# 4 S.C.R. 1110 PANKAJ SHARMA v. STATE OF JAMMU & KASHMIR & ORS

- **Citation:** [2008] 4 S.C.R. 1110
- **Court:** Supreme Court of India
- **Decided:** 2008-03-14
- **Case number:** Civil Appeal No.1997 of 2008
- **Bench:** C.K. Thakker, Altamas Kabir
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4-s-c-r-1110-pankaj-sharma-v-state-of-jammu-kashmir-ors-24770
- **Pages:** 44

## Headnote

Jammu and Kashmir Combined Competitive
Examination Direct Recruitment Rules, 1995:
Jammu and Kashmir Combined Competitive
Examination, 1995 - Preliminary Examination - Mistakes in
question papers - State Public Service Commission deleting
doubtful/wrong questions and adding marks of such questions
pro rata to remaining questions- Writ petition by unsuccessful
candidates seeking to quash Preliminary Examination -
. Single Judge of High Court declining to quash Preliminary
Examination, but directing to delete some more doubtful/
wrong questions and to add marks of such questions prorata to remaining questions, to redraw merit of unsuccessful
candidates and to hold special Main Examination of those
candidates who thus secured equivalent or more marks than
the last short-listed candidate - Division Bench of High Court
declining to interfere - Commission complying with the order
and directions -
HELD: In the circumstances, the
methodology adopted and the action taken by Commission
cannot be said to be contrary to rules - Single Judge of High
Court considered controversy in proper perspective and
issued directions in larger interest of candidates - There is
no infirmity in the order passed and directions "issued by
single Judge, and, no interference, therefore, is called for.
Jammu and Kashmir Public Service Commission
(Business and Procedure) Rules, 1980:
rr. 6, 9 and 11. -
Jammu and Kashmir Combined
1110
I~
'(
•
-I
PANKAJ SHARMA v. STATE OF JAMMU & KASHMIR
1111
& ORS.
Competitive Examination, 1995 - Preliminary Examination -
A
Mistakes in question papers - Commission seeking opinion
of experts and deleting doubtful/wrong questions and adding
marks of such questions pro rata to remaining questions -
Methodology adopted approved unanimously by all Members
present - One Member absent in meeting subsequently B
agreeing to methodology adopted -
Decisions taken by
Commission in accordance with majority of Members of
Commission - One of the Members whose ward was candidate
also participating in proceedings - HELD: Methodology
adopted by the Commission in the circumstances cannot be c
said to be unreasonable and irrational - Decisions taken by it
were in accordance with Rules - Subsequent dissent by two
Members did not make the earlier actions of the Commission
illegal or otherwise vulnerable - Preliminary Examination
being in the nature of 'screening test' limited to process of short0
listing of candidates to get entry to Main Examination and
marks obtained in Preliminary Examination having no bearing
on final selection, Member concerned could not be said to be
disqualified to participate in the proceedings - Administrative
Law-Bias.
Constitution of India, 1950:
Article 136 - Re-appreciation of evidence and disposal
E
of case finally by Supreme Court - Jammu and Kashmir
Combined Competitive Examination -
Preliminary
Examination - Mistakes in question papers - Single Judge F
of High Court directing to delete doubtful/wrong questions and
to add marks of such questions pro rata to remaining
questions and to redraw merit of unsuccessful candidates -
Division Bench of High Court by a brief order dismissing the
appeals - HELD: It is truf? that Division Bench did not consider G
all contentions raised in writ petitions and decided by single
Judge - But, keeping in view the importance of question and
its far reaching effect, Supreme Court considered the matter
at length, ·went through record and once again examined the
points raised by parties since it thought it appropriate to finally H
1112.
SUPREME COURT REPORTS
{2008]4 S.C.R._
A· conclude the matter instead of sending it again to Division
Bench of High Court which would have resulted in further delay
- Administration of justice.
The Jammu and Kashmir Public Service Commission
issued notification dated 1.4 .. 2005 inviting applications for
B ·filling up 132 posts of eighteen Gazetted Services in die -
State through Jammu and Kashmir· Combined
Competitive Examination. The applicants were· firs

## Text

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[2008) 4 S.C.R. 1110
PANKAJ SHARMA
v.
STATE OF JAMMU & KASHMIR & ORS.
(Civil Appeal No.1997 of 2008)
MARCH 14, 2008
(C.K. THAKKER AND ALTAMAS KABIR, JJ.)
Jammu and Kashmir Combined Competitive
Examination Direct Recruitment Rules, 1995:
Jammu and Kashmir Combined Competitive
Examination, 1995 - Preliminary Examination - Mistakes in
question papers - State Public Service Commission deleting
doubtful/wrong questions and adding marks of such questions
pro rata to remaining questions- Writ petition by unsuccessful
candidates seeking to quash Preliminary Examination -
. Single Judge of High Court declining to quash Preliminary
Examination, but directing to delete some more doubtful/
wrong questions and to add marks of such questions prorata to remaining questions, to redraw merit of unsuccessful
candidates and to hold special Main Examination of those
candidates who thus secured equivalent or more marks than
the last short-listed candidate - Division Bench of High Court
declining to interfere - Commission complying with the order
and directions -
HELD: In the circumstances, the
methodology adopted and the action taken by Commission
cannot be said to be contrary to rules - Single Judge of High
Court considered controversy in proper perspective and
issued directions in larger interest of candidates - There is
no infirmity in the order passed and directions "issued by
single Judge, and, no interference, therefore, is called for.
Jammu and Kashmir Public Service Commission
(Business and Procedure) Rules, 1980:
rr. 6, 9 and 11. -
Jammu and Kashmir Combined
1110
I~
'(
•
-I
PANKAJ SHARMA v. STATE OF JAMMU & KASHMIR
1111
& ORS.
Competitive Examination, 1995 - Preliminary Examination -
A
Mistakes in question papers - Commission seeking opinion
of experts and deleting doubtful/wrong questions and adding
marks of such questions pro rata to remaining questions -
Methodology adopted approved unanimously by all Members
present - One Member absent in meeting subsequently B
agreeing to methodology adopted -
Decisions taken by
Commission in accordance with majority of Members of
Commission - One of the Members whose ward was candidate
also participating in proceedings - HELD: Methodology
adopted by the Commission in the circumstances cannot be c
said to be unreasonable and irrational - Decisions taken by it
were in accordance with Rules - Subsequent dissent by two
Members did not make the earlier actions of the Commission
illegal or otherwise vulnerable - Preliminary Examination
being in the nature of 'screening test' limited to process of short0
listing of candidates to get entry to Main Examination and
marks obtained in Preliminary Examination having no bearing
on final selection, Member concerned could not be said to be
disqualified to participate in the proceedings - Administrative
Law-Bias.
Constitution of India, 1950:
Article 136 - Re-appreciation of evidence and disposal
E
of case finally by Supreme Court - Jammu and Kashmir
Combined Competitive Examination -
Preliminary
Examination - Mistakes in question papers - Single Judge F
of High Court directing to delete doubtful/wrong questions and
to add marks of such questions pro rata to remaining
questions and to redraw merit of unsuccessful candidates -
Division Bench of High Court by a brief order dismissing the
appeals - HELD: It is truf? that Division Bench did not consider G
all contentions raised in writ petitions and decided by single
Judge - But, keeping in view the importance of question and
its far reaching effect, Supreme Court considered the matter
at length, ·went through record and once again examined the
points raised by parties since it thought it appropriate to finally H
1112.
SUPREME COURT REPORTS
{2008]4 S.C.R._
A· conclude the matter instead of sending it again to Division
Bench of High Court which would have resulted in further delay
- Administration of justice.
The Jammu and Kashmir Public Service Commission
issued notification dated 1.4 .. 2005 inviting applications for
B ·filling up 132 posts of eighteen Gazetted Services in die -
State through Jammu and Kashmir· Combined
Competitive Examination. The applicants were· first to
appear_ in the Preliminary Examination and only shortlisted successful candidates were required to appear in
C the Main Examination which included written tests
followed by oral interview. Some of the candidates, who
could not qualify in the Preliminary Examination, filed writ
petitions before the High Court contending, inter a/ia; thc;at
there we·re spelling. mistakes, printing errors,
D
discrepancie~ in the question papers; that sorne
questions had doubtful answers and some even had
wrong answers; that the course adopted by the
·_. Commission by deleting -cerl;ain questions and adding
- their marks pro rata. to 'the remaining questions was -not
E proper; that $Uch decision of the. Commission was also
illegal a~ it was· not taken by majority of Members of the
Commission since besides the Chairman, only three
Memt>ers were> present and out of them two Members
opposed the method to be adopted by· the Commission
F and the third Member was ineligible and disqualified to _
take part in the proceedings because. his ward. was one
of the candidates; that the decision of the Commission
. was also discriminatory as the method of pro rat? marks
· was adopted only in the case of unsuccessful candidates
and the said benefit was. not extended to the candidates
G who had already qualified. The writ petitioners prayed for
- quashing of the results of the. Preliminary Examination
with a dfrection to the Commission to hold a fresh
Preliminary Examination.
H".,...
.. The stand of the Commission wa~ that though there
•'
.•
I ..
• e
PANKAJ SHARMA v. STATE OF JAMMU & KASHMIR
1113
& ORS.
were certain errors in the question papers, the same were A
. corrected by giving necessary instructions in time; that
as regards the wrong/doubtful answers, the Commission
sought opinion of the experts and deleted those
questions and decided that marks allotted to those
questions would be added pro rata to the remaining B
questions·; that besides the Chairman, there were five
Members in the Commission who decided the
methodology and the same was approved unanimously;
that in some of the meetings one of the Members was not
. available but he also subsequently agreed ; that in regard C
to certain .decisions they were not unanimous but there
was majority and under the relevant rules such action
could have been taken and, therefore-, no fault could be
found against the final action taken by the Commission;
that Preliminary Examination was meant orily for short0
listing the candidates in the ratio of 1 :13 for the Main
Examination and it had no further relevance and did not
cause any prejudice or injustice to any candidate since
the final selection was to be made solely on the basis of
Main Examination; that the allegation of the writ
petitioners regarding taking part in the proceedings of the E
Commission by one of the Members whose ward was a
candidate, was without any basis as the Member
concerned participated only in adopting methodology to
rectify the lacuna due to doubtful/wrong answers in the
question papers of the Preliminary Examination which F
was in the nature of 'screening test' and selection or merit
was not to be based on the result of Preliminary
Examination.
The single Judge of the High Court directed, inter alia,
G
to delete some more questions from the question papers
concerned arid to distribute marks of such questions pro
rata to the remaining questions of the respective papers
and to redraw merit of all unsuccessful candidates
accordingly. It also directed to conduct the special Main H
•
1114
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A Examination of such candidates whose merit was equal
}..
to or more than the merit of the last short-listed candidate,
in accordance with the procedure prescribed by the
Commission. The writ petitioners filed intra court appeals.
The Division Bench of the High Court dismissed the
B appeals observing that there was no base for any
grievance against the judgment of the single Judge.
Aggrieved, the writ petitioners filed the instant appeals.
;_
Dismissing the appeals, the Court
.lc
HELD: 1.1- No case has been made out by the
appellants to interfere with the order passed by the Single
Judge and confirmed by the Division Bench of ·the High
Court. [para 14) [1127-D]
1.2 It is true that the Division Bench of the High Court
D did not consider all the contentions raised in the writ-
. petitions and decided by the Single Judge, and its order
y
is very brief. But, keeping in view the importance of
question and its far-reaching effect, this Court considered
the matter at length, went through the relevant record and
E once again examined the points raised· by the parties
. since it thought it appropriate to finally conclude the
matter instead of sending it again to the Division Bench
of the High Court which would have resulted in further
delay. [para 54) [1152-E-G]
F
2.1 The procedure for conducting the Examination
was governed by the rules known as the Jammu and
yKashmir Combined Competitive Examination Direct
R~cruitment Rules, 1995. The 1995 Rules envisaged
Combined Competitive Examination in two successive
G stages. The Preliminary Examination was meant to
serve only as a 'screening test' and the marks obtained
by the candidates at the Preliminary Examination were
limited to get entry to and to be treated as qualified for the
)..._
Main Examination and were not to be counted for
H determining their final order of merit or selection.
PANKAJ SHARMA v. STATE OF JAMMU & KASHMIR
& ORS.
[para 14-15] [1127-F-G; 1128-C-D]
1115
A
2.2 So far as the decision of the Commission in
deleting the marks allotted to doubtful/wrong questions
and adding those marks pro rata to the remaining
questions is concerned, the Single Judge of the High .
Court observed that the basic premise on which the writ 8
petitioners questioned the action of the Commission was
not well-founded or factually correct.
From the Minutes of the Meeting of the Commission
also it is clear that on July 7, 2005 when a decision was c
taken to adopt a particular method so as to 'reach injustice'
said to have been caused because of mistakes, errors,
ambiguities, etc., five Members including the Chairman
were present and a decision was taken. One Member
according to the Commission, was out of station and 0
could not remain present. The decision, however, was
unanimous decision so far as five Members who attended
the meeting. It is also clear from the record and as per the
finding by the single Judge that in subsequent meetings,
the Member concerned was present and he also agreed
to the earlier decision taken by the Commission on July E
7, 2005. It is no doubt true that later on, two Members
dissented from earlier decisions. That, however, did not
make the earlier ~ction illegal, contrary to law or otherwise
vulnerable, since the decision of the Commission was in
accordance with Rules 6,9 and 11 of the Jammu and
F
Kashmir Public Service Commission (Business and
Procedure) Rules, 1980. The decisions taken by the .
Commission were either 'unanimous' or by 'majority' in
consonance with the Rules of the Commission. [para 3435 and 39] [1141-E, F; 1142-C-F; 1143-D, E]
G
3.1 As regards participation of the Memberwhoseson
was a candidate in the Examination, the single Judge has
rightly observed that the question of disability could arise
only in case of his participation at the stage of selection H
1116
SUPREME COURT REPORTS
[2008] 48.G.R
A where the merit of a candidate was to be adjudgecl. It is
clarified by the Commission that the selection was not
based on Preliminary Examination. It was relevant only
for the purpose of qualifying and getting entry to the
second examination, i.e. Main Examination. The
B Preliminary Examination was in the nature o.f 'screening
test' and 'selection' or 'merit' was not to be based on the
result of Preliminary Examination. [para 40] [1144-A, B & (:].
3.2 So far as the Commission is concem;ld, it did not·
take any decision in favour of or against any 'individual ·
C candidate' but its decision was in the nature of 'policy
decision'. Keeping in view large scale cQmplaints against.
question papers, general action was required to be. taken.
It was necessitated to ensure that no candidate should
suffer when there was no fault on his/her part. In ·
D consideration of such ·a situation and to find out solution,·
if any, all the Members of the .Commission ought to · ·
participate and take an appropriate action. There .is no .
question of showing 'bias' or exhibiting 'favour' towards
any individual candidate. Therefore, the High Court was
E right in holding that the Member concerned could not be
said to be disqualified in attending meetings and intaki.ng ·
part in the proceedings. [para 40] [1144-D, E, F] ·
·
4. As regards the plea of the writ- petitioners that not ·
extending the benefit of additional marks to successful .
F candidates resulted injustice to the latter class, it may be ·
seen that the candidates who were successful at the
Preliminary Examination have not raisecl this plea. Even
otherwise, the Preliminary Examination was limited to the
process of 'short-listing' of candidates in the. ratio of 1:13
G in order to get entry in the Main Examination and was not
relevant for final selection of candidates, as the marks
obtained at the Preliminary Examination were· not to be
counted for final selection and preparation of merit list.Jt, .
therefore, cannot be said that by not granting benefit of
H additional marks to 'selected' candidates which were
•
PANKAJ. SHARMA v. STATE OF JAMMU & KASHMIR
1117
& ORS.
given to 'unselected' candidates, injustice had been done A
to 'selected' candi.dates. [para 41] [1144-G & H; 1145-A,
B &C]
5.1 The single Judge has, rightly held that there were
mistakes in questions in compulsory subjects as well as
B
in optional subjects arid it could not. be believed that
necessary instructions were issued. by the· Commission
>..
to Supervisors in time and. they we·re announced and
;..,
corrections were carried out in. the. examination centres.
The single Judge has rightly observed that there was no
evidence to show that the time was extended by the c
Commission; and, thereforE!; it was not possible that at
all the centres such corrections were conveyed and they
were brought to the notice of the candidates within the
examination period. This is also evident from the
additional fact that after receipt of ·the complaints, the D
1
Commission had issued Press Note on July 6, 2005 and
assured the candidates that the Commission would look
into the matter and no injustice would be caused to them.
It is, therefore, clear that even according to the
Commission, some action was necessary after the
E.
Preliminary Examination was over. [para 42 and 45]
[1145-C-G; 1148-E, F, G]
Vijay Singh Charak v. Union.of India & Ors., (2007) 3.
Scale 503 - held inapplicable.
F
,, .,
5.2 In the circumstances, the Commission suo motu
on the basis of expert-opinions took certain corrective
steps. Again, when the High· Court felt that some more
actions were required and issued certain directions, the
. Commission accepted the order passed and directions G
issued by the Single Judge and did not challenge it. The
approach adopted by the Commission cannot be said to
be unreasonable or irrational. 111 fact, in such a situation,
~ -\
appropriate remedial measures can always be taken by a.
court of law. [para 48] [1149-G & H; 1150-A]
H
1118
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A
Kanpur University v. Samir Gupta, (1983) 4 SCC 309;
Abhijit Sen v. State of UP, (1984) 2 sec 319 - relied on.
5.3 The Single Judge considered the controversy in
its proper perspective, and in the light of mistakes/ errors/
inaccuracies, issued certain directions which benefited
B the candidates. The said exercise had. been undertaken
by the Commission and merit list wa~ redrawn. Some
candidates who had earlier been declared disqualified
were held to be qualified and notification to that effect was
also issued. No exception can be taken against such
C action. The single Judge was riyht in not setting aside
Preliminary Examination and directing fresh examination
to be conducted by the Commission. On the basis of
relevant record, the single Judge issued necessary
directions which were in the interest of candidates as also
o in the larger interest of administration·. There is no infirmity
in the order passed and ttie directions issued by the single
Judge and no interference, therefore, is called for.
Accordingly, the order passed by the High Court cannot
be said to be illegal, unlawful or otherwise objectionable.
E [para 53-54 & 55] [1152-C, D, E, G & H; 1153-A & 8]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1997 of 2008.
From the Judgment/final Order dated 28/12/2006 of the
F
High Court of Jammu and Kashmir at Jammu in LP.A. (OW)
No. 70 of 2006.
WITH
Civil Appeal Nos. 2013, 2014 and 2010 of 2008.
G .
T.S. Doabia, Bhim Singh, B.S. Billowria, Manzoor Ali Khan,
Ritu Puri, Asbshik Garg, Dinesh Kumar Garg, Satish Vig and
Jagjit Singh Chhabra for the Appellant.
D.C. Raina, Z.A. Shah, Mukul Rohtagi, YashankAdhyaru,
G.M. Kawoosa, F.A. Natnoo, N Ganpathy, Anis Suhrawardy, S.
H Mehdi Imam, Purnima Bhat and P.V. Yogeswaran for the
•
•
PANKAJ SHARMA v. STATE OF JAMMU & KASHMIR
1119
& ORS. [C.K. THAKKER, J.]
Respondents.
A
,{
The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. I.A. 1 of 2007 in and S.L.P. (C) No.
CC No. 5233 of 2007 seeking permission to file SLP is allowed.
2. Leave granted in all the Special Leave Petitions.
B
3. The present appeals are filed against the judgment and
"
order passed by a Single Judge of the High Court of Jammu &
"'
Kashmir on November 10, 2006 in Original Writ Petition No.
442 of 2005 and cognate matters and confirmed by the Division c
Bench on December 28, 2006 in Letter Patent Appeal (OW)
No. 70 of 2006. By the said order, the learned Single Judge
partly allowed writ petitions filed by the petitioners and issued
certain directions to Jammu & Kashmir Public Service
Commission
D
4. To appreciate the controversy centered round the
1
litigation, few relevant facts may be noted.
5. Selection process was initiated by the Jammu &
Kashmir Public Service Commission ('Commission' for short)
E
for filling up 132 posts of eighteen Gazetted Services as notified
on April 1, 2005 by Jammu & Kashmir Combined Competitive
Examination. The examination was held on July 3, 2005. The
appellants-writ-petitioners appeared for the Preliminary
Examination but were not successful for being considered
F
eligible and qualified in the process of 'short listing' and could
~ '1
not appear at the Main Examination as also at Oral Interview.
The selection process at the Preliminary Examination was
challenged, inter alia, on the ground that it was defective
inasmuch as there were spelling mistakes, printing errors,
discrepancies, questions having doubtful answers and even G
wrong answers; etc., the course adopted by the Commission of
deleting certain questions and adding those marks pro-rata to
. -\
the remaining questions was not proper; the decision was also
illegal and invalid as it was not taken by majority of Members of
Commission; all the Members of the Commission did not H
1120
. ,SUPREME COURT REPORTS·
[2008] 4 S.C.R
A participate in the corrective process; only three Members over .
and above the Chairman were present; out of those three
Members; two Members opposed the method sought to be
· suggested by:the Commission and were agalnsf it. So far as
the third Merriberis concerned, he was ineligible and disqualified
· B · to take part in ·the proceectings since.his ward was one of the
candidates/aspirants. He, thereto.re, could not have attended
. the Meeting and participated in theprocess, thus, leaving the
. · decision to the Chairman alone. Such decision was wrongly
·.·described as the decision- of the Commission: The entire
c process undertaken by the Comniissibn was-totally illegal,
unlawful and· arbitrary .and· was fraud· on the· Constitution· and
liable to .be setasid~ by directing the Commission to hold
· .. Preliminary Examination afresh in accordance with law~ .
. · .· 6. The Commission filed its counter- affidavit denying the .·
. D . averments made and allegations levelled. ltadmitted that there
were certain errors in question papers but they were corrected
by giving necessary instructions in time. It Was also stated that
in cases of errors ofsubstantial nature inquestions or wrong/
doubtfu.I answers: the Commission considered the matter;
E · sought opinion ofexpertsand decision was taken. to c;irop those
. questiqns. ltwas also decided that the marks allotted to those
· · questions would'be added pro-rata to the remaining questions.
It was· not true thatthere were only three Members over and
above theChairman. In factthere Were six Members (Chairman
F. +five Membets). The methodology was approved unanimously
byall the.Members and on that basis, the decisions were taken ..
. Subsequently, however, two Member:; did not agree to certain
decisions buteven then the decisions were majority decisions
·and hence no fault can be found against final action taken. by
· the Comniissio.n, It WC1S also stated that so far as the Preliminary
G
H
Examination is concerned, it was the first examination for
considering eligibility of the candidates for Main Examination.
ltwas thus limited for 'short listing' of candidates in th~ ratio of
1: 13. So far as the final selection is concerned, it was to be
made on the basis of Main Examination i.e. second examination
' -
PANKAJ SHARMA v. STATE OF JAMMl.J & KASHMIR
11.21
& ORS. [C;K. THAKKER, J:]
which comprised of two phases; (i) Written Examination, and
A ..
·. (ii)-Oral Interview. Preliminary Examination, therefore, had no
relevance and cannot cause. prejudice or· injustice to any ·
candidate so far as the final selection is concerned;. It was
submitted that the Commission, by considering grievances:of.
the candidates, salvaged the situation by ensuring that no
B
injustice is done to any candidate.Thepetitions, therefore, were·
liable to be dismissed.
·
·
r The learned Single. Judge considered the rival ·
. · .. contentions of the parties,· perused the relevant record and the . c·
· affidavit filed on behalf of the Commission as well as two
separate affidavits filed by two Members of the Commiss.ion
who dissented in the final process undertaken by the
Commission and issued following directions:
·
.
.
· "For. the reasons stated above and in the facts and ·
circumstances of the case, I allow all the writ petitfons and D .
direct the Public. Service Gormnission as follows: · ·
(a) To delete_ the following questions of each paper of
"A" series and their corresponding questions :in "B", ·
"C" and ''D" series and distribute their marks· proE -
rata to remaining questions of the papers:
(i) to (xi) ........ .
.
.
.
(b) ·To separately redraw the merit of all the unselected. ·
candidates for the Main Examination in respect of F
"'
compulsory paperof General Studies;
(c)
To redraw the merit of all the unselected candid~tes
for the Main Examination as per direction (a) in
(d)
. (e)
· respect of said ten optional subjects;
G
To separately redraw a combined merit list of such
candidates. who have appeared in the compulsory
paper of Generat. Studies· and optional. subject-.
papers, as _mentioned in direction (a)_;
Also to redraw a combined merit of compulsory H
1122
A
B
SUPREME COURT REPORTS
(2008] 4 S.C.R.
,
paper of General Studies and optional papers of
those candidates, in whose optional subject-papers
there was no discrepancy, i.e., 12 remaining optional
subjects, which. include the subject-papers of Animal
Husbandry, Botany, Indian History and Physics, and
who have not been short-listed.
(f)
To conduct the special Main Examination of all such
candidates, whose such combined redrawn merit is
equal to or more than the merit of last short-listed
candidate, in. accordance with the procedure
C
prescribed by the Examination Rules;
(g)
To complete the whole exercise within a period of six
weeks;
(h)
To pay an amount of rupees one lac and thirty
D
thousands as costs to the writ petitioners, at the rate
of rupees ten thousands in each writ petition, to be
shared by them equally".
8. The order passed by the learned Single _Judge came to
E be challenged _by the aggrieved writ-petitioners by preferring
intra-court appeals. The Division Bench in a brief order
dismissed the appeals observing that it found 'no basis for any
grievance' against the judgment of the learned Single Judge.
The appellants have now approached this Court.
F
9. On February 2, 2007, the matter was placed for
admission hearing and notice was issued. Parties were directed
to file affidavits. On April 5, 2007, in I.A. No.2 of 2007 ad-interim
reljef was granted and though the proceedings were allowed to
continue, it was ordered that no actual appointment should be
G made. The Registry was thereafter directed to place the matters
for final hearing. That is how they are placed before us.
10. We have heard learned counsel for the parties.
11. The learned counsel for the appellants contended that
H the Commission in substance and in reality converted itself into
t
PANKAJ SHARMA v. STATE OF JAMMU & KASHMIR
1123
'& ORS. [C.K. THAKKER, J.]
A
a Single Member Commission and hence, all decisions taken A
by the Commission should be held to be without power, authority
of law or jurisdiction. There were only three Members over and
above the Chairman. Out of them, two were against the method
suggested by the Chairman, and the third one was ineligible
and disqualified leaving the matter only to the sweet will of the
B
Chairman and as such the decision wa.s not of the 'Commission'.
It was also submitted that there was no consensus on the part
of the Members and hence exercise that has been undertaken
,.,
by the Commission was not valid. The only alternate left to the
Commission was to hold Preliminary Examination afresh and c
the High Court was in error in upholding the examination and in
issuing certain directions. The Counsel contended that errors
and mistakes in question papers were fundamental and
essential. In compulsory as well as in optional subjects,
questions were objective in nature. It was, therefore, obligatory D
on the Commission to ensure that the questions must be such
1
having only one correct answer. Unfortunately, however, certain
questions were totally incorrect, there were glaring mistakes,
they were vague and ambiguous, there were more than one
correct answer and they misled the candidates at the
E
examination. Such examination cannot be said to be an
examination in the eye of law and the High Court has seriously
· erred in upholding the examination even though it was satisfied
that the errors were substantial which called for issuance of
several directions. It was also urged that the e.ntire process of
examination by the Commission was from the very beginning
F
....
illegal, discriminatory and violative of the mies framed by the
Commission and on that ground also the examination was liable
to be set aside. A grievance was made that no expert on the
subject was ever consulted as stated by two dissenting
members in their communication to the Commission as also in G
the affidavits-in-reply filed before the High Court. Results were
prepared secretly as per the wishes of the Chairman under the
~
so called label of 'secrecy of exams' and there was no element
of transparency. Ch. Bashir Ahmed, one of the members of the
Commission, could not have participated in the examination
H
1124
· . SUPREME COURTREPORTS
. [2008]4 S.C.R
.. ·A •process or in considering.methodology to be adopted, as. his ·
. . son was one of the candidates who was to appear in. the
examination.He should have.abstained·and reclused himself .
. from attending. meetings and expressing his. ·opinion in the · .
. process undertaken. by the Commission. According to the
· B '. co.tinsel, no timely action was taken by theGommissicm. It was
·asserted by· the. Commission that as soon as . the complaints·
. were· mad.e by the candidates about wrong/incorrect/vague/
doubtful/ambiguous questions and the-attention .of the
Commission.was invit~d by respective supervisors, instructions
c. were issued immediately and clar.ifications\1vere conveyed: But
inJact, it wasnotdorie. Even the learned Single Judge recorded
a finding that no such corrective steps appeared to have been
taken as·claimed by.the Commission. In view of the said finding;·
··.the learned Single Judge was Wholly wrong in upholding the
. 0 . process· by adopting so called 'corrective measures'. Again,
the professed 'pro-tata method' was applied· only in case of
· thos.e· candidates who were riot selected. The said process
.. benefitted only 'unsel~cted.' candidates who could not se'c~ure
'cutoff rnarks .. The actionwas discriminatory and amounted to
.adopting different yardsticks amongst similarly situated .
E .· candidates inasmuch as the benefitwas not extended to those
' candidates who got themselves selected thereby depriving them.··
of.the benefit of 'pro:.rata' marks .. In other words, according to
the learned counsel, equals were treated unequally by giving
advanta.ge to some candidates -and depriving the same
F · advantage. to .others who were equally entitled to it. Thus, the
.. · entire process of conducting Preliminary Examination was
illegal, unlawful, .unreasonable; discriminatory and violative of
Articles 14; 19 and 21 of the Constitution.
12: So far as the orc:ter passed by the Division Bench is
G conc.erned, it was submitted that though questions of
constitutional irpportarice having far"'reaching consequences
were raised before the Division Bench, the Bench did not
consider them in their proper perspective and by a cryptic and
laconic order, dismissed Letters Patent Appeals observing that
H
. -\,
PANKAJ SHARMA v. STATE OF JAMMLJ & KASHMIR ·.
1125
. & ORS. [C.K. THAKKER, J.J
it did not find any reason to interfere With the order passed by A ·
the learned Single Judge. On all these grounds, itwas submitted
that the appeals deserve.to be allowed by setting aside the order
·passed by the learned Single· Judge and confirmed by. the
Division Bench of the High Court and by issuing direction to
Commission to hold Preliminary Examination afresh in B ·
accordance with law.
13. The learned counsel for the Commission, -pn the other
hand,· supported the. order passed by the High. Court. The ·
counsel submitted that the basic assumption of.the aggrieved
· writ-petitioners was that the decision was taken only by Chairman .· C
of the Commission; According to the writ-petitioners, there were
only three Members over and above the Chairman; out.of them
two were against the method suggested by the Commission to
.· . salvage the situation, one was ineligible or disqualified to.
participate in the proceedings which left the. Commission·with D
the Chairman alone, who as per his whims and sweet will ··
undertook the exercise. The reality, however, was otherwise.
According to the counsel, over and above Chairman, there were
five members. Certa.in decisions·were taken unanimously by
the Commission. In some meetfrlgs, one of the Members was
E
not availabl~. but he also subsequently agreed. The device was
. approved~ decisions were arrived at, grievances of candidates
were redressed and their interests were protected. With regard
to certain decisions, no doubt, there was no unanimity but ther~
was majority and under the relevant rules, such action could have
F
beentaken. According to the counsel, as soon as the attention
of the supervisors was invited to certain wrong, incorrect or
doubtful questions and the Commission was informed by the
supervisors, necessary instructions were given on behalf of the
Commission to get the questions corrected or ignored and those G
instructions were duly communicated to the candidates. Though
the learned Single Judge decided the point against the
Commission and issued consequential directions, the
Commission, in due deference to the Court and in the larger
interest of student-community, accepted the finding and did not
H
1126
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A challenge that part of the order before the Division Bench. It,
therefore, could not be said that any injustice had been done to
any candidate. It was also submitted that when wrong, incorrect
or doubtful questions were ordered to be deleted or ignored
and marks of those questions were added pro-rata to the
B remaining correct, valid and legal questions, no complaint can
be made against such step. The counsel submitted that no
injustice was caused to selected candidates. It is an admitted
fact that the first examination was Preliminary in nature and was
only for short listing candidates in the ratio of 1 :13. Once a
c candidate clears that examination, he stands qualified for the
entry to the second stage i.e. Main Examination. For the purpose
of actual selection, the marks obtained at the first examination
"(PreUminary Examination) had no relevance. Marks at the Main
Examination (Written Test and Oral Interview) were material.
0 . Hence, it cannot be urg.ed by those candidates who could not
qualify at the. Preliminary Examination that grant of pro-rata
marks to unsuccessful candidates had caused injustice to
successful candidates. The said contention had been advanced
only with a view to prejudice the Court, though it is altogether
irrelevant, immaterial and no grievance has been made by any
E successful candidate that he ought to have been given more
marks in Preliminary Examination on the basis of pro-rata
method adopted by the Commission. It was also submitted that
the Commission is a 'constitutional functionary' and was
expected to exercise its power in accordance with law. For that
F purpose, rules have been framed and 1in accordance with those
rules, examination was taken. The law neither provides for fresh
exarryination nor revaluation of marks. After complaints were
received by the Commission about incorrect/wrong/doubtful
answers, experts were consulted, their suggestions were
G considered. and decisions were taken. The entire record was
placed before the learned Single Judge. The learned Sir.gle
Judge, after perusing the record and hearing the parties, is.sued
certain directions which the Commission gracefully accepted,
undertook the exercise and redrew the merit-list which benefited
H certain candidates who were not selected earlier. Most of the
•
•
y
PANKAJ SHARMA v. STATE OF JAMMU & KASHMIR
1127
& ORS. [C.K. THAKKER, J.]
writ-petitioners, however, were very much below in ranking and
A
it was impossible for them to get qualified in 'short listing
process' and, as such, they could not have legitimate ground to
make any grievance. Their only attempt is to get the Preliminary
Examination set aside and to appear at the fresh examination
if so ordered by the Court. Such action would cause serious s
prejudice and grave injustice not only to the Commission but
also to those who are declared eligible and qualified in the 'short
listing process' at the Preliminary Examination. On all these
grounds, it was submitted that the appeals deserve to be
dismissed.
c
14. Having heard the learned counsel for the parties and
having given anxious consideration to the rival contentions
raised by the counsel, in our opinion, no case has been made
out by the appellants to interfere with the order passed by the
learned Single Judge and confirmed by the Division Bench. As D
observed by the High Court, the Combined Services
(Preliminary) Examination, 2005 was held by Jammu and
Kashmir Public Service Commission for selecting 132
candidates of eighteen Gazetted Services as notified on April
1, 2005. For making selection of candidates for direct E
recruitment, the basis was Combined Competitiv~ Examination.
In exercise of power under sub-section (1) of Section 133 of the
Constitution of Jammu and Kashmir, the Commission framed
rules known as the Jammu and Kashmir Public Service
Commission (Business and Procedure) Rules, 1980. They inter F
alia provide procedure for transaction of business, quorum,
decision of the Commission, recording of minutes, etc. The
procedure for conducting such examination was governed by
the rules known as the Jammu and Kashmir Combined
Competitive Examination Direct Recruitment Rules, 1995
issued and notified under SRO 161of1995, dated July 17, 1995: G
The Rules of 1995 envisaged Combined Competitive
Examination in two successive stages;
.
(i)
Combined Services (Preliminary) Examination
(Objective Type) for the selection of candidates for H
1128
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A
the Main Examination; ('Screening Test'); and
(ii)
Combined Services (Main) Examination (Written and
Interview) for selection of canc;lidates for various
services and posts ('Selection Test').
· B
· 15. The Preliminary Examination consisted of. two
papers-(i) Compulsory Paper of General Studies; and (ii) one
·. Optional Subject chosen by the candidate out of 22 specified
optional subjects set out in Appendix-IX to th'e Rules. Preliminary
Examination was meant to serve only as a 'screening test' and
c. the marks obtained by the candidates at the Preliminary
, Examination were limited to get entry and to be treated as
·qualified for the Main Examination and were not to be count~d
for determining their final order of merit or selection. The number
of candidates to be admitted to the Main Examination on the
0
basis of Preliminary Examination was in the ratio of 1: 13 total
approximate number of vacancies to be filled ·.up iff·various
services. It was also provided in the rules that only those short
. listed candidates who had obtained such marks in the
Preliminary Examination as fixed by the Commission at its
discretion and de.clared by the Commission as qualified in the
E Preliminar-Y Examination were allowed to appear in the Main
Examination provided they were otherwise eligible for admission
to the said Examination.
16. The Main Examination again was in two phases; (i)
F Written Examination, and (ii) Oral Interview: Written Examination
comprised of papers of conventional essay type, out of which
one paper was to be of qualifying nature only, in the subjects set
out in Appendix-IX as per the detailed syllabus in Appendix-IS.
Candidates who obtained minimum qualifying marks in the
G Written Examinatio·n as fixed by the Commission were to be
called for Oral Interview in the ratio of 1 :3; i.e. three candidates
as against ohe post.
1 T The Commission vide its Notification dated .April 1,
2005 rnvited applications from the· candidates for Preliminary
H Examination, Jammu and Kashm.i.~ Combined Competitive
•
y
PANKAJ SHARMA v. STATE OF JAMMU & KASHMIR
1129
& ORS. [C.K. THAKKER, J.]
,(
Examination, 2005. In response to the advertisement, 17,116 A
candidates applied. Preliminary Examination was conducted
by the Commission simultaneously at Jammu and Srinagar on
July 3, 2005 at 24 Centres wherein 15,293 candidates
appeared .. The compulsory paper in the subject of General
Studies carried 150 marks for 120 questions,· each question e
containing 1.25 marks, whereas Optional Paper out of 22
~
subjects was of 300 marks for 120 questions, each question
.A
having 2.5 marks .
18. It appears that at the Preliminary Examination, a large
number of complaints were made by the candidates that there c
were several errors, misprints, spelling mistakes, questions
having doubtful, double and even wrong answers, etc. In the light
of the complaints made by examinees on July 6, 2005, a Press
• Note was released in lead.ing newspapers as well· as on
electronic media by the Commission assuring the candidates D
-;
that their representations/ complaints/grievances would be duly
considered while preparing the result.
19.