Hamid Roof Ganie vs J&K SSRB

Mr. Ali Mohammad Magrey, J.—Challenging the selection of respondents 3 and 4, made for the posts of Technician-Ill in Power Development

Department by respondent No. 1, petitioners, B.Sc with ITI in Information Technology & Electronic System Maintenance and 10+2 with ITI in

General Electronics, respectively, seek a writ of certiorari to the effect that decision of the respondent No. 1 dated 31st January, 2015, as far as it

relates to the prescribed qualification for the post of Technician-Ill be quashed and by a writ of mandamus respondents be commanded to treat the

qualification possessed by petitioners as a relevant trade for the purposes of appointment as Technician-III in Power Development Department

(District Anantnag and Budgam) and in consequence thereof recommend the name of petitioners for appointment against the post of Technician-III

in their respective districts on the basis of merit secured by them within their respective categories.

The controversy, as per the pleadings, is simply that an advertisement Notice, by virtue of which posts in dispute were sought to be filled up,

was responded to by all the aspiring candidates including the petitioners and respondents 3 and 4. Petitioners 1 and 2 had applied under Open

Merit and RBA Category respectively.

Petitioners have appeared in the Common Competitive Test conducted by the Board vide Notification No. SSB/Sel/ Secy/2014/9794-9808

dated 20.11.2014. The respondent Board subsequently notified the interview schedule of the successful candidates. Both the petitioners, in their

respective categories, were called for interview for the post in question for District Anantnag and Budgam respectively.

It is further pleaded that the last selected candidate in the open merit category was shown to have secured 60.266 points when as a matter of

fact petitioner No. 1 who had applied under open merit category had secured 62.533 points. Similarly, the last selected candidate in the RBA

category was shown to have secured 47.66 (OM) points when in comparison, petitioner No. 2, was shown to have secured 49.93 (RBA). It is

pleaded that both the petitioners have secured higher merit than the last selected candidates and were amazed for not having been included in the

select list. It is further submitted that upon enquiry they were informed that the Respondent Board in its 116th Board Meeting held on 31st January,

2015 has taken the following decision:-

After threadbare discussions it was decided that only ITI in relevant trade viz, electrician has to be considered as prescribed in the Advertisement

Notice.

It is this decision of the Respondent board which is stated to have rendered the petitioners ineligible and have not been recommended for the

post in question.

It is pleaded that respondents, under law, are estopped to deny the fruits of merit to the petitioners on a ground that was nowhere in existence

when the posts were made public or till the impugned order dated 31st January 2015, was issued.

Aggrieved of their exclusion, petitioners challenge the said decision of the Respondent Board on the grounds taken in the writ petition.

Respondents have resisted the petition on the ground that the selection has been made strictly as per merit, obtained by the candidates in the

process of selection, and on the basis of their eligibility. The petitioners have no right whatsoever on the posts being not possessing the qualification

requisitioned in terms of the advertisement notice. It is averred in the reply that the qualification possessed by the petitioners does not come within

the purview of the Advertisement notice as it clearly indicated that candidates having ""Matric with ITI in relevant Trade"" are eligible for

consideration against the posts in question.

Heard learned counsel for the parties.

The contention of Mr. Z. A. Shah, learned Senior Counsel, that the decision, which is challenged and sought to be quashed by virtue of a writ

of certiorari, treating the qualification of the petitioners as not the one required for the post is based on no good foundation as the advertisement

notice nowhere prescribes a specific diploma for the posts in question. He therefore, submits that respondents are not justified in declining the

petitioners the benefit of the merit obtained by them in the selection process. He would submit that how come respondents deny the place to the

petitioners in the selection list when they were allowed to apply and participate in the process initiated for filling up the posts in question.

He would further submit that after receiving application forms for the posts in question the respondent board issued a list of disqualified

candidates which does not include the names of petitioners reflecting that respondents did not treat them as ineligible initially and the mind has been

changed later on after the selection process was set in motion which is bad in law as the rules of the game cannot be changed when the game has

begun.

He further submits that Respondent Board having accepted the application forms of the petitioners after proper scanning of the qualification at

their credit and allowed them to compete in the process of selection wherein they emerged with higher merit than the last selected candidates,

respondents 3 and 4, therefore, the decision of the Board dated 31st January, 2015 as regards their exclusion from the select list is not only unfair,

arbitrary but also unwarranted as the Board cannot turn around and declare petitioners ineligible at a stage when the selection is at hand.

He would further submit that the impugned decision of the board taken subsequent to the selection process amounts to change of criterion

which is impermissible under law. It is further submitted that the nature of duties, upon appointment, can be well performed by the petitioners and it

would not be, for the first time, that candidates with such qualification will be entering the department to man the post as already, in the past, many

persons with the same qualification have been allowed to perform the duties of Technician-III. He refers to ground D of his writ petition that

provides the details of such persons working in the department on the post.

Mr. Shah, submits that exclusion of the petitioners from the select list is violation of Article 14 and 16 of the Constitution.

The contention of Mr. Tasaduq H. Khawja, learned Additional Advocate General and Mr. M. A. Beigh, learned appearing counsel for

respondents', on the other hand, is that petitioners are not eligible for the posts in question as they do not possess the requisite qualification, viz. ITI

Diploma in relevant Trade, for, in their opinion the relevant trade for the post of Technician III in Power Development Department would very

surely be a diploma in Electricity and not the diploma in General Electronics or electronic system maintenance. It is further their submission that

even if it is assumed that by allowing the petitioners to participate in the selection process, the respondents have committed a wrong then that

wrong cannot be justified by committing another wrong by granting the prayers sought for in the writ petition as the ineligible candidates cannot be

allowed to man the posts in question.

Considered the submissions made and perused the record made available.

There is no dispute of eligibility as regards the academic qualification at the credit of petitioners and the merit obtained by the petitioners being

higher than the last selected candidates, but the technical qualification at the credit of petitioners is stated to be the hurdle. The question would be

as to whether it was open for the respondents to debar the candidates in the selection after the selection process was set in motion and after having

subjected them to written test as well as for interview?

In my opinion, No. Because the respondent board, firstly, entertained the application forms of the petitioners, then issued the list of disqualified

candidates wherein petitioners did not figure. Subsequently petitioners were allowed to compete in the written test and were called for interview.

For all these occasions it was quite fine with respondent board but on 31st January, 2015, they changed their mind and debarred them as per their

own whims and caprice.

Merit secured by the petitioners does carry a weight to earn consideration and the submission made by Mr. Shah, learned Senior Counsel, that

respondents are not justified in changing the rules after the selection process has begun surely carries weight, for, the Rules of the Game cannot be

changed when the Game has Begun. Moreso for the reason that the exclusion of the petitioners with reference to not being possessed of the

qualification in the relevant trade is not based on any material supplied by the requisitioning department. If at all the respondent board had any

confusion about the technical qualification of the petitioners they were required to seek clarification from the intending department and as already

stated hereinbefore Mr. Shah, has supplied the particulars of the persons with similar technical qualifications who are working in the department on

the same post over the years, therefore, even in that case the opinion would surely have favoured the petitioners.

Having regard to above narration the writ petition succeeds and is allowed as such. The impugned decision dated 31st January, 2015, being

bad in law, is quashed as far as it puts a restraint on the petitioners to be selected for the post of Technician III District Anantnag and Budgam.

Respondent Board is directed to recommend the names of petitioners for appointment against the post in question, in their respective categories,

on the basis of merit secured by them in the selection process in place of respondents 3 and 4.

No order as to costs.