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651 paragraphs · 8,152 wordsY.P. Nargotra, J.—Service Selection Board by its advertisement notice No. 01 of 1999 dated 9-3-1999 invited applications from the
eligible candidates for 275 posts of Teachers in District Cadre Rajouri. The percentage for category-wise reservation of the posts was as follows:
Scheduled Caste : 08% i.e. 23 posts
Scheduled Tribe : 10% i.e. 27 posts
Socially and educationally backward classes:
i. Week and under privileged classes (Social Caste): 02%
ii. Residents of areas adjoining line of actual control: 03%
iii. Residents of Backward area : 20%
Open Merit: 57%
The eligibility qualification as prescribed was ""10+2"" with with 50% marks and above. However, bar of 50% marks will not apply to graduates
and above. The experience is to be given preference. The Service Selection Board also published the following selection criterion:
(i) Basic qualification : 40 Points,
(ii) Graduation : 10 Points.
(iii) B.Ed : 10 Points,
(iv) Post Graduation : 10 Points
(iv) M.Ed. : 10 Points.
(vii) Viva Voce : 20 Points.
Total : 100 Points.
For making selection the Service Selection Board in exercise of the powers vested in it under Rule 13 of the Jammu and Kashmir Subordinate
Service Recruitment Rules, 1992 read with Office Order No. 732-SSB of 2006 dated 7-8-2006 constituted the interview committee comprising
of the following:
(i) Mr. Shafiq Raina, KAS, Member SSB -Convenor;
(ii) Mr. Ali Asgar Chowdhary, ACD, Poonch - Member
(iii) Mr. S.D. Dutta, Chief Education Officer, Poonch -Member
With a view to reduce the number of candidates for interviews, the Selection Board short listed the candidates by applying the selection criterion
quoted above minus the viva voce and issued General short list. The Selection Board on 9-2-2007 issued the following notification:
Notification.
In continuation to this office notification No. SSB/Secy/Int/06/10499-10526/2006 dated 4-9-2006 the claims have been received for considering
for the interview for the post of 'Teacher' District Cadre Poonch in pursuance to notification No. 10 of 2005 dated 29-12-2005, item No. 04 on
various grounds. It has been decided that the claimants shall be interviewed as per the schedule indicated in the Annexure ""A"" to this notification
subject to the following conditions:
In such cases where the candidates claim that they have been excluded for indicating wrong item number, the candidates should have indicated
the choice for the post of 'Teacher' Poonch in the OMR form in the block where the name of the post had to be indicated.
The candidates should have the merit equal to or greater than the out off merit for short-listing in the respective categories.
Such of the candidates as claim consideration against any category should be in possession of valid certificates as on the cut off date for the
notification;
All the candidates are held only provisionally eligible and their eligibility shall be subject to the verification of their application forms and
certificates on spot by the convener, selection committee.
In case any candidate who has obtained direction from the Hon'ble Court for being interviewed does not figure in the shortlist, he/she should
approach the convener of the of the committee on the schedule dates for inclusion in the interview.
Secretary
Service Selection Board, Jammu
No. SSB/Sel/07/729-36/07 Dated 9-2-2007
It is the case of the Board that some such left out candidates who as per their merit, should have been included in the short list but had not been
included, approached the Board. Like-wise some of the left out candidates filed writ petitions in the Court, wherein the directions for interviewing
them came to be issued. In respect of all such candidates the selection Board issued another supplementary short list. For the first short list the
selection committee was to hold the interviews but on the date fixed out of three members, one member, namely, Sh Ali Asgar expressed his
inability on personal grounds to conduct the interviews as a result of which he was replaced by Dr. Rattan Lal Bhellum, KAS, Dy Director,
Employment Poonch.
The selection Committee so composed conducted the interviews of the candidates of the General short- list on various dates between 18-9-
2006 to 4-10-2006.
For conducting the interviews of the candidates placed in the supplementary list, the selection committee was re-constituted by replacing two
members, namely, Mr. S.S. Dutta, Chief Education Officer, Poonch and Dr. Rattan Lal Bhellum, KAS Dy Director, Employment, Poonch by Mr.
Paramjeet Singh, Principal Higher Secondary School, Poonch and Mr. Matloob Khan, Dy Director, Employment, Poonch. The change in the
selection committee, according to the respondents- Board was necessitated because Mr. S.S. Dutta had official pre-occupation, whereas Dr.
Rattan Lal Bhellum, had been transferred. The new selection committee thus consisting of Mr. Shafiq Raina, KAS, Member SSB - Convenor; Mr.
Paramjeet Singh, Principal Higher Secondary School, Poonch and Mr. Matloob Khan, Dy Director, Employment, Poonch was constituted to
conduct the interviews of the candidates of supplementary short-list.
After the completion of the selection process the Board issued select list and recommended the names of 187 candidates for appointment to the
competent authority, while the result of one candidate, namely, Paramjeet Singh was with-held pursuant to the court direction issued in SWP No.
1459/2007. On the basis of the recommendation made by the Service Selection Board, the concerned competent authority has already issued the
appointment orders and at the time of filing of the instant writ petitions, some of them had already joined while some have yet to submit their joining
reports, which they could not do because of the interim directions.
The writ petitioners in this batch of writ petitions were also the candidates in the selection. They competed but failed to make the grade so have
not been included in the select list, hence have filed the present writ petitions for questioning the legality and validity of the selection process and the
selection made by the Service Selection Board.
I have heard the learned Counsel for the parties and perused the record.
The first contention urged on behalf of the writ petitioners by their counsel is that the selection criterion adopted by the Service Selection Board
is bad in law. They submit that allocation of 30 points for basic qualification are excessive because by this the specialized qualification like B.Ed
and M.Ed which is of prime importance in the field of teaching has been marginalised. They further submit the allocation of 20 points for viva voce
is excessive because by awarding high marks in interview, merit could be converted into demerit. It has further been submitted that the selection
criterion adopted being not in consonance with the ratio of Division Bench judgment rendered in case titled Balwinder Kour v. State and Ors.
2000 KLJ 42 is legally invalid,'
In Balwinder Kour's case (Supra), the appellant Balwinder Kour had remained unsuccessful in the selection process carried out for the posts
of teachers, pursuant to the advertisement notice No. 3/1999 dated 24th December 1996 issued by Services Selection Board. Her case was that
as more weightage had been given to the basic qualification prescribed i.e. 10+2 as such criterion was invalid. The criterion of selection was as
follows:
a) 10 + 2 : 50 Points.
(b) Graduation : 10 Additional Points for 1st Division.
: 08 Additional Points for 2nd Division.
: 06 Additional Points for 3rd Division.
(c) Post-graduation: 10 Additional Points for 1st Division.
: 08 Additional Points for 2nd Division.
: 06 Additional Points for 3rd Division.
(d) B.Ed.: 05 Additional Points.
(e) M.Ed.: 05 Additional Points.
(f) Viva-voice : 20 points.
Total: 100 Points.
The learned Division Bench observed as follows:
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 no apt. 10+2 qualification had 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 Minor A. Peeriakaruppan
and Sobha Joseph Vs. State of Tamil Nadu and Others, . Again reserving 50 marks out of 150 under one head in the case of Miss. Nishi Maghu
and Others Vs. State of Jammu and Kashmir and Others, 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 criterion 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 no 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
criterion when appointments are made in teaching faculty. The decisions of the Supreme Court noticed above do lay down the importance of
trained teachers. The criterion adopted in the present case brings in arbitrariness.
After observing as above, learned Division Bench held as follows:
We are not quashing the appointments which have already been made but we do feel that this criterion 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 cases noticed
above.
We are accordingly of the view"":
(a) that the allocation of 50 marks for 10+2 qualification is on the higher side.
(b) That this allocation operates to the detriment of those candidates who possess graduate and postgraduate qualification in the discipline of
education.
This is not in conformity with the spirit of Articles 14 and 16 of the Constitution;
(c) that the criterion is required to be recast;
(d) that the appointments already made are not being quashed;
(e) that the appellant would, therefore be entitled to be considered against a vacancy which is not available. She would not be denied appointment
merely on the ground that she has become overage. Reference in this regard can be made to the decisions of the Supreme Court in the case of
Arun Kumar Rout and Ors. v. State of Bihar (1989) 9 SCC 71 and Keshav Narayan Gupta and Ors. v. Jila Parishad Shivpur (MP) and Anr.
(1989) 9 SCC 78.
The learned Division Bench also observed as follows:
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.
It may be pointed out that above judgment came to be delivered when selection Board was engaged in making selections pursuant to its
advertisement Notice No. 1 dated 9th March, 1999.)
Taking note of the above judgment, Services Recruitment Board vide its notification No. SSB/PA/Secy./826/2001 dated 2nd March 2001,
recast the selection criterion as follows:
S.No. Qualification Points
10+2 40
Graduation 1st Division 10
2nd Division 6
3rd Division 4
Post Graduation
1st Division 10
2nd Division 6
3rd Division 4
B.Ed. 10
M.Ed. 10
Viva 20
Total 100.
The validity or otherwise of the above re-cast selection criterion came up for consideration before a Division Bench of this Court in LPA (SW)
No. 145/2006 titled State of Jammu and Kashmir v. Rekha Sharma. It was contended before the Bench that the recast selection criterion was
legally invalid because it was not in consonance with the ratio of Balwinder Kour's judgment. This contention was overruled by the Division Bench
and the criterion was upheld. The Hon'ble Division Bench in its order dated 20.12.2006 observed as follows:
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 criterion and consideration of the respondent
(writ petitioner) according to that recast criterion. 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 criterion 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 criterion 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 criterion is
in compliance to the judgment in Balwinder Kour's case and not against its letter and spirit.
The other contention that the recast criterion 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 criterion in advance in advertisement notice
inviting applications for selection/appointment to the post. Such criterion 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 criterion in the advertisement
notification for information of the prospective candidates unless, of course, it is required under some rules or regulations.
We also find no merit in the contention that the recast criterion was violative of Articles 14 and 6 of the Constitution. This is so far 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 criterion can be questioned for its irrationality or perversity or arbitrariness or for being incapable of being
satisfied which would attract Article 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 criterion could be questioned on any of these counts.
Ms. Surinder Kour, counsel for the respondent made a last minute plea to suggest that the criterion 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 out attention to para 22 of the judgment, which
reads:
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.
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 criterion 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 criterion 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 criterion 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 provided for meeting this situation. For example Rule 10 of the relevant SRO194
dated 18th August provides:
The board shall finalize the selection after holding such tests or examination as may be prescribed under rules, or if there are no such rules, as the
Board may consider necessary.
This leaves no doubt that the Board has to make selections after holding such test or examinations 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 criterion, the Board becomes competent to do the 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 criterion as the Board
may deem fit.
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 criterion which it may deem fit. Regard being had to the relevant rule position, the submission of
respondent's counsel that the recast criterion was to be laid down by the State Government only deserves outright rejection. It is a different matter,
however, that a prescribe or a laid down criterion for short listing or for selecting 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 10orl3 of the
relevant rules to show that the recast criterion was in any way suffering from any infirmity whatsoever. Besides, it is no more resintegra that
selection Board would be within its rights to resort to short listing/screening of candidates, prescribing a criterion 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 Vs. Navnit Kumar Potdar and
another, .
It may be noticed that in the criterion, the validity of which was considered by this Court in Balwinder Kour's case, for basic qualification, i.e.,
10+2, 50 points stood allocated, whereas in the recast selection criterion the points allocated for basic qualification stood reduced to 40 points.
Now keeping in view the fact that the recast criterion quoted above stood upheld in Rekha Sharma's case, let us proceed to examine the validity of
criterion at hand. For appreciating the controversy it would be apt to notice both the criterion juxta posed position i.e, one approved in Rekha
Sharma's case and the other one which has been adopted by the Selection Board in the present selections.
Selection criterion approved in Rekha Sharma's case
S. No. Qualification Points
10+2 40
Graduation 1st Division 10
2nd Division 6
3rd Division 4
Post Graduation
1st Division 10
2nd Division 6
3rd Division 4
B.Ed. 10
M.Ed. 10
Viva 20
Total 100
Selection criterion adopted by the Board in present selections
S. No. Qualification Points
i. Basic Qualification 30
ii. Graduation 10
iii. B.Ed. 15
iv. P.G. 10
v. M.Ed. 10
vi. Doctorate (Ph.D) 05
vii. Viva voce 20
Total 100 points.
It be seen that in the selection criterion adopted by the Service Selection Board in the selections in hand, for basic qualification the points have
been reduced from 40 to 30. While graduation has been given 10 points irrespective of the division/ B.Ed has been allocated 15 points as against
10 points, M.Ed has been given 10 points irrespective of the division and 5 points have been reserved for doctorate (Ph.d), when in the earlier
criterion there were no points reserved for doctorate. For post graduation 10 points have been allocated irrespective of the division. In the present
criterion also 20 points have been allocated to viva-voce now when in previous criterion also 20 points stood allocated for viva voce. Therefore, it
is apparent that the selection criterion has further been improved by reducing 10 points from the basic qualification, out of which 5 points have
been added to B.Ed, qualification and 5 points have been added to Ph.D. Therefore, the writ petitioners cannot successfully be allowed to urge
that allocation of 30 points for basic qualification and 20 points for viva voce render the present criterion invalid, in view of the fact that this Court
in Rekha Sharma's case had approved allocation of even 40 points for the basic qualification and 20 points for viva voce.
The contention of learned Counsel for petitioners that the criterion adopted by the Selection Board is not in consonance with the ratio of
Balwinder Kour's judgment, is without any merit in view of the fact that in Rekha Sharma's case the recast criterion has already been held to be not
against the ratio of Balwinder Kour's judgment. Therefore, the petitioners cannot successfully assail the selection criterion in issue. On the same
ground there is no merit in the contention of the learned Counsel for the petitioner. It is as such, rejected.
The next contention of learned Counsel for petitioners is that the short-listing of the candidates was permissible only in the ratio of 1:5, i.e.,
against one post five candidates were required to be short-listed for interview. As the Selection Board issued the supplementary short-list also,
therefore, according to learned Counsel for petitioners the ratio of number of candidates to be interviewed viz-a-viz the posts available was
substantially increased thereby the ratio of 1:5 was disturbed, which enlarged the area of competition between the candidates. Therefore,
according to the learned Counsel, the selections made have been rendered legally invalid.
Per contra the contention of Mr. Shukla, learned Counsel for Selection Board is that the Selection Board is vested with the powers of short-
listing the candidates for interviews in terms of Rule 13 of J&K Subordinate Services Recruitment Rules, 1992. He submits that in terms of the said
rule, ratio of 1:5 is the minimum for short-listing, which can be maximized to any limit. Rule 13 reads as follows:
Procedure of selection by the Recruitment Board.- The Board shall make selection to the various posts in the following manner:
(i) The Board shall on receipt of the reference of vacancies advertise the posts communicating copies of the advertisements to the respective
Employment Exchange. Government Gazette, Press and other publicity media so as to achieve wide publicity
(ii) The Board shall, ordinarily, restrict the number of applicants for oral and/or written test, as the case may be, to at least five times the number of
vacancies on the basis of academic merit in the qualifying examination converted into points on prorate basis out of the total points allocated for the
basic eligibility qualification and grant of weightage for the higher qualification in the discipline concerned to be allowed in the manner and to the
extent as the Board may deem appropriate for according due consideration to the merit and proficiency in higher qualification.
Provided that the Board may, for reasons to be recorded in writing, conduct a written test for short listing the candidates for admission to the oral
test and for purpose of selection of candidates.
(iii) The Board shall allot the requisite number of candidates in order of merit and reservation as referred by appointing authority. The Board shall
not maintain any select list for any casual or future vacancies.
(iv) The General Administration Department may prescribe such proforma as are required for reference of vacancies to the Board and for
communicating the select list from time to time.
From the perusal of Sub-rule (ii) of Rule 13 it is manifest that the ratio of 1:5 for short-listing the candidates is the minimum which is evident
from the word 'atleast' used in the rule. It is thus permissible for the Board to increase that ratio to any limit. It is only that ratio prescribed cannot
be decreased.
The contention of learned Counsel for writ petitioners that it was not permissible for the Board to disturb the ratio of 1:5 for short-listing the
candidates for interviews is without any merit as admittedly the ratio of short-listed candidates has not gone down from 1:5, rather it has gone up.
The contention of learned Counsel for petitioners that the area of competition could not have been enlarged by the Board is also without any
merit. The object of every selection for appointment to a post is that the best and most meritorious candidate is selected. No candidate competing
for a post in law can be allowed to say that his competition should be restricted to a particular level. Every eligible candidate has to compete with
all other eligible candidates and who in the competition is adjudged to be the best and meritorious acquires the right of entitlement for appointment.
In the present case as the ratio of short-listing has not been decreased from 1:5, therefore, the selection made cannot be faulted with on this count.
This contention of learned Counsel for writ petitioners is also without any merit, accordingly, the same is rejected.
Next contention of learned Counsel for the petitioners is that members of the Selection Committee in order to favour some of the candidates
gave very high marks to them in the interview whereby even those candidates who had obtained lesser marks in the short-listing got selected while
the candidates who had obtained higher marks in short-listing and had performed well could not in the interview make the grade. They have quoted
the cases of Sadhir Misri and Sunana Sawhney to whom in interview 20 points out of 20 have been awarded. It has also been submitted that bias
on the part of the Selection Committee is apparent from the fact that Ms Frakhana Jabeen, daughter of Sh Matloob Khan has been selected when
her father was the Member of the Selection Committee. Like-wise Rekha Dutta and Sanjeeve Dutta who were related to Sh S.S. Dutta, Chief
Education Officer, another Member of the Selection Committee have been favoured and consequently got selected.
As regards the contention that the selection committee deliberately gave lesser marks to the petitioners in interview despite the fact that they
had performed well in the interview, unless it is shown that it was interested in the selection of all the selectees, cannot be accepted. There is
nothing on record to show that members of the selection committee had any interest in the selection of the selectees. The writ petitioners have
participated in the interviews and their merit and performance has been adjudged by the selection committee. They cannot be permitted to assail
the result of the interviews on the ground that they performed well but were given lesser marks while the selectees were awarded higher marks in
the absence of material to show that the selection committee or any of its member was biased against the writ petitioners or was inclined to favour
the selectees. It was for the selection committee to judge the relative merit of the candidates before it and this Court is not entitled to sit as a Court
of appeal over the assessment made.
I am fortified in my view by the Apex Court judgment rendered in case Madan Lal and Others Vs. State of Jammu and Kashmir and Others,
wherein it was observed:
Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being
concerned 298 respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral
interview. Upto this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned
Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance
to get themselves selected at the saidoral interview. Only because they did not find themselves to have emerged successful as a result of their
combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a
calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and
subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash
Shukla Vs. Akhilesh Kumar Shukla and Others, , it has been clearly laid down by a Bench of three learned Judges of this Court that when the
petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging
the said examination, the High Court should not have granted any relief to such a petitioner.
Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the
said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a Court of appeal
and try to reassess the relevant merits of the concerned candidates who had been assessed at the oral interview nor can the petitioners successfully
urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others
consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed in the light of the guidelines laid
down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be
brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we
are certainly not acting as a court of appeal over the assessment made by such an expert committee.
Their Lordships have further observed:
In the light of what is stated above, while dealing with contention No. 1, this contention also must fail. The petitioners subjectively feel that as
they had fared better in the written test and had got more marks-therein as compared to concerned selected respondents, they should have been
given more marks also at the oral interview. But that is in the realm of assessment of relative merits of concerned candidates by the expert
committee before whom these candidates appeared for the viva voce test. Merely on the basis of petitioners apprehension or suspicion that they
were deliberately given less marks at the oral interview as compared to the rival candidates, it cannot be said that the process of assessment was
vitiated. This contention is in the realm of mere suspicion having no factual basis. It has to be kept in view that there is not even a whisper in the
petition about any personal bias of the members of the interview committee against the petitioner. They have also not alleged any mala fides on the
part of the interview committee in this connection. Consequently, the attack on assessment of the merits of the petitioners cannot be countenanced.
It remains in the exclusive domain of the expert committee to decide whether more marks should be assigned to the petitioners or to the concerned
respondents. It cannot be the subject matter of an attack before us as we are not sitting as a court of appeal over the assessment made by the
committee so far as the candidates interviewed by them are concerned. In the light of the affidavit in reply filed by Dr. Girija Dhar to which we
have made reference earlier, it cannot be said that the expert committee has given a deliberate unfavorable treatment to the petitioners.
Consequently, his contention also is found to be devoid of any merit and is rejected.
The allegation of the writ petitioners that the candidates, namely, Sadvi Misra and Sunena Sawhney have been awarded 20 out of 20 marks in
interview is factually incorrect. As per record Sacvi Misri has been awarded 17 marks while Sunena Sawhney has not even been selected. Like-
wise regarding the selection of the daughter of Matloob Khan, Mr. Shukla has made a statement that she was interviewed by the first selection
committee which interviewed the candidates of general short-list at the time when Shri Matloob Khan stood posted at Jammu and not at Poonch
where the interviews were being held. Regarding the allegation that Rekha Dutta and Sanjeev Dutta were the relations of Shri S.S. Dutta, Member
of the Selection Committee, as per the affidavit of Sanjeev Dutta he is not in any manner related to Mr. S.S. Dutta, whereas Rekha Dutta is stated
to have not been selected. So even in respect of the said candidates it cannot be accepted that they were shown favours by the Members of the
Selection Committee.
The writ petitioners have further alleged that the Members of the Selection Committee namely, Shri Matloob Khan and Shri S.S. Dutta and
Shri Paramjeet Singh being locals favoured the candidates who were personally known to them. The allegation does not deserve credence being
too wild because the identity of those favoured selectees has not been shown nor any material to support the allegation has been produced by the
writ petitioners.
It has also been contended that respondent Ashok Kumar at S. No. 107 of select list has been selected in ex-serviceman category despite the
fact that he did not possess any qualification from a recognized University, his qualification being graduation from Army.
Mr. Shukla, submits that the qualification of the respondent Ashok Kumar has validly been recognized by keeping in view Govt. order No. 66-
GAD of 1991 dated 22-1-1991 which reads:
Govt. Order No. 66-GAD of 1991, Dated 22-1-1991.
It is hereby ordered that for the purpose of filling up such vacancies in the non-gazetted cadre which are reserved for ex-servicemen, the
qualifications of the Ex-servicemen acquired by them in Defence Services shall be considered to be equivalent to the civil (academic) qualifications
as mentioned below:
(a) An ex-servicemen who is a Matriculate and has passed the Indian Army Special Certificate of Education or the corresponding certificate in the
Nevy or Air Force and who has put in at least 15 years of service in the Armed Forces will be considered to be equivalent to a graduate;
(b) An ex-servicemen who is not a matriculate but has passed the Indian Army Class-I examination or equivalent examination or Navy or Air
Force and who has put in at least 15 years of service in the Armed Forces shall be considered to be a Matriculate;
(c) For Class -IV vacancies, the condition for having passed class 8th examination by ex-servicemen shall not be insisted upon.
The above mentioned equation/concession shall be available to ex-servicemen who are otherwise eligible for appointment in the State Government
services.
By order of the Governor.
Sd/Commissioner/Secretary to Govt.
General Administration Department
Mr. Shukla is right in his submission.
Next contention of learned Counsel for the writ petitioners is that the candidates whose merit was less than the petitioners have been selected
and they though meritorious have been ignored.
The stand of the Board in this behalf is that merit of last selected candidates category-wise was as follows:
Open Merit- 49.30
Handicap- 28.80
Ex-Servicemen- 04.00
RBA- 37.60
ST- 38.89
ST/Ex-serviceman 28.96
SC 32.80
ALC- 43.51
The merit obtained by the writ petitioners is as follows:
--------------------------------------------------------------------------------
SWP No. Name of the Qualification Total points V. Voce Grand Total.
Petitioner/ obtained on
category the basis of
qualification
--------------------------------------------------------------------------------
1459/07 Paramjeet M. Phil 33.84 17.67 51.51
Singh (ALC)
--------------------------------------------------------------------------------
Tabasum B.Sc, B.Ed 28.45 18.33 46.78
Kabir(OM)
--------------------------------------------------------------------------------
Kavita M.A. M.Ed 38.38 09.33 47.71
(Gupta)
Bhudwal
(OM)
--------------------------------------------------------------------------------
1377/07 Kuldeep P.G, B. Ed 37.71 05.33 43.04
Chander
Sharma
(OM)
--------------------------------------------------------------------------------
Deepak B.Ed 37.71 06.33 44.04
Kumar
Sudan(OM)
--------------------------------------------------------------------------------
Sumesh P.G 37.39 06.33 43.73
Raina(OM)
--------------------------------------------------------------------------------
Sunana P.G, B.Ed 35.49 09.33 44.82
Luthra (OM)
--------------------------------------------------------------------------------
Anita B.Ed 29.21 09.67 38.88
Sharma
(OM)
--------------------------------------------------------------------------------
Sunita Rani M.Ed 33.54 09.00 42.54
(OM)
--------------------------------------------------------------------------------
Indu Bala P.G, B.Ed 29.42 10.00 39.42
(OM)
--------------------------------------------------------------------------------
Gurmeet B.A B. Ed 30.11 07.67 37.78
Kouri(OM)
--------------------------------------------------------------------------------
Eakta Rani M.Ed 30.36 08.33 38.70
(OM)
--------------------------------------------------------------------------------
Neeru M.Ed 29.36 17.33 46.69
Sharma
(OM)
--------------------------------------------------------------------------------
Archana B.Ed 30.95 09.33 40.28
Rishi (OM)
--------------------------------------------------------------------------------
Arti Kashp P.G, B.Ed 35.19 00.00 35.19
(OSC)
--------------------------------------------------------------------------------
(Interview.
Cancelled)
--------------------------------------------------------------------------------
Narinder M.Ed 35.75 09.00 44.75
Kour(OM)
--------------------------------------------------------------------------------
Ruchi Kar P.G, B.Ed 36.21 05.67 41.88
(OM)
--------------------------------------------------------------------------------
Amit Kour P.G, B.Ed 34.24 09.67 43.91
(OM)
--------------------------------------------------------------------------------
Satwinder P.G, B.Ed 30.98 07.00 37.98
Kour (OM)
--------------------------------------------------------------------------------
Princy Raina B.A. B.Ed 35.78 12.00 47.78
(OM)
--------------------------------------------------------------------------------
Amit Kumar P.G, B.Ed 39.04 09.67 48.71
Puri (OM)
--------------------------------------------------------------------------------
Amardeep P.G, B.Ed 34.07 09.67 43.74
Kour (OM)
--------------------------------------------------------------------------------
Anil Kumar P.G, B.Ed 36.57 05.00 41.57
(OM)
--------------------------------------------------------------------------------
1551/07 Gurpreet B.A, B.Ed 31.99 05.00 36.99
Kour (ALC)
--------------------------------------------------------------------------------
Gurmeet B.A. B.Ed 32.04 10.67 42.70
Kour (OM)
--------------------------------------------------------------------------------
1452/07 Vikas Rani P.G 22.96 07.33 30.29
(SC)
--------------------------------------------------------------------------------
Kuldeep P.G 26.49 03.67 30.15
Kumar Bnal
(SC)
--------------------------------------------------------------------------------
1449/07 Veena B.A 18.57 11.33 29.91
Kumari (SC)
--------------------------------------------------------------------------------
1363/07 Kuldeep P.G, B.Ed 30.24 08.33 38.57
Kour(OSC)
--------------------------------------------------------------------------------
Pardeep B.A. B.Ed 36.27 05.33 41.61
Kour (OM)
--------------------------------------------------------------------------------
Manpreet P.G, 29.93 17.33 47.27
Kour (OM)
--------------------------------------------------------------------------------
Kulbir Singh P.G B.Ed 29.64 17.33 46.98
(OM)
--------------------------------------------------------------------------------
Jugal P.G 26.74 15.00 41.74
Kishore
(OM)
--------------------------------------------------------------------------------
1299/07 Gurmeet P.G, B.Ed 36.62 05.00 41.62
Kour (OM)
--------------------------------------------------------------------------------
Balwinder P.G, B.Ed 34.48 10.33 44.81
Kour (OM)
--------------------------------------------------------------------------------
1300/07 Rubinder P.G, B.Ed 36.95 11.33 48.28
Kour (OM)
--------------------------------------------------------------------------------
1345/07 Asha P.G., B.Ed 37.38 09.33 46.72
Sharma
(OM)
--------------------------------------------------------------------------------
Usha Devi B.Sc. M.Ed 33.20 07.67 40.87
--------------------------------------------------------------------------------
Dr Surinder P.G 29.32 18.00 47.32
Pal Sharma
(OM)
--------------------------------------------------------------------------------
1303/07 Narinder BSc. M.Ed 30.29 15.00 45.29
Kour (OM)
--------------------------------------------------------------------------------
Anu Sharma BSc. M.Ed 35.82 08.67 44.48
(OM)
--------------------------------------------------------------------------------
Asha Rani P.G. B.Ed 29.08 18.67 47.74
(OM)
--------------------------------------------------------------------------------
Rasmeet P.G, B.Ed 32.15 15.00 47.15
Kour (OM)
--------------------------------------------------------------------------------
1302/07 Anju Bala B.Sc. M.Ed 34.08 13.67 47.75
(OM)
--------------------------------------------------------------------------------
1301/07 Mumtaz P.G, B.Ed 34.38 06.33 40.71
Ahmed
Manzoor
(ALC)
--------------------------------------------------------------------------------
Javed lqbal P.G, B.Ed 34.02 07.00 41.02
(ALC)
--------------------------------------------------------------------------------
Ayaz M.Ed 32.83 03.00 35.83
Ahmad (ST)
--------------------------------------------------------------------------------
Farooq M.Ed 30.68 03.67 34.34
Ahmad (ST)
--------------------------------------------------------------------------------
1396/07 Gurvinder P.G, B.Ed 36.18 12.67 48.85
Singh (OM)
--------------------------------------------------------------------------------
1617/07 Paramjit P.G. B.Ed 33.84 17.67 51.51
Singh(ALC)
--------------------------------------------------------------------------------
Mahroof P.G 28.01 11.33 39.34
Khan (ALC)
--------------------------------------------------------------------------------
Shaimim P.G 12.88 00.00 12.88
--------------------------------------------------------------------------------
Ahmad (Absent)
(ALC)
--------------------------------------------------------------------------------
Gurpreet B.A. B.Ed 31.99 05.00 36.99
Kour(ALC)
--------------------------------------------------------------------------------
Qamar Latif P.G 28.15 06.67 34.81
(ALC)
--------------------------------------------------------------------------------
Vishal P.G 31.65 10.00 41.65
Chhiber
(ALC)
--------------------------------------------------------------------------------
From the above table in which merit of the petitioners has been indicated when compared with the merit of the last selected candidates in all
the categories, it is manifest that except Paramjit Singh petitioner No. l in SWP No. 1459/2007 who applied in ALC category and has obtained
the merit of 51.51 points as against the merit of 43.51 points obtained by the last selected candidate and Arti Kashap in SWP No. 1377/2007, all
the writ petitioners have obtained lesser merit than the last selected candidate and as such had no right to be selected over and above the selected
candidates. As regards Paramjit Singh, writ petitioner No. l in SWP No. 1449/2007 is concerned, the contention of Mr. Shukla is that one post
has been reserved and the result of the said candidate has not been declared in view of the interim direction passed in SWP No. 1617/2007. He
submits that the moment Paramjeet Singh withdraws himself from said writ petition his selection would be declared and consequently the
recommendation for his appointment shall be made.
Mr. Sahni, learned Counsel for petitioners seeks withdrawal of the writ petition SWP No. 1617/2007 in so far as petitioner Paramjit Singh is
concerned. His prayer is allowed and writ petition SWP No. 16/17/2007 in so far as petitioner Paramjit Singh is concerned shall stand dismissed
as withdrawn. In this view of the matter now, the Board is required to declare petitioner No. 1 Paramjeet Singh selected in ALC category and to
make the recommendation for his appointment to the competent authority.
From the above Chart it is also evident that the petitioner Arti Kashp, (petitioner in SWP No. 1377/2007) who had offered her candidature in
OSC category and had obtained 35.19 points in all, except in the vive voice in which she was awarded Zero marks her interview having been
cancelled and she has been declared ineligible. I have perused the record and from her application the reason given for cancelling her interview is
as follows:
The candidate has been interviewed but on scrutiny of OSC certificate it was found the certificate was not valid at the time of filing of form i.e. 28-
2-2006 and she produced the said certificate issue by Tehsildar concerned on 02-06-2006.
Thus the interview of the petitioner Arti Kashp was cancelled because she was not found eligible to be considered in the category in which she
had applied.
Learned Counsel for the petitioner submits that if she was not eligible to be considered in OSC category it was incumbent upon the
respondents to have interviewed her and considered her in the Open category. I am in agreement with the learned Counsel for the petitioner. If the
petitioner Arti Kashp could not be considered in the category in which she had applied, she possessed a right to be considered in the Open Merit
category.
It has next been contended that the candidates under Handicap Category and Ex-servicemen category have been selected against Open Merit
Category and other reserved categories, whereas for them there should have been separate reservation of posts within the quota i.e. 3% of the
posts. According to the learned Counsel for the petitioner that as no separate reservation of posts was provided for handicap and Ex-servicemen
category, the candidates selected in Handicap and Ex-servicemen category in Open Merit and other reserved categories have eaten of the quota
of categories
Mr. Shukla, learned Counsel for the Board submits that in terms of Rule 4 of the Jammu and Kashmir Reservation Rules, 2005, the reservation
provided for Physically Challenged Persons and Ex-servicemen is Horizontal Reservation which would cut across the vertical reservation and the
persons selected under those categories are to be placed in their appropriate categories i.e. if she/she belongs to Scheduled Caste category he/she
would be placed in that quota by making necessary adjustment and if he/she belongs to Open Merit category, he/she would be placed in Open
Merit Category. Rule 4 of Jammu and Kashmir Reservation Rules 2005 reads as follows:
Reservation in Direct Recruitment.
Except as other-wise provided in these rules, available vacancies shall be reserved for direct recruitment in each service, class, category and grade
in favour of permanent residents of the State belonging to any of the below mentioned categories which shall, as nearly as possible, constitute the
percentage of available vacancies shown against each:
-----------------------------------------------------------------------
(a) Scheduled Castes 8%
-----------------------------------------------------------------------
(b) Scheduled Tribes 10%
-----------------------------------------------------------------------
(c) Socially and Educationally Backward Classes
(other than Scheduled Castes and Scheduled
Tribes:
-----------------------------------------------------------------------
(i) Weak and under privileged Classes (Social 2%
Caste)
-----------------------------------------------------------------------
(ii) Residents of areas adjoining Line of Actual 3%
Control (ALC)
-----------------------------------------------------------------------
(iii) Residents of backward areas. 20%
-----------------------------------------------------------------------
(d) Ex-Servicemen 6% Horizontal
Reservation.
-----------------------------------------------------------------------
(e) Physically Challenged Persons 3%
-----------------------------------------------------------------------
Explanation (A):- The horizontal reservation to the extent of 6% of the available vacancies shall be provided to the Ex-Servicemen against such
posts only where the maximum of the pay scale does not exceed Rs. 10,500/-.
Explanation (B):- For purposes of Clause (d) and (e), the horizontal reservation means the reservations which would cut across the vertical
reservation (what is called inter-locking reservation) and the person selected against the physically challenged quota will have to be placed in the
appropriate category viz., if he/she belongs to the scheduled caste category, he/she will be placed in that quota by making the necessary
adjustment and similarly, if he/she belongs to the open competition category, he/she will be placed in that category.
Explanation (C):- For the purposes of Clause (e) reservations in recruitment shall be available for physically challenged persons for services and
posts specified u/s 22 of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,
1998 to the extent specified therein i.e.
-----------------------------------------------------------------------
(i) Blindness or low vision - 1%
-----------------------------------------------------------------------
(ii) Hearing impairment - 1%
-----------------------------------------------------------------------
(iii) Locomotor disability or Cerebral Palsy - 1%
-----------------------------------------------------------------------
From the bare perusal of Explanation (B) appended to Rule-4, it is manifest that for Ex-servicemen category, there is 6% Horizontal
Reservation and for Physically Challenged persons for whom there is 3% reservation, the Horizontal Reservation would mean that the reservation
would cut across the vertical reservation (what is called inter-locking reservation) and the person selected against the physically challenged quota
will have to be placed in the appropriate category viz. if he/she belongs to the scheduled caste category, he/she be placed in that quota by making
the necessary adjustment and similarly if he/she belongs to the open competition category, he/she will be placed in that category. It is quite manifest
that there is no separate reservation of posts permissible for ex-servicemen and physically challenged persons. Therefore, Mr. Shukla is right in his
submission and the contention of the learned Counsel for the petitioner is without any merit.
For the afore-said reasons, all the writ petitions except to the extent of petitioner Paramjit Singh in SWP No. 1459/2007 and petitioner Arti
Kashp in SWP No. 1377/2007 shall stand dismissed.
SWP No. 1459/2007 and SWP No. 1377/2007 so far as these relate to the petitioners Paramjit Singh and Arti Kashp shall stand allowed
and disposed of by directing the Service Selection Board to declare the petitioner Paramjit Singh selected and consequently to make
recommendation for his appointment.
Service Selection Board is further directed to constitute a committee preferably the same committee for interviewing the petitioner Arti Kashp
who shall there-after be considered for selection and appointment in Open Merit category and if after interview she obtains the merit above the last
selected candidate in Open Merit Category, she shall be declared selected against any vacancy, if any, available and consequently shall be
recommended for appointment on that vacancy. In case there is no vacancy available for her selection and appointment then the selection and
appointment of last selected candidate in Open Merit category shall stand quashed and against that vacancy the petitioner Arti Kashp shall be
selected and appointed.
These writ petitions shall stand accordingly disposed of.