Jabeen Ishaq vs Director, SKIMS and Others

Hakim Imtiyaz Hussain, J.—One post of Chief Librarian in the pay scale of Rs. 3000-4500 was advertised by the Director, Sher-i-Kashmir

Institute of Medical Sciences, Srinagar (for short the Institute) vide advertisement Notice No. 29 dated 12.12.1994. The qualifications prescribed

for the post were as under:

i. Master's Degree in Library Sciences from a recognized University,

ii. 5 years' experience in a large library in supervisory capacity

OR

i. M.A./M.Sc. from a recognised University,

ii. Diploma in Library Sciences or its equivalent, iii. 5 years experience in a large library in supervisory capacity.

The advertisement notice prescribed that the age of applicants should not be less than 18 years or more than 35 years as on 1.1.1994. The

notice further provided that the age of candidates serving in Govt. Department is relaxable by three years.

Petitioner Jabeen Ishaq and respondent No. 6 namely A.M. Baba applied for the post alongwith other candidates. The candidates were

subjected to interview by the selection committee. The respondents recommended the case of respondent No. 6 for appointment but since at that

time he was over age by 9 months, his case was forwarded to the Chief Minister (Chairman Governing Board of Institute) for relaxation of upper

age bar. Vide Communication No. ME-40-SKIMS/97 dated 16.10.1997 approval of the Chairman to the relaxation of age has been conveyed to

the Director. The petitioner is aggrieved of the said communication. She states that the respondents have got no power to accord relaxation of the

upper age limit in favour of the said respondent as such the approval granted by the Chairman is not in accordance with the rules.

Through the medium of the present petition, the petitioner prays for a writ of certiorari for quashing Order No. ME-40/SKIMS/97 dated

16.10.1997 issued by the Under Secretary to Government, Health and Medical Education department. The petitioner has also prayed for a writ of

mandamus directing the respondents to issue the order of appointment of the petitioner for the post of Chief Librarian advertised in pursuance of

advertisement notice No. 29 dated 12.12.1994.

Respondents have filed their separate replies.

The official respondents have submitted that 36 applications were received pursuant to advertisement Notice No. 29 dated 12.12.1994 and

after scrutinizing the same, 14 candidates were found eligible for the post of Chief Librarian. These included candidates who were found over age

but in view of their qualifications and experience, they were advised to be available at the venue of the meeting of the senior selection committee of

the Institute for a decision if they could be interviewed for the said post and considered for a possible relaxation of age bar. The senior Selection

Committee decided to hold interview of the over age candidates as well and after interviewing them, the case of respondent No. 6 was submitted

to the competent authority for relaxation of age in his case. It is further submitted that the suitability of the candidates for the pot of Chief Librarian

was assessed by the committee on the basis of marks obtained by the candidates in the qualifying examination. The following criteria was fixed for

the selection of the candidates:

Basic qualification 20% marks

M.Phil 5 marks

Ph.D. 10 marks

Medals (Gold) 10 marks

Medals (Silver/Bronze) 5 marks

5 years experience 20 marks

First division 5 marks

Distinction 10 marks

Interview

a. Technical (to be awarded by 10 marks the Expert)

b. General disposition (General 5 marks Knowledge/

personality Presentation

Total 100 marks

After assessing the merit of candidates, the committee recommended the names of two candidates viz petitioner and respondent No. 6 and both

the candidates got one and same merit i.e. 73.3 marks, hence there was a tie. However, the committee in their meeting noted that the candidate

namely Ab. Majid Baba i.e. respondent No. 6 had an extra ordinary technical knowledge as assessed by the technical experts as he secured 9

marks out of 10 marks as against 6 marks in the case of the petitioner. The committee also noted, as confirmed by the expert Prof. M.L. Wali that

the respondent No. 6 had completed his thesis for Ph.D but no credit was given to him on this account. The committee, therefore, felt that

respondent No. 6 would be more suitable candidate for the post of Chief Librarian if relaxation of age is given in his case as covered under the

recruitment rules for the post. The committee decided to go alongwith this assessment and accordingly recommended that respondent No. 6 be

placed at Section No. 1 of the panel and recommended relaxation of age in his favour.

Respondent No. 6 has in the separate reply submitted that he is well qualified research scholar, having the following education qualifications to

his credit:

a. B.Sc. (Biological Science)

b. B.A. (Additional)

c. M.A. (Education)

d. Bachelor's Degree in Library Science; (B.Lib)

e. Master's degree in Library Science (M.Lib)

f. M.Phil (Library Science).

He has also submitted his doctoral degree (Ph.D thesis) in Library Science which has received high degree of comments from the concerned

expert. According to the respondents he has the distinction of being first candidate in the entire State of Jammu & Kashmir to have completed

research based Doctoral Degree in the Library Science. He is the only candidate in the State of J & K to have qualified the National Educational

Test (NET) in library and information science, conducted by the University Grants Commission in the year 1986. The respondent has also given

the details of the achievements which are to his credit in the filed of Library science which are as under:

a. He is a gold medallist/distinction holder in the field of Library Science;

b. He has attended the several courses concerning application of computers in library and information Science. Having joined Central Library,

Kashmir University in the 1979 as Senior Professional and worked in various responsible positions. He has represented the Kashmir University

before several National/International Library and Information Science Conferences/Seminars/Lectures.

c. He has the distinction of being one amongst 20 participants selected form the Developing Countries, for undergoing a Refresher Course in the

year 1994 at the Institute of Development Studies, University of Sussex Brighton (UK)

d. The respondent No. 6 is the author of three Nationally and Internationally acknowledged books in the field of Librarianship and is accredited

with having published series of papers/articles in the leading professional journals. Magazines and having presented such papers before

conferences/Seminars of National/International repute. The work conducted by the answering respondent has been utilised by research scholars

for guidance in the field of Library and Information Science.

Respondents further state that he also applied for the post advertised by the respondents and that on 1.4.1994 he was above 35 years i.e. 35

years and 9 months. He was already working in the University and his application form was routed through proper channel with proper no

objection from his employer, therefore, he was entitled to age relaxation in terms of relaxation Clause contained in the advertisement notice.

Heard. I have considered the matter.

The petitioner was 35 years and 9 months of age on the date of selection. The only question which in these circumstances, arises for

determination is that whether the respondents can grant relaxation in his age under the advertisement notice No. 29.

As noted above under the advertisement notice upper limit of the age prescribed for the candidates was 35 years as or. 1.1.1994. Relaxation

was, however, possible in case of candidates serving in Govt. Department only.

Both the candidates i.e. petitioner and respondent No. 6 have obtained the highest merit in the selection process and both of them have got the

same marks i.e. 73.3 marks hence there is a tie. The Committee has, however, found that the respondent No. 6 has an extra-ordinary technical

knowledge as assessed by the technical experts as he secured 9 marks out of 10 marks as against 6 marks obtained by the petitioner. It was in this

back ground that the case for relaxation of age was submitted to the Chairman.

Admittedly respondent No. 6 is not serving in any Govt. Department as he is serving in the University of Kashmir. University cannot be treated

as Government Department so the relaxation Clause as contained in the advertisement notice No. 29 of 1994 is not applicable to the employees of

the University and, therefore, will not apply to the said respondent.

There is no other Clause in the advertisement notice which prescribes for relaxation of age or gives powers to the selection committee to

recommend relaxation of age.

The Sher-i-Kashmir Institute of Medical Sciences Gazetted Service Recruitment Rules, 1998 (for short the Rules) government the recruitment

to various posts in the Institute. Rule 5 of the Rules provide as under:

Qualifications and Method of Recruitment (1) No person shall be eligible for appointment or promotion to any post in any class, category or

grade in the service unless he possesses the qualifications as laid down in the Schedule II and fulfils other requirements of recruitment as provided

in the Rules and orders for the time being in force.

(2) Appointment to the service shall be made:

a. by direct recruitment (which will include appointment by transfer);

b. by promotion; and

c. partly by direct recruitment and partly by promotion in the ratio and in the manner mentioned against each post in the schedule.

Rule 9 of the Rules give the power to relax and it provides:

Power to Relax - Where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be

recorded in writing and in consultation with the respective Selection/Promotion Committee relax any of the provisions of these Rules with respect

to any class, category of persons or posts. Provided that while exercising this discretion the Government would keep the following principle in

view:

a. That the discretion is exercised bonafide;

b. That such an exercise specifies objective test;

c. That it would satisfy any responsible man in place of the authority competent to relax; and

d. That the power should be vested with the Chief Minister only.

Under the rule discretion to relax the qualification must be bonafide one and the same should be exercised only after recording in writing

reasons therefor.

The advertisement notice must also contain the provision that the qualifications are relaxable. In the present case there is no mention in the

advertisement notice that relaxation of qualification is possible. The only relaxation mentioned was for Govt. employees and this was provided

under Rule 8 which deals with eligibility of Govt. servants for direct recruitment. No relaxation was provided for other employees including the

employees working in the University.

Since no provision is made in the advertisement notice for relaxation of age, the selection committee or for that matter the Director cannot

recommend and the Chairman cannot grant relaxation in favour of the candidates who are working in departments/institutions other than the Govt.

departments.

The requisite qualification can be relaxed only if such power is conferred on the appointing authority and is contained in the advertisement

notice. If a qualification is prescribed in the advertisement notice and there is no indication that the persons who did not conform to the

requirements could apply or that if they had applied they would have been considered, then any relaxation of the qualifications without further

notification notifying such relaxation would be unconstitutional as it would tantamount to contravening the fundamental rights of other candidates

who would have been eligible according to the relaxed qualification. The Apex Court has in Swaran Lata Vs. Union of India and Others, held that

no relaxation in qualifications can be made where advertisement has duly been issued inviting applications and persons possessing qualifications as

advertised are available and have submitted their applications.

In view of the settled legal position I find the recommendation of the respondents for relaxation of age of respondent No. 6 and the approval of

the Chairman to relax the age of respondent No. 6 is not in accordance with law as such communication No. 40/SKIMS/97 dated 16.10.1997

impugned in the present petition is hereby quashed. Respondents to proceed in the matter now in accordance with the rules and make appointment

of the petitioner without any further delay in the matter.

Petition allowed as indicated above.