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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
N. KOTISWAR SINGH, JAVED IQBAL WANI, JJ.
UT of J&K and Anr. - Petitioners
Versus
Ashiq Ahmad Magray - Respondent
WP(C) No. 2252 of 2022, CM No. 5638 of 2022
Decided On : 19-10-2023
Tampering - Recruitment Process - Right to Information Act, 2005 - [FUNDAMENTAL RIGHTS, FUNDAMENTAL DUTIES, RE-EVALUATION, CUT-OFF MARKS] - The court examined the reduction of marks in the applicant's paper and determined that if the reduction occurred after the establishment of cut-off marks, it could be considered tampering intended to exclude the applicant from competition. The court held that the matter should be remanded to the CAT to determine this issue after permitting both parties to submit additional affidavits or documents concerning the reduction of marks and pass an order in accordance with rules after hearing all the parties.
Fact of the Case:
The applicant, a candidate for the post of Prosecuting Officer, alleged tampering of his answer script resulting in his exclusion from the competition. The CAT directed the respondents to treat the applicant as having secured the original 66 marks and consider him for appointment, which was challenged by the petitioners.
Finding of the Court:
The court found that the reduction of marks in the applicant's paper should be examined to determine if it occurred before or after the establishment of cut-off marks for various categories. The matter was remanded to the CAT for reconsideration and passing appropriate orders.
Issues: The issues revolved around the alleged tampering of the applicant's answer script, the legitimacy of the re-evaluation, and the subsequent direction by the CAT to consider the applicant for appointment.
Ratio Decidendi: The court held that if the reduction of marks occurred after the establishment of cut-off marks, it could be considered tampering intended to exclude the applicant from competition. The court emphasized the importance of determining the timing of the reduction in marks and remanded the matter to the CAT for further consideration.
Final Decision: The petition was allowed, and the matter was remanded to the CAT for reconsideration and passing appropriate orders in accordance with the court's observations.
JUDGMENT :
N. Kotiswar Singh, J.
1. The present petition has been filed against the order dated 23.05.2022, passed by the Central Administrative Tribunal (referred to as CAT), in Transfer Application No. 3469/2020.
2. The learned CAT allowed the application filed by the applicant, respondent herein, and directed the respondents, petitioners herein, 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 for the appointment to the post of Prosecuting Officer.
3. The learned CAT further directed that if the applicant is found to have secured more marks than the last person selected in RBA category, the applicant should also be considered for appointment with notional consequential benefits.
4. Before we examine the grounds raised in this petition and the rival contentions of the parties, it may be necessary to refer briefly to the relevant facts of the case at hand.
5. Pursuant to the State Government’s Order No. Home/947(P) of 2012 dated 23.11.2012, the Police HQ issued an advertisement notice dated 29.12.2012 for filing up of 49 Posts of Prosecuting Officers. Subsequently, through two more notifications dated 11.06.2013 and 23.08.2013, the number of posts was increased from 49 to 98, out of which 19 posts were earmarked for RBA category.
6. The applicant was one of the candidates who took part in the recruitment process, which consisted of a written test, physical test and viva-voce cum Personality Assessment test. According to the applicant, he had performed satisfactorily in the written test and was expecting his name to be shortlisted for an interview. However, he was not called for an interview, and accordingly, he made an application under the Right to Information Act, 2005, seeking information regarding the cut-off marks category-wise. The information provided revealed that the cut-off marks for OM category were 67 and for RBA, it was 65.05.
7. Since the applicant was awarded 64 marks in the written test and had doubt about the same, he obtained the answer script under the RTI Act. In the information received under RTI Act, he discovered that he actually had obtained 66 marks in the written test but this score was reduced by 02 marks during re-evaluation. According to the applicant, the said reduction of 02 marks is tampering aimed at depriving him of being called for Viva-voce cum Personality Assessment Test.
8. It has been submitted that on verification, it was discovered that the applicant had initially been awarded 08 marks for one of the questions, but this score was subsequently reduced to 06 marks by way of correction/tampering. According to the applicant, if this mark reduction had not occurred due to tampering, he would have secured a place on the merit list and subsequently been called for a Viva-voce cum Personality Assessment Test.
9. Accordingly, the applicant, being aggrieved by the tampering/reduction in the marks, approached the Writ Court by filing a writ petition being SWP No. 1839/2017, which was disposed of by the Writ Court on 13.09.2017, directing appellant No. 2 to consider his representation and make a decision based on merit.
10. In terms of the aforesaid direction of the Court, the appellant No. 2, on considering the representation, rejected the same by order dated 31.08.2018. In the said order of rejection, it was determined that the applicant’s answers had been correctly evaluated, and his marks were appropriately adjusted to 06 marks from the initially awarded 08 marks. It was also mentioned in the rejection order that the said question was about “fundamental rights and fundamental duties,” each carrying 05 marks, for a total of 10 marks. The applicant had answered just in one line for fundamental duties but had answered more elaborately for fundamental rights. Consequently, the evaluator awarded 05 marks for the answer on fundamental righ
The timing of the reduction of marks in the applicant's paper is crucial in determining whether it amounts to tampering intended to exclude the applicant from competition.
The finality of public examination results and the reluctance to interfere with expert decisions, as well as the absence of provisions for re-evaluation in the rules, precluded the petitioner's right....
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