Farooq Ahmad & Ors. vs State and Ors.

This order shall dispose of the writ petitions enumerated in the schedule appended to it.

The petitioners submitted their applications for the post of Technician Grade III in district cadre in the department of Power Development. This

was done in pursuance of an advertisement notice No. 6 of 1997 issued on 1st July'97. The basic qualification which was mentioned is matric with

ITI. The petitioners were not selected. They have challenged the selection of private respondents and their nonselection.

RespondentBoard filed the objections.

The stand taken is that the claims of the petitioners were considered. They did not come high in the merit. It is submitted that the weightage for the

technical qualification was fixed at 80 points, for vivavoice, it was 20 points.

When these petitions were taken up for arguments on 21st May'99, the counsel appearing for the respondents were asked to indicate as to how

80 marks meant for technical qualifications have been allocated. The order parsed 0n 21st May'99 is reproduced below:

.....Hearing of these petitions is accordingly adjourned to 1st June'99. RespondentBoard would indicate as to how 80 marks which were given for

technical qualification were allocated. Either a short affidavit be filed or the record be produced. In case, needful is not done, the petition would be

taken up as it is..

The learned counsel for the petitioners submit that 16 posts are lying vacant in district Doda, ten are lying vacant in district Kathua, and two

posts each in district Poonch and Rajouri. In some of the petitions, interim orders have also been passed.

A perusal of the stand taken by the respondents makes it apparent that 80 points have been given for technical qualification only. Nothing has

been indicated as to how the other qualification i.e. matric, has been assessed. When the qualification was prescribed as Matric with ITI, then

some weightage was required to be given for matric qualification as/also for ITI qualification. As the stand taken by the respondents is that 80

points were given for technical qualification only, therefore, it becomes clear that the matric qualification which was required to be possessed was

not taken into consideration and the candidates were not assessed so far as this qualification is concerned.

There is merit in the contention of the learned counsel for the petitioners. Had there been a single qualification mentioned in the notification and

had 80 points been reserved only for that, then the petitioner would have been on slippery ground. However, the qualification in this case is matric

with 111. Therefore, while assessing the suitability of a candidate, both these factors should have been taken note of. It was precisely for this

purpose, the Board was directed to indicate its stand on 21st May'99. Neither affidavit has been filed, nor record has been produced.

In view of the above, it can be presumed that 80 points were given only for technical qualification and not the educational qualification, which

was also indicated as part of minimum qualification. On this ground alone, the petitioners are entitled to the relief that their cases were not

considered in accordance with the notification issued by the respondent Board.

In writ petition, S WP No. 799/98, the petitioners have filed a supplementary affidavit in which some additional grounds have been taken. These

are to the effect that respondent No. 5 in this writ petition had not attained the minimum qualification at the time of submission of his application

form. It is submitted that the said respondent completed his ITI in the month of Oct. 97 much after the submission of application form.

To this submission made by the petitioners, there is no denial on the part of respondents. A persual of annexure 'A' to the supplementary

affidavit in the aforementioned writ petition shows that private respondent No. 5 has cleared his IT1 only in the month of Oct. 97. Therefore, the

petitioners are right in their assertion. If above be the position, then the respondent No. 5 was not eligible at the time of submission of application

form and his application form could not have been accepted as he was not possessing the basic minimum qualification.

Independently of the above, it be seen that as indicated above, 16 posts are still lying vacant in district Doda, ten posts are lying vacant in

Kathua district and two each in district Poonch and Pvajouri. Therefore, the claims of the petitioners are required to be considered against these

vacant posts.

There is another aspect of the matter. No doubt, the cadre is district wise but while making initial appointment, the entire State is to be treated

as Single Unit. It is only after the selection process is complete, the candidates can be allocated to different districts. Such is the view expressed by

the Supreme Court and other High Courts. In Naresh Kumar Joshi and Ors. Vs. State of Punjab and Ors. 1982 Lab .I.C. 498, admission was

made to Patwar schools on district wise basis.

The rules provided that the Patwaris would have district wise seniority, district wise cadre and district wise candidature. It was observed that all

these considerations are post selection considerations and provide no justification for the selection to be made on district wise basis. Reliance was

place on the decision of the Supreme Court reported as AIR 1968 SC 1012, Rajendran Vs. State of Madras and AIR 1971 SC 2303, 'A'

Periakaruppan Vs. State of Tamil Nadu.

In AIR 1980 SC 1975. Miss Nishi Maghu V. State of Janunu and Kashmir and Ors, the selection of the candidates for correcting regional

imbalances was found to be invalid by making following observations:

....There can be no doubt that the selections made were not and could >'ot be on the basis of that report. It must therefore, be held that the

classification made for rectification of regional imbalance without identifying the areas suffering from imbalance is vague and the selections made

under head are accordingly invalid."" The matter was considered recently again by the Supreme Court of India in Ram Vijay Kumar and Ors. V.

State of Bihar and Ors. (1998)9 SCC 227 and Radhey Shyam Singh and Ors. V. Union of India and Ors, (1997)1 SCC 60. The observations

made in the later case are as follows:

There exists no nexus between the process of zonewise selection and the object to be achieved, that is, the selection of best candidates.

Therefore, the process of selection envisaged in the advertisement in question would lead to discriminatory results because of adopting the said

process of zonewise selection would result in the devaluation of merit at the selection examination by selecting a candidate having lesser marks over

the meritorious candidate who has secured more marks and consequently the rule the equal chance for equal marks would be violated. Such a

process would not only be against the principles enunciated in Articles 14 and 16 of the Constitution but it would also result in heart burning and

frustration amongst the young men of the country. The rule of equality of opportunity for every individual in the country is an inalienable part of the

Constitutional guarantee and that being so a candidatewho secures more marks than another is definitely entitled to get preference for the job as

the merit must be the test when selecting a candidate for recruitment for the posts which are advertised.

Thus, the creation of educational zones in the same state is a method which is wholly contrary to the scheme of the Constitution. All the

aforementioned judgments were considered by a Division Bench of this Court in the case of Hardesh Kumar V. State of Jamniu and Kashmir and

Ors LPA (SW) No. 151/95, decided on 19th Feb.' 99. It was observed that the zonal wise selection is not sustainable. At the same time, the

selection already made was not upset. A direction was given to consider the claims of the petitioners who had come to this court. On this ground

also, the petitioners are well within their rights to contend that they be appointed against the available vacancies. These petitions are accordingly

disposed of with the direction that the petitioners be appointed against the available vacancies in different districts and the selection already made

shall not be disturbed. The petitioners would also be entitled to all consequential benefits minus monatary benefits.