Mohd.Aslam Bach vs V.L.Vishin and others

Wazir, C. J.

(1) This is an application under Art. 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir for a direction, order or an

appropriate writ quashing the Government Order No. 442/A/55 dated 24101955 according sanction in anticipation of Cabinet Order to the

appointment of the lecturers respondents Nos. 1, 2 and 3 which was subsequently confirmed by the Cabinet Order No. 795/C of 1956 dated

14456. The petitioner's case is as follows:

(2) That he is a first class"" hereditary State subject; that he passed his M. Sc. Examination in Chemistry from the Aligarh Muslim University

obtaining second Division in 1954; that the petitioner was appointed as Demonstrator in Chemistry in the scale of 15010250 in Amarsing College

on probation for two years on the post being vacated by one Mr. Abdur Razak Shah who was promoted as a Lecturer; that the Director of

Education advertised in the Jammu & Kashmir Government Gazette inter alia the posts in Chemistry in the grade of, 20015350/25500 on the 23rd

June 1955 and the 7th July 1955; that he possessed the necessary qualifications for the post and was better Suited for the post of lectureship on

the basis of merit and ability as compared to respondent No. 1, Mr. V. L. Vishin, that Mr. V.L. Vishin who had passed M. Sc. in the third division

was selected for the post in preference to the petitioner which was contrary to the provisions of the Kashmir Civil Service Rules.

Lastly the petitioner averred that he had been deprived of the post of Lecturer by disregarding the Kashmir Civil Service Rules whereby the

guarantee of equal protection of law envisaged in Art. 14 of the Constitution of India was denied to the petitioner. It was therefore prayed that an

appropriate writ, direction or order be issued to quash the Government Order No. 442/A55 dated 241055 according sanction in anticipation of

the Cabinet order to the appointment of respondents Nos. 1, 2 and 3 a& Lecturers in Chemistry and prohibiting the Cabinet from confirming the

said anticipatory order and restraining respondents Nos. 1, 2 and 3 from assuming the posts of Lecturers in Chemistry and ordering the

appointment of the petitioner as Lecturer in preference to Mr. V. L. Vishin respondent.

(3) Objection to the petition have been filed by the Government and by Mr. V. L. Vishin, Mr. Vishin in his reply has submitted that the

Government Order No. 442A/55 dated 241.01955 had been confirmed by the Cabinet vide its Order No. 795/C of 1956 dated the 14th April

1556 and the respondent had assumed the charge of his post and therefore the petition had become in fructuous and could not proceed. It was

further stated that the Ministerincharge, Education Department, directed the appointment of the respondent and others to the posts of Lecturers in

Chemistry on the basis of merit, ability and seniority.

The respondent possessed superior merit and ability and had a teaching experience extending over a period of eight years whereas the petitioner

had only a few months' experience in this line and was not even a permanent Demonstrator. Lastly it was averred that every candidate who applied

for the post of Lecturer was given a fair deal. He was interviewed by the Recruitment Board and keeping in view merit and experience in the

teaching line the respondent was selected for the post and therefore the petitioner should have no grievance.

(4) The counsel for the petitioner has not seriously impugned the appointment of respondents Nos. 2 and 3. His main attack is directed against the

appointment of respondent No. 1, Mr. V. L. Vishin. His contention is that Mr. Vishin was a third class M. Sc. and he should not have been

promoted in view of R. 25 of the K. C. S. Rules which have the force of law.

(5) Rule 25 runs as follows:

(a) (1) Promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability

and shall be subject to the passing of any tests that Government may prescribe in this behalf, seniority being considered only . where the merit and

ability are approximately equal.

The terms ""service"", ""class"" and ""selection category"" are defined in Cls. (x), (iv) and (iii) or R. 1 of the K.C.S. Rules. The question for

consideration is whether R. 25 of the K.C.S. Rules has been violated or not. A careful scrutiny of the Rule will show that promotion is essentially a

subjective matter. It is true that promotion has to be made on the basis of merit and ability but the question for consideration is as to who has to

judge the merit and ability a candidate. The answer to this is clear and simple.

It is the appointing authority who has occasion to see the work of the public servant that can form correct estimate as to his merit and ability and is

he alone who can say whether the public servant is fit for promotion or not. The assessment of merit and ability made by the appointing authority in

our opinion, conclusive and cannot be questioned by the Court except where the person promoted does not fulfil the minimum qualifications

prescribed for the post. It follows, therefore, that merit and ability being matters relating to the subjective satisfaction, the Court cannot act as an

appellate authority and substitute its opinion for that f the appointing authority unless the appointing authority has selected a candidate who does not

possess the minimum qualifications prescribed in the Rules for a post.

(6) It is argued on behalf of the petitioner that le appointment orders are invalid as they do not bow on their face that the selection was based on

merit and ability. This contention is untenable. It appears from the record that the applications of le candidates were referred to the Public Service

Recruitment Board for selection. The Director of Education and the Secretary to the Government, Ministry of Education, were also present at the

time when the candidates were interviewed.

The Board, it appears, taking into consideration the qualifications and the teaching experience elected Mr. V.L. Vishin for the post of Lecturer

preference to the petitioner. Mr. Vishin has been in service for the last eight years which fact not denied by the petitioner. Keeping in, view be

Qualifications, teaching experience and seniority, dr. Vishin was promoted to the post of Lecturer, in the order it is not mentioned that the

promotion was made on the basis of merit and ability but it cannot be said that the order is invalid if the appointing authority can show that the

promotion was i fact made on the basis of merit and ability.

There is nothing in R. 25 which requires that he order must be framed in a particular form or lanner or it should show on the face of it that the

promotion is made on the basis of merit and ability, t is desirable that the appointing authority should mention in the order that merit and ability have

been taken into consideration in ordering the promotion of an officer but an omission to do so will not render the order invalid. In support of this

view relience may be made on a ruling of the Supreme Court reported as State of Bombay v. Bhanji Munji, (S) AIR 1955 SC 41 (A), wherein it

has been held ""it is not necessary to set out the purpose of lie requisition in the order under Ss. 5 (1) and 6 (4). IB desirability of such a course is

obvious because when it is not done proof of the purpose must be given in other ways. But in itself an omission to out the purpose in the order is

not fatal so long the facts are established to the satisfaction of e Court in some other way."" this case, as pointed out above, the Director of

Education who is the head of the Department and Secretary to the Government, Ministry of Education, were present at the time the Board

interviewed the candidates for the posts of Lecturers. They made selection of certain candidates for, the posts. The candidates who were selected

had the minimum qualifications required for the post. From the affidavit furnished by the Secretary to Government, Ministry of Education, it

appears that merit and ability were taken into consideration in selecting the candidates for promotion. In these circumstances it cannot be said that

the provisions of R. 25 of the Kashmir Civil Service Rules have, in any way, been violated.

(7) This petition has no force and. is dismissed. The petitioner shall pay Rs. 50 as costs in this petition.

(8) SHAHMIRI J. : I agree.

(9) KILAM J. : I agree.

(10) V.R.B. Petition dismissed