Importent Point:
Question of disability of a Member of the Commission could arise only in case of his participation at the stage of selection where the merit of a candidate in whom he might be interested was to be adjudged.

JUDGMENT

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.

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 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

4. To appreciate the controversy centered round the litigation, few relevant facts may be noted.

5. Selection process was initiated by the Jammu & Kashmir Public Service Commission ('Commission' for short) 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 eligible and qualified in the process of 'short listing' and could 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 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 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 against it. So far as the third Member is concerned, he was ineligible and disqualified to take part in the proceedings since his ward was one of the candidates/aspirants. He, therefore, could not have attended the Meeting and participated in the process, thus, leaving the decision to the Chairman alone. Such decision was wrongly described as the decision of the Commission. The entire process undertaken by the Commission was totally illegal, unlawful and arbitrary and was fraud on the Constitution and liable to be set aside by directing the Commission to hold Preliminary Examination afresh in accordance with law.

6. The Commission filed its counter- affidavit denying the averments made and allegations levelled. It admitted 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 of substantial nature in questions or wrong/doubtful answers, the Commission considered the matter, sought opinion of experts and decision was taken to drop those questions. It was also decided that the marks allotted to those questions would be added pro- rata to the remaining questions. It was not true that there were only three Members over and above the Chairman. In fact there were six Members (Chairman + five Members). The methodology was approved unanimously by all the Members and on that basis, the decisions were taken. Subsequently, however, two Members did not agree to certain decisions but even then the decisions were majority decisions and hence no fault can be found against final action taken by the Commission. It was also stated that so far as the Preliminary Examination is concerned, it was the first examination for considering eligi