Narinder Verma vs State of Jammu and Kashmir

R.C. Gandhi, J.—These appeals have arisen out of judgment and order dated April 30, 1999 delivered in a batch of writ petitions, by the

learned Single Judge, whereby he has dismissed the writ petitions upholding the selection made by the J&K Subordinate Services Selection

Recruitment Board (for short ""the Board"") to the posts of Junior Engineers GradeII (Electrical) in the Power Development Department.

The Board, issued Notification No. 6 of 1997 dated 1.3.1997 inviting applications from the desirous candidates for selection to the posts of

Junior Engineer GradeII (Electrical), fixing the last date for submission of the applications as July 31, 1997. The essential eligibility qualification for

seeking consideration by the candidates was mentioned as ""B.E./A.M.I.E. (A&B), Diploma in Electrical/Electronics Engineering"" in the

advertisement Notice. 2229 candidates responded and after subjecting them to the process of selection, the Board selected 300 candidates with a

waiting list. The Selection List was published in a Daily Newspaper on December 25, 1998. The selection came to be challenged by both Degree

Holders and Diploma Holders by means of SWP Nos. 12/99, 65/99, 108/99, 123/99, 143/99, 164/99, 254/99, 258/99, 277/99 and 340/99.

The learned Single Judge after appreciating the controversy raised by the parties in their pleadings, upheld the selection and dismissed the writ

petitions by a common judgment under appeal.

Aggrieved of the judgment of the learned Single Judge, appellants have preferred these appeals reiterating the same grounds viz. the statutory

qualification prescribed for the post of J.E. GradeII as B.E/A.M.I.E.(A&B)/Diploma in Electrical/Electronics Engineering is discriminatory. The

Board has assessed the candidates reserving 80 marks to be awarded proportionate to the marks secured in the Degree/Diploma, though the

Degrees have been obtained from different Institutes located in different parts of India where the pattern of conducting the examinations is entirely

different from those who have obtained their Degrees from Regional Engineering Colleges situated outside and in the State of Jammu and Kashmir.

Some of the Universities outside the State consider only the marks secured for the last year examination for the purposes of awarding

Division/positions and some of the Universities take into consideration two years' or even four years' marks, whereas, Regional Engineering

Colleges consider four years' marks obtained in the final examination. The period of study for a Decree Course is four years, examinations are

conducted in Semester Sessions and the candidates have to pass 41 theory papers plus 20 practical, whereas, the period of study for Diploma

Course is three years, examinations are conducted in Annual Sessions and the candidates have to pass 20 theory papers and 18 practical. To

undergo Decree Course, a candidate is eligible only if he has passed 10+2 whereas for Diploma Course the eligibility qualifications to be selected,

is Matric. Technical qualification of Degree and Diploma cannot be equated for the purposes of assessing their merit and suitability being these two

different qualifications and cannot be treated alike. The criterion, without giving any weightage to the higher qualification is discriminatory.

Challenge is also thrown to the criteria adopted by the Board reserving 80% marks for qualification to be awarded proportionate to the marks

secured in Degree/Diploma Courses and 20 marks for viva voce. Another challenge is that the selection of Rajesh Mengi is the result of favouritism

as his uncle, Mr. O.P. Mengi was the Chairman of the Selection Committee and his suitability has been assessed by him. Selection of Mr. Rakesh

Bakshi is also questioned on the ground that he being ineligible to seek consideration, has been selected. No candidate from Handicapped

Category has been selected despite the mandate of SRO 220 of 98 notified on 16.7.1998 which provides 3% reservation for candidates belonging

to Handicapped Category.

Sunil Salgotra, Diploma Holder has challenged the selection on the ground that he being the 1st positioner in Electrical Engineering has not been

selected. Had he been awarded two marks in the Viva Voce, he would have secured the cut off point of merit viz. 65.90, for selection. His plea is

that his merit has been turned into demerit during the farce process of viva voce. On these pleas, they seek to quash the selection.

We have heard learned Counsel for the parties and perused the record.

Challenge to the selection, so far as Mr. Rakesh Bakshi, Diploma Holder, is concerned, he though a party to the petition has not filed his reply.

His marks card annexed with the application form shows that he passed three Years Diploma in Session NovemberDecember, 1996 but it does

not bear the date of its issue. Notification for declaration of his result was issued on 12.10.1997, which has not been denied. Last date for

submission of application forms was 31.7.1997. The stand of the Board that he passed the Diploma Course in NovemberDecember, 1996 and

thus has been selected, itself shows nonapplication of mind. A candidate seeking selection should be eligible to seek consideration on the last date

of submission of the application forms. Apparently, Mr. Rajesh Bakshi was not possessed of statutory eligibility qualification on 31.7.1997 as his

result was declared on 12.10.1997. The Supreme Court while dealing with similar proposition in Ashok Kumar Sharma and others v. Chander

Sheikher and another, 1997(2) SCT 123 (SC) : reported in 1997(4) SCC 18 in para 6 of the judgment, held :

..........The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of

the candidates shall have to be judged with reference to that date and that date alone, is a wellestablished one. A person who acquires the

prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling

for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it.

One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the

date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the

persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been

treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was

not doubted or disputed in the majority judgment. This is also the proposition affirmed in ​​Rekha Chaturvedi v. University of Rajasthan.​​ The

reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best

talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered

opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High

Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview.

This view has been reiterated by the Apex Court in State of Rajasthan v. Hitendra Kumar Bhatt, reported in 1997(4) S.C.T. 32 : AIR 1988 SC

page 91 . His selection, therefore, deserves to be set aside.

So far as the selection of Rajesh Mengi is concerned, it is not disputed that he is the real nephew of Shri O.P. Mengi, Chairman of the Selection

Committee against whom allegations of favouritism and mala fides have been levelled. He though party respondent, has not filed the reply. The

Board in its reply affidavit has stated in para (vii) that :

.............In the first instance it is submitted that the mere fact that Shri Rajesh Mengi is the real nephew of Shri O.P. Mengi does not ipso facto

deny Rajesh Mengi to be selected for appointment as Junior Engineer (Electrical) GradeII. It is submitted that things would have been different in

case Shri O.P. Mengi alone had to evaluate the candidates. It is submitted that the Interview Committee was comprised of so many members and,

therefore, Shri O.P. Mengi was not evaluated by Shri O.P. Mengi alone........

The above averments have been solemnly affirmed by the Secretary of the Board deposing that the information supplied and contained in the reply

affidavit is based upon information available in the office records maintained by the Board. The respondentBoard, having confronted with and to

come out from this controversy, again filed supplementary affidavit deposing that Rajesh Mengi was not interviewed by O.P. Mengi. This statement

has also been solemnly affirmed on the basis of the record maintained in the office of the Board. To find out from the said record, which of the

stand of the Board, either of the two, is correct, despite directions from the court the record has not been produced. It is not their case that the

record is not available being not maintained. It was obligatory upon them to keep and maintain such record, in view of Atul Khullar's case reported

in AIR 1986 SC 1225, where it has been held :

...........We find it necessary, however, to emphasise that a Selection Committee conducting the viva voce test should maintain the entire record,

including the original worksheets on which the marks have been recorded by each Member separately, for a minimum period of one year after the

examination. Failure to do so can strengthen an allegation of mala fides against the Selection Committee.

Both the affidavits have been filed, based upon the information/record maintained by the Board. In such circumstances the Board was under

obligation to establish before the court of law, which of the two statements is correct in view of their divergent stand.

Another aspect of this selection is that we have examined the award sheets produced by Mr. R.K. Bhatia, learned counsel representing the

Board, which reveals that Mr. Rajesh Mengi has been awarded 19 marks out of 20, which are the highest marks without which he was not in a

position to make the grade to be selected. Though it is not for the courts to substitute the wisdom of the Selection Committee arrived at upon the

performance of the candidates yet awarding of the marks to that extent to a particular candidate exhibits showing of favouritism as the allegations

have not been warded off by the Board by producing of record. In view of their misleading statements and thereafter not taking the court in

confidence, adverse inference is drawn against the Board. The selection of Rajesh Mengi on this score deserves to be quashed.

Mr. M.K. Bhardwaj, learned Counsel representing Prem Nath appellant, a handicapped candidate, relying upon the mandate of Section 22 of

the J&K Persons with Disabilities (Equal) Opportunities, Protection of Rights and Full Participation) Act, 1998, has submitted that the respondents

were under legal obligation to select the appellant. Section 22 of the Act, is extracted below :

Reservation of posts. The Government shall appoint in every establishment such percentage of vacancies not less than three percent, for

persons or class of persons with disabilities of which one percent, each shall be reserved for persons suffering from :

(i) blindness or low vision,

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in the posts identified for each disabilities :

Provided that the Government may, having regard to the type of work carried on in any department or establishment by notification subject to such

conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

Before Section 22 is given effect, the exercise mandated by Section 21 of the Act has to be done by the Government for identifying the posts in a

particular establishment, which can be reserved for persons suffering disability. Section 21 reads thus :

Identification of posts which can be reserved for persons with disabilities. The Government shall

(a) identify posts, in the establishment which can be reserved for the persons with disabilities;

(b) at periodical intervals not exceeding three years, review the list of posts identified and update the list taking into consideration the development

in technology.

The Government has not yet identified the posts, unless the posts are identified and referred to the Board it was not obligation upon the Board

to select the candidates. The Act came into being by promulgation of SRO 220 of 1998 dated 16.7.1998, whereas the process of Selection

commenced in the year 1997, therefore, in such circumstances also, the Board was not under obligation to select handicapped candidates under

the provisions of this Act. The scheme of the Act also does not envisage its effect and application to the pending selections. In view of the stand of

the Government that they have not yet identified the posts, the appellant was not entitled to be selected. The appeal of Prem Nath is, therefore,

dismissed. The Government is directed to identify the posts in terms of Section 21 of the Act so that the provisions of law are implemented

expeditiously.

Adverting to the much contested controversy, the main thrust of the appellantsDegree Holders is that the selection is bad for various reasons

including that the technical qualification of Degree has been equated with diploma. Their plea is that even among Degree holders the suitability

cannot be assessed as the process of examination by various Universities being different. The Degree holders have to qualify the degree within a

period of four years and the candidate must be 10+2 before seeking admission to Decree Course and have to pass 41 theory papers plus 20

practical, whereas, the entry, in case of Diploma Holders is Matric and they have to undergo three years course, therefore, these two different

qualifications cannot be equated and treated alike.

It is further urged at the bar that earmarking of 80 marks to assess the suitability of the candidates, on the basis of technical qualification i.e.

marks secured by the candidates in Degree/Diploma Courses is bad. Marks of three years examinations during Diploma Course have been

counted proportionately for 80 marks whereas Degree holder's marks of four years examinations have been counted proportionately for 80 marks.

Not only this, the Degree and Diploma secured from different Universities having different patterns of conducting the examinations visavis the

Regional Engineering Colleges, has not been taken care of in view of the judgment of the Supreme Court in Dinesh Kumar v. Moti Lal Nehru

College, reported in 1985 SC 1959 wherein it has been observed that :

It would be wholly unjust to grant the admissions to students by assessing their relative merits with reference to the marks obtained by them not at

the same qualifying examination where standard of judging would be reasonably uniform but at different qualifying examinations held by different

State Governments or Universities where the standard of judging would necessarily vary and not be the same. That would indeed be blatantly

violation of the concept of equality enshrined in Article 14 of the Constitution.

The selection of a candidate to a post by the Expert body is with a purpose to select a suitable candidates keeping in view the essential

qualification provided by the executive to make the post functional. To achieve this object the expert body, in absence of the statutory criterian, has

to adopt a criteria to assess the suitability of the candidates, keeping in view the requirement of the service. In the present case the post can be

made functional in terms of statutory qualification of Diploma or Degree in Electrical/Electronics. If a Diploma Holder can make the post functional,

it cannot be said that Degree Holder cannot make the post functional, therefore, obviously the essential qualification required for making the post

functional is 3 years Diploma in Electrical/Electronics Engineering. Diploma cannot be equated with Degree. 80 marks have been distributed

proportionate to the marks secured in 4 years in the case of Degree Holder and 3 years in case of Diploma holder which apparently appears to be

unjust. The executive while prescribing Degree/Diploma as eligibility qualification, being the two unequal qualifications, has not prescribed the

relative procedure for its application to assess the merit and suitability of a candidate. Degree holders were required to be given some weightage

by the Board to their higher qualification. The Selection Authority has not adopted any such criteria. In the selection process, Degree holders, have

been treated alike Diploma holders, this itself appears to be discriminatory as two unequals have been made equal.

There is no dispute with the proposition that the object of selection of candidates to a public service through the Selection Committee is to

secure the best suitable persons. The selection based on merit is the objective foundation of any useful and efficient public service.

In Leela Dhar v. State of Rajasthan, reported in AIR 1981 SC 1777, the Supreme Court has emphasised the need of open competitive

examination as one of the objective method as universally accepted gate way to a public service. In this context, the Supreme Court quoted from

the United Nations Handbook on Civil Services Laws and Practice in para 4 which is extracted below :

Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open

competitive examination has come to be almost universal as the gateway to public services, with unfairness."" United Nations Handbook on Civil

Service Laws and Practice Competitive examinations were the answer to the twin problems represented by democracy and the requirements of

good administration. They were the means by which equality of opportunity was to be united with efficiency. By this means favouritism was to be

excluded and the goal of securing the best man for every job was to be achieved. ""Public Personnel Administration by O. Glenn Stahl. ""Open

Competitive Examinations are a peculiarly democratic institution. Any qualified person may come forward. His relative competence for

appointment is determined by a neutral disinterested body on the basis of objective evidence supplied by the candidate himself. No one has ""pull

every stands on his own feet. The system is not only highly democratic, it is fair and equitable to every competitor. The same rules govern, the

same procedures apply, the same yardstick, is used to test competence."" Introduction in the study of Public Administration by Leonard White.

The Supreme Court also referred to the report of Kothari Committee on recruitment policy. The quoted portion is extracted below :

A system of recruitment almost totally dependent on assessment of a person's academic knowledge and skills, as distinct from ability to deal with

pressing problems of economic and social development with people, and with novel situations cannot serve the needs of today, much less of

tomorrow... We venture to suggest that our recruitment procedures should be such that we can select candidates who cannot only assimilate

knowledge and sift material to understand the ramifications of a situation or a problem but have the potential to develop an original or innovative

approach to the solution of problems.

The Khothari Report has further commented for judging the suitability of a person for public service, expressing that :

The destiny of India is now being shaped in her class rooms. This, we believe is no more rhetoric. In a world based on science and technology, it

is education that determines the level of prosperity, welfare and security of the people.

After taking notice of the aforesaid references, the Supreme Court observed that :

The written examination assesses man's intellect and the interview test the man himself and ""the twain shall meet"" for a proper selection.

The Supreme Court while scrutinizing the selection and appointment of candidates to the post of Dealer in Fair Price Shop, mere only on the

ground of their possessing lower educational qualification, held in para 6 of the judgment pronounced in Y. Srinivasa Rao v. J. Veeraiah and

others, reported in AIR 1993 SC page 929, which reads thus :

The decision to prefer an uneducated person over an educated person amounts to allowing premium on ignorance, incompetence and

consequently inefficiency. The only fault of the appellant is to have pursued his studies beyond 10th class of his school. If he had discontinued his

career as a student even earlier, say after passing 7th or 8th class, he would have been running the shop today. This clearly amounts to gross

arbitrariness and, therefore, illegal discrimination. Pursuing this line the State will have to be going in search of a more inefficient person and we do

not know where this process would end. If we assume that since a better qualified person has got a better chance to succeed in life, an intelligent

applicant who can run the shop efficiently should be rejected and a dim witted fellow should be selected. This is an absurd situation.

While dealing with classification based on educational qualification for promotion to the next higher post, where it was provided that the

Diploma holders would be eligible only in case of exceptional merit in work, the Supreme Court emphasising upon the better qualification and merit

maintained the classification based on educational qualification amongst Degree and Diploma holders, in T.R. Kothandaraman and others v. Tamil

Nadu Water Supply and Drainage and others, 1994(4) SCT 763 (SC) : reported in 1994(6) SCC page 282 , holding in paras 13 and 14 of the

judgment, which are extracted below :

The aforesaid bird's eye view of important decisions of this Court on the question of prescribing quota in promotion to higher post based on

the educational qualification makes it clear that such a qualification can in certain cases be a valid basis of classification; and the classification need

not be relatable only to the eligibility criteria, but to restrictions in promotion as well. Further, even if in a case the classification would not be

acceptable to the court on principle, it would, before pronouncing its judgment, bear in mind the historical background. It is apparent that while

judging the validity of the classification, the court should have to be conscious about the need for maintaining efficiency in service and also whether

the required qualification is necessary for the discharge of duties in the higher post.

The aforesaid propositions seem indisputable to us. We, however, propose to project two other determinants, or to put it differently, introduce

two more spokes in the wheel. They are call of social justice and importance of education. In view of the interrelationship which exists in the

fundamental rights, which got established by the decision in Bank Nationalisation case, we have to see, while examining the provision on the anvil

of Articles 14 and 16 of the Constitution, whether Article 21 offended in any way. This article has expanded its reach almost phenomenally. For

the purpose of the cases at hand we may not dwell upon that it would be enough to note that even education (up to primary stage) was held by a

Constitution Bench to be a part of Article 21 in ​​Unni Krishnan J.P. v. State of A.P.​​ The importance of education has been well brought home by

Mohan, J., (a majority Judge) in his concurrent judgment by stating that education is ""a preparation for living and for life, here and hereafter"" and

that education is ""at once a social and political necessity"", and that ""Victories are gained, peace is preserved, progress is achieved, civilisation is

built up and history is made not on the battlefields.... but in educational institutions which are seed beds of culture, where children in whose hand

quiver the destinies of the future, are trained."" (See p. 665, paragraphs 10, 12 and 13). So, whatever view we take has to be one which does not

play down the importance of education.

The Supreme Court has pronounced time and again to maintain the importance of education which has been ignored by the Board equating the

Diploma holders with Degree holders. The Degree holders being higher in qualification and that the Executive while prescribing the eligibility

qualification has not prescribed the method and procedure to assess the suitability and merit of the candidates possessing unequal or superior

qualification to that which can make the post functional. The Degree holders cannot thus be equated with Diploma holders. Criterion of 80% marks

cannot be applied uniformally to both differently situated. Therefore, the selection to that extent cannot be maintained and the judgment of the

learned Single Judge needs interference.

On the concluding date of arguments a CMP was moved by 27 selected candidates/respondents in the Appeals, seeking direction to the

official respondents to release their salary as they have joined pursuant to their selection and appointment. It is stated in the application that they

have joined, ranging between January 12, 1999 to January 21, 1999 and are discharging their duties, but despite that the respondents have not

released their salary on the ground that their selection is under challenge and stayed by the Court. While reserving the judgment, it was directed

that the result of the appeals shall govern to the disposal of this application also. Because of the restraint order of this Court, the other selected

candidates have not joined. However, joining reports of some of the selected candidates have been accepted by the official respondents. Since the

respondentsselectees, who have joined pursuant to their selection and appointment and have worked also, they are entitled to the payment of

salary, for the period they have worked. The official respondents shall release their salary.

For the aforesaid reasons, the judgment under appeal is set aside, the appeals are disposed of with the following directions :

(i) Criteria, reserving 80% marks for eligibility qualification and applying these marks uniformally, proportionate to the marks secured in Diploma

and Degree Courses, to assess the merit and suitability of the Degree holders visavis Diploma holders is set aside;

(ii) 20 marks for viva voce are maintained. The viva voce test and its award by the Selection Committee, as a consequence of the viva voce, is also

maintained;

(iii) The Board shall reframe the criteria within 80 marks, reserved for eligibility qualification, giving adequate weightage to the higher qualification of

Degree; and

(iv) The candidates shall be reassessed by the Board according to the re framed criteria, for determining their merit and suitability and issue the

Select List before August 31, 2000.

Appeals disposed of.