(This Judgment Delivered at Srinagar Bench)
N. Paul Vasanthakumar, C.J.
1. By consent the Letters Patent Appeal is taken up for final disposal.
2. The Registry also informed this Court that certain other candidates have also filed similar writ petitions before the Jammu Wing of this Court and common issues are raised in those writ petitions. This Court directed the Registry to identify the cases and the Registrar Judicial at Jammu identified the above numbered writ petitions ( SWP Nos. 1944, 1917, 1946, 1961, 2030, 2033, 2047, 2049 and 2138 of 2015) wherein also the similar issues regarding the selection of Prosecuting Officers have been raised. Having regard to the said fact, we also arranged for a sitting at Jammu Wing on 21.09.2015 and heard the arguments of the respective counsels for the writ petitioners as well as Mr. W. S. Nargal, AAG for the State. The Letters Patent appeal is filed against the order of the learned Single Judge dated 13.08.2015 made in SWP no. 1361/2015, dismissing the writ petition filed by the appellants along with four other connected writ petitions.
3. The appellants as well as the writ petitioners herein had preferred the writ petition praying to quash the written test conducted by the respondents on 14.04.2015 and short listing if the candidates by order dated 20.06.2015 and the notice published in Greater Kashmir in its issue dated 28.06.2015, and for direction to the respondent nos. 1 to 4 to conduct fresh written test of all the candidates who have to be qualified for Viva-Voce-cum- Personality Assessment Test in accordance with the syllabus notified vide notice dated 02.09.2014 and make the selection afresh, or in the alternative to conduct the interview of the appellants and consider them also for their selection and appointment to the post of Prosecuting Officer based on their merit which may be obtained by them in the vivavoce test.
4. It is the contention of the appellants that they are permanent residents of JandK State and are citizens of India. The first appellant is resident of Chuliskamboo, Kargil and belongs to BROKPA tribe, which is a scheduled tribe community and he has passed Bachelor of Law ( 5 years) from the University of Jammu in the year 2011. The appellant no.2 is a resident of village Thaskangrong, Kargil and is a resident of Backward Area. He also passed degree in B.Sc from University of Jammu in the year 2006 and Bachelor of Law (LL.B) from University of Kashmir in 2010. Both the appellants have enrolled themselves as Advocates with the Bar Council of JandK under the Advocates Act 1961.
5. It is the case of the appellants that respondent no.2 invited applications by issuing advertisement notice on 29.12.2012 for filling up of 49 posts of Prosecuting Officers in JandK Police, prescribing minimum qualification of Bachelor s Degree in Law from a recognized University with minimum of 50% marks. The age was prescribed as between 18 to 28 years as on 01.01.2012. The candidates had to appear for physical standard test, written test followed with viva voce/personality assessment test. The prescription of upper age limit was challenged before this Court and thereafter a revised eligibility criteria was fixed stating that candidates should not be less than 18 years and not more than 37 years of age. The number of posts were also increased to 98 as per the subsequent addendum dated 13.08.2013. Accordingly, 56 posts were to be filled up from Open Merit category, 19 from RBA category, 10 from ST category, 8 from SC category, 3 from ALC category and 2 from Social caste category. The syllabus for the written test was notified on 02.09.2014 which included Constitution of Jammu and Kashmir, Major Acts in whole with latest amendments, namely, Ranbir Penal Code, Code of Criminal procedure and Evidence Act And other Minor Acts and Local and Special Laws in whole with latest amendments. The candidates were directed to appear for the physical test and their physical fitness was assessed. The appellants and the writ petitioners were declared qualified in the physical test and thereafter the written test was proposed to be conducted on 08.02.2015 at Government Degree College Bemina, Srinagar. However, no written test was conducted on 08.02.2015 and it was informed by notice dated 16.03.2015 that the candidates belonging to Leh and Kargil Districts have to appear in the written examination to be held in the first week of April, 2015 in any one of the places at Kashmir, Jammu, Leh and Kargil and the appellants and the writ petitioners were asked to forward their option for appearing in the examination centre of their choice. The examination was held on 14.04.2015 and the appellants and the writ petitioners also appeared in the written examination.
6. According to the appellants and the writ petitioners, while appearing in the written test it was found that the questions asked were not according to the syllabus notified and the appellants allegedly brought the said fact to the notice of the officials of 3rd respondent and according to the appellants the officials of 3rd respondent assured that the matter would be looked into and a decision will be taken. But without taking the said fact into consideration the 2nd respondent issued order bearing No. 1736 of 2015 dated 20.06.2015 and declared the persons qualified for viva voce test. 57 candidates in RBA category and 33 candidates in ST category were declared to have qualified for the viva voce test. The names of the appellants and the writ petitioners were not included in the qualified persons for viva voce test. Therefore, they filed the writ petition with above said prayer contending as follows:-
(1) That the syllabus prescribed for the written test was not the basis on which the questions were prepared; several questions were framed wrongly, for some questions more than one answer was correct in the choice, some of the questions framed were vague and due to the said factors the appellants could not score higher marks in the written examination and, therefore, they have not secured the cut off mark for being invited for the viva voce test.
(2) Separate cut off points were not fixed for reserved categories and if separate cut off was fixed in each category, the appellants belonging to ST and RBA category respectively, could have qualified for attending the viva voce examination.
(3) Separate Boards were constituted for conducting examination and evaluation due to which different yardsticks were followed for awarding marks and thus the candidates were differently assessed in common selection, which is in violation of Article 14 and 16 of the Constitution of India.
(4) The short listing of candidates was made not at the ratio of 1:5 but at the ratio of 1:3 which has taken away the chance of the appellants/writ petitioners in attending the viva voce test.
7. The said grounds were answered by the official respondents by contending that the examination conducted was for selecting the Prosecutors and all the candidates appeared are Law Graduates and in the syllabus not only the subjects relating to law were prescribed but also general knowledge was one of the prescribed subject. The questions were prepared to test the deep knowledge in subjects and not in a simplified manner to select meritorious candidates who had applied. The separate examination Board was constituted to supervise the examination alone for Leh and Kargil Districts considering the topography and not for evaluation of the papers. The candidates were short listed based on their performance in the written test and candidates from all the reserved categories were invited for viva voce test to select candidates in terms of reservation rules. It is also contended that it is not mandatory to fix separate cut off marks for reserved categories in the light of the availability of large number of the candidates in the reserved categories who were invited for the viva voce test. Insofar as short listing of the candidates at the ratio of 1:3 for inviting them to attend the viva voce test is concerned, in the notification itself it is clearly stated that number of candidates to be called for the viva voce test will be at the ratio of 1:3.
8. The contention of the learned counsel for the appellants is that Question Nos. 10, 11, 12, 13, 30, 36, 38, 40, 44 and 45 and Section III were out of syllabus. Question nos. 4, 39 and 42 were wrongly framed. Question No. 26 had wrong options. Question Nos. 28, 31 and 35 have two or more options. In effect, the contention of the appellants is that 17 questions out of 45 were either out of syllabus/not correctly framed/ having wrong option or having two or more options and thereby there is material irregularity in the conduct of the written examination, altering the marks in the written test. The learned counsel for the writ petitioners also argued on similar lines.
9. The learned counsel appearing for the petitioners in Jammu Wing argued that short listing the candidates in the ratio of 1:3 is not valid as the JandK Public Service Commission and the JandK Services Selection Board are short listing candidates in the ratio of 1:5 for viva voce test and due to the restriction of the candidates at the ratio of 1:3 the petitioners rights have been affected.
10. The learned Advocate General argued that two appellants in LPA were subjected to viva voce test pursuant to the interim direction issued by this Court and even in the viva voce test their performance was poor. It is also contended that doubtful questions numbering five (Question Nos. 8, 26, 28, 35 and 39) were referred to the Evaluation Committee and the Committee decided to follow uniform norms for award of marks, hence no discrimination was shown to any candidate. The learned Advocate General also submitted that the examination having been conducted for selection of Prosecutors, the questions were framed in such a manner, enabling the candidates who are having deep knowledge in the subject to answer the correct choice and there is no illegality in the said procedure adopted.
11. Mr. W. S. Nargal, learned AAG, heavily relied on the notification issued for the posts wherein it is stated that candidates will be short listed in the ratio of 1:3. He has also relied on a judgment of learned Single Judge of this Court reported in 2011 (1) JKJ 894 (HC) ( Kuldeep Kumar and ors v. State and Ors) which was approved by the Division Bench of this Court. He has also cited a judgment of Hon ble the Supreme Court reported in AIR 1987 SC 454 (Ashok Kumar Yadav and ors v. State of Haryana and anr). He has submitted that a Committee was constituted to verify as to whether there was uniformity in evaluation of the answer scripts and the Committee, after screening all the answer scripts, suggested certain guidelines which were followed and marks were awarded uniformly to all the candidates who attended the written test. The learned Additional Advocate General also argued that the writ petitioners having applied as per the notification prescribing norms and appeared in the physical and written examination and having not been short listed, it is not open to them to challenge the method/norms adopted i.e. at the ratio of 1:3 instead of 1:5 as they are stopped from filing the writ petitions challenging the manner and method of short listing of candidates and in support of his said contention he has relied on the judgment of Division Bench of this Court rendered in LPA No. 202/2014 dated 22.07.2015 ( Syed Shabir Ahmad and ors v. State of JandK and ors).
12. Mr. Z. A. Shah, learned senior counsel, who appeared for the private respondents before the learned Single Judge, also argued that there is no ambiguity in the questions framed/ choice of answers given and he has also explained how the questions framed were correct. He has also cited some decisions in support of his contention.
13. We have considered the rival submissions. Perused the syllabus, questions and multiple choice answers and other relevant records.
14. The following issues arise for consideration in this appeal:-
(1) Whether the appellants are justified in contending that 10 questions put were out of syllabus. (Question Nos. 10,11,12, 13, 30, 36, 38, 40, 44 and 45)
(2) Whether 3 questions, namely, Question Nos. 4, 39 and 42 were wrongly framed;
(3) Whether for question No.26 wrong options were given;
(4) Whether Question nos. 28, 31 and 35 were having two or more options.
(5) Whether the official respondents were bound to fix separate cut off marks for short listing the eligible candidates for the Viva voce test,
(6) Whether the appellants are right in contending that separate examination boards were created for selection of each region,
(7) Whether the writ petitioners are right in contending that the short listing of candidates to be called for the viva voce test should have been in the ratio of 1:5 instead of 1:3.
(8) Whether the writ petitioners can challenge the mode of short listing after participating in the selection process; and
(9) Whether the appellants have established a case for ordering reexamination.
Issue nos. 1 to 4
15. Eleven questions, which are claimed to be out of syllabus by the appellants, were from the Constitution of India and Civil Procedure Code. These questions and their answer options read thus:-
Question No. 10
As per the preamble of the Constitution, India is a:-
(a) Sovereign, Communist Republic,
(b) Socialist, Communist Republic,
(c) Sovereign, Socialist, Secular, Democratic Republic,
(d) Communist and Constituent State.
Question No. 11
Federalism is a system of government in which:-
(a) Power lies only in central authority
(b) Power lies only in State authority
(c) Power is divided between the Central authority and various constituent units
(d) Power lies only with the President.
Question No. 12
Which of the following does ot form part of distribution of Legislative powers:
(a) Union List
(b) State List
(c) Convenient list
(d) Concurrent list.
Question No. 13
As per Constitution of India, different languages of the country are included in the schedule of Indian Constitution:
(a) Eight
(b) Ninth
(c) Sixth
(d) Seventh
Question No. 30
In case of death of a complainant while trial is pending::
(a) Trial ceases automatically
(b) Trial does not cease automatically
(c) Trial is left to the discretion of Judge
(d) Trial is left to the discretion of family members of complainant.
Question No. 36
Who among the following can taken a plea of ignorance of Indian Law:
(a) Indian Citizens
(b) Foreigners
(c) Indian Citizens abroad
(d) None of the above
Question No. 38
In a Civil Suit, the person who files suit and the person against whom the suit is filed are called:
(a) Accused, prosecutor
(b) Accuser, defendant
(c) Appellant, respondent
(d) Plaintiff, defendant.
Question No. 40
A written statement in the name of a person by whom it is voluntarily signed and sworn to is called:
a) Affirmation
b) Notary
c) Sworn statement
d) Affidavit.
Q. No. 42
Who is the final authority to appoint judges in the District
(a) The Chief Minister
(b) The Governor
(c) The High Court
(d) The Legislative Assembly
Question No. 44:
When a bill becomes an Act:
(a) When it is passed by both the Houses and assented to by the President.
(b) When the Prime Minister assent to it,
(c) When the Law Minister approves it,
(d) When it is passed by both the Houses.
Question No. 45
Rajya Sabha is also known as
(a) Lower House
(b) Upper House
(c) Council Representatives
(d) None of these.
It has to be noted that the syllabus prescribed for the written test contains Constitution of Jammu and Kashmir and General Knowledge. It is not in dispute that the Constitution of Jammu and Kashmir should be read with Constitution of India. For instance the fundamental rights guaranteed under the Constitution of India are equally applicable to the citizens of Jammu and Kashmir as per Section 10 of the JandK Constitution. Thus one has to be acquainted with the Constitution of India apart from the Constitution of Jammu and Kashmir for appearing in the written test when the participants are law graduates. Therefore, question Nos. 10, 11, 12, 13, 42, 44 and 45 asked from the Constitution of India cannot be treated as questions out of syllabus. Question No. 36 cannot be treated as incorrect or out of syllabus as this question is too elementary and the same is taught to every student as Penal law at the basic level.
Question No. 30 is also within the syllabus as the answer is contained in Section 247(2) Cr.P.C which was inserted by Criminal law Amendment Act of 2012.
Question nos. 38 and 40 are basic questions, the answer of which must be known to all law graduates who are expected to study the Civil procedure Code. In other words, every Law Graduate is expected to know the answer to the said questions as General Knowledge must be possessed by all Law Graduates. Therefore, the said questions cannot be treated as incorrect or out of syllabus.
15. According to the appellants, Question nos. 4 and 39 were wrongly framed. These questions and their answer options reads as follows:-
Q.No.4.
No Magistrate shall authenticate the detention of an accused person in custody for a total period exceeding 90 days, if the investigation is not completed in relation to an offence punishable:
(a) With death
(b) With life imprisonment
(c) With imprisonment for a term of not less than 10 years
(d) All the above.
Q. No. 39
In a Criminal case, an accused person, who in consideration of his non-prosecution offers to give evidence against other accused, is called:
(a) Accomplice
(b) Hostile witness
(c) Approve
(d) Hostile accomplice
Insofar as question No. 4 is concerned, same has been set to see whether the candidate is aware of Criminal law (Amendment) Act, 2013 wherein the detention period for newly included offences can be 90 days. Since the question itself uses words 90 days , it excludes all those offences for which detention can be only 60 days. Therefore, the offence under Section 302 RPC is excluded by the question itself. Only those candidates who were aware of the said amendment could have been able to answer the said question. The contention that Question No. 4 has been wrongly framed is accordingly repelled.
16. Insofar as question no. 39 is concerned, the correct answer for this question being approver and the choice given in choice (c) being approve , the same is not the correct answer. Thus the appellants are correct in their contention.
Appellants have contended that questions nos. 28, 31 and 35 were having two or more options.
Question No. 28
The provision of hostile witness is provided under _____ of Evidence Act:
(a) Sec 155
(b) Sec 133
(c) Sec 154
(d) Sec 154
The correct answer according to the appellants as well as the respondents to this question is Section 154. Section 154 is mentioned as options (c) and (d). It is an admitted fact that marks were awarded to all the candidates who had answered by mentioning either of these two options.
Insofar as Question No. 31 is concerned, the same reads as follows:-
Question No. 31
The proceedings under Section 145 of the CrPC is done under the report of:
(a) Executive Magistrate
(b) Police Officer
(c) Complainant
(d) Judicial Magistrate
Emphasis being on under the report of , complaint/information is excluded to invoke jurisdiction under Section 145 Cr.P.C.
The correct answer for this question is option (b) i.e. Police Officer and there is no other option as correct answer.
17. As per the appellants, Question No. 26 is having wrong options and none of the answers is correct. The question and answer options reads as under:-
Q. No. 26
An Executive Magistrate can order a person who is likely to commit breach of peace to execute a bond under ____ CrPC.
(a) Sec 107
(b) Sec 109
(c) Sec 109
(d) Sec 151
The appellants are justified in their contention that the answers given are all wrong. According to the learned Advocate General Section 107 Cr.P.C is the correct answer. On perusal of Section 107 it is evident that it is the initiation of proceedings and not passing order to execute a bond. In fact the answer to the said question would be Section 112 Cr.P.C, which is not an option provided. Thus the appellants are correct in their contention.
17. Insofar as the contention that Section III, i.e. write short notes of about 200 words on any three of the following subjects:
(a) Fundamental Rights and Fundamental Duties
(b) JandK Legislative Council
(c) Section 302 RPC
(d) Trial through Video-Conferencing
(e) Brain Mapping/ Narco analysis/Polygraph tests and their admissibility as evidence in courts.
Five options are given for this question. As per Section 10 of the JandK Constitution, all residents of JandK state are entitled to enjoy all fundamental rights guaranteed in the Constitution of India. Thus option (a) is not out of syllabus. Even if the first option is from the Indian Constitution, which every law graduate is expected to know, the appellants could have very well attended other three out of four options.
Issue No. 5
18. It is the case of the appellants that the candidates from the reserved categories were not called for the viva voce test and if any candidate from the reserved categories is selected under the Open Merit category, there may not be candidates available to fill up the reserved category vacancies.
19. The learned Advocate General has argued that Rule 7 of the Jammu and Kashmir Reservation Rules, 2005 has been strictly adhered to and it is not compulsory to call candidates from each category at the threshold and the reservation rules can be complied with at the time of final selection. The said issue is already considered by the Division Bench of this Court in the decision reported in (2011) 1 JKJ 894 ( Kuldeep Kumar and ors v. State and others) and in paragraph nos. 9 and 14 it is held thus:-
9. A conjoint reading of Rule 7 contemplates that the selection authority is required to draw, in order of merit, a consolidated list of all the eligible candidates, irrespective of class to which they belong, which envisages four types of lists, viz.:-
(a) List containing the names of the candidates equal in number of vacancies available purely on the basis of the merit;
(b) In case of reserved vacancies, it shall process a list of candidates belonging to the reserved category from the L 1 list, in order of their merit;
(c) In case the number of candidates belonging to such reserved category falls short of the vacancies reserved for it, the remaining vacancies in such reserved category shall be treated as un-reserved and the selection authority shall prepare fourth list containing the names of the candidates equal in number to remaining vacancies.
Sub-Rule 7 provides that the list settled by conforming to sub-rules 1 to 5, shall finally constitute the list of the candidates selected for appointment to any particular service.
Sub-Rule 8 provides that candidates belonging to the reserved category, if selected against the Open Merit category, may also be considered for allotment of services allocable to their respective category as per their inter-semerit/own preference.
The operation of the Rules, as clearly emerges from the aforementioned discussion, comes into play only after a select list, based upon merit, is prepared. To further countenance this issue, reference is required to be made to SRO 387 dated 1st of December, 2008, which provides the rules for conduct of the examination.
Rule 10 of the aforementioned SRO provides preparation of merit list which consists of marks obtained by a candidate in the main examination as well as in the interview, arranged in order of merit. The candidates would be allotted to various services keeping in view their inter-semerit and preference and posts. It also provides that a candidate belonging to a reserved category, though not qualifying by the standard prescribed by the Commission, may be declared suitable for appointment thereto by reduced standards with due regard to the maintenance of efficiency in administration and recommended for appointment to vacancies reserved for members of such class in that service.
In view of the aforementioned discussion, it clearly reveals that Rule 7 will come into operation after the select list is drawn in order of merit obtained by the candidates both in written examination and the interview. It does not contemplate applying reservation rules either at the time of preliminary examination or at the time the main examination. I am unable to agree with the learned counsel for the petitioners in this behalf that the policy of reservation has to be applied at every stage of selection.
14. The other contention of the petitioners is that those reserved category candidates who have qualified for being called for the interview in the Open Merit Category, should not have been considered in the reserved categories at the time of calling them for the interview, it cannot be presumed at this stage that those candidates of the reserved categories, who have qualified in the Open Merit category for being called for the interview, would ultimately get selected in the Open Merit category after the final select list is prepared. They have to be necessarily called for the interview from the reserved categories, as has been done in this case.
A Division Bench of this Court in LPA No. 27/2012 decided on 18.11.2013 ( Mukhtiar Ahmad v. JandK Public Service Commission and ors) considered the plea of fixing short listing of candidates for main written examination in respect of reserved categories with reference to Rule 8(2) of the Jammu and Kashmir Combined Competitive Examination Rules, 2008 and held that reservation rules does not operate at the stage of preliminary examination, that means at the stage of short listing. Therefore, separate minimum marks need not t be fixed at the initial stage of short listing of the candidates for attending the viva voce test. Thus there is no substance in the said issue raised by the learned counsel for the appellants in that aspect.
Issue No. 6
20. From the record produced and the submissions made by the learned Advocate General, it is clear that a separate Board was constituted for supervision of the written examination for Leh and Kargil Districts due to topographical conditions of the area. The said Board was constituted only for supervising the examination. The Selection Board consisting of the ten members has prepared the question papers, evaluated the answer scripts and conducted the viva voce test for all the regions and the same is evident from the proceedings of the Board of Officers constituted vide PHQ JandK Order No. 1078 of 2015 dated 18.04.2015 and the decision of the said Board dated 06.06.2015. As rightly contended by learned counsel appearing for the official respondents, the Committee scrutinized all the answer scripts and adopted uniform norms for awarding of the marks and uniformity was maintained in all respects, irrespective of the region where from the candidates appeared. Hence the contention of the appellants that separate Boards were constituted to conduct the examination for different regions is contrary to the records and cannot be countenanced.
Issue No.7
21. The contention of the writ petitioners is that while short listing the candidates for the viva voce test the official respondents should have short listed the candidates at the ratio of 1:5 and not at the ratio of 1:3. In Clause 4 of the notification issued it was specifically mentioned that for the purpose of short listing the candidates for interview the following criteria will be followed:-
The number of candidates to be called for vivavoce shall be in the ratio of 1:3 i.e. three candidates for each category plus those additional candidates who have secured marks equal to the last candidate in the respective categories.
22. It is also the case of the official respondents that as per the Business and Procedure Rules being adopted by the JandK Public Service Commission, Rule 40 (ii) (a) of the Business Procedure Rules, where the number of applicants exceeds 350 against posts not exceeding 100 and where the number of applicants is more than 3 times against vacancies exceeding 100, the short listing in the proportion of 1:3 shall be done through a written screening test and the said procedure being followed by the JandK PSC has been applied for conducting the written examination and for short listing the candidates for viva voce test.
23. A Constitution Bench of Hon ble the Supreme Court in the decision reported in AIR 1987 SC 454 ( Ashok Kumar Yadav and ors v. State of Haryana and anr), considered the same issue and in paragraph no. 20 held that there is no obligation to call for the viva voce test all candidates who satisfy the minimum eligibility requirement and the Public Service Commission was justified in short listing the candidates for the viva voce test at the ratio of 1:3. It was further held that where there is a composite test consisting of a written examination followed by viva voce test, the number of candidates to be called for interview in order of the marks obtained in the written examination should not exceed twice or at the highest, thrice the number of vacancies to be filed, otherwise conducting of viva voce test would be reduced to a farce as a candidate who is very much lower down in the list on the basis of the marks obtained in the written examination can be given high marks in the viva voce examination to make the rank in the final selection. Thus the procedure adopted by the official respondents in short listing of the candidates at the ratio of 1:3 for filling up 98 vacancies is perfectly legal and valid. Thus issue no. 7 is decided against the appellants and the writ petitioners.
Issue No. 8
24. The appellants as well as the writ petitioners have applied in terms of the notification issued. They have participated in the physical measurement test and after coming out successful they appeared in the written examination and on short listing their names were not included in the list of the candidates eligible for attending the viva voce test by applying the ratio of 1:3. Admittedly the appellants as well as the writ petitioners participated in the selection and appeared in the examination fully knowing that they will be called for the viva voce only if they come within the marks fixed for the short listing of the candidates i.e. three times of the vacancies to be filled up. Their names having not been short listed, it is not open to the appellants as well as the writ petitioners to contend that the short listing at the ratio of 1:3 and the procedure adopted is not valid. A person participating in the selection process after fully knowing the procedure to be followed in the selection cannot turn round and challenge the norms of selection/short listing is the settled proposition of law. The appellants as well as the writ petitioners are estopped from challenging the method adopted by the official respondents, particularly the short listing and insisting for giving separate cut off marks for reserved category candidates. Hon ble the Supreme Court in the decision reported in (2013) 11 SCC 309 ( Ramesh Chandra Shah and ors v. Anil Joshi and Ors) considered the said issue and it is held thus:-
..it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection .
25. A Division Bench of this Court also in LPA 202/2014 decided on 22.07.2015 ( Syed Shabir Ahmad and ors v. State of JandK and Ors) rejected a similar request to call the candidates for viva voce at the ratio of 1:5. In the decision reported in AIR 2015 SCW 3348 (Pradeep Kumar Rai v. Dinesh Kumar Pandey) Hon ble the Supreme Court has held that if a person participated in selection without any demur, he cannot challenge the norms/mode of selection if he was not selected.
Issue No.9
26. On meticulous analysis of these 17 questions and their answers we could find that only in two questions the answers given were wrong. Thus there is no necessity to order re-examination.
27. If the questions are vague or incapable of having a correct answer, the candidates who attended the said questions alone can be awarded marks. This is the dictum of Hon ble the Supreme Court in the decision reported in (2005) 13 SCC 749 (Guru Nanak Dev University v. Saumil Garg), wherein in paragraph 12 it has been held thus:-
12. There is yet another problem, namely, that of seven questions which are so vague that they are incapable of having a correct answer. The appellant university, in respect of those seven questions, has given the credit to all the students who had participated in the entrance test irrespective of whether someone had answered the questions or not. We do not think that that is the proper course to follow. It is wholly unjust to give marks to a student who did not even attempt to answer those questions. This course would mean that a student who did not answer say all the seven questions would still get 28 marks, each correct answer having four marks. The reasonable procedure to be followed, in our opinion, would be to give credit only to those who attempted the said questions or some of them. Having regard to the circumstances of the case, we direct that for the students who attempted those questions or some of those questions, insofar as they are concerned, the said questions should not be treated to be part of the question paper. .. .
28. In view of our finding that answers of these two questions (Question no. 26 and 39) out of 45 questions are wrongly framed or the answers given are wrong, marks have to be awarded to all those candidates who have attempted these two questions or one of them in the written examination, and based on the award of such marks to such of the candidates who have attempted these two questions or one of them, the Selection Committee has to redraw the merit list of the written examination and if any candidate comes within the cut off marks already fixed for inviting him/her to appear in the Viva Voce test, they should also be called for the Viva Voce Test and thereafter only the selection shall be finalized.
29. To sum up, we are inclined to dispose of the L. P. Appeal as well as the writ petitions in the following manner:-
As 2 questions ( i.e. for question nos. 26 and 39) out of 45 have been found having wrong answer options, appropriate marks be awarded to all the candidates who appeared in the written examination and have attempted these two questions or one of them, and based on the award of such marks to all such candidates the Selection Committee is directed to redraw the merit list of the written examination and based on the said redrawn merit list, if any candidate comes within the cut off marks already fixed for inviting him/her to appear in the Viva Voce test, they should also be called for the Viva Voce Test and thereafter only the selection shall be finalized.
30. With these directions the appeal as well as the writ petitions stand disposed of. No costs.