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HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

Reserved on 15th July, 2019

Pronounced on 6th August, 2019.

Case no:
i) PIL no.29/2018
ii) SWP no.07/2019
iii) SWP no.457/2019 &
iv) WP(C) no.2255/2019
Alongwith all connected CMs/IAs/CMPs

i) Court on its own motion v State of J&K & ors.

ii) Adil Majid Khan & ors v State of J&K & ors.
iii) Maheena Zahoor & ors. v State of J&K & ors.
iv) Abhishek Singh & ors. v State of J&K & ors.

Coram:
Hon’ble Mr. Justice Ali Mohammad Magrey, Judge
Hon’ble Mr. Justice Tashi Rabstan, Judge
For Petitioners:
i) Mr. Z. A. Shah, Sr. Advocate, & Moksha Kazmi, Advocate, with
Mr. A. Hanan, Advocate, as Court counsels, in the PIL.
ii) Mr. M. Y. Bhat, Advocate with Mr. R. A. Bhat, Advocate, in SWP no.07/2019;
iii) Mr. R. A. Jan, Sr. Advocate, with Ms. Sharaf Wani, Advocate, in SWP no.457/2019;
v) Mr. Sunil Sethi, Sr. Advocate, with Mr. Mohsin Bhat, Advocate in SWP no.2255/2019;
and
vi) Mr. Abhinav Sharma, Advocate, also in SWP no.2255/2019.
For Respondent(s):
i) Mr. D. C. Raina, Advocate General, with Mr. F. A. Natnoo, AAG &
Mr. Sajad Ashraf, GA, for State and PSC;
ii) Mr. Azhar-ul-Amin, Advocate;
iii) Mr. Jehangir Iqbal Ganai, Sr. Advocate, with Mr. Suhail Rashid Bhat, Advocate, for
respondents 4 to 10 in SWP no.07/2019;
iv) Mr. M. A. Qayoom, Advocate, for respondents 17 to 22 in SWP no.457/2019;
v) Mr. Arif Sikander Mir, Advocate, for respondents 11 to 15 in SWP no.07/2019 and 12 to
16 in SWP no.457/2019.

Whether approved for reporting:: Yes / No

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Per Magrey, J:
1. The lis involved in these clubbed matters, principally, concerns the
discontent of a few of the Kashmir Administrative Service (KAS) aspirants,
who have failed to make it to the Personality Test / Interview, asserting,
among other things, faulty evaluation by Digital Evaluation / On Screen
Marking of answer scripts of the candidates in the Jammu and Kashmir
Combined Competitive (Main) Examination held by the Jammu and
Kashmir Public Service Commission from 02.07.2018 to 08.08.2018,
introduced and adopted by the Commission, and thereby alleging a
prejudice resulting in their non-inclusion in the merit list.

2. We think it unnecessary to describe the specific events and the

circumstances which led to the initiation of the suo moto action
commencing the aforesaid PIL. But to highlight the grievance of these KAS
aspirants, some relevant backdrop facts need a narration. Whether the
grievance projected is real or imaginary is the fundamental issue involved,
which would be discussed later in this judgment.

3. The Jammu and Kashmir Public Service Commission (hereinafter,

the Commission) issued notification no.PSC/EXM/2016/52 dated
18.06.2016 inviting online applications from permanent residents of J&K
State for admission to the J&K Combined Competitive (Preliminary)
Examination, 2016 (hereinafter, Preliminary Examination) initiating the
process for selection of candidates to fill up 277 posts of Junior Scale of
J&K Administrative Service, J&K Police (Gazetted) Service and J&K
Accounts (Gazetted) Service (hereinafter, KAS) referred to it by the
Government in the General Administration Department (GAD) vide
communication no.GAD(Ser)Genl/87/2014 dated 17.06.2016. In all 47,122
candidates responded to the advertisement notice. The Commission
conducted the Preliminary Examination on 19.03.2017 in which, out of
47,122 applicants, 36,681 candidates participated. The result of the
Preliminary Examination was notified on 23.04.2017 declaring 6,925
candidates – 25 times the total number of vacancies – as having qualified
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for the J&K Combined Competitive (Main) Examination (hereinafter, the

Main Examination). Consequent thereto, the Commission issued
notification no.PSC/EXAM/2017/26 dated 09.05.2017 inviting online
applications from the candidates who had been declared to have qualified
for admission to the Main Examination. Meanwhile, some representations
had been received from candidates in various subjects complaining errors in
the question papers. This resulted in issue of notice dated 14.06.2017 by the
Commission withdrawing the aforesaid notification dated 09.05.2017.
Subsequently, the result of the Preliminary Examination so notified was
subjected to a change and the revised result was notified by notification
dated 09.08.2017, whereby 429 candidates, who had been declared to have
made the grade to participate in the Main Examination, were dropped and
an equal number of fresh candidates got included in their place in the list.
Thereafter, the Commission issued notification no.PSC/EXAM/2017/49
dated 25.08.2017 inviting online applications from the candidates who had
been declared to have qualified for admission to the Main Examination vide
the notification dated 09.08.2017. The last date for receipt/submission of
such application forms was notified to be 15.09.2017. Subsequently, in
terms of notification dated 06.10.2017, the Main Examination was initially
scheduled to be conducted with effect from 07.11.2017 but, by a subsequent
notice dated 25.10.2017, it was postponed. However, by another
notification dated 07.11.2017, it was notified to be conducted with effect
from 15.02.2018 and it was, in fact, partly conducted.

4. Meanwhile, the candidates who figured in the original result of the

Preliminary Examination, but were not included in the revised result
declared by the Commission, filed writ petition, OWP no.1332/2017,
challenging the aforesaid notification dated 09.08.2017, whereby the
Commission issued the revised list of candidates declared to have made the
grade to participate in the Main Examination. That writ petition was
decided by the learned Writ Court by judgment dated 30.12.2017, holding
the candidates figuring in both the lists / result notifications entitled to apply
for, and to participate in, the Main Examination. That judgment was
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challenged in LPA no.03/2018 which was finally decided by judgment

dated 13.03.2018 delivered by a Division Bench of this Court. The Division
Bench directed cancellation of the Main Examination which was partly
conducted with effect from 15.02.2018, at whatever stage it was on that
date, and made directions to allow the 429 dropped out candidates and those
candidates who had obtained merit in the Preliminary Examination
determined in the process of re-evaluation equal to or more than the marks
secured by the last candidate amongst the said 429 dropped out candidates.
Consequent thereto, the Commission on 15.03.2018 finally declared 9,273
candidates as having qualified for the Main Examination.

5. It is relevant to mention here that during the period the above

litigation was pending in the Court, an important development took place on
07.12.2017 and 28.02.2018 vis-a-vis the Jammu and Kashmir Public
Service Commission (Conduct of Examinations) Rules, 2005 as would be
referred to hereunder after the next paragraph.

6. The Commission on 17.05.2018 notified the conduct of the Main

Examination with effect from 02.07.2018 which concluded on 08.08.2018.
The Commission notified the result of the Main Examination vide
notification no.PSC/Exam/80/2018 dated 04.12.2018 consequent whereof,
the Commission issued e-summons to the successful candidates for the
Personality Test / Interview scheduled to commence from 26.12.2018.
Before proceeding further, a reference to the relevant Rules may be made
together with the development that took place in the meantime, mentioned
hereinabove.

7. The Jammu and Kashmir Combined Competitive Examinations by

the Commission are governed by the Jammu and Kashmir Combined
Competitive Examination Rules, 2008 (hereinafter, 2008 Rules), framed by
the Governor of the State in exercise of the powers conferred in terms of
Section 124 of the Constitution of Jammu and Kashmir. Rule 4 of the 2008
Rules provides that the Examination shall be conducted by the Commission
in accordance with the provisions of Jammu & Kashmir Public Service
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Commission (Conduct of Examination) Rules, 2005 (hereinafter,

Examination Rules, 2005). The 2005 Rules are framed by the Commission
in exercise of the powers conferred on it by Section 133(1) of the
Constitution of Jammu and Kashmir. Reference to other relevant provisions
contained in the 2008 Rules would be made later in this judgment. At this
stage, it would be apt to refer to some of the provisions of the Examination
Rules, 2005. Rule 9 of the Examination Rules, 2005 provides for
appointment of Examiners and framing of instructions by the Commission
to be adhered to by the Examiners and Evaluators. Rule 30 thereof relates to
dispatch of answer scripts along with copy of instructions so framed by the
Commission to the Evaluators for evaluation of the answer scripts and Rule
31 thereof provides for checking of the evaluated answer scripts by the
Secrecy Section of the Commission.

8. On 07.12.2017 the Commission issued notification

no.PSC/EXAM/75/2017 whereby it notified for information of the general
public the insertion of Rule 31A in the Examination Rules, 2005. Rule 31A
so inserted in the Examination Rules, 2005 and notified by the Commission,
provided that the Commission shall gradually switch over to Digital
Evaluation / On Screen Marking (DE/OSM) and to begin with the same
(DE/OSM) to be adopted in such examinations as may be decided by the
Commission on case to case basis. It was further notified that this shall
come into force with immediate effect. Thereafter, the Commission
approved the introduction of the DE/OSM system in its meeting held on
28.02.2018.

9. As mentioned in para 6 above, the Commission declared the result of

the Main Examination held by it pursuant to notification dated 17.05.2018
with effect from 02.07.2018 to 08.08.2018 vide notification
no.PSC/Exam/80/2018 dated 04.12.2018. This notification, inter alia,
notified the date for commencement of Personality Test / Interview with
effect from 20.12.2018 and required the candidates to download the e-
summon letters for the same from the Commission’s Website with effect
from 10.12.2018.
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10. Before the Commission would commence the Personality Test /

Interview of the candidates, the records reveal that the instant PIL was
commenced by order dated 21.12.2018 on the complaint of a few
unsuccessful candidates in the Main Examination with regard to the
DE/OSM so introduced and adopted by the Commission, complaining data
corruption and huge human error. Mr. Z. A. Shah, Sr. Advocate, came to be
appointed as the Court Counsel and Mr. Azhar-ul-Amin was directed to file
detailed counter affidavit meeting the objections pointed out by the
aggrieved candidates and to show cause why the petition be not admitted.
Meanwhile, it was ordered that, till next date of hearing, there shall be stay
of further selection process.

11. Against the aforesaid Division Bench order dated 21.12.2018, the
Commission filed a petition for Special Leave to Appeal no.1493/2019
before the Supreme Court. The Supreme Court by order dated 21.01.2019,
while issuing notice therein, in the interim, ordered that the selection
process can be completed and no appointment will be made. The Supreme
Court also made it clear that the High Court would be free to decide the suo
moto public interest litigation on merits on the date fixed.

12. Consequent to the above, the Commission filed a detailed reply in the
PIL wherein, apart from furnishing a detailed information seeking to meet
the points raised by the aggrieved persons at whose behest the PIL was
commenced, it took a preliminary objection about the maintainability of the
PIL, citing certain judgments of the Apex Court and this Court to the effect
that in service matters PIL cannot be entertained.

13. At the hearing of the PIL on 28.01.2019, it was brought to the notice
of the Court by one of the counsel that some of the aggrieved candidates
had filed a regular writ petition, being SWP no.07/2019. This petition, as
would be referred to later in this judgment, inter alia, sought a writ of
Certiorari to quash Rule 31A of the Examination Rules, 2005. The petition,
obviously, was pending before the Writ Court. Be that as it may, after
hearing the learned counsel for the parties in the PIL, the Court by its order
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dated 30.01.2019, after noticing the judgment of the Supreme Court in

Girjesh Shrivastava v. State of MP, (2010) 10 SCC 707, and a Division
Bench decision of this Court in another PIL no.14/2018, titled Peoples
Welfare Society v. Chancellor University of Jammu, decided on
28.11.2018, observed as under:

“13. Admittedly, the case at hand is a service matter,

therefore, needs a decision first to be taken on preliminary
objection, but the only impediment is pendency of the SLP as we
are not clear as to whether the Hon’ble Supreme Court has left
this Court free to proceed ahead with the case notwithstanding
Special Leave Petition pending before that Court and deal with
the preliminary objection. In our view, the order cannot be read
in essence that the Hon’ble Supreme Court directed this Court to
decide the PIL on its merits whether or not it is maintainable,
therefore, we thought it proper to await further orders with
reference to clarification from the Hon’ble Supreme Court which
may be sought by the parties in appearance.”

Further consideration of the matter was, accordingly deferred till

clarification was sought either by the Commission or by any aggrieved
party from the Supreme Court as to whether, in view of the pendency of the
Special Leave Petition, this Court could proceed to deal with the
preliminary objection regarding maintainability of the PIL. The matter was
ordered to be listed immediately on further orders from the Supreme Court.

14. Meanwhile, another writ petition, SWP no.457/2019, was filed before
the Court by some more unsuccessful candidates, which came up before a
learned Single Judge on 12.03.2019. While issuing notice both in the main
petition and IA no.01/2019 therein, the learned Single Judge reproduced in
the order of the Court the statement made at the Bar by Mr. Azhar-ul-Amin,
who represented the Commission, that the Supreme Court was already
seized of the matter projected in the writ petition, and that the Supreme
Court had directed that the selection process could be completed but no
appointment be made. This order was directly challenged by the petitioners
in that petition before the Supreme Court in the petition for Special Leave
to Appeal no.9541/2019, titled Owais Ahsraf Shah & ors. v the State of
J&K & ors., with Diary no.14855/2019. That petition came up for
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consideration before the Supreme Court on 03.05.2019, and was disposed

of by the Supreme Court together with the earlier SLP (C) no.1493/2019
referred to above, which had been filed by the Commission against the
order dated 21.12.2018 passed in the PIL, by the following order:

“Application for deletion of Proforma Respondent Nos. 5

to 44 in S. L. P. (C) No.9541/2019 is allowed.
Permission to file Special Leave Petition in Diary No.
14855/2019 is granted.
Our order dated 21.01.2019 passed in S. L. P. (C)
No.1493/2019 leaves no room for any ambiguity or doubt that
though the selection process can be finalized no appointment will
be made. What would require to be made clear is that if
appointments are not permissible to be made, the declaration of
the results would be a futile exercise and may give cause to
unnecessary third party rights which we must avoid.
Accordingly, we direct that the result of the selection process
shall not be declared. We also make it clear that the High Court
is free to decide the pending Public Interest Litigation and all
connected cases both on maintainability and merits. We request
the High Court to do so at the earliest, preferably within a period
of four weeks from today.
Both the Special Leave Petitions shall stand disposed of in
terms of the above.
Pending applications, if any, shall also stand disposed of.”

15. Consequent to the aforesaid order passed by the Supreme Court, the
two writ petitions, SWP no.07/2019 and SWP no.457/2019, were ordered to
be listed alongwith the PIL before the Division Bench by orders dated
08.05.2019 passed therein. Similarly, a third writ petition, WP(C)
no.2255/2019 (originally registered at Jammu Wing as SWP no.430/2019),
which was pending before the Jammu Wing of the Court, was transferred in
terms of order dated 07.06.2019 from Jammu Wing to Srinagar Wing to be
clubbed with the PIL.

16. So, this is how the three writ petitions have come to be clubbed with
the PIL. Before stating the case of the petitioners in the three writ petitions,
it needs a mention that some of the candidates, who qualified the Main
Examination, filed miscellaneous applications seeking their arraignment as
respondents in the PIL and the writ petitions. These applications were
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allowed by order dated 23.05.2019. Furthermore, some 13 other

unsuccessful candidates made a miscellaneous petition no.4247/2019
praying for their arraignment as petitioners in SWP no.07/2019, but the
same has remained pending on record without any orders as the counsel
representing them did not make any attempt to press the same. Nonetheless,
they would be covered by whatever decision is made in these petitions. Yet
another miscellaneous petition has been filed by the petitioners in SWP
no.07/2019 on 01.06.2019 for arraying all the qualified candidates in the
Main Examination as respondents in the writ petition through the Chairman
of the Commission. This CMP has neither been numbered by the Registry
nor has it been mentioned during the course of proceedings and hearing of
these petitions, though it remains on record of the petitions.

17. Now that this Court is ordained to decide the maintainability of the
PIL as well as the merit of the case of the petitioners, we deem it
appropriate to first deal with the merits of the case of the petitioners in the
three writ petitions and then, later, to deal with the issue of maintainability
of the PIL. In this connection, we need to state the case of the petitioners in
each of these petitions.

18. There is a common thread of grievance of the petitioners running

through all the three writ petitions which is that they are alleging defect in
DE/OSM of the answer scripts introduced and adopted by the Commission.
In other words, their case is that this system of evaluation is fraught with
errors. Concomitantly, questions are raised about the validity / legality of
the procedure so adopted, its fairness and transparency etc. etc. It is also
alleged that by insertion of Rule 31A in the Examination Rules, 2005, the
Commission has changed the Rules of the game amidst the selection
process which, according to them, it could not do, and that such change has
been made in a surreptitious manner etc. These grievances are sought to be
anchored on the following averments:

SWP no. 07/2019:

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19. It is the case of the petitioners in this petition that it is not possible to
correctly scan each and every page of the answer scripts from top to bottom
and then transmit them to the Examiners. It is averred that since the
candidates have no access to the methodology adopted by the Commission,
there is no transparency in the system and a candidate is not in a position
either to know whether his answer scripts have been wholly transmitted to
the Examiner and evaluated by him, and whether all the questions answered
by him have been marked and evaluated, and whether the totalling of marks
of the answer scripts of the candidates has rightly been done, and how many
marks have been awarded for each answer by the Evaluator. It is averred
that no information in this regard is either available or made known to the
petitioners by the Commission. It is further averred that even physical
inspection of the answer scripts would not show evaluation by the
Examiners as in the system so adopted the marks are not awarded on the
answer script itself. On this count, it is said that there is no transparency or
fairness in the evaluation of the answer scripts written by the Examinees.
Then it is averred that enquiries made by the petitioners have revealed that
the DE/OSM is not a fool proof system. In this connection, it is stated that
the system is still in experimental stage and requires credible evidence
before it could inspire confidence in the candidates. It is averred that the
petitioners in law, under the principles of equality, fair play, good
conscience and transparency have a right to inspect their answer scripts
with a view to be sure that each and every answer is evaluated and marked
by the Examiner as well as to know that totalling of marks has been done
correctly. According to the petitioners, this right of theirs has been denied to
them. Relying on some write up appearing in some website, Portal Straight
Lines, it is averred that the Secretary of the Union Public Service
Commission has said that DE/OSM has not been adopted by the UPSC
because it involves errors. It is averred that the system is also not reliable
because techno savvy hackers can always interfere with the system of
evaluation. It is further stated that in DE/OSM an Examiner is likely to
commit mistakes in evaluation for variety of reasons and the standard of
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evaluation by constantly looking at the Screen of a Monitor is likely to

undergo change when scorers of answer scripts have to be evaluated by an
Examiner.

20. As to the insertion of Rule 31A in the Examination Rules, 2005, it is

stated that since the process of selection had commenced with the issue of
advertisement notice on 18.06.2016, the Preliminary Examination was
conducted in March, 2017 and results thereof had been declared, this Rule
could, at best, be applicable prospectively and could not have been applied
retrospectively. According to the petitioners, by application of such Rule /
system, the candidates have been seriously prejudiced inasmuch as, at no
stage, they were informed about the insertion and adoption of such Rule /
system till the results of the Main Examination were declared. It is further
stated that the advertisement notice clearly stipulated that the selection
process would be conducted in accordance with the Examination Rules,
2005, 2008 Rules and SRO 196 of 2016, therefore, the application of Rule
31A, while the selection process was on, tantamount to changing the
selection criteria amidst the selection process which is not permissible, and
violates not only the terms of the advertisement notice, but also the rights
guaranteed to the petitioners under Articles 14 and 16 of the Constitution.
The petitioners have thus prayed for issue of writ of certiorari to quash Rule
31A of the Examination Rules, 2005 and to declare the DE/OSM
methodology as bad in law, with further direction to the respondents to get
the answer scripts evaluated through subject expert Examiners.

21. It is also averred in this petition that the Commission allowed a group
of students who had opted for Zoology as one of their optional subject to
take re-examination in the paper after cancelling their earlier examination.
It is stated that the cause of holding second examination was totally
unjustified and that the Commission has thus shown favour to the
candidates who opted Zoology as one of their subjects. It is further averred
that the Commission resorted to scaling and moderation, but did not give
out any details about the same to the candidates. Thus, according to the
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petitioners, they have been clearly prejudiced by the methodology so

adopted by the Commission,

SWP no.457/2019:

22. The petitioners in this writ petition also are aggrieved of the
impugned DE/OSM, outsourcing of the process of scanning and online
transmission of the answer scripts to the evaluators, and the consequent
result of the Main Examination declared by the Commission. It is the case
of the petitioners that in terms of the Rules there is no warrant or authority
either for scanning of an answer script and/or evaluation of a scanned
answer script through the mechanism of DE/OSM. It is pleaded that in
order to switch over from manual evaluation to DE/OSM, the Commission
was required to comply with certain imperatives, such as, firstly, there
ought to have been a formal decision taken in that regard; secondly, the
infrastructure ought to have been acquired to leverage the Information
Technology Tools to build a robust DE/OSM system; and thirdly, the
Evaluators appointed under Rule 9 of the Examination Rules, 2005 Rules
ought to have been not only computer savvy, but also fully equipped in
terms of the requisite capacity, capability and technical compatibility for
DE/OSM. The petitioners in this regard have placed on record as annexure
XV the tender notices issued by some of the Public Service Commissions
and Examination Boards in the country to indicate that before switching
over to the DE/OSM system the infrastructural measures are needed to be
initiated. It is averred that so far as the Commission is concerned, there
being no infrastructure in place imperative for a robust DE/OSM sine quo
non for switching over from manual evaluation to DE/OSM, coupled with
the mandate of the statutory rules in force, the act and conduct of the
Commission in outsourcing the DE/OSM of answer scripts of the
competing candidates, including the petitioners, is clearly and manifestly
bereft of any sanction, warrant or authority of law, apart from being
frowned upon by law as abdication of the power and authority as by law
vested in the Commission, rendering the entire exercise void ab-initio.
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23. The further case of the petitioners is that, as per the experts in the
field, marks awarded through DE/OSM may not be reflective of the
physical content of the answer scripts, therefore, the system is riddled with
shortcomings / drawbacks and demerits, fraught with deleterious
consequences of jeopardising the merit position of the competing
candidates. To support the above assertion, the petitioners are relying on
and have placed on record of the writ petition as annexure XVI photocopy
of the views expressed by one Mr. Akhilesh Mittal, Joint Director IT,
Rajasthan Public Service Commission, Ajmer, to Elets News Network
(ENN). According to the petitioners since the entire exercise undertaken by
the Commission in the matter of evaluation of the answer scripts of the
competing candidates is void ab-initio, therefore, it is non-est in law, and
that under Article 14 of the Constitution of India, the petitioners cannot be
allowed to suffer the consequences of such an action which is non-est in
law.

24. The petitioners have, accordingly, inter alia, prayed for declaring the
entire exercise undertaken by the Commission as non-est in law, and to
direct the Commission to assess and evaluate manually the answer scripts of
the competing candidates.

WP(C) no.2255/2019:

25. The foundational facts stated and the grievances raised in this petition
as well as the prayers made are almost identical or similar to the ones in the
aforesaid two writ petitions. In addition thereto, it is averred in this petition
that the Commission did not make a mention of the insertion of Rule 31A
before the Court during the pendency of the earlier writ petition, OWP
no.1332/2017 or the LPA arising therefrom. From this it is sought to be
inferred that the process of DE/OSM was to be adopted in future
examinations, not in the current process. It is the further case of the
petitioners in this petition that the digitalization was programmed in a
manner that only 64 pages in a paper could be digitalized. Contrary to it, it
is stated that in General Studies / Statistics, which was a compulsory paper,
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candidates had utilized more than 64 pages and attached maps and diagrams
with their answer scripts. Thus all the pages of their answer scripts having
not been digitalized, and evaluated, thereby jeopardising their rights. The
other statements/averments made in the petition are almost identical to the
ones taken in the aforesaid two petitions.

26. The petitioners in all these petitions have thus broadly raised the
following points:

i) that introduction of DE/OSM could not have been made

effective retrospectively and it was not intended to be made
applicable to the current selection process;

ii) that the Commission has not visualized that DE/OSM is prone
to data corruption and errors;

iii) that the Commission acted arbitrarily in adopting DE/OSM

without acquiring the requisite infrastructure for the same;

iv) that the Commission outsourced the DE/OSM without

ensuring transparency;

v) that given the quantum of answer scripts, DE/OSM could have

been impossible for evaluators;

vi) that various Courts in the country have deprecated the practice
of adopting DE/OSM of answer scripts;

vii) that the Commission has allowed bar coding of the answer
scripts only on the first page, not on each page;

viii) that use of black ball point pen is a pre-requisite for proper
scanning for DE/OSM. Since the petitioners were not informed
about it before conduct of the Examination and they used blue
pens/pencil impressions, which may not have been captured
correctly in the scanning and digitalization process of answer
scripts, jeopardising their rights;
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ix) that maps/diagrams in the answer scripts have not been

captured during their digitalization resulting in deleterious
consequence for the petitioners;

x) that the petitioners have been deprived of physical verification

and information about evaluation of their answer scripts;

xi) that UPSC despite having best resources goes for manual
evaluation of answer scripts as according to them the DE/OSM
is not error free; whereas the Commission has adopted this
system to the great prejudice of the petitioners when, having
limited number of candidates, it ought to have continued with
manual evaluation;

xii) that the Commission has adopted arbitrary scaling and

moderation without notifying the same;

xiii) that conduct of re-examination in Zoology Paper-I was

contrary to Rules;

xiv) that adoption of Digital Evaluation / On Screen Marking

amidst the selection process tantamount to changing the rules
of the game, which, in law, is not permissible;

xv) that Rule 31A inserted in the Examination Rules 2005, being
violative of the rights guaranteed to the petitioners under
Article 14 of the Constitution, is liable to be quashed.

27. The respondents have filed their respective replies. The Commission
filed a detailed reply in response to the PIL. An identical reply has been
filed by the Commission in the writ petition, SWP no.457/2019. It has also
filed a separate reply in response to WP(C) no.2255/2019 at Jammu where
it was originally filed and numbered as SWP no.430/2019. That apart, the
Commission also filed a supplementary/additional affidavit stating in brief
the steps taken by it from the date of initiation of the selection process till
conduct and declaration of result of the Main Examination. Some of the
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candidates who had qualified for Personality Test / Interview and sought
arraignment in these petitions as respondents also filed their respective
replies. We shall first refer to the responses filed on behalf of the
Commission whether by way of reply in the PIL or the writ petitions or in
the supplementary affidavit on merits of the matter.

28. Some of the general facts stated by the Commission in its reply have
already been narrated in the initial paras of this judgment; we think it
unnecessary to reiterate the same. The stand of the Commission is that,
being a constitutional body, mandated with the duty of making recruitment
for the services of the State in terms of Section 133 of the Constitution of
Jammu and Kashmir, it is competent to make its own procedure for making
selection of candidates. In order to discharge the duties so assigned to it by
the Constitution, the Commission has framed a set of rules called the
Jammu and Kashmir Public Service Commission (Business & Procedure)
Rules, 1980 (hereinafter, the Business Rules) and the Examination Rules,
2005. It is averred that, in order to save time and to declare an error free
result, and also to ensure transparency in the process of selections, the
Commission decided to switch over to DE/OSM of answer scripts of the
Examinations conducted by it on case to case basis to be decided by it. In
this regard, an amendment to the Examination Rules, 2005 was carried out
and made available in public domain by way of notification dated
07.12.2017 whereby Rule 31A was inserted in the said Rules. It is further
stated that keeping in view the scheme of examination process as envisaged
under the 2008 Rules read with the Examination Rules, 2005; and on
analysing the data relating to previous examinations, its staff strength; and
on threadbare discussions with different consultancies; and after obtaining
inputs from other State Public Service Commissions, which have either
switched over to the DE/OSM system or are in the process of switching
over to this system, the Commission approved the adoption of the said
evaluation system in the instant examination in its decision dated
28.02.2018.
17 | P a g e

29. The Commission in its reply has enumerated the various stages/steps
which were involved, required to be, and were, in fact, taken by it in this
behalf at the pre-evaluation stage, the first and the most important task in
this regard being the selection of the Agency / Service Provider. In this
behalf it is stated in the supplementary affidavit that the Commission, with
due consultations held with different State Public Service Commissions and
on being satisfied about the credibility of the Consultancy, it opted for
assignment of the given task to a Consultancy of international standard.
Thereafter, as per the advisory of the Consultancy in question, certain
facilities were arranged and ensured to be available, which are enumerated
in paragraph 2(iii)(b) of the supplementary affidavit and reproduced
hereunder:

i) Scanning location;
ii) Adequate storage space;
iii) Air conditioners;
iv) Furniture;
v) 10-mbps internet Bandwidth;
vi) On time availability of physical answer scripts;
vii) Dedicated resources at scanning centre;
viii) Accurate subject-wise mapping;
ix) Scanning locations with required infrastructure;
x) Accurate and timely delivery of physical answer scripts at the
scanning centre;
xi) Power supply at the scanning locations (raw power alongwith
backup);
xii) Real time issue resolution during receiving of answer scripts;
xiii) Detailed planning of location-wise, subject-wise, day-wise
marker availability;
xiv) 24 x 7 security at the scanning centre locations;
xv) Accessibility of the Agency to the scanning centre location;
and
xvi) Systematic storage of answer books.
18 | P a g e

30. According to the Commission, before the actual scanning of the

Answer Books was done, certain further measures were required to be
taken, which are enumerated in para II(b) at page 17 of the Commission’s
reply to the PIL. These steps / measures are:

i) Collection of the answer books from the students in the

Examination hall;

ii) Packing of the answer books along with the attendance rolls
and the unused material;

iii) Collection of the sensitive material from all the Examination

centres and its receipt in the Secrecy Section of the
Commission. This included getting the material from the
centres located outside the headquarters of the Commission
either by air or in the vehicles hired for the purpose escorted by
the Security / Police Authorities;

iv) Mixing of the answer books received from different centres

and undertaking the exercise in-house to ascertain the data
provided by the Supervisors vis-à-vis attendance of the
candidates, done through association of the staff of the
Commission only after detaching the Part IV of the answer
books, containing the identity of the candidate, and depositing
these corners, duly sealed, with the Chairman so as to ensure
that while cross checking the attendance list, the identity of the
candidates is not revealed;

v) Marking blank pages of the answer books, if any, with red pen
with a view to avoiding any insertion at the later stage;

vi) Stacking in a bundle of 300 answer books in the specially

fabricated trunks and their dispatch to Jammu for purposes of
scanning;

vii) Handing over of the answer scripts, in tranches, to the

Consultancy undertaking the scanning activity, in house, by a
19 | P a g e

Senior Officer of the Commission designated as Nodal Officer

for the purpose;

viii) Receiving, counting and storing of the answer books;

ix) Machine cutting of the corner/spine in a straight line, with
minimal margin, to avoid loss of written text;

x) Scanning of the answer sheets by the Consultancy ensuring

capturing of the quality images ( in pdf, jpg), with the
following automated quality checks to ensure error free
scanning:

a) Checks for count of scanned pages during scanning

process;

b) Checking of the Bar codes of the answer books and

creation of the file name for the scanned images
automatically;
c) Comparison between the inward list and scanned answer
scripts as an additional check for avoiding discrepancy;

d) Auto management of the portion of the answer scripts to

be scanned, obviating the need of cropping of the
images;

e) Auto scanning of both sides of the pages without manual

intervention;

f) Auto generation of the page name;

g) Auto error display in the event of any issue relating to
paper movement during scanning and resumption of the
scanning only after the same is cleared.

xi) Storing the scanned material of answer scripts in the media

device;

xii) Uploading the scanned material of answer scripts in the data

centre of the Consultancy;
20 | P a g e

xiii) Training of the Examiners through mock evaluation,

notwithstanding they being computer literate or otherwise;

xiv) Subject-wise allocation of answer scripts to the Examiners who

were engaged in such numbers as was the requirement
depending upon the number of answer scripts of each subject,
compulsory and optional.

31. Further, it is averred in the reply that with a view to ensuring

transparent and error free evaluation of the answer scripts and result of the
Examination, the Commission took numerous decisions / steps in
consultation with the Consultancy. These steps are enumerated in para II(a)
of the reply which are reproduced hereunder:

i) completion of the task of scanning of answer scripts in a time

bound manner so as to enable start of the process of evaluation
latest by 1st October, 2018;

ii) giving instructions to the Consultancy regarding careful corner

cutting of the answer books for purposes of scanning as
decided, in such a manner as would ensure that the answer
books were handed over back to the Secrecy Section in the
same condition as were handed over to them in the premises of
the Commission;

iii) applying/pasting of independent barcodes in addition to the

barcodes already subscribed on the answer books by the
confidential printer engaged by the Commission, so as to avoid
duplicity/missing of the answer scripts, which could be
verified at different stages with reference to the two barcodes,
one of the Commission already subscribed on the answer
books and the other pasted by the Consultancy;

iv) decided not to upload the scanned data till the time the answer
scripts handed over to the Consultancy for the purpose were
returned by it to the Secrecy Section and counted under the
21 | P a g e

supervision of the Deputy Controller of Examinations of the

Commission;

32. It is averred that the following further steps were taken for the post
evaluation process:

i) After completion of the process of evaluation at the designated

two Hubs, where On Screen Marking was conducted through a
pool of almost 150 faculty members and through four more
evaluators for evaluation of the answer scripts of Kashmiri,
Dogri and Punjabi in respect of which web based digital
evaluation was resorted to at three different places, a thorough
scrutiny, both computer based and manual, was got conducted
through the result team of the Consultancy at the backend and
discrepancies wherever noticed vis-à-vis evaluation of more
than required number of answers as per the question paper rule
were got corrected, which ensured an error free result
formulation;

ii) After conduct of the quality checks by the Consultancy, the

assessed score (data pertaining to the award of the marks to
each bar-coded answer script by the Examiners) was shared by
the Consultancy with the Controller of Examinations and
alongside the unique login ID and password were shared for
maintaining the confidentiality of the data;

iii) After receipt of the above data, the part-IV of the answer books
detached at the pre-evaluation stage and kept under the custody
of the Chairman in terms of the Business Rules of the
Commission were obtained for being scanned and for mapping
the particulars of the candidates on that with the part-III
(answer book data received from the Consultancy in this case
on which the barcodes of the Commission and of the
Consultancy were subscribed);
22 | P a g e

iv) The mapped data so obtained was cross checked with the
master data through specific computer programs. Besides,
cross checking was also done manually on sample basis. It was
ensured that the individual score (Barcode-wise) was not
shared with the result formation team till complete verification
of the present/absentee list was done vis-à-vis the candidates
having appeared in the Examination;

v) The whole exercise was ensured to be conducted under the

supervision of the Controller of Examinations in Secrecy
Section of the Commission.

33. In para 2(iii)(c) of the supplementary affidavit, the Commission has

further enumerated the other measures taken by it for ensuring fool proof on
screen evaluation. It is stated therein that for the purpose of undertaking on
screen evaluation, scanning of answer scripts was the additional process
which had to be accomplished meticulously ensuring evaluation in a fair
and fool-proof manner. It is, however, stated that all the processes prior to
this stage were the same as in respect of the earlier process of evaluation
through manual mode. We have already mentioned some of these steps in
para 29 hereinabove. Notwithstanding that, we notice that the Commission
has enumerated these in the supplementary affidavit more elaborately and
meaningfully, meeting certain vital points taken by the petitioners in their
writ petitions. We, therefore, deem it profitable to reproduce hereunder
these measures taken by the Commission and mentioned by it in para
2(iii)(c) of the supplementary affidavit. These are:

i) Receipt of sensitive material from the examination halls in

respect of all the papers on day to day basis;

ii) Intermixing of these papers, subject-wise, in the strong room

of the Commission under the close supervision of the
Controller of Examinations;

iii) Supplying of the answer scripts to the teams of officials of the

Commission constituted for purposes of corner cutting on day
23 | P a g e

to day basis, keeping in view the capacity of these teams to

perform this job of corner cutting meticulously;

iv) It is stated that the above job was done under CCTV
surveillance, which facility was introduced specifically for this
purpose. The access control system allowing entry of only
authorised officials, who were issued identity cards, was also
introduced for the first time;

v) It is stated that in order to transport the sensitive material, it

was earlier done through stacking in gunny bags, but, this time,
on the intervention of the Chairman of the Commission, it was
decided to transport the material in trunks. Accordingly, trunks
were got fabricated with desired specifications with a carrying
capacity of 300 answer scripts per trunk, with slight variations
depending upon the subject-wise answer scripts that had to be
stored. A trunk-wise inventory is stated to have been prepared
to obviate the possibility of inter-mixing of the answer scripts;

vi) Before start of the process of scanning, the access control and
CCTV surveillance facility was put in place and only the
employees of the consultancy authorised to perform this job
were allowed. This was ensured by way of deputing a senior
level officer next only to the Controller, of the Deputy
Secretary level to Jammu who was made responsible for
dispatch to, and receipt from the scanning centre, established
within the premises of the Commission. Notwithstanding the
capacity of the Consultancy to undertake scanning of answer
scripts of a larger number given the experience gained by it
through conduct of similar processes in respect of other
examination conducting bodies, the number would never go
above 4000 which works out to 400 scripts per scanner per day
with working hours of 10 to 12 hours, meaning thereby 40
scripts, which by any standards is much less than the actual
24 | P a g e

scanning capacity of the heavy duty machines put for the

purposes;

vii) Before undertaking scanning and un-stitching of the answer

scripts by way of spine cutting, a separate team of officials of
the Consultancy undertook the process of bar-coding of the
answer scripts, which was done to ensure the additional
identification of the answer scripts as these answer scripts
supplied to the candidates in the examination halls had pre-
printed Barcodes on the entire answer books, on each sheet.
This was done to avoid the possibility of any mismatch and as
a measure of double check. For this purpose a team comprising
four employees deputed by the Consultancy was engaged;

viii) After completion of the process of subscription of additional

barcodes by the Consultancy and the spine cutting, the process
of scanning was undertaken and it was ensured that till
scanning of an answer script was not done by the person
handling one scanning machine, the second answer book
would not be supplied to him. This was followed in respect of
each employee of the Consultancy handling scanning of
different sets of answer scripts. This is the standard process
followed by the Consultancy as a part of their Standard
Operating Procedure (SOP) to avoid mixing;

ix) For spine cutting a team of four employees was put on the job.
Almost spine cutting @ 1000 scripts per day per person
working out as 90 to 100 answer scripts per hour by one
person, was done;

x) The scanners were job specific designed to capture blue,

black, pencil, images / impressions;
xi) As regards ensuring the scanning of all the pages of the answer
scripts, the scanning system would after completing scanning
of a particular answer script indicate the number of pages
25 | P a g e

scanned which was being tallied with exact number of pages of

the answer scripts. Each and every page of all answer scripts
was scanned;

xii) A particular team in addition to the Barcode generation team,

spine cutting team, a scanning team, was also made available
which would check the quality of scanning and only after its
being sure, the un-stitched answer scripts would be sent back
to another team for stapling, packing of the bundle of answer
scripts in the bags and storing them back in the specially
fabricated trunks before being handed over back to the officer
from the Commission. While handing over the trunks, the bag-
wise detail of the answer scripts was also provided;

xiii) Besides the special electricity transmission line for

uninterrupted power supply, the Genset facility was also kept
available. UPSs were also available for avoiding loss of data
for the period between the power cut and re-supply of
electricity through operation of Genset;

xiv) The process of identification of the Evaluators was done

simultaneously while the Examination process was underway;

xv) Conferences were held, first with the Coordinators who were
engaged to oversee the administrative aspect of the evaluation
process and the Reviewers under whose direct supervision the
evaluators appointed by the Commission had to work. The
Reviewers (Senior most faculty members) as a matter of norm
and as far as possible were engaged in respect of the subjects
having lage number of answer scripts on account of more
number of candidates, which system was, however, dispensed
with in respect of the subjects which required only a single or,
at the most, two to three evaluators;

xvi) After identification of the pool of faculty members, another

conference was held in presence of the Chairman of the
26 | P a g e

Commission where the Hubs were located in which

presentations were made both by Chairman and the Controller
of Examination to sensitize the faculty members about the
nuances of the on screening method of evaluation. This was
followed by power point presentation by the expert team of the
Consultancy and all the doubts whichever arose were cleared
on spot. In this connection detailed instruction sheets were also
supplied to the evaluators;

xvii) The day following the conference was aimed at ensuring

presence of these faculty members at the Hubs, capturing their
details by the Consultancy, generation of the user IDs,
passwords and briefing by the Controller, the expert team of
the Consultancy and the Reviewers;

xviii) Next stage was providing hands on training by the experts of

the Consultancy to the evaluators;

xix) Further, the Consultancy / Service Provider having its own

private network with latest antivirus installed in all the systems
in the utilized Hubs with disablement of USB ports. Thus it has
been ensured that there was no data corruption or data hacking
in the whole process.

It is stated by the Commission that the aforesaid steps taken would

demonstrate the putting in place of a fool-proof mechanism which was
discussed much before undertaking the scanning activity and every requisite
infrastructure was put in place by the Commission as per the requirement of
the Consultancy. The Commission in its reply has further enumerated the
advantages achieved by it in ensuring effectiveness, fairness and
transparency in adopting the system of evaluation in question. The
advantages so enumerated in para (c) at page 19 of the reply are reproduced
hereunder:
i) zero physical space required to store the answer books post
marking;
27 | P a g e

ii) elimination of logistic effort and resource deployment;

iii) courier service eliminated and regret cases of re-routing of the

answer booklets avoided;

iv) elimination of the possibility of loss of the sensitive material;

v) elimination of the possibility of leakage before declaration of
results, because of virtually no manual intervention;

vi) elimination of the possibility of tampering with the final scores

as is the case with the manually evaluated papers;

vii) elimination of the possibility of any answer remaining

unchecked which usually happens in the manual mode of
evaluation in which the answer scripts have to be sent back to
the evaluators for rechecking which consumes time;

viii) elimination of the chances of totalling errors;

ix) reduction in the overall evaluation cycle time;

x) timely declaration of the result due to continuous monitoring

of the progress with reference to daily progress report
generated and shared by the Consultancy;

xi) ensured marking of every page of answer scripts since the

answer scripts after being awarded marks could not get
submitted unless each page of the answer script was gone
through by the Examiner;

xii) elimination of the manual effort put in by the Commission for

verification post evaluation vis-à-vis any question having
remained unmarked, totalling error etc.;

xiii) the Examiners found the system convenient as it:

a) eliminated effort in handling physical answer

books;
b) automated totalling of marks by the System
ensuring zero totalling error;
28 | P a g e

c) eliminated possibility of lesser / over marking of

any question;
d) eliminated efforts, time and human mistakes for
filling final marks;
e) saved at least five additional minutes per paper
due to elimination of efforts towards manually
checking totalling / unanswered portion of the
answer scripts, which resulted in devoting more
time by the Examiner for marking;
f) defining questions as optional / extra ensured
error free marking.

34. As regards the assertions made by the petitioners that UPSC has not
adopted the DE/OSM, it is averred by the Commission in its reply that all
the State Governments in India have accorded general sanction to the
acceptance of honoraria by the officers/experts of their respective States for
the work done in connection with the examinations conducted by the UPSC.
In view of this, it is not necessary for any Government Servant of any State
to obtain formal sanction to do the work assigned to him by the UPSC.
Similarly, it is stated that, the Central Government Servants have a general
sanction to accept the work assigned by UPSC. It is submitted that in this
manner the UPSC has the availability of the services of experts of its choice
which is helpful in ensuring in-house evaluation of answer scripts of
different examinations, more specifically Civil Services Examinations for
which evaluators from the length and breadth of the country of choice are
available and associated with the in-house evaluation of answer scripts by
the UPSC. To the contrary, it is stated that the Commission, in view of the
peculiar situation, whereunder neither the experts in such a large number, as
are required for conduct of the in-house evaluation, become available, nor
can it totally rely upon the scanty human resource pool available in the
State. As such, it is stated that the Commission has to resort to the
mechanism of sending answer scripts to different subject experts outside the
State as has been the practice in the past. It is averred that the Commission
is bereft of such advantages of in-house evaluation of answer scripts;
therefore, it had to explore the other available option which is akin to the in-
29 | P a g e

house system of evaluation which, according to the Commission, to a larger

extent has been achieved by way of designating evaluation Hubs wherein
all the Examiners were invited for conduct of the evaluation. It is averred
that this has also ensured evaluation of answer scripts by the same faculty
member as is offered the appointment as an expert, further obviating the
possibility of evaluation of the answer scripts by any second hand which is
very much possible in the manual system wherein the presence during the
process of evaluation of the faculty member chosen for the job cannot be
monitored. It is stated that in the circumstances alternate feasible / viable
options were explored and it was noticed that all the impediments which the
Commission faced in terms of the availability of the faculty members at the
Commission’s headquarters and shortcomings observed in the manual
evaluation had been overcome by different State Public Service
Commissions, more specifically by Gujarat Public Service Commission,
Rajasthan Public Service Commission and Karnataka PSC by switching
over to the DE/OSM which had helped in achieving the objectives in the
backdrop of which this was introduced. It is averred that in this context the
Commission is not the only Public Service Commission which has
introduced the system.

35. The Commission has further stated that the introduction of the
DE/OSM is not connected, in any way, with the eligibility or criteria for
selection envisaged by the 2008 Rules and prescribed in the advertisement
notice. Therefore, it does not amount to changing the rules of the game
midway during the selection process. It is submitted that the Commission
on due deliberation of the issues with reference to the number of candidates
who appeared in compliance of the judgment of the Division Bench in LPA
no.03/2018, and also keeping in view the logistics required in case of
manual evaluation, more so to ensure evaluation in a fair and transparent
manner, decided to adopt DE/OSM which, in any case, does not amount to
change of the criteria, as is sought to be alleged by the petitioners.
30 | P a g e

36. It is further stated that there is no thumb rule providing for use of
black ball point pen only. At the same time, it is averred that the task of
digitalization of evaluation, which included scanning, was assigned to most
reputed Consultancy of India, having the requisite infrastructure/equipment
to ensure quality scanning. As to the apprehension of data corruption on
account of transfer of data, it is stated that no such instance came forth in
the process upon verification of the sample data of the candidates. It is also
stated that in view of the huge experience of the Consultancy in the field
due to its association with different examining bodies and having
undertaken similar assignments, no such instance has been reported in the
past as well. As such all these assertions of the petitioners are nothing but
their own assumptions and presumptions which otherwise have no legal or
factual foundation.

37. As to the assertion relating to hiring of a Consultancy and

outsourcing of the scanning activity to it, alleged to be outside the ambit of
the Commission and the same having been done without tendering process,
it is stated by the Commission that the Consultancy was chosen after due
consultations held with different State Public Service Commissions in the
country and after ensuring the credibility of the Consultancy. It is submitted
that to the wisdom of the Commission, resorting to the process of open
tender in such a sensitive issue would have compromised the secrecy, which
is of paramount importance, and the Commission would also not have been
able to hire the best available Consultancy having expertise in the field.

38. As regards the allegation of arbitrary scaling and further that the
same was not mentioned in the notification, it is stated that the result was
formulated on the basis of the actual marks obtained by the candidates and
that scaling was not adopted by the Commission.

39. It is further pleaded in the reply by the Commission that the writ
petitions are liable to be dismissed as the petitioners after having
participated in the selection process alongwith other candidates and having
failed to make the grade to be called for the Personality Test / Interview
31 | P a g e

cannot turn around and question insertion of Rule 31A in the Examination
Rules of 2005 or raise any suspicion about the process of evaluation
adopted by the Commission. It is also stated by the Commission that the
selection made by the Commission cannot be challenged or interfered with
unless allegations of mala fides are made and established. It is admitted by
the Commission that in respect of Zoology-I paper, the Commission, in
view of the facts enumerated in notification dated 28.07.2018, had to re-
conduct the examination. It is stated that such act of the Commission is
permitted by Rules.

40. The Commission in its reply filed in response to SWP no.457/2019,

apart from what has been narrated above, has further stated that all pages of
the answer books were bar-coded eliminating the chances of insertion /
replacement of any page. Besides, necessary trainings to the evaluators /
examiners were carried through mock evaluation. In para (iv) at page 3 of
the preliminary submissions contained in their reply to WP(C)
no.2255/2019, the Commission in this behalf has further stated as under:

“iv/ Training to experts & Mock drill:

Subject experts chosen from the prestigious institutions of

the country were either well aware about the digital evaluation
because of being associated in the evaluation process of the
other examination bodies including Public Service Commissions
where On Screen marking of Answer Scripts is in vogue or were
computer literate to understand the nuances of the process
notwithstanding that, pre-evaluation conference both by the
Chairman and Controller of J&K PSC besides concerned experts
of the Consultancy to power point presentations. This was
followed by mock drill involving evaluation of dummy answer
scripts. After adequate training to the satisfaction of the
Consultancy, the actual process of evaluation was started.”
41. It is further averred in the aforesaid reply that rechecking facility is
available in OSM as RTI link by which the candidates can see their
evaluated answer book alongwith marks awarded to each question. This is
repeated by the Commission in para II(a)(vi) at page 17 of their reply to
WP(C) no.2255/2019 in the following words:
32 | P a g e

“The candidates can inspect both original answer manuscript

and evaluated manuscript through a facility known as ‘RTI Link’
after the final selection list is recommended, so the right of
inspection has not been taken away by the Commission as has
been alleged. Candidates can see the question-wise marks and
total marks awarded to their answer script through ‘RTI Link’.”

42. In para II(a)(vii) at page 17 of their aforesaid reply, the Commission

has also denied that almost all candidates among the 2348 candidates who
were allowed to appear in the Main Examination on the direction of the
Court in the LPA no.03/2018 have qualified the said Examination. It is
stated that out of 2348 candidates only 78 candidates qualified the Mains,
which comes to just 3.32 %. It is further averred that out of 6925
candidates, 885 candidates qualified the Mains Examination which comes
to 12.77%.

43. As to the statement made in ground (d) of WP(C) no.2255/2019 that

various courts have deprecated the practice of adopting On Screen
Evaluation, it is stated that perusal of these judgments relating to On Screen
Evaluation process conducted by various examination conducting bodies
clearly suggest that none of such judgments fit in the facts of the present
case and all such judgments are based on specific facts of the given cases.

44. Now, coming to the replies filed by the private respondents, namely,
those of the few candidates who have been declared successful in the Main
Examination and have sought impleadment in these petitions, The private
respondents 4 to 10 in SWP no.07/2019, in their reply, among other things,
have stated that the petitioners have no case or cause and none of their
rights have been violated; that the relief prayed for by the petitioners is not
countenanced by law; that the contentions raised by the petitioners are an
afterthought; that the Commission had vide notification dated 07.12.2017
notified for the information of general public that Rule 31A was inserted
which provided for gradual switching over to DE/OSM; that the mode and
method of evaluation adopted by the Commission was to the knowledge
and notice of the petitioners; that it is only after the petitioners failed to
qualify the Main Examination that they have turned around and filed the
33 | P a g e

writ petitions; that the petitioners have levelled vague and bald allegations
against the mechanism, methodology and procedure adopted by the
Commission; that the Commission is within its powers to amend the
Examination Rules, 2005; that the decision to insert Rule 31A after Rule 31
in the Examination Rules, 2005, has been taken by the competent authority
for ensuring transparent and error free result; that in view of insertion of
Rule 31A in the Examination Rules, 2005, the Commission is not required
to get the answer scripts manually evaluated; that the Commission has not
adopted any unfair procedure, nor has it acted in contravention of any law;
that none of the rights of the petitioners under Article 14 of the Constitution
have been violated; that automation of the evaluation workflow enables the
creation of a transparent process that comes with a high degree of security;
that the petitioners had, admittedly, responded to notification dated
09.05.2017 in terms whereof applications were invited from the candidates
who were shortlisted in the Preliminary Examination for admission to the
Main Examination; that the notification dated 09.05.2017 provided that the
Examination would be conducted in terms of the Examination Rules, 2005,
as amended from time to time; that the notification in terms whereof Rule
31A was inserted in the Examination Rules, 2005, was duly published and
the petitioners had notice of the fact that the Commission was switching
over to the DE/OSM in such Examinations as may be decided by the
Commission; that the allegations of arbitrariness, irregularities and
omissions in the process of DE/OSM adopted by the Commission have not
been made out; that such allegations are misconceived, motivated and based
on assumptions and presumptions; that the petitioners appeared in the
Examination which was conducted after insertion of Rule 31A. It is stated
by the respondents that once a candidate takes a chance and participates in
the selection process, only because the result is not palatable to him, the
candidate cannot turn around subsequently and contend that the process has
been unfair; that the conduct of the petitioners disentitles them from
questioning the selection process as, having participated in the selection
34 | P a g e

process, they have waived their right to question the methodology adopted
by the Commission.

45. The private respondents 11 to 15 in SWP no.07/2019 in their reply-

affidavit have stated that incorporation of Rule 31A in the Examination
Rules, 2005, does not, in any way, impair or take away any existing right of
the petitioners as on the date of incorporation, i.e., 07.12.2017 or even
thereafter, which is sine qua non for invoking the principle that rules of the
game cannot be changed after the game has started. It is stated that the
petitioners in their pleadings have also not stated as to what prejudice has
been caused to them by incorporation of Rule 31A in the Rules, and that
merely because that Rule or condition has been inserted governing the
examination process after advertisement notification has been issued does
not ipso facto amount to invocation of the aforesaid salutary principle of
law.

46. It is next averred by these respondents that Digital Evaluation and On

Screen Marking are two distinct things, in that the Digital Evaluation is an
innovative software solution which automates manual evaluation where the
computer software itself evaluates the answer scripts without any human
intervention; whereas On Screen Marking is marking of answer scripts on
screen or e-marking which allows the examiner to view and evaluate
answer scripts on the computer and return the marks over the internet;
thereby On Screen Marking also involves manual evaluation. The
respondents, in light of the above, state that it is, therefore, wrong on the
part of the petitioners to plead that digital evaluation has been resorted to
which is factually wrong. It is further stated by them that, in fact, On Screen
Marking is permissible under Rule 30 of the Examination Rules, 2005
itself.

47. These respondents have also stated in their reply that the contention
of the petitioners as to the applicability of Rule 31A in the present selection
process is an afterthought. In this regard it is submitted that the Commission
notified the insertion of Rule 31A vide notification dated 07.12.2017 for
35 | P a g e

information of general public. The petitioners accepted it and, having the

knowledge of the existence of the said Rule, they participated in the Main
Examination. The petitioners did not challenge the applicability of the Rule
when it was notified on 07.12.2017; instead accepted it. It is only when they
could not qualify the Main Examination that they have decided to take
shelter under the premise of inapplicability of the Rule in the Main
Examination, 2016. The petitioners’ conduct having been acquiescent, they
cannot be allowed to question the applicability of the Rule at this stage.

48. Respondents 16 to 21 in their objections/reply have said that the writ

petition is liable to be dismissed because it is settled proposition of law that
when a candidate has taken a calculated risk and has participated in the
process of selection, but has not made the grade, he is estopped under law to
challenge the same after he was declared unsuccessful in getting selected. In
addition to stating the relevant factual events narrated above, the
respondents have stated that the petitioners have no right to challenge the
procedure of On Screen Marking introduced and adopted by the
Commission. It is averred that Rule 31A inserted in the Examination Rules,
2005, in terms of notification dated 07.12.2017 clearly provides that such
marking can be adopted in such examination as may be decided by the
Commission on case to case basis, and once the Commission decided to
adopt the system in the Main Examination, 2016, the petitioners having not
raised any objection against the same, they cannot question the same after
having failed in the examination; they are estopped from doing so. It is also
stated that in furtherance to Rule 31A, the Commission on due deliberation
of the issue, in its meeting held on 28.02.2018 approved the proposal of its
Examination Section relating to introduction of the On Screen Evaluation
received from the service provider. It is further their case that the
introduction of On Screen Marking by the Commission is meant to ensure
more transparency and fairness in the process of evaluation. The petitioners
have challenged Rule 31A of the Examination Rules, 2005 on unfounded
and baseless grounds; therefore, the writ petition is grossly misconceived
36 | P a g e

and liable to be dismissed. These respondents have also adopted the detailed
reply filed by the Commission.

49. We heard the learned Advocate General and the learned counsel for
the parties; perused the respective pleadings of the parties, the material
placed by them on record of the writ petitions and the original record
produced by the Commission; and considered the matter.

50. The whole controversy involved herein, as already mentioned,

revolves round the method of evaluation adopted by the Commission in
assessing the comparative merit of the competing candidates in the Main
Examination of the Combined Competitive Examination, 2016. Rule 31A
inserted by the Commission in the Examination Rules, 2005 mentions
switching over to Digital Evaluation / On Screen Marking. We may at the
very outset say that there is some amount of confusion in the minds of the
petitioners and, of course, even some of their counsel about the nature and
functionality of this system which has given rise to certain misconceptions
leading to unfounded apprehensions and assumptions. Respondents 11 to
15, represented by Mr. Arif Sikander, Advocate, in their reply have stated
that Digital Evaluation and On Screen Marking are distinct. Given the fact
that the Commission has actually resorted to On Screen Marking
methodology, we are not concerned with real technological connotation of
the term Digital Evaluation. It would suffice to say that in context of the
matter pending before us and the reply submitted by the Commission, it
becomes axiomatic that the term Digital Evaluation has been
interchangeably used for On Screen Marking. So what is On Screen
Marking? On Screen Marking is a method where an answer script is
electronically transmitted to an Examiner/Evaluator who evaluates it on
screen and marks it on the screen itself and returns the marks to the source.
It is not that any software is used to evaluate the answer scripts without any
human intervention; evaluation is rather done by an expert in the subject in
the same manner as was done conventionally. As rightly put by respondents
11 to 15, represented by Mr. Arif Sikander, Advocate, in their reply, in the
37 | P a g e

conventional system original answer scripts were sent to the

Examiners/Evaluators for evaluation and marking; whereas in the On
Screen Marking system soft copies of the same are sent to them for
evaluation. So evaluation of an answer script, as in the conventional
method, is actually done by an expert – a human – in the On Screen
Marking as well, and the marking, i.e., award of marks by the
Examiner/Evaluator, instead of writing on the answer script, is made
electronically. So the clamour of the petitioners in this regard is unfounded,
misconceived and unnecessary.

51. Mr. Arif Sikander, learned counsel for the aforesaid respondents has
also taken a legal point as to the connotation of the words ‘answer scripts’
used in Rule 30 of the Examination Rules, 2005 in context of the use of
technology now, namely, electronic transmission of the answer scripts
followed by On Screen Marking of such answer scripts. However, in light
of insertion of Rule 31A in the Examination Rules, 2005, which now forms
as good and enforceable provision of the Rules in question as Rule 30, we
need not go into the question whether or not the words ‘answer scripts’ used
therein would mean either hard copies or soft copies thereof. Presently we
shall proceed to examine the allegations of the petitioners that such marking
system is prone to errors, there can be data corruption etc., and that
irregularities have been committed in the process.

52. The most part of the grievance of the petitioners in writ petition,
SWP no.07/2019, is founded on their contemplations/assumptions of
unreliability and ineffectiveness of the On Screen Marking System,
inasmuch as they have expressed series of apprehensions in the writ
petition, though unsupported by any material, muchless a plausible material.
More or less, so is also the case of the petitioners in the other two writ
petitions. The apprehensions and assumptions expressed by the petitioners
have been already detailed out while narrating their pleadings hereinabove.
We feel it unnecessary to reiterate the same here. And we are of the opinion
that the Commission has effectively and sufficiently met and dispelled those
38 | P a g e

apprehensions etc. by detailing the steps and measures taken by it for an

error free, fair, transparent and speedy evaluation of the answer scripts
narrated by us from paras 28 to 42 hereinabove. However, that may not be
sufficient for the petitioners. So let us examine the materials the petitioners
themselves have sought to produce to buttress their assumptive assertions
and apprehensions.

53. The petitioners in SWP no.07/2019 have appended with their petition
the press cutting of e-Paper of Greater Kashmir dated Wednesday, March
13, 2019 containing the press statement of the Chairman of the Commission
divulging the standard of the infrastructure utilized by it and steps taken by
the Commission to get the answer scripts evaluated on screen. Having
reproduced the salient points of the press statement so made by the
Chairman of the Commission in para 18 of the writ petition, the petitioners
in para 19 have stated that since they have no access to the methodology
adopted by the Commission, there is no transparency in the system and no
candidate is in a position to have any information either with regard to his
answer scripts, as to how the evaluation has been done and whether all the
questions answered by the candidates have been marked and evaluated and
whether the totalling of marks has rightly been done. The petitioners seem
to be oblivious to the fact that in the very same press statement relied upon
by the petitioners, the Chairman had clearly stated that “even after
technological advancements, in terms of our own regulation, we also
adopted manual checks and in this system also, we found no mistakes”. Not
only that, he had also stated that “some candidates had later approached the
Commission through representations and we again conducted checking and
found no variation in the results. So, I want to tell the youngsters that our
system was completely error-free”. The petitioners have not refuted this
statement and the factum stated by the Commissioner therein. The press
cutting further, quoting the Chairman as having said so, had reported as
under:

“Making it clear that although the allegations regarding

discrepancies in Combined Competitive (Mains) Examination-
39 | P a g e

2016 are completely unwarranted, Deva said it will, still,

provide an opportunity to the aggrieved candidates to project
their concerns by making a (representation). He asked the
candidates to mail a formal representation to the Commission
within 3 days mentioning their Roll Number and Name so that
re-verification vis-à-vis the evaluated scripts is done, as a matter
of abundant caution.”

Given the above statements made by the Chairman of the Commission,

reported in the press cutting, relied upon by none other than the petitioners
themselves, it cannot, and should not, lie in their mouth that there is no
transparency in the system or that no candidate is in a position to have any
information either with regard to his answer scripts, as to how the
evaluation has been done and whether all the questions answered by the
candidates have been marked and evaluated and whether the totalling of
marks has rightly been done. It is not their case that in response to this
statement of the Chairman of the Commission they had mailed their
representations, but there was no response. Obviously, therefore, the
apprehensions and assumptions, casting aspersions on a constitutional body
like the Commission, are nothing but a ploy to, somehow, bring it,
unnecessarily and without any justifiable cause or reason, to public
disrepute. In any case, the grievance of the petitioners on this count is
unfounded and baseless.

54. It may also be mentioned here that it is not that introduction and
adoption of On Screen Marking system has brought about any change in the
right of a candidate conferred on him in terms of the relevant provision of
the Examination Rules, 2005. He continues to have that right even after
adoption of On Screen Marking, which is scrutiny of marks, in terms of
Rule 33 of the Examination Rules, 2005. The said Rule, however, did not
confer a right on the competing candidates to have access to the answer
script and to know how the evaluation has been done; the right so conferred
is limited to getting the marks scrutinized by the Commission itself and
rechecking of his results, including the totalling of marks, and there is a
mechanism laid down in Rule 33 for it. We deem it appropriate to quote
Rule 33 hereunder:
40 | P a g e

“33. Scrutiny of marks

(a) Any candidate, who had taken the Examination, may
apply to the Controller of Examinations for scrutiny of
his marks and rechecking of his results. Such
applications shall be made within one month of the
date of publication of the result in the J&K
Government Gazette.
(b) All such applications shall be accompanied by a
demand draft drawn from any branch of the Jammu
and Kashmir Bank Ltd. on account of rechecking fee
as may be prescribed by the Commission from time to
time.
(c) On receipt of such applications the Controller of
Examinations will examine the Answer Books of the
candidate concerned and see whether the Evaluator has
made any error in totalling the marks awarded by him
or has left any question unmarked.
(d) If the Controller of Examinations finds that the
Evaluator has not while examining the scripts
committed any such error or omission as mentioned in
sub-rule (c) he shall reject the application and
communicate the results of the scrutiny to the
candidate. A report in this regard shall be placed
before the Commission at the end of each
examination:
Provided that in case a candidate still feels
aggrieved he/she may make a representation to the
Chairman who may, if necessary, give an opportunity
of being heard to such a candidate and take such action
as may be appropriate.
(e) If, it is found that the Evaluator has left any question
unmarked, the Controller of Examinations shall send
back the answer book of the candidate to the Evaluator
for marking, and after the receipt of the report of the
Evaluator, if the result involves any change,
modification of the same shall be published in the
Jammu and Kashmir Government Gazette.
(f) A candidate shall be entitled to refund of rechecking
fee in case the recheck has materially changed the
outcome of the result in favour of the candidate, of the
paper(s), declared.
(g) On receipt of the answer book under rule (e) the
Evaluator shall not alter the marks already awarded by
him to the answer nor shall he be competent to add any
mark(s).
41 | P a g e

(h) Examinee of a competitive examination can avail the

opportunity under the rule within one month of the
date of publication of the notification relating to the
candidates who have qualified for viva voce test.”

It is thus seen that the above quoted provision in the Examination Rules,
2005 provides a robust mechanism and safeguard for a candidate to have his
marks scrutinized within one month from the date of declaration of the
result of the Main Examination. It is, again, not the case of the petitioners
that they had made any such representation under the said Rule, but were
denied this right by the Commission. It appears that instead of availing this
remedy, the petitioners have directly approached the Court levelling
allegations against the methodology of marking unsupported by any
material/evidence.

55. It is also pertinent to mention here that the Commission in its reply
has stated that the candidates can inspect both original answer manuscript
and evaluated manuscript through a facility known as ‘RTI Link’ after the
final selection list is recommended. So the petitioners cannot claim that they
have no chance to know the marks awarded to them.

56. Similarly, the writ petitioners in writ petition, SWP no.457/2019,

have appended as annexure XV to the writ petition certain documents,
professedly, evidencing the measures initiated and undertaken by certain
examining bodies, including some Public Service Commissions, in the
country, to contend that the Commission has not taken such measures,
therefore, the On Screen Marking resorted to by it is clearly antithesis to the
evaluation of answer scripts done in accord with the mandate of law and the
Rules in force. We would come later to the point(s) sought to be raised and
made out by the petitioners in this petition on this count. Presently, these
documents are referred herein only to deal with the point of the OSM
system being prone to errors taken by the petitioners in SWP no.07/2019.
The first of these documents is the copy of a Tender Notice issued by the
Madhya Pradesh Public Service Commission, Residency Area, Indore
(M.P.) 452001 dated 14.10.2016. It reads: as under:
42 | P a g e

“M. P. P. S. C. invites sealed tender for Scanning of Answer

Books and On Screen Marking System.
All interested consulting organizations (Bidders) may
submit Single Bid for following category:
Scanning of Answer Books and on screen Marking
System.
….
….”
This tender notice clearly demonstrates that the Commission is not the only
Public Service Commission in the country which has resorted to On Screen
Marking of answer scripts. In fact, it is specifically pleaded by the
Commission in its reply, and it is carried in the press statement of the
Chairman referred to earlier, as well, that the Public Service Commissions
of Gujarat, Rajasthan and other premier institutions in the country also
resort to this system of marking. It is, therefore, not comprehendible how
can an aspirant of an Administrative Service claim to be, or be, oblivious of
such a technological advancement and application thereof in the world, and
also say since he has no access to the methodology adopted by the
Commission, there is no transparency in the system and no candidate is in a
position to have any information as to how the evaluation has been done.
The name of the system: “On Screen Marking”, itself suggests how the
evaluation has been done. And Rule 31A had given a clear understanding to
the competing candidates how the evaluation would be done.

57. It is the case, rather assumption, of the petitioners in SWP

no.07/2019 that it is not possible to correctly scan each and every page of
the answer scripts from top to bottom and then transmit them to the
Examiners. The answer to this assumption is contained in the aforesaid
Tender Notice, produced not by the Commission, but by the petitioners in
another writ petition. At page 2 of the Tender Notice, against item 3.3,
under the caption “Providing Software”, it gives the specification of the
software to support scanning of the answer books and storing them. Few of
these specifications may be quoted hereunder:
43 | P a g e

“3.3.1.1 One Answer Book will consist of a main book 40

to 52 pages of A4 horizontal (MPPSC Standard)
size and in some cases one or more supplementary
books of 8 pages. For MPPSC State service mains
examination each applicant will be provided with
(i) Three papers of 72 (2 copies of 36 pages each)
pages answer book (ii) Three papers of 48 pages
answer books.
3.3.1.2 Candidates will write on both sides of sheets of
answer book.
3.3.1.3 The 1st page of each Answer Book would be of
OMR type, in which KYC of the candidate and
details of examination will be marked by the
candidate.
3.3.1.4 Every leaf of the Answer Book will have
identification barcode.
3.3.1.5 …
3.3.1.6 …
3.3.1.7 …
3.3.1.8 The scanning of Answer Books will be done as per
agreed SoP by the SPA in the scanning centre.
3.3.1.9 Scanning should be of High Quality and scanned
image should not have any impression of
mechanical fault or scanner parts, shadow, too
light/dark, disproportionate margin, vertical lines,
etc.
3.3.1.10 The scanning solution should provide for automatic
correction of parameters like format / compression
not proper, skew, wrong orientation, error in
automatic cropping, punch hole marks etc. during
scanning.
3.3.1.11 The scanning solution should provide support for
automatic document quality analysis so that any
bad quality document doesn’t get uploaded to the
repository. There should be an independent
software quality check service available as part of
overall scanning solution which shall be used to
audit scanned documents for resolution,
format/compression, orientation etc.
3.3.1.12 All the pages of scanned Answer Book should be in
proper sequence and orientation.
3.3.1.13 Scanning should be done with actual colours not
BW.
3.3.1.14 All the pages of the Answer Books should be
scanned even if pages are blank. Scanning software
44 | P a g e

or an application plug-in should ensure that the

number of pages in scanned Answer Book is equal
to the number of pages of an Answer Book. This
will also ensure accidental miss of pages in Answer
Book.
3.3.1.15 A small team comprising representatives of
MPPSC and SPA will ensure that scanning quality
is at satisfaction level and acceptable to MPPSC.
3.3.1.16 …
3.3.1.17 …
3.3.1.18 All the scanning work will be completed in a single
instance. MPPSC may ask SPA to perform
scanning operation in 2 shifts per day and during
holidays.
3.3.1.19 …
3.3.1.20 …
3.3.1.21 …
3.3.1.22 After completion of scanning work, SPA will
maintain one back up scanning system till the
completion of answer book evaluation work to
resolve any scanning related issue.
3.3.1.23 …
3.3.1.24 After declaration of mains examination result,
interview marks will be added for calculating final
merit list. SPA will provide software for calculating
final merit list as per the logic provided by MPPSC.
SPA will also provide software for the input of
interview marks by the interview board and prepare
final result of selection as per the logic provided by
the MPPS.
…
…”

The specifications of the software and the requirements of the examining

body, quoted above, clearly demonstrate that the assumption raised by the
petitioners is wholly unfounded and baseless. The softwares used for
scanning such answer scripts, their quality of imaging to the satisfaction of
the examining body, storage, transmission etc. – all conceivable aspects
relating thereto – are taken care of by the software. The question may arise
only vis-à-vis the quality of software, but that would depend upon the
requirement of the examining body. For instance, as seen above, the
Madhya Pradesh Public Service Commission has put almost all conceivable
terms and conditions about the quality of the software in the aforesaid
45 | P a g e

tender document; so there can be no scope for any suspicion about the
effectiveness of the software. In one of these petitions it is stated that the
digitalization was programmed in a manner that only 64 pages in a paper
could be scanned. It is not stated in the petition wherefrom such information
was obtained by the petitioners. Be that as it may, as seen from the very
first serial of the above tender notice, quoted above, the magnitude of the
answer books has been even shown as 72 pages plus 48 pages. The
assumption made by the petitioners is belied by the tender document itself.
Further, the aforesaid tender notice against item 3.6 under the heading
“providing infrastructure”, at serial 3.6.1.1 provides a condition that the
SPA will setup a scanning centre on temporary basis with a capacity of
scanning around 75000 answer books in 10 days of time, meaning thereby
that 7500 answer books could be scanned each day. Then there is a
provision that the successful bidder shall undertake training of Head
Examiners / Examiners appointed by the MPPSC for On Screen Marking as
per the sample marking scheme provided by the MPPSC. So this takes care
of the apprehension that Examiners might not have been computer savvy
resulting in prejudice to the petitioners. It is true that this tender notice,
[relied upon by the petitioners in SWP no.457/2019 to canvass the point
that before switching over to OSM, the Commission was required to acquire
the infrastructure as had been done by the Madhya Pradesh Public Service
Commission by dint of the said tender notice], we are discussing here
pertains to Madhya Pradesh Public Service Commission and the grievance
relates to the J&K Public Service Commission, but the fact is that the
Commission in its supplementary affidavit has clearly stated that it held
consultations with different State Public Service Commissions in the
country which had adopted the On Screen Marking System or were in
course of adopting the same, and, on being satisfied about the credibility of
the consultancy, opted for the assignment of the given task to the
Consultancy of international standard. Further, the aforesaid tender notice
shows that the Madhya Pradesh Public Service Commission itself had
sought bids for outsourcing the task, not that it invited tenders for
46 | P a g e

purchasing the infrastructure, and so has the Commission outsourced the

task to a consultancy stated to be of international standard. The Commission
has also, in its reply and supplementary affidavit, detailed out the
precautions and standards it adopted and applied through the Consultancy /
Service provider to ensure error free evaluation. There is nothing before the
Court to suspect the Expert Body, i.e., the Commission, or not to accept its
version on this score or in this regard. If as per the writ petitioners in SWP
no.457/2019, who have relied on this tender notice and, therefore, appended
it with their writ petition, the standards mentioned therein by the Madhya
Pradesh Public Service Commission are satisfactory for that Commission,
the same equally should be befitting the requirement of the Commission of
the State. It is nobody’s case that the Commission had adopted software or
scanners of any lower quality. Assumptions of the petitioners are mere
assumptions, bereft of any foundation, not to speak of any proof.

58. The other document appended with the writ petition, comprising of
16 pages (actually pages 2 to 17 of 53 pages) is a copy of tender notification
issued by Registrar, University of Mumbai. This tender notification
commences with the following words:

“The University of Mumbai invites bids from interested

and qualified firms for providing On Screen Marking of Answer
Books to manage their examination related activities in a
scientific and secured manner in order to bring in transparency,
ease of operations and value to all stake holders…”

Again, at page 6 of the document, under the heading introduction, the

following is stated:

“The University of Mumbai, one of the significant

universities in India, has decided to automate certain key
functions of examination process by On Screen Marking of
Answer Books for all its courses of study as part of their
automation reforms / initiatives using latest technology in order
to bring in efficiency, transparency and ease of work.”
Further, at page 14 of the above document, it states as under:

“A. The objectives of Onscreen Marking Systems is to provide

transparent, secured, cutting, scanning, staking of digitalized
47 | P a g e

answer scripts, publishing, fragmentation of question papers,

digitally allotting marks by evaluators and retrieval of soft
copies as per the request.”

(Underlining supplied)
The above tender notice thus establishes the fact that On Screen Marking
ensures efficiency, transparency, ease of work and secured marking /
evaluation. Again, it is to be borne in mind that this document has been
brought on record by the petitioners in SWP no.457/2019, not by the
Commission. It again belies the apprehensions and assumptions of the
petitioners expressed by them about the effectiveness of the system.

59. The other document placed at page 179 of the same writ petition, is
the Tender document of the Central Board of Secondary Education, New
Delhi, India, issued by it for computer based scanning and marking of
answer books. At page 3 of the document in its Section I under the heading
‘aims and objective’, the document states that the Board has approximately
13,200 schools affiliated with it, including 150 schools in twenty one
countries. Then it proceeds to state that the Board has decided to implement
the On Screen Marking of Answer Books for Class X Board Based
Examination 2013 in first phase and Class XII in second phase in 2014
examination so as to set up new standards of evaluation in the country as
done in the past. The Board is regularly taking initiative for setting high
standards and improving overall quality on a continuous basis to enhance
the quality, speed and transparency in evaluation. So, this document
establishes that On Screen Marking enhances the quality, speed and
transparency in evaluation.

60. At page 192 of the writ petition, SWP no.457/2019, the petitioners
have attached another document with the petition. It is a report published by
the University of Cambridge Local Examinations Syndicate dated Monday,
7 January, 2002 titled On Screen Marking of Scanned Paper Scripts. It is a
report on the trial of On Screen Making made by the said Syndicate. It is
seen that it is a report on the trials of the on screen marking conducted in
the year 2000. Eversince a sea of change, development and advancement
48 | P a g e

has taken place in technology. Therefore, whatever deficiencies might have

been noticed then at the initial stages of the system cannot be relevant today
or be read as authentic. Nonetheless, after the trials were conducted and the
opinion of the Examiners was obtained, the report concluded as under:

“The results indicated that with suitable modifications to the

software used by examiners, screen based marking of whole
scanned paper scripts would be likely to be as reliable as
conventional marking. Individual question marking required
more investigation, particularly for English Literature.
What next?
UCLES is engaged in a programme of research and
development to identify the refinements needed for a production
quality system and the contexts in which screen based marking
is fully valid and reliable. Contracts for the development of
production software have been entered into and we expect to
introduce and ramp up the use of the on screen marking of
scanned paper scripts over the next few years.”
(Emphasis supplied)

This document instead of lending any credence to the apprehensions,

assumptions and allegations of the petitioners, cuts them at the very root,
inasmuch as it clearly states that the University of Cambridge Local
Examination Syndicate expected to introduce and ramp up the use of on
screen marking of scanned paper scripts over the next few years as reliable
as the conventional marking. The documents in the shape of tender notices
issued by various examination bodies in the country, including the Madhya
Pradesh Public Service Commission and the Central Board of Secondary
Education, News Delhi, referred to hereinabove, are a testimony to the fact
that consequent to the research and development that was envisioned in the
aforesaid report, did, in fact, take place, and that advancements have been
made in the technology such that it is reliable in all its facets as the
conventional marking. We may repeat, all that is said above, is established
and substantiated by the documents produced by the petitioners themselves.
It is not the case of the petitioners that what was said by the aforesaid
Syndicate on the basis of trials conducted in the year 2000 still hold good,
and that no advancements have been made in the technology eversince,
49 | P a g e

especially in relation to what was identified in the aforesaid report. At this

stage, we deem it apt to mention some of the features of the aforesaid
report. It is seen that aim of the Syndicate was faster and more flexible
marking and script management process. The first question the report posed
was: What is On Screen Marking of Scanned Paper Scripts? It states that on
screen marking of scanned paper scripts is the process by which paper
scripts are scanned and the images transmitted to an image server. Copies of
these images are then distributed electronically and marked on screen by
examiners. Question-based marks and examiners’ annotations are captured
without manual intervention. The second question posed in the report was:
What do we want it for? The answer was faster and more flexible marking
and script management processes. Then, the third question posed in the
report was: Does it work? It may be reiterated here that the report was about
the trial of the system conducted by the Syndicate. In answer to this
question, the report said as under:

“UCLES’ first major test of on screen marking of scanned paper

scripts was conducted in winter 2000 (though several small
scale trials were conducted before this). The main aims of this
study were to prove the practical possibility of the scanning and
electronic movement of scripts to provide research data
concerning examiner reliability, and to uncover issues, both
technical and human, to be investigated in later stages of the
development of a production system….”.

Everything before us as on date substantiates, beyond any doubt, that what

was conceived way back in 2000 has been achieved, inasmuch as system
has since reached not only to the production stage but has been effectively
and reliably in use to the satisfaction of many an examination bodies in the
country.

61. The above document is followed by a copy of another document

titled RPSC: Leveraging IT to build robust marking system. It is a
policymaker’s perspective, namely, Mr. Akhilesh Mittal, Joint Director, IT,
Rajasthan Public Service Commission, Ajmer, Government of Rajasthan,
50 | P a g e

given by him to Elets News Network. The document is not wholly legible.
The legible part of it is its introduction, which reads as under:

“The paper-based exam marking system follows a tedious and

time consuming process involving several levels of sorting
before bundles of handwritten scripts are delivered to the
evaluators to assess the candidates. To make the process simpler
and efficient, Rajasthan Public Service Commission (RPSC) has
taken an initiative to adopt an on screen marking system that
exploits the latest Information Technology tools to achieve the
desired results.”
So, this document, professedly from an IT Expert, being the Joint Director
of IT, describes On Screen Marking as simpler and efficient. It further
establishes that even Rajasthan Public Service Commission has switched
over to the system.

62. Yet another document is placed on record at page 212 which is from
some writer, titled bizfluent. It writes about advantages and disadvantages
of Scanners. At the bottom of it, it mentions about the author. Mentioning
the name of the author, it states that the author is a freelance writer and
editor, based in a State in United States. The author is stated to have written
on everything from fly fishing to parenting! Not an IT expert; unfortunate –
what nature of documents are sought to be placed before the highest Court
of the State and to prove what? That, Scanners can be bad! Let there be
some seriousness of thought.

63. We have referred to the above documents produced by the petitioners

in one or the other writ petition, only to show that the contents of these
documents relied upon by them, belie all their assumptions, apprehensions
and contentions about the quality of the infrastructure, the On Screen
Marking itself and the various processes involved therein. Apart from their
own documents disproving their assumptions, the Commission, being the
Expert Body in this regard, has extensively detailed the numerous measures
taken by it to employ a suitable infrastructure by engaging the services of a
service provider for scanning and electronically transmitting the answer
scripts to the Examiners, and to get them evaluated by the Examiners
51 | P a g e

engaged by the Commission as per their practice, to ensure fair and error
free evaluation and results. It is reiterated that there is nothing brought on
record, except the boomeranging documents, to doubt the stand and version
of the expert body, i.e., the Commission.

64. It may be reiterated here that the documents referred to hereinabove

from para 54 onwards have been appended by the petitioners in SWP
no.457/2019 with their writ petition to make a point that before switching
over to On Screen Marking system, the kind of infrastructure mentioned in
these documents had to be put in place to build a robust system in the
manner the two examination bodies, viz. the Madhya Pradesh Public
Service Commission and the Central Board of Secondary Education, New
Delhi, had done in terms of the two tender notices, referred to above. Mr. R.
A. Jan, learned senior counsel, submitted that in absence of any such
infrastructure in place for a robust Digital / On Screen Marking, which is
sine quo non for switching over from manual evaluation to On Screen
Marking of answer scripts the impugned evaluation of the scanned answer
scripts as well as the result thereof are void ab initio. In this behalf, it may
be reiterated here that the two examining bodies, cited by the learned senior
counsel, as becomes axiomatic from a bare perusal of the two tender
notices, had not invited the bids for purchase of the infrastructure, but for
outsourcing the On Screen Marking including the different processes
involved therein. In that regard, the two examining bodies gave the
specifications of the IT and electric tools those would need to be used by
the successful bidder in the process of scanning of the answer scripts and
electric transmission thereto to the Evaluators. So it is not a fact that the two
examining bodies had first acquired the infrastructure and then switched
over to the system. In the instant case, it is true, rather admitted by the
Commission, that it did not invite tenders even for hiring a service provider,
but engaged a service provider of international standard after deliberating
its all necessary details with the examining bodies in the country which had
switched over to the system or were in the process of doing so. The
Commission has also stated the reasons why it did not invite open tenders.
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The Commission says that such a course would comprise the secrecy
involved and the efficiency of the infrastructure. We are of the opinion that
the Commission, being an expert body, is the best authority to decide how
things ought to be done. The Court cannot delve into such intricate matters
of the Commission, especially so when it states that it engaged a service
provider of international standard after having consultations with the other
similar examining bodies in the country. Unfortunately, for the sake of
future secrecy, which is at the core of the process, the Commission cannot
divulge the name of the service provider to the public at large. Nonetheless,
having considered the contentions raised in this regard in context of the
materials placed on record and the reply of the Commission, we have no
reason to disbelieve or doubt the Commission that it had engaged a service
provider of good standard and repute, and that the scanning of answer
scripts, transmission thereof to the two Hubs/Examiners, evaluation by the
Examiners thereof on screen, return of the marks awarded by the Examiners
and formulation of the results were done fairly and without any error.

65. There is also a misunderstanding amongst the petitioners that the

Commission had outsourced the evaluation of the answer scripts. That is not
the correct position. The fact is that the Commission outsourced only the
scanning and electronic transportation of the answer scripts to the
Examiners engaged by the Commission itself, as per their practice. It is
their case that they engaged 150 Examiners for accomplishment of the task.
So the misgivings on this count are baseless.

66. It may be mentioned here that at the hearing all the learned counsel
for the petitioners advanced their respective arguments before the Court.
However, Mr. R. A. Jan, Sr. counsel, led the arguments. His first
submission was that Rule 31A inserted by the Commission in the
Examination Rules, 2005 and application and adoption thereof vis-a-vis the
present selection process, which had commenced with the issuance of
advertisement notification dated 18.06.2016, amounted to changing the
rules of the game in the midst which has infringed the rights of the
53 | P a g e

petitioners and greatly prejudiced them in the matter of their selection. He

next submitted that Rule 31A, by its language, reflected the intention that
the Commission was to switch over to On Screen Marking system gradually
and, in any case, it could not have been applied to the current selection
process. The learned counsel laid a great stress on the word “Gradually”
occurring in the Rule, and submitted that the intention discernable from it is
that the object is to prepare the Commission to acquire and develop a robust
infrastructure, arrange manpower, training of such manpower and of the
Evaluators and to get equipped with the knowledge of the system by
utilizing the services of experts / agencies. He further submitted that for
applying Rule 31A, the Commission also needed to take a decision in tune
with the mandate of Jammu and Kashmir Public Service Commission
(Business and Procedure) Rules of 1980 which provide procedure for
transaction of business of the Commission. He submitted that the
Commission did not take a decision to switch over to On Screen Marking as
was required of it and, in any case, no notification in that regard was issued
for information of the competing candidates. It was further argued by him
that the so called decision dated 28.02.2018, stated to have been taken by
the Commission to adopt On Screen Marking system, obviously, is based
on non-agenda item which is not in tune with Rule 3 of the Conduct of
Business Rules of the Commission. It was also argued by him that
outsourcing of evaluation of answer scripts is not permissible under the
rules governing the subject. He also submitted that in terms of the relevant
Rules, the paper setters and evaluators are required to be the same, they
cannot be two different set of persons; that the answer scripts had not been
bar-coded; that the scanning had been done on vertical size papers when the
answer scripts were of horizontal shape. During the course of such
arguments the learned counsel referred to the various Rules governing the
subject. The learned counsel appearing in other writ petitions, namely, Mr.
Sunil Sethi, Sr. Advocate, Mr. M. Y. Bhat, Mr. Abhinave Sharma, also
made their respective submissions on almost identical lines. The learned
counsel cited and relied upon the following judgments:
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i) U. P. Public Service Commission v. Manoj Kumar Yadav,

2018 (3) SCC 706 (Para 10 to 12);
ii) Secy. A. P. Public Service Commission v. B. Swapna, 2005
(4) SCC 154 (Para14 & 17);
iii) Bishnu Biswas v. Union of India, 2014 (5) SCC 774;
iv) P. Kishore Kumar v. The State of A. P., 2016 (6) ALT 408
(Para 20 to 26, 33)
vi) Bharat Singh v. State of Haryana, 1988 (4) SCC 534 (Para
13);
vi) Benny T. D. v. Registrar of Cooperative Societies, 1998 (5)
SCC 269 (Para 15);
vii) Raj Kumar v. Shakti Raj, 1997 (9) SCC 527 (Para 12, 16);
viii) Ashwani Kumar Singh v. U. P. Public Service Commission,
AIR 2003 SC 2661 (para 14).

67. On the other hand, Mr. D. C. Raina, learned Advocate General,

argued the case on behalf of the State and the Commission. Broadly
speaking, the learned Advocate General put forth his arguments on these
lines: that the selections made by an expert body can be challenged only on
the grounds of mala fides and infraction of rules; that no mala fides have
been attributed by the petitioners against the Commission; that no
infringement of any rule or any of the rights of the competing candidates
has been committed in the selection process; that the writ petitions are in
the realm of contemplations and apprehensions; that insertion of Rule 31A
in the Examination Rules of 2005 was duly notified and it was applied with
immediate effect; that the petitioners having participated in the Main
Examination and having failed to make the grade, cannot turn around and
have any grievance against Rule 31A and the methodology adopted for
evaluation; that the petitioners cannot claim any prejudice; that the Rules do
not contemplate inspection of answer scripts by the competing candidates
after they have been evaluated; that the Commission is not obliged to tell
the competing candidates each and every thing at every stage under
principles of natural justice; that switching over from manual to On Screen
Marking during any selection process in currency does not amount to
changing the rules of the game, it is only change in modality; that there has
been no change in the rules of the game; that the decision to adopt On
55 | P a g e

Screen Marking was duly taken by the Commission on 28.02.2018; that the
Experts are appointed by the Commission, Evaluators are selected by the
Commission and the job of the Agency is only to facilitate the use of
technology in transmitting the answer scripts to the evaluators under the
supervision of the Commission; that the Agency selected and engaged by
the Commission has the requisite expertise, technological infrastructure and
is well renowned and reputed; that the Evaluators were trained beforehand
in the On Screen Marking system and they were put to tests before they
could do the actual task of On Screen Marking; that the endeavour of the
Commission always is to select the best and the meritorious candidates. The
learned counsel for the private respondents, namely, Mr. J. I. Ganai, Sr.
Advocate; Mr. M. A. Qayoom, Advocate and Mr. Arif Sikander, Advocate,
mostly argued that the petitioners having participated in the Main
Examination and taken calculated risk, fully knowing about the operation of
Rule 31A, and having failed to make the grade, cannot turn around and
raise a grievance about the method of evaluation adopted by the
Commission and, consequently, the results declared by the Commission.

68. The learned Advocate General cited and relied upon several
judgments already mentioned hereinabove, including some judgments on
the maintainability of the PIL as also the decisions of the Supreme Court in
Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016)
1 SCC 454; and D. Sarojakumari v. R. Helen Thilakam, (2017) 9 SCC 478
for the proposition that once a candidate consciously takes part in a
selection process, he is estopped from challenging the selection process
after he has failed to .make the grade, and that he is deemed to have
acquiesced and waived his right to challenge the same.

69. Similarly, the learned counsel for the private respondents referred to
and relied upon some judgments on the above proposition of law.

70. We will come later to the question whether the Commission has
changed the rules of the game while the game was on. Presently, we would
deal with the arguments raised concerning Rule 31A inserted in the
56 | P a g e

Examination Rules, 2005. There is no dispute that the Commission is the

creation of the Constitution of Jammu and Kashmir and, therefore, a
Constitutional authority. Section 133 of the Constitution delineates the
functions of the Commission. It mandates that it shall be the duty of the
Commission to conduct examinations for appointments to the services of
the State. To fulfil its aforesaid constitutional duty, the Commission has
framed several sets of Rules. One such set of Rules is the Jammu and
Kashmir Public Service Commission (Business and Procedure) Rules, 1980
(Business Rules, 1980), and the other is the Examinations Rules, 2005.
There is also no qualm that the Commission is empowered to frame such
Rules. Rules 3 to 5 of the Business and Procedure Rules, 1980 provide the
procedure for transaction of business of the Commission and Rule 11
thereof provides for record of decisions. We quote Rules 3, 4 and 11
hereunder:

“3. Procedure for transaction of business

The Commission shall meet as often as may be necessary
for the transaction of its business as may be brought formally or
informally before it. Formal agenda will be got prepared and
circulated in advance by the Secretary for consideration of the
Commission. The Commission may meet and consider such
matters as may be brought up before it even in the absence of a
formal agenda. However, action on decisions taken in the
absence of a formal agenda not circulated in advance shall not
be taken until the minutes thereon are confirmed.

4. All procedural matters relating to the business of the

Commission, including the work of fixation of schedules for
interviews and examinations, shall be decided upon by the
Chairman. As soon as dates for any such examination /
schedules are finalised all members of the Commission shall be
apprised of the same.”
“11. Record of decisions
All decisions of the Commission taken at its meeting shall
be recorded by the Secretary. The draft of the minutes shall be
put up by the Secretary to the Chairman for approval; thereafter
the minutes shall be circulated to Members and subsequently
brought up for formal confirmation at the next meeting of the
Commission.”
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From a bare perusal of Rule 3 quoted above, it is seen that the Commission
is authorised to consider such matters as are brought before it even without
a formal agenda. It is not always necessary that there ought to be an agenda,
only then the Commission can consider it and take a decision. The
submission of Mr. R. A. Jan, learned senior counsel, that since the decision
dated 28.02.2018 as to adoption of On Screen Marking of the answer scripts
of the Main Examination, 2016 was taken without there being an agenda
and, therefore, it is void ab initio, is not supported by the Rule and,
therefore, is untenable. It may also be stated here that we have called for
and perused the original record of the Commission in this regard and found
that the Commission has, in fact, taken a decision on 28.02.2018 to adopt
the On Screen Marking system for the answer scripts of the Main
Examination in question. These minutes have been confirmed on
09.03.2018. Rule 4 quoted above, otherwise, empowers the Chairman of the
Commission to decide upon the procedural matters.

71. Mr. R. A. Jan, learned senior counsel, next submitted that the
intention expressed vide Rule 31A inserted in the Examination Rules, 2005,
had to be carried into execution and manifested in a formal decision in the
shape of a notification. He contended that since there was no notification
issued reflecting the decision of the Commission to evaluate the answer
scripts of the Main Examination in question by resort to On Screen Marking
method, it is inferable that there was no decision at all. He submitted that
without notifying the decision for information of the public in general, and
the candidates in particular, resort to On Screen Marking system under Rule
31A could not have been had. We have considered the submission. In this
regard, it simply needs to be reiterated that Rule 31A so inserted in the
Examination Rules, 2005 by the Commission, was duly notified by it for
information of public at large. It also was notified to be immediately
effective. This notification clearly expressed the intention and decision of
the Commission that it would be gradually switching over to On Screen
Marking of answer scripts, depending upon the decision of the Commission
58 | P a g e

on case to case basis. Once the Rule was made effective and operational
with immediate effect, it was applicable from the date of its notification.
Then, thereafter, the decision to switch over to On Screen Marking in the
case of the Main Examination in question was duly taken by the
Commission on 28.02.2018. There is no Rule either in the Examination
Rules or the Procedure Rules of the Commission making it obligatory on
the Commission to notify such decisions as relate to modalities of
evaluation and bring them in public domain. We are of the considered view
that the Commission was not obligated to notify this decision for the
information of the public, for it had nothing to do with any interest or right
of the competing candidates. Learned senior counsel submitted that the
decision taken by the Commission on 28.02.2018 was only to avail the
services of a Service Provider in facilitating On Screen Marking of the
answer scripts; it is not that by that decision the Commission decided to get
the answer scripts of the Main Examination in question evaluated by On
Screen Marking system, as was required of it under Rule 31A. As said
above, we have perused the original record in this regard. The decision
reflects both the approval of the Commission to go for On Screen Marking
as well as the approval to the engagement of the services of the Service
Provider. The submission made is not supported by the
relevant/contemporaneous record.

72. It was next argued by learned counsel for the petitioners, almost in all
the petitions, that Rule 31A inserted in the Examination Rules, 2005, was
prospective in nature and that it could not have been applied retrospectively.
It was argued that the language used in the Rule reflected that the intention
of the Commission was to switch over to On Screen Marking only
gradually, meaning thereby in future and not to the current examination
process. A great deal of stress was laid on the use of word ‘gradually’.
Concomitantly, it was argued that consequently, the system could not have
been applied to current Examination, especially so without arranging the
requisite infrastructure and, in any case, in the midst of the selection
59 | P a g e

process. Let the notification dated 07.12.2017 be quoted hereunder. It read

as under:

“Notification No:PSC/EXAM/75/2017
Dated:07.12.2017
It is hereby notified for the information of the general
public that Rule 31A shall be inserted after Rule 31 of Jammu &
Kashmir Public Service Commission (Conduct of Examinations)
Rules 2005 as under:
‘31 A. The Commission shall gradually switch over to
Digital Evaluation / On Screen Marking and to begin
with the same (DE/OSM) to be adopted in such
examinations as may be decided by the Commission on
cases to case basis.’
This shall come into force with immediate effect.”

The first and the foremost fact discernable from a bare perusal of the
aforesaid notification is that Rule 31A inserted thereby has become
operational with immediate effect. We hope we do not need to explain that
the connotation of the phrase ‘with immediate effect’ means that it began to
apply and was valid immediately with the issue of the notification. It was,
however, submitted that the application of the Rule was prospective in
nature in the sense that it could not be applied to the Examinations
conducted vis-à-vis a selection process which had commenced much before
the date of issue of the notification, way back in 2016. Let Rule 31A be
minutely examined.

73. The Rule 31A, as is seen, comprises of two parts joined by a

conjunction ‘and’: the first part describes the intention of the Commission
as to what it intended to do, which is ‘switching over to On Screen
Marking’. Let us forget, for the time being, about the use of the word
“gradually” in the first part of the Rule; we will come to it later. The second
part of the Rule speaks about as to what the On Screen Marking system is
intended to be applied, when and on what basis. It speaks of and uses the
word ‘examinations’, not ‘selections’ or ‘the selection processes’. Had the
Rule used the words ‘selections’ or ‘selection processes’, one could say that
the intention of the Rule was to switch over to such system in the future
60 | P a g e

selection processes, not the current ones. Instead, the Rule uses the word
‘examinations’ – that too, in plural. One cannot lose sight of the fact that the
Rule had become operational with effect from 07.12.2017. Axiomatically,
therefore, it would be applicable to all Examinations as would fall or be
conducted by the Commission after this date. Admittedly, the Main
Examination was conducted from 02.07.2018 to 08.08.2018, i.e., after the
Rule in question had become operational. Therefore, the On Screen
Marking, as permitted by the Rule, could be applied to the said Examination
as well. Of course, the Rule would not automatically operate vis-à-vis all or
a particular Examination. In this regard, the Rule itself laid a condition,
insofar as it related to the switching over to On Screen Marking, to the
decision of the Commission, that too, ‘on case to case basis’. This means
that though On Screen Marking system was permitted to be applied to all
Examinations falling 07.12.2017 onwards, yet it would depend upon the
decision of the Commission as to which Examination it should be
commenced with and applied. Of course, if the Commission would take a
decision that it would be applied to all Examinations, that would be enough,
but it could also take a decision in this regard ‘on case to case basis’, i.e.,
Examination to Examination.

74. Now coming to the meaning of the word ‘gradually’ used in Rule
31A, much stress was laid on its connotation. It was contended that use of
this word clearly reflected the intention of the Commission not to switch
over to On Screen Marking immediately, but to do so over a period of time.
What is sought to be made out is that this was the impression given to the
candidates by the notification of the Rule in question, and that switching
over to the system in the Examination in question has come as a shock to
the petitioners in that they have been prejudiced. We think there is a
misunderstanding of the meaning of the word ‘gradually’. The word
‘gradual’, as an adjective, means proceeding by steps or degrees; moving or
changing slowly and regularly; slow; and the word ‘gradually’ is its adverb
[The new international Webster’s Dictionary of the English Language,
Deluxe Encyclopaedic Edition, 2004 Edition, published by Typhoon
61 | P a g e

International Corp.]. The word ‘gradually’, thus, is not referable only to

time, it is also equally relatable to space; space, in turn, would be referable
to the spread of the activities. In the context of the activities of the
Commission, it would be relatable to the spread of different Examinations
conducted by it. This can be explained like this: For instance, one says that
“the whole town was gradually inundated by the flood waters”. Here the
word ‘gradually’ is used in context of the coming of the different areas of
the town within inundation slowly and steadily, one after the other. So the
word is not always used in context of time, it is also used in context of
spread of the sphere of activities. The question is whether in context of its
use in the Rule in question, it relates to time or to the sphere of examination
activities of the Commission? One would not need to delve deep to find an
answer to this question. The second part of the Rule which says ‘to begin
with the same (DE/OSM) to be adopted in such Examinations as may be
decided by the Commission on case to case basis’ makes it manifest that
here the word ‘gradually’ has been used in context of variety of
Examinations conducted by the Commission. It is a matter of common
knowledge that the Commission does not conduct the examinations only for
selection of candidates for Kashmir Administrative Services; there are
varied other Services for which Examinations are conducted by the
Commission. For instance, as per the information furnished by the
Commission, after the insertion of the Rule in question, the Commission,
apart from conducting the instant Examination, also conducted the
Examination for selection of candidates for the posts of Assistant
Conservator of Forests, 2018; Range Officers, Grade-I Forest (Territorial),
2015; J&K Civil Services (Judicial) Examination, 2018; Range Officers
Grade-I, Forest (Territorial) 2018; Range Officers Wild Life (Forest) 2018;
Combined Competitive Examination, 2018. And On Screen Marking
system has been adopted for evaluation of the answer scripts in three of
these Examinations, namely, Assistant Conservator of Forests, 2018; J&K
Civil Services (Judicial) Examination, 2018; Range Officers Grade-I, Forest
(Territorial) 2018; whereas the Examination of Combined Competitive
62 | P a g e

Examination, 2018 is stated to be in progress. So the word ‘gradually’ as

used in Rule 31A is particularly relatable to the various Examinations
conducted by the Commission. The Rule confers discretion on the
Commission to apply the system to different examinations, depending upon
its decision, on case to case basis, i.e. on examination to examination basis.
As to the submission that it has prejudiced the petitioners, it is not
comprehendible how would a candidate be prejudiced if he does not know
how the answer scripts are going to be transmitted to the Evaluators and
how the Evaluators are going to assess them. Even prior to adoption of the
system, the candidates would not know the mode of transportation of the
materials by the Commission to the Evaluators etc. Furthermore, their
comprehension of the provision of the Rules would not alter the situation,
or be a ground for them to raise a grievance against the modality of
evaluation adopted by the Commission.

75. It may also be relevant to mention here that the applications for
admission to the Main Examination from the candidates who had qualified
the Preliminary Examination were invited by the Commission vide
notification dated 09.05.2017 read with notification dated 25.08.2017. In
both these notifications, the Commission invited online application from the
candidates who had been declared to have qualified for admission to the
J&K Combined Competitive (Main) Examination, 2016 vide Notification
No.PSC/Exam/2017/44 dated 09.08.2017, inter alia, in accordance with the
Examination Rules, 2005, as amended from time to time. The Examination
Rules, 2005, as noticed, were subsequently amended to the extent of
insertion of Rule 31A by notification dated 07.12.2017 and the Main
Examination was conducted thereafter. That being the factual position, the
petitioners cannot claim any prejudice or ignorance of the amendment and
its application to the Examination in question. It is also relevant to mention
that the petitioners have not felt aggrieved by the aforesaid notification
dated 09.08.2017 to the extent it had notified that the Main Examination
would be conducted in accordance with, inter alia, the Examination Rules,
2005, as amended from time to time.
63 | P a g e

76. It was next argued on behalf of the petitioners that the method and
manner as countenanced by rules is manual evaluation of the answer
Scripts, and not On Screen Marking of scanned answer scripts. It was
submitted that the law is settled that when the statutory Rules mandate a
thing to be done in a particular manner, the Commission is bound to do it in
that manner and, if the rules are violated, the action would be void in law.
To put across this argument, reference was made to Rule 4 of the 2008
Rules and Rules 5 to 12 and 29 to 33 of the Examination Rules of 2005.
Rule 4 of the 2008 Rules provides for the conduct of Examination. It reads
as under:

“4. Conduct of Examination

The examination shall be conducted by the Commission
in accordance with the provisions of Jammu and Kashmir Public
Service Commission (Conduct of Examination) Rules, 2005.”

It may be reiterated here that the 2008 Rules have been framed by the
Governor of the State in exercise of the powers conferred on him by proviso
to Section 124 of the Constitution of Jammu and Kashmir for the conduct of
combined competitive examinations by the Commission. The Rule does not
speak anything about the evaluation of answer scripts. So far as Rules 5 to
12 of the Examination Rules of 2005 are concerned, it is noticed that Rule 5
provides for the procedure to issue the notification inviting applications for
permission to appear in the Examination; Rule 6 deals with the procedure
for submission of the application; Rule 7 deals with refund of Examination
fee; Rule 8 deals with issue of permission card; Rule 9 provides for
appointment of Examiners; Rule 10 provides for appointment of
Supervisory staff; Rule 11 provides for conducting of preliminary objective
type tests and Rule 12 provides for short listing of candidates through
objective type screening. Perusal of these Rules reveals that none of these
deals with evaluation of answer scripts, except that Rule 9 mentions that all
Examiners will be required to strictly adhere to the instructions for setting
the question papers and marking the scripts and these instructions for
setting the question papers and marking the scripts shall be deemed to form
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part of these rules. So it transpires from Rule 9 that the instructions issued
by the Commission for observance of the Examiners would constitute a part
of the Rules, meaning thereby that the same would be enforceable in the
same manner as the Rules themselves. Now, coming to Rules 29 to 33, Rule
29 speaks of dispatch of answer books by Supervisors to the Controller of
Examination; Rule 30 speaks of dispatch of these answer books to the
Evaluators; Rule 31 provides for checking of these answer books after they
have been evaluated by the Examiners and received back at the
Commission from the Examiners, by the Secrecy Section of the
Commission to determine whether the Evaluators have made any error in
totalling the marks awarded by them or have left any question unmarked
and the procedure to be followed on such checking. Rule 32 provides for
announcement of results; and Rule 33 provides for scrutiny of marks and
rechecking of the results on the application of any candidate, who has taken
the Examination. It is true that words ‘answer scripts’ and ‘answer books’
occur in Rules 29 to 33, but it has to be borne in mind that Rule 31A
inserted in the Rules vide notification dated 07.12.2017 is also a part of the
Rules; it is not anything outside the Rules. It rather is the law, enforceable
equally as the other provisions contained in the Rules. What is contained in
Rules 29 to 33 cannot be read and interpreted in insolation of Rule 31A.
Yes, prior to insertion of Rule 31A, the Rules would have to be read in the
sense that whatever is provided therein would be relatable to the original
answer scripts only, but with the insertion of Rule 31A in the Rules, the use
of the words would be referable to either scanned copies of such answer
scripts/answer books or the originals thereof, depending upon the decision
of the Commission whether to go for On Screen Marking vis-à-vis an
Examination or not to which such answer scripts may pertain. Assuming,
tomorrow the Commission takes a decision that On Screen Marking would
be adopted for all Examinations conducted by it, the words ‘answer scripts’
used in Rule 30, which provides for despatch of scripts to the Evaluators,
would be referable to scanned answer scripts, not the original answer
scripts. Similarly, the connotation of the words ‘answer scripts’ used in
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Rule 31, 32 and 33 of the Rules would be understood commensurate to said

decision of the Commission. We may observe here that we cannot be
oblivious of the fact that during the last a decade or two, the global
community has undergone an enormous transformation with the ever
increasing impact of technology in almost every sphere of our lives.
Technology has permeated every conceivable aspect of human life. It has
equally permeated the Education sector and the Examination
mechanism/systems. In such a changing scenario world over, we cannot
afford to live in the past and, at the same time, dream of competing with the
world community. We need to adapt as fast as we can to compete in the
evolving technological requirements in all our facets of life. See, for
example, the use of technology in our justice delivery system; it has brought
a sea of change for the benefit of the public at large. Technology has
brought similar advantages and ease in every conceivable aspect of our
lives. In that scenario, if the Commission has decided to switch over to the
use of technology, we think, it ought to be appreciated, rather than finding
baseless faults in it. Coming back to the Rules, we are of the considered
view that the Rules referred to by the learned counsel for the petitioners
have to be read harmoniously with Rule 31A inserted in the said Rules.

77. The learned counsel for the petitioners also submitted that the answer
scripts provided to the candidates for writing answers contained Bar codes
only on their first page; whereas in On Screen Marking the answer scripts
need to have bar codes on each and every page. It was also submitted that
the answer books supplied to and used by the candidates while taking
examination were horizontal shaped; whereas scanning of these answer
scripts has been done vertically. We have called samples of both the
original answer scripts as well as the scanned copies thereof and have
examined the same. We have found the aforesaid allegations as baseless and
unfounded. Every page of the answer scripts have been bar coded and they
have been scanned in a manner as has ensured that content of every page is
copied in the scanning process.
66 | P a g e

78. A great stress was laid by the learned counsel for the petitioners that
switching over from manual evaluation of the answer scripts to On Screen
Marking by the Commission tantamount to changing the rules of the game
while the game was on. On that count, it was submitted that the candidates
have been prejudiced and, therefore, not only the On Screen marking got
done by the Commission is liable to be declared arbitrary, but also the
consequential result thereof is liable to be quashed. The learned Advocate
General, on the other hand, submitted that the Commission has not changed
any Rules of the game, in as much as neither the conditions of eligibility
have been changed, nor the criteria for selection comprising the stages and
the syllabus for Examinations or the interviews has been changed. He
submitted that the Commission has only changed the modality of
transportation of the answer scripts to the Evaluators, in that instead of hard
copies of the answer scripts, soft copies thereof have been transmitted to
them for evaluation. He submitted that such modality does not come within
the definition of condition of eligibility or the criteria for selection. The
learned counsel for the petitioners sought to buttress their submission by a
number of judgments of the Supreme Court. Let few of these judgments be
discussed. Before that, we would wish to refer to the judgment of the
Supreme Court in Ashwani Kumar Singh v. U. P. Public Service
Commission, AIR 2003 SC 2661, cited and relied upon by Mr. R. A. Jan,
learned senior counsel for the proposition that reliance on decisions cannot
be placed without discussing whether it was rendered in same factual and
legal background. Therein the Supreme Court has quoted the following
words of Lord Denning in the matter of applying precedents, saying that the
same have become locus classicus, meaning a passage considered to be the
best known or most authoritative on a particular subject):

“Each case depends on its own facts and a close similarity

between one case and another is not enough because even a
single significant detail may alter the entire aspect. In deciding
such cases, one should avoid the temptation to decide cases (as
said by Cordozo) by matching the colour of one case against the
colour of another. To decide, therefore, on which side of the line
67 | P a g e

a case falls, the broad resemblance to another case is not at all

decisive.”

Now, coming to the judgments cited at Bar, in Secy. A. P. Public Service

Commission v. B. Swapna, 2005 (4) SCC 154 (with specific reference to
paras 14 & 17), it was held that once a process of selection starts, the
prescribed selection criteria cannot be changed. In that case certain posts
were advertised. The selections were finalised on 02.07.1996. Rule 6 of the
Andhra Pradesh Service Commission (Procedure) Rules, which were
applicable, provided as under:

“The ranking list prepared by the Commission for

selection in a direct recruitment shall remain in force for a
period of one year from the date on which the selection list is
published on the notice board of the Commission or till the
publication of the new selection list, whichever is earlier. The
Commission may select candidates from the ranking list in force
in place of those who relinquish the selection or who do not join
duty within the time given and also new requisitions sent by
appointing authority. However, the Commission shall have the
right to freeze any ranking list for reasons recorded.”

During the currency of the ranking list, on 14.4.1997, 14 more vacancies

were notified. Meanwhile, there was an amendment in Rule 6 with effect
from 30.07.1997 and the amended Rule read as under:

“The list of the candidates approved/selected by the

Commission shall be equal to the number of vacancies only
including those for reserve communities/categories notified by
the unit officers / Government. The fallout vacancies if any due
to relinquishment and non-joining, etc. of selected candidates
shall be notified in the next recruitment.”

The writ petitioner, stating to have figured at serial no.1 in the wait list, and
claiming that she was entitled to appointment, approached the Tribunal. The
Tribunal allowed the Original Application and issued necessary directions
in favour of the applicant. That order of the Tribunal came to be challenged
before the High Court. The High Court, though directed the Commission to
forward the name of the applicant to the Government for appointment to the
post concerned, was of the view that though the rule was amended with
effect from 30.07.1997, it was applicable to the present dispute. It is in the
68 | P a g e

context of the above facts that the Supreme Court in para 14 laid down as
under:

“14. The High Court has committed an error in holding that the
amended rule was operative. As has been fairly conceded by
learned counsel for Respondent no.1-applicant it was the
unamended rule which was applicable. Once a process of
selection starts the prescribed selection criteria cannot be
changed. The logic behind the same is based on fair play. A
person who did not apply because a certain criterion e.g.
minimum percentage of marks can make a legitimate grievance,
in case the same is lowered, that he could have applied because
he possessed the said percentage. Rules regarding qualification
for appointment, if amended during continuance of the process
of selection do not affect the same. That is because every statute
or statutory rule is prospective unless it is expressly or by
necessary implication made to have retrospective effect. Unless
there are words in the statute or in the rules showing the
intention to affect existing rights the rule must be held to be
prospective. If the rule is expressed in a language which is fairly
capable of either interpretation it ought to be considered as
prospective only. ”

Further, in para 17 of the judgment, the Supreme Court has quoted what
was held by it in Maharashtra SRTC v. Rajendra Bhimrao Mandve, (2001)
10 SCC 51. Para 17 is quoted hereunder:

“17. In Maharashtra SRTC v. Rajendra Bhimrao Mandve it was

held as under (SCC pp 55-56, para 5).
‘It has been repeatedly held by this Court that the rules
of the game, meaning thereby that the criteria for
selection cannot be altered by the authorities concerned
in the middle or after the process of selection has
commenced. Therefore, the decision of the High Court,
to the extent it pronounced upon the invalidity of the
circular orders dated 24-6.1996, does not merit
acceptance in our hand and the same are set aside’.”

Obviously, such is not the case here. In the instant case, neither the
eligibility qualifications nor the selection criteria have been changed.
Secondly, the judgment does not fit in the ratio laid down in Ashwani
Kumar Singh v. U. P. Public Service Commission (supra).
69 | P a g e

79. In Bishnu Biswas v. Union of India, 2014 (5) SCC 774, the facts are
that an advertisement was published calling for applications for certain
posts. The recruitment rules only provided for a written examination,
having 50 maximum marks. The written examination was held and the
candidates, who had obtained 20 and above marks, were called for
interview, though such interview was not part of the recruitment process.
For the interview 50 marks were allocated, though not covered by the
recruitment rules. After conduct of the interviews, the final result sheet was
published in pursuance whereof appointment letters were issued to the
appellants before the Supreme Court. The unsuccessful candidates
challenged the said appointments before the Tribunal. The Tribunal quashed
the appointments. The appointees challenged the order of the Tribunal
before the High Court. The High Court upheld the reasoning of the
Tribunal, but modified the order to the extent of continuing the recruitment
process from the point it stood vitiated. In pursuance of the judgment of the
High Court, termination letters were issued to the appointees who filed SLP
before the Supreme Court. It was in the context of the above facts, wherein
though recruitment rules did not provide for conduct of interviews or
allocation of 50 marks therefor, and that the concerned recruiting authority
had done so and thus changed the selection criteria, that the Supreme Court
said that the rules of the game had been changed after conducting the
written test. It was also found that that marks awarded in the interview
lacked transparency. In the instant case, it is reiterated, the selection criteria
have not been changed. Therefore, the judgment is not attracted.

80. The decision in Benny T. D. v. Registrar of Cooperative Societies,

(supra) was cited for the proposition that when recruitment to posts is
governed by statutory rules framed in exercise of power under proviso to
Article 309 of the Constitution, the said Rules must be strictly adhered to or
else the appointments would be struck down for not being in conformity
with such statutory rules. There can be no reservation insofar as the
principle of law is concerned, but, the fact is that in the instant case there
has not been infraction of any statutory rule framed by the Governor under
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proviso to Section 124 of the Constitution of Jammu and Kashmir, namely,

the 2008 Rules.

81. The learned counsel for the petitioners also cited and relied upon the
following judgments: Kunjukunju v. State of Kerala, (2015) 11 SCC 440.
This judgment holds that a candidate on making application for the post
pursuant to an advertisement does not acquire any vested right for selection.
If he is eligible and is otherwise qualified in accordance with the relevant
rules, he does not acquire right for being considered for selection as per
existing rules. The Apex Court in the said judgment, referring to its earlier
decision in N. T. Kevin Katti v. Karnataka Public Service Commission, said
that the Court has made it clear that if the recruitment rules are amended
with retrospective effect during the pendency of the selection, in that event
the selection must be held in accordance with the amended rules. We are of
the opinion that this judgment does not help the petitioners.

82. The next judgment cited and relied upon is K. Manjusree v. State of
A. P., (2008) 3 SCC 512, This case related to recruitment for posts of
District & Session Judges (Grade II) which were governed by the Andhra
Pradesh State Higher Judicial Service Rules, 1958. The Rules prescribed
quota for direct recruitment, educational qualification etc. but did not
prescribe any criterion for selection. There were, however, Resolutions
dated 24.07.2001 and 21.02.2002 which prescribed criteria for selection of
candidates. According to prescribed criterion, there were 75 marks for
written examination and 25 for interview. It was decided vide Resolution
dated 30.11.2004 that existing criterion would be followed, but while
holding written examination, 100 marks were prescribed instead of 75. The
High Court, on the administrative side, made two changes after the written
examination and interviews were over. First, marks for written examination
were proportionately scaled down so as to maintain ratio between written
examination and interview as 3:1 (75:25) instead of 4:1 (100:25). This was
done because original criterion prescribed 75:25 ratio. Secondly, it
introduced minimum qualifying marks for interview also. This resulted in
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reshuffling of selection list. The Supreme Court considered effect of these

resolutions and concluded that the Resolutions dated 24.7.2001 and
21.2.2002 provided qualifying marks for written examination only but not
for interview. It held that introduction of requirement of minimum marks
for interview, after the entire selection process, consisting of written
examination and interviews, was completed, would amount to changing the
rules of the game after the game was played. In para 33 of the judgment, the
Supreme Court observed: “What we have found to be illegal, is changing
the criteria after completion of the selection process, when the entire
selection proceeded on the basis that there will be no minimum marks for
the interview”. In para 32 of the judgment, the Supreme Court observed as
under:

“32. In Maharashtra, SRTC v. Rajendra Bhimrao Mandv

[(2001) 10 SCC 51, this Court observed that ‘the rules of the
game, meaning thereby that the criteria for selection cannot be
altered by the authorities concerned in the middle or after the
process of selection has commenced’. In this case the position is
much more serious. Here, not only the rules of the game were
changed, but they were changed after the game had been played
and the results of the game were being awaited. This is
unacceptable and impermissible.”
The above judgment clearly lays down that the rules of the game mean the
criteria for selection. Since the criteria for selection has not been changed,
the judgment is not attracted to the facts of the instant case.

83. The learned counsel next cited the Apex Court judgment in Bedanga
Talukdar v Saifudullah Khan, , AIR 2012 SC 1803, for the proposition
that the terms and conditions of advertisement notice are to be strictly
followed and cannot be relaxed or taken lightly. The backdrop in which the
above judgment was rendered by the Supreme Court can be gathered from
the following paras of the judgment:

“28. We have considered the entire matter in detail. In our

opinion, it is too well settled to need any further reiteration that
all appointments to public office have to be made in conformity
with Article 14 of the Constitution of India. In other words,
there must be no arbitrariness resulting from any undue favour
72 | P a g e

being shown to any candidate. Therefore, the selection process

has to be conducted strictly in accordance with the stipulated
selection procedure. Consequently, when a particular schedule is
mentioned in an advertisement, the same has to be scrupulously
maintained. There can not be any relaxation in the terms and
conditions of the advertisement unless such a power is
specifically reserved. Such a power could be reserved in the
relevant Statutory Rules. Even if power of relaxation is provided
in the rules, it must still be mentioned in the advertisement. In
the absence of such power in the Rules, it could still be provided
in the advertisement. However, the power of relaxation, if
exercised has to be given due publicity. This would be necessary
to ensure that those candidates who become eligible due to the
relaxation are afforded an equal opportunity to apply and
compete. Relaxation of any condition in advertisement without
due publication would be contrary to the mandate of equality
contained in Articles 14 and 16 of the Constitution of India.
29. A perusal of the advertisement in this case will
clearly show that there was no power of relaxation. In our
opinion, the High Court committed an error in directing that the
condition with regard to the submission of the disability
certificate either along with the application form or before
appearing in the preliminary examination could be relaxed in the
case of respondent no.1. Such a course would not be permissible
as it would violate the mandate of Articles 14 and 16 of the
Constitution of India.”

This judgment, viewed in context of the law laid down in Ashwani Kumar
Singh v. U. P. Public Service Commission (supra), is not at all attracted to
the facts of the present case. As seen, in the above case, it was the High
Court which had made a direction contrary to the advertisement notice
which had the effect of relaxing the condition of eligibility.

84. The next judgment cited is the decision of the Supreme Court in
Hemani Majhotra v. High Court of Delhi, (2008) 7 SCC 11. Therein,
applications were invited by the Delhi High Court for 16 vacant posts to be
filled up by direct recruitment to Delhi Higher Judicial Service. The
advertisement notice mentioned the following selection criteria:

“Delhi Higher Judicial service Examination shall be a two stage

selection process comprising the following:
(a) There shall be a written examination comprising one
paper only of 250 marks. It shall have two parts. Part I
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shall be objective and Part II shall be descriptive.

Syllabus for written examination shall comprise
General Knowledge, Current Affairs, English
Language and topics on Constitution of India,
Evidence Act, Limitation Act, Code of Civil
Procedure, Criminal Procedure Code, Indian Penal
Code, Contract Act, Partnership Act, Principles
governing Arbitration Law, Specific Relief Act, Hindu
Marriage Act, Hindu Succession Act, Transfer of
Property Act and Negotiable Instruments Act.
(b) Interview/viva voce.
Minimum qualifying marks in the written
examination shall be 55% for General candidates
and 50% for Scheduled Castes and Scheduled
Tribes candidates.”

After the written examination was over, the candidates were called for
interview. However, it was postponed. Meanwhile, the Selection Committee
resolved that as it was desirable to prescribe minimum marks for the viva
voce, the matter be placed before the Full Court. Accordingly, the matter
was placed before the Full Court for considering the question whether
minimum marks should be prescribed for viva voce test. It resolved as
under:

“Considered. It was resolved that for recruitment to Delhi

Higher Judicial Service from Bar, the minimum qualifying
marks in viva voce will be 55% for General candidates and 50%
for Scheduled Castes and Scheduled Tribes candidates.”

Consequent to the interviews conducted, three candidates were selected.

Two of the five candidates who had qualified for interview, but were not
selected, filed the writ petition before the Supreme Court challenging the
selections so made. The question that arose for consideration before the
Supreme Court, as mentioned in para 14 of the judgment, was whether
introduction of the requirement of minimum marks for interview, after the
entire selection process was completed would amount to changing the rules
of the game after the game was played. The Supreme Court in para 15 of
the judgment held as under:
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“15. There is no manner of doubt that the authority making rules

regulating the selection can prescribe by rules the minimum
marks both for written examination and viva voce, but if
minimum marks are not prescribed for viva voce before
commencement of selection process, the authority concerned
cannot either during the selection process or after the selection
process add an additional requirement / qualification that the
candidate should also secure minimum marks in the interview.
Therefore, this Court is of the opinion that prescription of
minimum marks by the respondent at viva voce test was illegal.”

Obviously, the decision is not attracted to the facts of this case.

85. Mr. M. Y. Bhat, learned counsel for the petitioners in SWP

no.07/2009, also cited and sought to rely on an order of a Single Bench of
High Court of Gujarat in Parmar Jiteshkumar Babubhai v Gujarat
Technological University dated 23.02.2017. Though this judgment is not
binding on this Court, yet we do not want to disappoint the learned counsel
and would wish to reproduce hereunder the relevant portion of the order
relied upon by the learned counsel. It reads as under:

“13. Though it has been sought to be submitted by the learned

Sr. Counsel Mr. Mehta for the respondent Corporation that by
introducing the negative marking system, the Corporation
wanted to select the best candidates. The said submission cannot
be accepted. It cannot be gainsaid that it would be the
prerogative of the employer, i.e., the respondent Corporation in
the instant case, to decide about the manner and method of
conducting the examinations and of evaluating the performance
of the candidates to get the best out of the lot. However, such
manner and method should have been made known to all, prior
to the commencement of the selection process. As held by the
Supreme Court, the rules of game cannot be changed and that
too (to the) detriment to the interest of the players, once the
game has started. In the instant case, the respondent Corporation
and the GTU flip-flopped at various stages. Initially, the
respondent Corporation did not introduce the negative marking
system and decided to evaluate marks as per the regular system.
The respondent GTU introduced the said system by printing
instructions on the question paper. Again the GTU declared the
result without applying the negative marking system, then again
revised the result after applying the said system. The model
answer keys of some of the questions were also admittedly
found to be wrong…it clearly transpires that the model key
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answers of many questions were not correct, and therefore, the

result declared for the first time on 23.12.2016 was also
defective.”

We fail to understand how this judgment is relevant to the facts of the

instant case. Here the examining body is the Commission, which stands
empowered by the Constitution, rather assigned the duty to conduct
examinations for appointment to the services of the State, decide about the
method and manner of conducting the examinations and evaluating the
answer scripts of the candidates, and to choose the best of the lot amongst
the competing candidates. Furthermore, nothing of the sort has been done
by the Commission in the instant case as is reflected from and depicted in
the above quoted passage of the judgment. Of course, no exception can be
taken to the law laid down by the Supreme Court that rules of the game, i.e.,
the eligibility and criteria for selection cannot be altered during the process
of selections, but, again, nothing like that has been done by the
Commission.

86. Now, at this stage, it would be appropriate to refer to the selection

criteria prescribed for the instant Examination. The Kashmir Administrative
Service is constituted under Rule 3 of the Jammu and Kashmir
Administrative Service Rules, 1979. Rule 5 thereof says that recruitment to
the Service shall be made by competitive examination at the junior scale.
Such competitive examinations are governed by the 2008 Rules [Jammu
and Kashmir Combined Competitive Examination Rules, 2008]. Rule 4
thereof says that the Examination shall be conducted by the Commission in
accordance with the provisions of Examination Rules, 2005 [Jammu and
Kashmir Public Service Commission (Conduct of Examination) Rules,
2005]. Rule 5 of the 2008 Rules prescribes the conditions of eligibility.
Then Rules 8 and 9 lay down the criteria for selection and Rule 10 provides
for determining the final order of merit. We deem it appropriate to quote
Rules 8, 9 and 10 hereunder. These read as under:

“8. Examination
(1) The examination shall consist of two successive stages:-
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(a) Combined Competitive (Preliminary) Examination

(Objective Type) for the selection of candidates for the
main examination; and
(b) Combined Competitive (Main) Examination (written and
interview) for the selection of candidates for the various
services and posts.
(2) The preliminary examination will consist of two papers of
objective type (multiple choice questions) and carry 450
marks in the subjects set out in Appendix-I. This examination
is meant to service as a screening test only. The marks
obtained in the preliminary examination shall count only for
short-listing of the candidates for the Main Examination.
Subject to the minimum qualifying marks as may be
fixed by the Commission at its discretion, the number of
candidates to be admitted to the Main Examination shall be,
as far as practicable, 1/3rd of the total number of candidates
who appeared in the preliminary examination or twenty five
times the total number of vacancies to be filled in various
services and posts, whichever be lower.
(3) The Main Examination shall consist of a written test and an
interview. The written test shall consist of question papers of
the descriptive type, out of which one paper shall be of
qualifying nature only, from the subjects set out in
Appendix-I as per the detailed syllabus in Appendix-II:
Provided that the Commission may revise or update
the syllabi for the Combined Competitive (Preliminary/Main)
examination from time to time.
(4) Candidates who obtain such minimum qualifying marks in
written part of the Main Examination as may be fixed by the
Commission in any or all the papers at their discretion shall
be summoned by them for interview.
Note:- The interview test is intended to judge the mental
calibre of a candidate. In broad terms, this is really an
assessment of not only his intellectual qualities but also
social traits and his interest in current affairs. Some of the
qualities to be judged are mental alertness, critical powers
of assimilation, clear and logical expositions, balance of
judgment, variety and depth of interest, ability for social
cohesion and leadership, intellectual and moral integrity.
(5) A candidate who fails to secure such minimum number of
marks as are fixed by the Commission in their discretion in
more than one subject shall not be eligible to be called for
interview.
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(6) A candidate must write the papers in his own hand. In no

circumstances will anybody be allowed the help of a scribe to
write the answer for him.
(7) If a candidate’s handwriting is not easily legible, a deduction
will be made on this account from the total marks otherwise
accruing to him.
(8) Marks will not be allotted for mere superficial knowledge.
(9) Credit will be given for orderly, effective and exact
expression combined with due economy of words in all
subjects of the examination.
(10) A candidate shall specify in his application form the
optional paper/papers in which he wants to appear. The
option once made shall be final. Failure to specify any or all
the optional papers shall render the form liable to be rejected.
(11) A candidate shall have to write the compulsory papers
and optional papers (except language paper) in English.
9. Interview
(1) The number of candidates to be summoned for interview will
not be more than thrice the number of vacancies to be filled. The
interview will carry a maximum of 250 marks (with no
minimum qualifying marks). Failure to appear in the interview
shall render a candidate ineligible for being recommended for
appointment notwithstanding the marks obtained by him in the
written examination.
(2) The candidates shall be short-listed for interview on the basis
of overall merit obtained by them in the Main Examination
irrespective of the category(ies) to which he/she/they belong:
Provided that if the number of candidates belonging to
any reserved category, who .qualify for the interview on the
basis of the above short-listing criteria, falls short of upto three
times the number of vacancies reserved for such a category, the
Commission shall call the candidates belonging to such category
over and above the number short-listed for interview.
10. Merit List
Marks thus obtained by the candidates in the Main
Examination (written part as well as interview) would determine
the final order of merit. Candidates shall be allotted to the
various services keeping in view their inter se merit in the
examination and the preferences expressed by them for the
various services and posts.
The allotment of candidates to various services shall be
made by the Commission.
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Provided 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:
Provided that physically challenged candidates shall be
considered for selection in the services and against the posts
identified for their respective categories in terms of Jammu and
Kashmir Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Rules, 2003 and in
accordance with their merit-cum-preference, if otherwise found
suitable for selection.”

Then Appendix-I mentions the scheme and subjects for the Preliminary and
Main Examinations, setting out the Paper-wise marks, and Appendix-II
prescribes the syllabi for the two Examinations. Of course, Rule 11 of the
said Rules also provides the condition of medical fitness.

87. So, above are the criteria for selection of candidates for appointment
to the Service prescribed by the 2008 Rules. How these Examinations are to
be conducted is prescribed by examining body, i.e., the Commission in
terms of the Rules framed by it which are Examination Rules, 2005. These
Rules delineate and provide for the in-house mechanism and procedure of
the Commission for the conduct and completion of the selection process
and, therefore, have nothing to do with the eligibility of a candidate or the
selection criteria prescribed for selection. Similarly, the Commission has
framed the Jammu and Kashmir Public Service Commission (Business and
Procedure) Rules, 1980. These Rules, obviously, provide for the procedure
for transaction of the business of the Commission and, therefore, do not,
directly, indirectly or otherwise, deal with the eligibility of a candidate to
participate in the selection process in question or the selection criteria
prescribed for the selection. These Rules provide for the in-house
procedures and have nothing to do with any rights or interests of the
competing candidates. In light of these facts, the amendment made by the
Commission in the Examination Rules, 2005, inserting Rule 31A therein,
which provided for On Screen Marking of answer scripts, and the decision
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of the Commission dated 28.02.2018 adopting the On Screen Marking

system to the answer scripts of the Main Examination of the Competitive
Examination, 2016, by no stretch of imagination or standard can be said to
have changed or impacted the selection criteria prescribed by the 2008
Rules.

88. The judgment in U. P. Public Service Commission v. Manoj Kumar,

AIR 2018 SC 1233 : 2018(3) SCC 706, cited at the Bar by Mr. R. A. Jan
and Mr. M. Y. Bhat, concerns scaling method adopted by Uttar Pradesh
Public Service Commission for awarding marks in the said Examination.
The Supreme Court has declared such method adopted by that Commission
as arbitrary and irrational. Though the petitioners herein have taken a stand
that the Commission has adopted the scaling and moderation method in the
instant selection, the Commission has denied it having resorted to such a
method. We are of the view that the judgment of the Supreme Court in
Bharat Singh v. State of Haryana, 1988 (4) SCC 534 (Para 13) (supra),
referred to and relied upon by Mr. R. A. Jan, learned senior counsel aptly
applies to the point raised by the petitioners, unsupported by any evidence.
Para 13 of the judgment, as referred to at the Bar may be quoted hereunder:

“13…In our opinion, when a point which is ostensibly a point of

law is required to be substantiated by facts, the party raising the
point, if he is the writ petitioner, must plead and prove such
facts by evidence which must appear from the writ petition and
if he is the respondent, from the counter-affidavit. If the facts
are not pleaded or the evidence in support of such facts is not
annexed to the writ petition or to the counter-affidavit, as the
case may be, the court will not entertain the point. In this
context, it will not be out of place to point out that in this regard
there is a distinction between a pleading under the Code of Civil
Procedure and a writ petition or a counter affidavit. While in a
pleading, that is, a plaint or a written statement, the facts and not
evidence are required to be pleaded, in a writ petition or in the
counter-affidavit not only the facts but also the evidence in
proof of such facts have to be pleaded and annexed to it…”

It would suffice to say that the plea has been raised without any material to
support it.
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89. As mentioned earlier, it was also argued that outsourcing of

evaluation of answer scripts is not permissible under the rules governing the
subject and that in terms of the relevant Rules, the paper setters and
evaluators are required to be the same. We have already dealt with the point
of outsourcing in para no.57 of this judgment. We reiterate that by
introduction of On Screen Marking the Commission did not outsource the
evaluation of answer scripts to the Service Provider. The task entrusted to
the Consultancy or the Service Provider was only to scan the answer scripts,
transmit it electronically to the Examiners appointed by the Commission for
their evaluation and transmit the marks awarded by such Examiners to the
Commission. Now, looking at this aspect in a realistic way, factually,
practice of outsourcing the task of evaluation of answer scripts by the
Commission has been in vogue since long. Admittedly, the Commission
does not have Examiners, Evaluators and Experts on its establishment as its
employees. The Commission has been engaging such personnel available in
the country since long and assigning to them this job to be performed in
accordance with the instructions framed by the Commission from time to
time. This is what Rule 9 of the Examination Rules, 2005 relates to and
speaks of. Let Rule 9 of the Rules be quoted hereunder. It reads thus:

“9. Appointment of Examiners

The examination papers shall be set by such of the
examiners as may be appointed by the Chairman. A panel of
examiners shall be drawn up by the Chairman at the beginning
of each year. A Committee comprising the Chairman and one
member to be nominated by him may review the panel at least
once or as and when necessary during the year. The Examiners
shall be paid such remuneration as may from time to time be
fixed by the Commission. All Examiners will be required to
strictly adhere to the instructions for setting the question papers
and marking the scripts and these instructions shall be deemed
to form part of these rules.”

Then Rule 30 of the said Rules provides for dispatch of answer scripts to
such Evaluators as are engaged under Rule 9. Rule 9 not only makes it
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manifest that the practice of outsourcing of evaluation of answer scripts has

been there since inception, but the Rule permits so to be done. So, in that
sense outsourcing of evaluation of answer scripts is not something new or
dehors the Rules. As to the argument that Paper Setters and Evaluators have
to be the same persons, meaning thereby that a person, who sets the paper,
alone has to be the Evaluator in such paper, we may say that this is neither
the scope of the Rule 9, nor practicable. Examiner in context of Rule 9, as
quoted above, means a paper setter. However, Rule 3(j) of the Examination
Rules, 2005 defines the term ‘Examiner” as meaning a person appointed
under the Rules to act as such and includes an evaluator or head examiner.
It is an inclusive definition of the Examiner which can either refer to paper
setters or evaluators, but it does not mean that the two have to be one and
the same person. Such a connotation is illogical. The two may be the same,
but the two need not be the same always. As said above, it is otherwise
impracticable. For instance, there is one paper set for a subject for an
Examination and the number of candidates to appear in such examination is
5,000. It would not be possible for a single paper setter-evaluator to
evaluate such a large number of answer scripts within a short span of time.
It would take a long time for him to do so which would not be in the interest
of transparency of the selection process. Otherwise also, even if it were so,
how would it affect the competing candidates, like the petitioners herein, is
not comprehendible.

90. Now, we come to the other very important point raised in these
petitions, which is about the maintainability of these writ petitions. The
learned Advocate General and the learned counsel appearing for the private
respondents submitted that insertion of Rule 31A by the Commission in the
Examination Rules of 2005 regarding switching over to On Screen Marking
of answer scripts was duly published much before the conduct of the Main
Examination by the Commission for information of the public at large. This
amendment made in the Rules was also notified to take immediate effect. It
is submitted by them that in that view of the matter, all the candidates were
conscious of the operation of the Rule, yet they appeared in the
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Examination. In these circumstances, it is argued, that the petitioners cannot

turn around and challenge the Rule in question, its application to the
Examination in question and the result thereof. On that count, it is argued
that the writ petitions filed by them are not maintainable. The learned
Advocate General and the learned counsel for the private respondents also
referred to the facts and circumstances which, according to them, suggest
that they were not aggrieved of the action of the Commission or that they
did not have the intention to challenge it, and that the filing of the writ
petitions was only an after-thought. We do not wish to refer to the facts and
circumstances narrated by the learned counsel in this behalf. It would be
suffice to mention that the notification inserting Rule 31A was published by
the Commission on 07.12.2017, the written examination was conducted by
the Commission from 02.07.2018 to 08.08.2018 and the result thereof was
notified on 04.12.2018. The PIL was commenced on 21.12.2018 and the
first of these three writ petitions, SWP no.07/2019, was instituted on
04.01.2019. The law on the subject is not res integra. A few of the
judgments cited and relied upon at the Bar may be mentioned. In Madras
Institute of Development Studies v. K. Sivasubramaniyan, (supra), the
appellant Institute before the Supreme Court invited applications for posts
of Professor, Assistant Professor and Associate Professor. Respondent no.1
before the Supreme Court took part in the selection process. He was not
selected. He challenged the order of the Executive Council dated
14.08.2004, approving the appointment of various persons to the posts in
question on the ground, inter alia, that the selection was not done strictly as
per the qualifications mentioned in the advertisement and that he having
fulfilled all the requirements ought to have been selected against one of the
three vacancies. It was also alleged by him that there had been infraction of
the recruitment rules. The appellant Institute denied and disputed the
allegation regarding infraction of the recruitment rules and further denied
and disputed the allegations of irregularities in the selection process. The
learned Single Judge of the Madras High Court dismissed the writ petition,
inter alia, on the ground that the writ petitioner having taken part in the
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selection process without raising any objection cannot challenge the

selection process after being declared unsuccessful. The Division Bench of
the Court, however, reversed the judgment of the learned Single Judge. The
Supreme Court in para 14 of the judgment said that the question whether a
person who consciously takes part in the process of selection can turn
around and question the method of selection is no longer res integra. The
Supreme Court in this behalf referred to its earlier decisions in G. Sarana v.
University of Lucknow [(1976) 3 SCC 585]; Madan Lal v State of J&K
[(1995) 3 SCC 486]; Manish Kumar Shahi v. State of Bihar [(2010) 12
SCC 576] and Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309]
and quoted passages therefrom in paragraphs 15, 16, 17 and 18 of the
judgment with approval.

91. In D. Sarojakumari v. R. Helen Thilakam, (2017) 9 SCC 478, the

Management of the Samuel LMS High School, Parassala, invited
applications for filling up the post of Music Teacher on direct recruitment
basis. The Appellant and Respondent No.1 both applied for the said post.
The appellant was appointed as Music Teacher on 12.07.1999 in Samuel
LMS High School, Parassala. Though Respondent No.1 had applied for
being considered for appointment as Music Teacher in the Samuel LMS
High School, but after she was not selected in the process of direct
recruitment, she raised a plea that since the Management of both the schools
were same, she was entitled to be promoted as Music Teacher on the basis
of her seniority in the Light to the Blind School, Varkala. In this regard, she
first filed a petition before the District Educational Officer who accepted
her petition and held that the case of Respondent No.1 was covered under
Rule 43 of Kerala Education Rules. The appellant filed an appeal which
was rejected by the Deputy Director, Education. Thereafter, a revision
petition was filed and the main ground raised by Respondent No.6 was that
the two Schools were separate units. It was contended that the Samuel LMS
High School was run for all children, whereas the Light to the Blind School,
Varkala, was meant only for differently abled children. It was pointed out
that Respondent No.6 had never maintained a common seniority list for
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these two schools and this was never challenged by Respondent No.1 or any
other member of the staff. The Director, Public Instruction, held that both
schools had different identities and Rule 43 was not applicable. Respondent
No.1, thereafter, filed a representation which was rejected by the State
Government in which it was held that these two schools were separate units
and Respondent No.6 had been treating the schools run by them for
specially challenged children as separate entities. Respondent No.1,
thereafter, filed a writ a petition in the High Court of Kerala. An objection
was raised that since Respondent No.1 herein had taken part in the selection
process, she could not, after being not selected, be permitted to turn around
and claim that the process of direct recruitment could not have been
resorted to by the Management of Samuel LMS High School. This
objection was overruled by the High Court only on the ground that there
can be no estoppel against a statute and the appellant could not be debarred
from filing a writ petition. The two writ appeals filed by the appellant were
dismissed. The main ground urged on behalf of the appellant before the
Supreme Court was that Respondent No.1 having taken part in the selection
process could not be permitted to challenge the same after she was
unsuccessful in getting selected. The Supreme Court held that the law was
well settled that once a person takes part in the process of selection and is
not found fit for appointment, the said person is estopped from challenging
the process of selection. The Supreme Court cited its various decisions in
the judgment and quoted passages therefrom in the following manner:

“5. In Dr. G. Sarna vs. University of Lucknow & Ors., the

petitioner after appearing in the interview for the post of
Professor and having not been selected pleaded that the experts
were biased. This Court did not permit the petitioner to raise this
issue and held as follows:-

‘15.We do not, however, consider it necessary in the

present case to get into the question of the
reasonableness of bias or real likelihood of bias as
despite the fact that the appellant knew all the relevant
facts, he did not before appearing for the interview or at
the time of the interview raise even his little finger
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against the constitution of the Selection (1976) 3 SCC

585 Committee. He seems to have voluntarily appeared
before the committee and taken a chance of having a
favourable recommendation from it. Having done so, it
is not now open to him to turn round and question the
constitution of the committee…’

6. In Madan Lal & Ors. vs. State of J&K & Ors., the petitioner
laid challenge to the manner and method of conducting viva-
voce test after they had appeared in the same and were
unsuccessful. This Court held as follows:-

‘9…Thus the petitioners took a chance to get

themselves selected at the said oral interview. Only
because they did not find themselves to have emerged
successful as a result of their combined performance
both at written test and oral interview, they have filed
this petition. It is now well settled that if a candidate
takes a calculated chance and appears at the interview,
then, only because the result of the interview is not
palatable to him, he cannot turn round and
subsequently contend that the process of interview was
unfair or Selection Committee was not properly
constituted…’

7. In Manish Kumar Shahi vs. State of Bihar, this Court held as

follows :-

‘23…Surely, if the petitioner’s name had appeared in

the merit list, he would not have even dreamed of
challenging the selection. The petitioner invoked
jurisdiction of the High Court under Article 226 of the
Constitution of India only after he found that his
name(1995) 3 SCC 486 (2010) 12 SCC 576 does not
figure in the merit list prepared by the Commission.
This conduct of the petitioner clearly disentitles him
from questioning the selection and the High Court did
not commit any error by refusing to entertain the writ
petition.’

8. In the case of Ramesh Chandra Shah and others vs. Anil Joshi
and others, the petitioners took part in the process of selection
made under the general Rules. Having appeared in the interview
and not being successful they challenged the method of
recruitment itself. They were not permitted to raise such an
objection. This Court held as follows:-

‘24. In view of the propositions laid down in the above

noted judgments, it must be held that by having taken
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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 methodology adopted by
the Board for making selection and the learned Single
Judge and the Division Bench of the High Court
committed grave error by entertaining the grievance
made by the respondents.’

9. Same view has been taken in Madras Institute of

Development Studies and Another vs. Dr. K. Sivasubramaniyan
and others, (2016) 1 SCC 454.

10. The Kerala High Court did not note the above mentioned
judgments and ignored the well settled position of law in
rejecting the specific plea raised by the appellant herein that the
appellant could not raise the issue that no direct recruitment
should have been conducted once she had applied for and taken
part in the selection process by direct recruitment.

11. As far as the present case is concerned an advertisement was

issued by Respondent No.6 inviting applications for the post of
Music Teacher in Samuel LMS High School. Respondent No.1
did not raise any objection at that stage that the post could not
be filled in by direct recruitment and she should be considered
for promotion. Not only that, she in fact, applied for the post and
took part in the selection process. After having taken part in the
selection process and being found lower in merit to the
appellant, she cannot at this stage be permitted to turn around
and claim that the post could not be filled in by direct
recruitment. The reasoning of the learned Single Judge in
rejecting the objection is not in consonance with the law laid
down by this Court. In view of this we need not go into the other
issues raised.

12. We, therefore, allow these appeals and set aside order dated
25.07.2003 of the learned Single Judge and dismiss the writ
petition O.P.No.36563 of 2002 as being not maintainable.”

92. Viewed in context of the above settled position of law, we are of the
opinion that the petitioners having been in know of notification dated
07.12.2017 about insertion of Rule 31A in the Examination Rules, 2005 as
also the fact that it was made applicable with immediate effect and the
petitioners having participated in the Main Examination, but failed to make
the grade to be called for Personality Test / Interview, they cannot be
allowed to turn around and raise a grievance against the On Screen Marking
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system adopted by the Commission and the allied mechanisms connected

therewith adopted and applied by the Commission, and the consequent
result of the Main Examination declared by the Commission. We are of the
considered view that these writ petitions, therefore, are not maintainable on
this count. Mr. R. A. Jan, learned senior counsel, referring to the judgment
in Raj Kumar v. Shakti Raj, 1997 (9) SCC 527 (Para 12, 16) (supra)
submitted that the proposition that estoppel to question the correctness of
the selection after a candidate has participated in the selection process, but
failed, is not a universal rule. However, we having gone through the
judgment in Raj Kumar v. Shakti Raj, (supra), especially paras 12 and 16
thereof, relied upon by the learned senior counsel. There the Rules framed
by the Governor under Section 309 of the Constitution provided for
consulting the SSSB for making selections for filling up the relevant posts.
But after the examinations were held and the results were declared, the
posts were taken out from the purview of the Board and the Government
constituted a committee. The committee so constituted evolved its own
criteria of awarding marks to select the candidates, but did not adhere to
such scheme of awarding marks; instead it awarded marks in lump sum. It
is in the context of these facts that it was held that the entire procedure
adopted was illegal and that the Government had committed glaring
illegalities and that the principle of estoppel by conduct or acquiescence did
not apply to the facts of the case. Such is not the case herein. The judgment
is not attracted to the facts and circumstances of the instant case; it is
wholly distinguishable on all fours.

93. Mr. R. A. Jan, learned Sr. counsel, has also cited a judgment of a
learned Single Judge of the High Court of Judicature at Hyderabad for the
State of Telangana and the State of Andhra Pradesh in P. Kishore Kumar v
The State of A. P., MANU/AP/0603/2016 : 2016 (6) ALT 408. The
judgment does not lay down any law as such. Therein the High Court has
directed the Vice Chancellor of the concerned University to re-look at total
functionality of online evaluation and change the manner of evaluation to
better overall situation. Whatever direction has been passed in that
88 | P a g e

judgment is based on and actuated by the facts which were attendant to that
case and discerned from the records produced before the Court therein, a
few of which have been copied in the judgment. We have also perused the
relevant records produced by the Commission before us and found that the
allegations and assumptions raised by the petitioners herein are baseless and
unfounded. In that view of the matter, the factual scenario attendant to that
case and the directions made in the judgment in that context are not
attracted to the case at hand. Nonetheless, the observation made by the
Court in para 24 of the judgment concerning employing information
technology are relevant and important and we deem it apt to extract the
same hereunder:

“24. This Court, at the outset, hastens to add that the endeavour
of 2nd respondent to capacity build the human resources and
employ information technolgoy is appreciated. These result in
perspective change of a few academic matters. This Court is of
the view that the decision of Vice Chancellor of 2nd respondent
University to introduce online valuation and information
technology enhances transperency in conduct of affairs of the
University and also the confidence of the students at large3,
provided the change is foolproof. A reference to the following
quotes is apt at this juncture:

This Court is reminded of a quote of Lord Budha that

‘Everything changes; nothing remains without change’…”.

The observation made by the Court clearly says that introduction of online
evaluation and information technology enhance transparency and that
change is inevitable: provided the change is foolproof. In the instant case,
except the assumptions, nothing is brought on record to even remotely
suggest that the change adopted by the Commission is not foolproof.

94. The learned counsel for the petitioners, during the course of
arguments, also raised an issue concerning the Commission’s conduct in
allowing a group of students, who had opted for Zoology as one of their
optional subject, to take re-examination in the paper after cancelling their
earlier examination. It was argued that the cause of holding second
examination was totally unjustified and that the Commission has thus
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shown favour to the candidates who had opted for Zoology as one of their
subjects. On behalf of the Commission it was stated that such course was
necessitated by the reasons stated by it in notification dated 28.07.2018
whereby the examination of the relevant paper was cancelled. We have
gone through the reasons stated in the notification. The examination of the
students in the said paper was conducted both at Srinagar and Jammu
Examination centres. At Jammu centre, hardly 3 to 4 minutes into the
Examination, the majority of the candidates had risen on their chaires and
started sloganeering on the ground that the question paper was out of
syllabus and it contained some questions from Anthropology and Physics
which did not relate to Zoology. They are stated to have forced other
students to join the protest. It is the case of the Commission that the protests
had started before the invigilating staff would take the attendance of the
candidates who were appearing in the Examination. However, later some
candidates had taken the Examination. When the matter was placed before
the Commission, it decided to cancel the Examination and conduct a fresh
Examination of all the candidates who had opted for Zoology Paper-I. Such
a course is permissible even under proviso to Rule 12A(c) of the
Examination Rules, 2005. We are of the view that assuming the
Commission could not, under Rules, have cancelled the Examination and
conducted a denovo Examination of the candidates, if the petitioners were
aggreieved of such a course adopted by the Commission, the appropriate
stage to challenge the action of the Commission and the notification would
have been immediately after the notification in that regard was issued. It is
seen that the notification in that regard was issued by the Commission on
28.07.2018 while the Main Examination was still on which concluded on
08.08.2018. The denovo Examination of this paper was scheduled by the
very same notification and, in fact, was conducted on 08.08.2018. The
petitioners could and ought to have immediately challenged the notification
before the denovo Examination was held or even thereafter, but before the
results were declared. They did not do so at the relevant time and they have
not challenged it even in the present writ petitions. Not to speak of
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challenging the notification, they have not bothered to place a copy thereof
on record of either of these writ petitions as annexure. Obviously, the point
has been raised for the sake of it and by way of an afterthought. In any case,
no arbtrariness can be read in the conduct of the Commission on this count.
After all, the Commission has the duty to exhibit responsible attitude based
on fair play in such Examinations; it cannot have a martenet approach when
it is convinced that the grievances raised have a foundation.

95. Learned Advocate General, during the course of arguments, referring

to the judgment of the Supreme Court in Sunil Kumar v Bihar Public
Service Commission, (2016) 2 SCC 495, submitted that it has been held
that only the expert bodies like Public Service Commissions can decide
appropriate methodology for evaluation on the basis of facts specific to a
particular examination and that power of judicial review by its very nature
is limited to instances of arbitrary or mala fide exercise of power. He
submitted that since the petitioners have not alleged any mala fides, nor the
arbitrariness on the part of the Commission is established, these petitions
for judicial review of the methodology adopted by the Commission would
not lie. We are of the opinion that since we have considered the matter on
merits, have called for and gone through the original records of the
Commission and found the allegations, assumptions and apprehensions of
the petitioners as baseless and belied by such records, the matter should rest
at that.

96. In light of all what has been discussed above, we find that the
grievances projected by the petitioners are imaginary and unsupported by
any material, muchless plausible. Consequently, we do not find any merit in
these writ petitions. The same, therefore, deserve to be dismissed.

97. Now, coming to the PIL, we are of the view that since the matter
involved in the PIL has been considered by us on merits in the three writ
petitions filed by the unsuccessful candidates, nothing survives to be
determined in the PIL. Apart from that fact, we are also of the considered
view that the PIL is not maintainable for two reasons: first, that it is settled
91 | P a g e

law that PIL would not lie in service matters; and second, after the PIL was
commenced, the unsuccessful candidates filed regular writ petitions raising
their grievances. It may be observed that the Apex Court has consistently
held that in service jurisprudence PILs are not entertained. There is a catena
of judgments in this regard, the latest in the series being the judgment dated
19.07.2019 delivered by the Apex Court in certain clubbed matters, the lead
case being: Civil Appeal no. 5444 of 2019 (arising out of SLP (Civil) no.
31957 of 2018, titled Ashok Thorat v. Rajesh Shrirambapu Fate. Therein,
the Supreme Court laid down as under:
“38… It is well settled that with regard to service jurisprudence,
PIL are not entertained. In Ayaaubkhan Noorkhan Pathan vs.
State of Maharashtra and others, (2013) 4 SCC 465, this Court
has reiterated that PIL should not be entertained in service
matter. In paragraph 15 following has been laid down:
‘15. Even as regards the filing of a Public Interest
Litigation, this Court has consistently held that such a
course of action is not permissible so far as service
matters are concerned. (Vide: Dr. Duryodhan Sahu and
Ors. v. Jitendra Kumar Mishra and Ors., AIR 1999 SC
114; Dattaraj Natthuji Thaware v. State of
Maharashtra, AIR 2005 SC 540; and Neetu v. State of
Punjab and Ors., AIR 2007 SC 758)’
39. A perusal of the impugned judgment indicates that the High
Court was influenced by the submission of the appellant that
loss being caused to the public revenue by appointment of
Assistant Inspector of Motor Vehicles, who did not fulfill
qualification as laid down in notification dated 12.06.1989, the
High Court has virtually entertained the writ petition as PIL.
Following observations made by the High Court in paragraph 29
clearly indicate that the High Court proceeded to treat the writ
petition as PIL, although, it relates to condition of service of
Assistant Inspector of Motor Vehicles...”
In light of the above, the PIL has to be held to be not maintainable and it is
so held.

98. Resultantly, the writ petitions, being without any merit, are dismissed
together with the connected CMs/IAs/CMPs. The PIL is dismissed as not
maintainable. Interim direction, if any, passed by this Court and subsisting
shall stand vacated.
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99. The original records produced by the Commission are returned to the
learned Advocate General in the open court.

100. In the peculiar facts and circumstances of the matter, we pass no

order as to costs.

(Tashi Rabstan) (Ali Mohammad Magrey)

Judge Judge
Srinagar,
06.08.2019
Syed Ayaz, Secretary.