J and K Institute of Man. Public and Others vs Renu Bala and Others

On February 20, 2010, it was agreed by the parties that in the event the appeal is allowable, the condonation application would automatically be

allowed.

For the reasons indicated below, we think that the appeal to some extent is allowable and, accordingly, the application for condonation of delay

is allowed.

Heard learned Counsel for the parties.

By the judgment and order under appeal, a writ petition filed by the Respondent-writ Petitioner has been allowed, whereby apart from imposing

costs of Rs. 10, 000/-, appointment of Respondent 9 to the writ petition has been quashed with a direction upon the Appellant to appoint the writ

Petitioner in place of Respondent 9.

In the present appeal, the principal challenge is in relation to direction for appointment of the writ Petitioner in place of Respondent 9 to the writ

petition.

In writ Petitioner, it was contended that Respondent Nos. 8 & 9 to the writ petition are not qualified to offer themselves for the appointment in

question. When the writ petition was taken up for hearing, writ Petitioner gave up his contention that Respondent No. 8 was not eligible for being

considered for appointment. Writ Petitioner, however, insisted that Respondent No. 9 to the writ petition did not have the basic minimum eligibility

of being appointed. In the counter filed by the official Respondents including the Appellant, it was contended that the Respondent No. 9 being an

inservice candidate, the qualification bar was relaxed in his favour. Learned Judge"", while dealing with the matter noticed that neither the

advertisement nor any Rules governing the selection authorised relaxation of the qualification bar. In the circumstances, learned Judge held, while

rendering the judgment and order under appeal, that the said action on the part of the authority concerned, was a malafide action and on that

principal not only quashed the appointment of Respondent-no. 9, but also imposed costs of Rs. 10,000/-

Though in the appeal, it is not being urged that the learned Judge erred in quashing the appointment of Respondent No. 9, but we feel that in the

circumstances as noted by the learned Judge imposition of cost of Rs. 10,000/- to be recovered from such authority, who exercised such power in

such a malafide manner, cannot be interfered with.

However, the fact remains that while judgment and order under appeal was rendered, learned Judge did not make any endeavour to ascertain

whether in case Respondent No. 9 losses his appointment, writ Petitioner-Respondent can be appointed in his place. In other words, learned

Judge did not find whether the writ Petitioner-Respondent was next in the selection list after Respondent No. 9 and, accordingly, in the event

appointment of Respondent No. 9 is interfered with, that will automatically open the door for appointment of writ Petitioner.

In the circumstances, there is scope of interference with that part of the judgment and order under appeal. However, while we would be

interfering with that part of the judgment and order under appeal, it would be a requirement on our part to devise means to supply the vacancy,

which has arisen by reason of appointment of Respondent No. 9, having been quashed.

It has been accepted by the learned Counsel for the parties before us that for the purpose of selection the Appellant had adopted a criteria

whereby 20 marks had been allotted for educational qualification; 20 marks for experience and 40 marks for viva-voce. It is now well settled that

marks for viva-voce cannot exceed 20% of the total marks to be had in the selection process. We, accordingly, reduce 40 marks for viva-voce to

10 marks and, accordingly, direct proportionate reduction of marks already allotted to the candidates in course of viva-voce.

It has been brought to our notice that 20 marks allotted for educational qualification have been awarded to each candidate, who has the

required qualification. We think that such marks should be proportionately distributed on the basis of percentage of marks they obtained in

educational qualification. Similarly, it has come to our notice that 20 marks allotted for experience has been given to everyone, who has two years

of minimum experience, as was prescribed in the advertisement. We think marks for experience should also be proportionately given on the basis

of length of experience earned by candidates in the post where such experience was gained.

We, accordingly, direct that the vacancy that has arisen by reason of quashing of the appointment of Respondent No. 9 in the writ petition be

filled amongst those of the eligible candidates who responded to the said advertisement including the writ Petitioner on the basis as above.

It is made clear that appointment of Respondent No. 8 to the writ petition is not the subject matter of the lis before us and, accordingly, the

above directions have no role to play in relation to selection and appointment of Respondent No. 8 to the writ petition.

The above exercise be completed as quickly as possible but not later than three months from today. Let the selected candidate be offered

appointment within a period of 15 days from the selection giving him a month's time to join the post. In the event, within one month's time the

selected candidate does not join, the post be offered to second person in the select list giving him similar offer. This process of offering

appointment will continue upto the last person in the merit list.

It is made clear that the selection pursuant to the above being in terms of the original advertisement, anyone eligible at that point of time, would

be entitled to be appointed, provided he is selected not withstanding any dis-qualification incurred by reason of passage of time.