Mohamad Shariff Hamdani and Others vs Central Examination Board, Revenue Department and Another

Shahmiri, J.—This order shall dispose of the four writ petitions under Article 32(2A) of the Constitution of India as applicable to the State

for issue of a writ of mandamus or other appropriate writ directing the Respondents to declare the result of the petitioners in the Examination of

Tehsildars and Naib Tehsildars held by the Central Examination Board, Revenue Department, in Katik 2007.

The facts giving rise to these petitions are that all the four petitioners appeared in the Departmental Examination of Tehsildars and Naib

Tehsildars held in Katik, 2007, by the Central Examination Board. The result of this examination was published in the Gazette under the Ministry of

Revenue's No. A-21/51, dated 24-1-1951. But the result of such candidates as were already in service including the petitioners was withheld and

they were required to appear in the examination again, if they so desired, but they were not told why their result was withheld (Vide the order

referred to above).

Some of these candidates including the petitioners made representations that their result should be declared. The matter was reconsidered by the

Board and from the relevant record of the Revenue Secretariat it appears that the present Revenue Minister along with two members of the Board,

namely, the Revenue Commissioner and the Revenue Secretary, felt that the case of such candidates as did not sit in the subsequent examination

and had been agitating for the release of their examination result deserved consideration and their representation had some force.

But it appears that later on the Board followed the advice of the fourth member and came to the conclusion that the decision already taken could

not be revised in the case of the departmental candidates who had appeared from the Kashmir centre (Vide the note of the Revenue Minister

dated 22nd December, 1954 and the order of Revenue Minister dated 11th January, 1955). Thereupon the Ministry of Revenue issued a fresh

order on the 19th or the 20th January, 1955.

In this order it was stated that, according to the decision of the Central Examination Board, Revenue Department, the result of the Departmental

Examination of Naib Tehsildars and Tehsildars held in Katik 2007 at Srinagar and Jammu centres of such candidates as belonged to services was

withheld, because certain complaints had been received of unfair means having been used by such of these examinees who appeared at Srinagar

centre.

It was further stated in the order that after careful consideration of the matter the Board found themselve unable to upset the decision already taken

in regard to the candidates who belonged to service and appeared at Srinagar centre, as it was found by the Board that unfair means were used by

these candidates in that centre and, therefore, there was no adequate reason to reconsider the decision already taken about them. The Board,

however, felt that there was some justification for declaring the result of the examinees who had appeared from the Jammu centre and had not

taken any subsequent examination and ordered accordingly.

We have heard the learned Counsel for the parties. A preliminary objection was taken on behalf of the Respondents that, as the original order

was passed in 1951 before the Constitution (Application to Jammu and Kashmir) Order, 1954 came into force, no writ could be issued in respect

of a decision that had been taken in the pre-Constitution period. The learned Counsel for the petitioners strongly opposed this contention. A bare

perusal of the record and the facts stated above makes it quite clear that no final order was issued in this case in 1951.

All that order No. A-21/51, dated 24-1-1951 said as already indicated, was that the result of such examinees as were already in service had been

with held and that they were at liberty to appear again in the subsequent examination, if they so desired. This order can in no sense be treated as a

final order. As submitted by the learned Counsel for the petitioners under Rule 22 of the Rules for enrolment, examination and appointment of

candidates for the post of Naib Tehsildar sanctioned by the Ex. Ruler on 8th February, 1934, the result of the examination, after being considered

by the Central Committee was to be published in the Government Gazette.

In the rule it was clearly stated that ""the result of the examination...shall, after being considered by the said Committee, be published in the

Government Gazette. There is no provision in these rules by -which the result could be withheld. It was only in the order issued in January 1955

that the petitioners were told that their result had been withheld in the sense that it had been cancelled, because it had been found that they had

used unfair means. Under these circumstances the preliminary objection raised by the learned Counsel for the Respondents has no force and is

overruled.

With regard to the merits of the case it is clear that the Rules for enrolment, examination and appointment of candidates for the post of Naib

Tehsildar had received sanction of the then Ruler of the State and are, as such, statutory in character. These rules as one of the learned Counsel for

the petitioners (Mr. L.N. Sharma, whose assistance I much appreciate) has pointed out, are also traceable to Section 7 of the Land Revenue Act.

Section 7 reads as follows:

The appointment of the Revenue Commissioner shall rest with His Highness the Maharaja Bahadur. All other Revenue Officers except the Naib

Tehsildars shall be appointed by the Government.

The Naib Tehsildars shall be appointed by the Commissioner according to the rules framed by him with the previous sanction of the Government.

It is thus clear that the Naib Tehsildars were to be appointed by the Commissioner according to the rules which were to be framed with the

previous sanction of the Government and as the Rules for enrolment, examination and appointment of candidates for the post of Naib Tehsildar

have been sanctioned by the Ex. Ruler they may also derive their authority u/s 7 of the Land Revenue Act. Rule 22 runs as follows:

The result of the examination shall be forwarded, within one month after the close of the examination, by the Examiners to the Secretary to the

Central Committee of Examination, and shall, after being considered by the said committee, be published in the Government Gazette.

The Central Committee under these rules is, therefore, under a statutory obligation to publish the result and there was no rule under which the

Committee could withhold the result of a candidate even if he had been guilty of using unfair means. It may, however, be argued that even if there

was no definite provision in the Rules the Committee might' be deemed to possess inherent power of taking suitable action against an examinee

who had been guilty of using unfair means.

But even if there had been a specific rule to this effect or if in the absence of a specific rule, inherent power existed, natural justice required that no

action could be taken against the petitioners unless an opportunity was given to them to show cause why the result of their examination should not

be cancelled. They should also have been told the basis on which the charge of using unfair means was brought against them and their explanation

with regard to this charge should have been heard by the Board. No such thing appears to have been done. From the note of the Revenue

Secretary dated 4-1-1952 it appears that the Revenue Secretary gave his opinion as under:

In a few cases one could sense the use of unfair means and though the evidence was circumstantial there was sufficient justification that all was

not well with them. To further satisfy an informal test of a few candidates was held by me in my office and a few questions on different subjects

were put for answers. The questions were the same as were set in the last examination. The answers given hardly tallied with those penned in the

answer books and their sense was also quite at variance with the answers required.

The whole case was discussed with H.R.M. before he left for Jammu. There was sufficient ground to believe that the malady was obtaining

more amongst the old birds throughout than the candidates who have been selected directly. After discussion it was decided that the result of N.T.

candidates alone should be announced while those who belong to the service shall be withheld.

A bare perusal of this note would show that the Ministry of Revenue in this matter had acted in a highly arbitrary and capricious manner. We do

not know which examinees were interviewed and what the conclusion arrived at in each case was. It is nowhere stated in the note that these

examinees were apprised of the charge against them. Then the order which was issued on the basis of this note in 1951 did not contain the charge

and did not convey the ground of withholding the result of the petitioners.

Even the note itself does not give any good reason why all the Naib Tehsildar examinees who belonged to the service and appeared at Jammu and

Srinagar centres should) be considered guilty of having used unfair means and this decision of the Ministry of Revenue is opposed to natural justice

and violates Rule 22 of the aforesaid rules by which the Board was bound to publish the result of all the examinees.

It is also apparent that in so far as the result of service candidates in the aforesaid examination was withheld and that of non-service candidates was

declared without any reason being given for withholding the result of the former and without framing any charge against those candidates having

used unfair means and without giving them an opportunity of defending themselves against this charge the fundamental right of the petitioners

secured to them by Article 14 of the Constitution by which all persons are assured of equality before the law or equal protection of the laws has

been violated and in the administration of the statutory rule 22 the petitioners have been discriminated against and they have thus been denied equal

protection of the law, namely Rule 22 of the aforesaid rules.

In this connection a reference may be made to a more or less similar case, Ghanshyam Das Gupta and Others Vs. Board of High School and

Intermediate Education U.P., Allahabad, . In that case some students who had appeared in the Intermediate Examination of 1954 conducted by

the Board of High School and Intermediate Education, U.P. had been, declared successful. Later on a sub-committee appointed by the

Examinations Committee of the Board in ex parte proceedings came to the conclusion that these students had used unfair means at the examination

and their result was-cancelled.

No opportunity was given to the students to explain their conduct when the Examinations Committee considered their cases or when the chairman

of the Board sanctioned the resolution of the Examinations Committee. It was held in that case that the failure of the Examinations Committee to

provide students an opportunity of being heard during its consideration of the alleged use of unfair means by them at the examination violated

natural justice"" and vitiated their order. The Board was, therefore,, directed to forbear from enforcing their order. It may be added that there was

no specific rule under which such an enquiry by the Board was necessary.

After careful consideration of the whole material we take the view that the order passed in this case by the Ministry of Revenue in 1955 cannot

stand. If the Board chooses it can bring a charge of having used unfair means against the petitioners, hold proper enquiry in this respect and then

arrive at a proper conclusion. We, therefore, accept these writ petitions and vacate the order of the Board by which the result of the petitioners

was withheld.

Kilam, J.

I agree.