamental duties while he had elaborated on fundamental rights. The evaluator awarded 05 full marks for the answer on fundamental rights and 01 marks for fundamental duties after re-evaluation and the same has been attested by the evaluator, hence no question of any tampering arises. .................…..”
Learned counsel for the applicant had vehemently argued that ‘re-evaluation’ of an answer sheet can be done only if the marks are challenged by the applicant. Since, the applicant had never asked for ‘re-evaluation’ it is obvious that the respondent had done the ‘re-evaluation’ suo moto for which they have no authority. He had further pleaded that it is crystal clear that the marks have been reduced to the detriment of the candidate solely with the objective of making him ineligible to be called for the viva voce test although he had originally secured 66 marks which was higher than 65.05 which was the cut off for RBA category.
The respondents have clearly accepted in their speaking order (supra) that the ‘re-evaluation’ has been attested by he evaluator hence no question of any tampering arises, thereby accepting that the ‘re-evaluation’ had been done by them suo moto although there is no such procedure prescribed for ‘re-evaluation’ without the specific demand by the applicant.
Another argument raised by the respondents in their
counter is “that it is respectfully submitted that after the establishment of the Directorate of Prosecution in the Union Territory of Jammu & Kashmir, the Government has taken various steps to strengthen and streamline the Jammu & Kashmir Prosecution Service, which among other things, include upgradation of the post of Prosecuting Officer from non-gazetted to Gazetted level with the concurrence of the Finance Department. It is further submitted that the Finance Department while conveying its concurrence to the upgradation of the post of Prosecuting Officer to the Gazetted level has barred fresh recruitment of Prosecuting Officer at the non-gazetted level.
This objections raised by the respondents can be taken care of by completing the remaining procedure for recruitment of the applicant i.e. call him for the viva voce and then evaluate his overall performance and in case he is found fit to be placed on the selection list he may be given his due place by appointing him with immediate effect but giving him notional seniority. To take care of the current rule regarding in take of only gazetted Prosecution Officers is concerned, the applicant can be treated at par with all the other candidates who had earlier been selected in the said selection.
To sum up the discussion, we find that the records clearly show that the applicant's marks had been irregularly reduced due to ‘re-evaluation’ by the respondents. Such re-evaluation can be done only if demanded by the candidate whereas the respondents have unauthorisedly done it on their own. We, therefore, direct the respondents 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. If the applicant is found to have secured more marks than the last person selected in RBA category, then the applicant should also be considered for appointment with notional consequential benefits.
The aforementioned exercise shall be completed within three months from today.
The TA is disposed off accordingly with no order as to costs.