MEHNAZ AKHTAR & ANR vs STATE & ORS

The writ petition is of the year 2007. Notice in this case was issued on 01.10.2007.

Learned counsel for the petitioners states that petitioner No.2 has already been appointed as Teacher, therefore, the writ petition qua petitioner

No.2 is dismissed as having been rendered infructuous and now petitioner No.1 is pursuing the matter.

Through the present writ petition, petitioner No.1(hereinafter to be referred to as ‘petitioner’) seeks the following reliefs in the nature of:-

“Mandamus directing the respondent No.5 to compile and declare the inter se merit result of all candidates who had applied for selection and their

appointments as teachers in all district Cadres in J&K including District Cadre Rajouri pursuant upon the Notification issued by the respondent No.5

under No.10 of 2005 dated 29.12.2005, by separately specifying the marks awarded to each candidate for academic qualification and for interview

test held pursuant upon notification of respondent No.5 No.SSB/Sel/Secy/1368-74 dated 9.4.2007 and to accordingly appoint the petitioners being more

meritorious as teachers from the list so prepared;

Certiorari to quash the criterion for selection of Teachers issued by the respondent No.5 dated 9.4.2007 under No.SSB/Sel/Secy/1368-74; andÂ

Certiorari to quash the selection and appointment of respondents No.6 to 11 as „Teachers‟ District Cadre Rajouri made by respondent No.5 vide

Notification No.10 of 2005 dated 29.12.05 published in the issue of Daily Excelsior on 30.12.2005.â€​

Learned counsel for the petitioner states that the cause of action for filing the writ petition is that respondents/Services Selection Board issued an

Advertisement Notice No.10 of 2005 (Annexure-A) dated 29.12.2005 for selection to the post of Teacher District Cadre Rajouri. Based on the

application submitted by the eligible candidates, a provisional select list was published on 31.08.2007 (Annexure-B) in which the petitioner’s name

also finds place. Thereafter, in order to proceed further with the Advertisement, the Services Selection Board issued a Notification

No.SSB/Sel/Secy/1368-74 (Annexure-C) dated 09.04.2007 indicating that the interview of the candidates shown in Annexure-A to that notification,

who had applied for the post of Teacher District Cadre Rajouri pursuant to Advertisement Notice No.10 of 2005 (Annexure-A) dated

29.12.2005(Item No.3) shall be conducted on 18.04.2007 at Dak Bungalow, Rajouri at 9:00A.M. In the second notification, Selection criteria has been

indicated in the following manner:-

a) Basic Qualification (10+2) â€" 30 points

b) Graduation -10 points

c) B. Ed. 15 points

d) M.Ed - 10 points

Viva-Voce - 20 points

e) P. G. - 10 points

f) M. Phill - 02 points

g) Doctorate only - 05 points

M. Phill + Doctorate - 05 points

This is marked as Annexure-C whereas it should have been Annexure-B. Annexure-A to this notification has not been enclosed. It is a serious error

on the part of the petitioner. Nevertheless it is admitted by the petitioner that he appeared in the interview pursuant to Notification dated 09.04.2007

but his name did not find place in the provisional select list dated 31.08.2007 (Annexure-B) which has wrongly been placed before this Court as

Annexure-C. As a result of not finding his name in the provisional select list, the writ petition has been filed by the petitioner for the above stated

reliefs.

To canvass the plea that the selection of private respondents as also the selection criteria, is bad, learned counsel for the petitioner emphasizes on

the decision of the Hon’ble Division Bench in case titled ‘Balwinder Kour Vs. State of J&K & ors.‟ reported as„2000 KLJ 421‟, more

particularly, Paragraph Nos.17 and 18 read as follows:-Â

“17. In view of the above, we are of the opinion that giving undue weightage to 10+2 qualification and giving lesser importance to the degrees in

the discipline of Education is not apt. 10+2 qualification has no rational with the object i.e. appointment as teacher. 10+2 qualification is basic for all

further attainments in all walks of life. How does this qualification advances the cause of teaching and of those who are to be taught when this

qualification is not given any weightage for any other discipline then why give it so much importance in the selection of teachers. In any case, 50

marks for 10+2 qualification is definitely on the higher side. At 10+2 stage, an individual's personality is yet to develop and as observed in Lila Dhar's

case(supra)"". It is too early to identify the personal qualities for which greater importance may have to be attached in later life."" Deeper traits of

leadership, tact, forcefulness are yet to develop. Therefore, giving undue regard to 10+2 qualification at the cost of later qualifications is not apt. In

somewhat different context, reserving 75 marks under one head out of 275 marks was held to be bad in the case of Pariakaruppan Vs. State of Tamil

Nadu, AIR 1971 SC 2303 (supra). Again reserving 50 marks out of 150 under one head in the case of Nishi Maghu Vs. State of J&K and others.

AIR 1980 SC 1975 and 33 1/2 percent of total marks for interview in Ajay Hasia's case (supra), did not find favour with the Supreme Court of India.

As indicated above, this was in the context of reserving marks for viva-voce. Nevertheless, the thought behind this view is that giving undue

weightage to one criteria at the cost of other attract the vice of inequality. This has certainly not been avoided in this case. There is no rational; there

is not nexus with the object to be achieved. The subject is to appoint a teacher. A trained teacher having Graduation and Post Graduation

qualifications in the discipline of Education would be best suited for the job. By the process adopted in the present case, a trained teacher is being

almost ousted from consideration by giving insignificant weightage to his B.Ed and M.Ed qualifications. As indicated above, if in the discipline of

medical law, engineering, architecture etc., the basic qualification is the one which is possessed by a candidate in that very discipline, then there is no

justification to not to adopt the same criteria when appointments are made in teaching faculty. The decisions of the Supreme Court noticed above do

lay down the importance of trained teachers. The criteria adopted in the present case brings in arbitrariness.

We are not quashing the appointments which have already been made but we do feel that this criteria is required to be recast. Let steps be taken

in this regard. The question arises as to what relief the appellant is entitled to. The appellant does possess degree in B.Ed and also a Masters Degree.

In our view she has been put to a disadvantageous position by considering her claims on the basis of 10+2 qualification. She has not been properly

judged. The training which she has got in the discipline of Education has not been given significant importance. This is not in line with the

recommendations made by the Kothari Commission. This is also not in line with the observations made by the Supreme Court in the case notice

above.â€​

The plea of learned counsel for the petitioner is that the criteria fixed in the present case giving more weight-age to 10+2 and lesser weight-age to

B.Ed. is bad. The pith and substance of the decision of Balwinder Kour‟s case has not been considered by the department, thereafter, the petitioner

has not been selected by the erroneous criteria fixed by the respondents-department. On merits of the case, the petitioner pleads that she is more

meritorious than the private respondents and, therefore, she should have been selected.

Reply has already been filed on behalf of respondent Nos.5 to 11. In the reply, Mr. Sharma, learned Dy.A.G., submits that on merits, the

petitioner has not made the marks over and above the private respondents. The petitioner scored 32.31 points (G. Total) whereas the private

respondents scored 42.80, 42.70, 41.92, 41.47, 40.66 and 40.44 respectively. The petitioner belongs to RBA category and last cut of merit is 40.47. In

Annexure-RI, marks have been given to the petitioner for 10+2, Graduation, B.Ed. and Viva Voce. It is, therefore, pleaded that since the petitioner

has not made the grade, she could not be selected.Â

On the plea of selection criteria, Mr. Sharma, learned Dy.A.G., referred the subsequent decision of the Hon’ble Division Bench in the case of

‘State of J&K & ors. v. Rekha Sharma‟ reported as ‘2007 (3) JKJ 223 HC‟ decided by the First Bench of this Court and pleads that on similar

plea challenging the decision of the learned Single Judge setting aside the selection criteria, the Division Bench has reversed the judgment of Single

Judge and held as follows:-

“14. We have extensively quoted from the Division Bench Judgment in Balwinder Kour's case only to show that the Court had only found that the

higher weightage given to basic qualification of 10+2 as inapt and had only directed the recasting of this criteria and consideration of the respondent

(writ petitioner) according to that recast criteria. We have carefully examined the Division Bench judgment but we have not been able to come across

any breach or violation of this judgment in the newly prescribed criteria vide the two notifications dated 2nd March, 2001 and 4th April, 2001 nor is it

the respondent's case how and in what manner this criteria could be held to be in breach of any of the directions or observations made in the Division

Bench judgment in Balwinder Kour's case. It seems that this impression has been gathered from the impugned judgment that any higher qualification

of B. Ed or M. Ed ought to be awarded a higher weightage than a comparatively lesser qualifications of 10+2 or graduation, which is not the ratio laid

down in Balwinder Kour's case any way. Therefore, we have no difficulty in holding that the newly laid down criteria is in compliance to the judgment

in Balwinder Kour's case and not against its letter and spirit.Â

The other contention that the recast criteria prescribed by the Board was vitiated for being not published in the advertisement notice also requires

to be rejected. It needs to be clarified that it is not mandatory for any selection authority to prescribe a criteria in advance in advertisement notice

inviting applications for selection / appointment to the post. Such criteria is necessitated by the demand of the circumstances and is normally applied

where the advertisement notice attracts large number of candidates which makes it difficult to go through the selection process with that number of

candidates and requires short listing. Therefore, it is not mandatory or necessary to publish any such criteria in the advertisement notification for

information of the prospective candidates unless, of course, it is required under some rules or regulations.Â

We also find no merit in the contention that the recast criteria was violative of Articles 14 and 16 of the Constitution. This is so for the reason that

no minimum basics or foundation has been laid to substantiate this plea which is raised in generalized terms and seems to have been made for the heck

of it and in a routine manner. A criteria can be questioned for its irrationality or perversity or arbitrariness or for being incapable of being satisfied

which would attract Articles 14 and 16 of the Constitution. In the present case none of such eventualities are set out by the respondent in the writ

petition to suggest that the criteria could be questioned on any of these counts.Â

Ms. Surrinder Kour, counsel for the respondent made a last minute plea to suggest that the criteria was to be recast by the Government and not

the SSRB as was mandated by the Division Bench judgment in Balwinder Kour's case. She invited our attention to para 22 of the judgment which

reads:Â

This can indeed be achieved if we have trained teachers. This is the object which is foremost. It is because of this the State is advised to recast its

selection policy in the matter of appointing teachers.""Â

A plain reading of this observation by the Court while parting with the judgment does not lead to any conclusion that it had directed the State to

recast the criteria for short listing / screening or for calling candidates for interview. It needs to be borne in mind that there is clear cut distinction and

vast difference between the eligibility prescribed for a post under the relevant recruitment rules and the criteria prescribed by the selection authority

for short listing / screening / interview or even, for that matter, making the final selection of candidates. Unless rules provide, it is for the selection

authority or the Board to fix the criteria of its own for all these purposes in a given situation and in accordance with the demands of the situation. In

the present case there is no grey area because rules provide for meeting this situation. For example rule 10 of the relevant SRO 194 dated 18th

August, 1992 provides:Â

The Board shall finalise the selection after holding such tests or examinations as may be prescribed under rules, or if there are no such rules, as the

Board may consider necessary"".Â

This leaves no doubt that the Board has to make selections after holding such test or examination as may be prescribed under rules, or as it may

feel necessary in absence of such rules. In other words, if the rules do not prescribe any particular mode for holding test or examination or does not

lay down the criteria, the Board becomes competent to do so in the circumstances. Similarly para (ii) of Rule 13 lays down as under:

Ordinarily, the Board shall restrict the number of applicants to be admitted to oral or written test to a maximum of five times the number of vacancies

after doing the preliminary screening on the basis of marks obtained in the qualifying examination and such other criteria as the Board may deem

fit.""Â

A plain reading of this provision shows that the Board was competent to hold a preliminary screening either on the basis of the marks obtained in

the qualifying examination or any such criteria which it may deem fit. Regard being had to the relevant rule position, the submission of respondent's

counsel that the recast criteria was to be laid down by the State Government only deserves outright rejection. It is a different matter, however, that a

prescribed or a laid down criteria for short listing or for selection may be questioned as being irrational, perverse or contrary to any rules in force,

which is not the case here. So much so that the respondent in the appeal has not chosen to question either rule 10 or 13 of the relevant rules to show

that the recast criteria was in any way suffering from any infirmity whatsoever. Besides, it is no more res-integra that selection Board would be within

its rights to resort to short listing / screening of candidates, prescribing a criteria in this regard or even for that matter for selection so long as it does

not militate against any rules in force. This position has been repeatedly underscored and followed in several Supreme Court judgments. We may cite

some of these, namely, Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar, AIR 1995 SC 77, wherein it was held as under:Â

... As we have already pointed out that where the selection is to be made purely on the basis of interview, if the applications for such posts are

enormous in number with reference to the number of posts available to be filled upon, the Commission or the Selection Board has no option but to

short list such applicants on some rational and reasonable basis.""Â

In Union of India v T. Sudararaman, AIR 1997 SC 2418, the Supreme Court again held as under:Â

...Note 21 of the advertisement expressly provides that if a large number of applications are received the Commission may short list candidates for

interview on the basis of higher qualification although all applicants may possesses the requisite minimum qualification. In the case of M. P. Public

Service Commission v. Navnit Kumar Potdar, (1994) 6 JT (SC) 392 : 1994 AIR SCW 4088, this Court has upheld short listing of candidates on some

rational and reasonable basis. In that case, for the purpose of short listing, a longer period of experience than the minimum prescribed was used as a

criterion by the Public Service Commission for calling candidates for interview. This was upheld by this Court. In the case of Govt. of A. P. v. P.

Dalip Kumar, (1993) 2 JT (SC) 138 : 1993 AIR SCW 848 also this Court said that it is always open to the recruiting agency to screen candidates due

for consideration at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed

down with the ultimate objective of promoting candidates with higher qualifications to enter the zone of consideration. The procedure, therefore,

adopted in the present case by the Commission was legitimate..."".

All this leads us to only conclusion that the Writ Court had proceeded on clearly a wrong premise in allowing respondent's writ petition and

directing recasting of the criteria unsupported by any reason or rationale, whatsoever and without dealing with the issues raised in the bunch of writ

petitions.â€​

In the case of Balwinder Kour (supra), what has been indicated is that giving undue weightage to 10+2 may not be a proper method for selection

to the post of Teacher and due credit should be given to the B.Ed. and M.Ed. because they have the requisite training to the post of Teacher. The

First Division Bench in the case of Rekha Sharma was conscious of the fact that based on Balwinder Kour‟s case, the department has re-caste the

criteria and that was challenged by the writ petitioner in Rekha Sharma‟s case (Supra) and that criteria has been upheld by the Hon’ble Division

Bench; reversing the finding of the Single Judge primarily holding that there is no violation of Article 14 & 16 of the Constitution. The Division Bench

clearly held that the criteria does not suffer from any irrationality, perversity or arbitrariness. The Division Bench in Rekha Sharma‟s case also relied

upon SRO giving the power to the Services Selection Board to decide the criteria, therefore, this Court finds no serious error in rational behind the

selection criteria fixed by the respondents/Services Selection Board in the present case keeping in line with the decision of Balwinder Kour‟s case as

also First Division bench judgment in Rekha Sharma‟s case.

Furthermore, learned counsel for the petitioner would emphasize that importance should be given to B.Ed./M.Ed. which is higher than that of 10+2

qualification. For this aspect of the matter, it is to be kept in mind that the basic qualification for the post of Teacher is 10+2 and in the selection

criteria prescribed in the present case as has already been extracted above, sufficient marks have been allocated for B.Ed. and M.Ed. This has been

done keeping in mind the large number of candidates, who may be participating on different qualifications.Â

This Court cannot at this point of time supplement its views as to what will be the proper points that should be given in respect of each education

qualification.Â

As has been pointed out in Rekha Sharma‟s case, unless there is patent illegality or perversity there is no scope for interference. It is not for the

Court to interfere in the inter se fixation of the selection criteria.Â

The Division Bench’s decision in Rekha Sharma‟s case squarely applies to the facts of the present case where a similar challenge to the

selection criteria was rejected by the First Division Bench.

Moreover, the petitioner has challenged the selection criteria after participation. The objection raised by Mr. Raman Sharma, learned Dy.A.G, is

sustained, based on the following decisions of the Hon’ble Supreme Court:-

(a) (2010) 12 Supreme Court Cases 576 Manish Kumar Shahi v. State of Bihar;

(b) (2016) 1 Supreme Court Cases 454 Madras Institute of Development Studies v. K. Sivasubramaniyan;

(c) (2013) 11 Supreme Court Cases 309 Ramesh Chandra Shah v. Anil Joshi}; &Â

(d) (1995) 3 Supreme Court Cases 486 Madan Lal and others v. State of J&K and others.

Accordingly, the relief of certiorari is declined. On merits, it has been pointed out that the marks obtained by the petitioner is below the cut-off

marks. Therefore, there is no justification for the petitioner to canvass on merits.

Resultantly, finding no merits, the writ petition is dismissed.Â

Connected MP(s), if any, also stands dismissed as above.