Raj Kumar Kaul vs State of J&K and Others

Selection of respondents No.4 & 5 for the post of Junior Opthalmic Assistants made by the J&K Services Selection Board and notified vide

select list dated 1911996 has been challenged in the present petition. Petitioner and private respondents were candidates for selection to the post

of Junior Opthalmic Assistants for which applications were invited vide Advertisement Notice No. 5 of 1995 dated 561995. Two posts were

notified for Open category, whereas one for RBA category. The qualification as prescribed in the notification was Matric with diploma in Junior

Opthalmic Assistant Training from SFM or any other recognized institute. Posts were available in District Anantnag. After receiving the

applications, the selection committee was constituted for interview. Respondents No.4 & 5 who hail from District Anantnag were interviewed in

Valley by the Committee comprising of (i) Smt Sudhna Hafiz, convener; (ii) Chief Medical Officer, Member and (iii) District Employment Officer

concerned, Member. As far as the petitioner is concerned, he was interviewed at Jammu. It is alleged that interviews were fixed on 6111995.

However, due to nonavailability of expert same were postponed and the interviews were conducted on 8111995. Challenge to the selection is

made by the petitioner on the following grounds:

(i) That the petitioner's interview was conducted without an expert and therefore, he has been assessed by a Selection committee without any

expert. It is alleged that two different selection committees have conducted the interviews which caused prejudice to the petitioner.

(ii) he third vacancy meant for RBA category has not been filled up due to nonavailability of candidate from the said category,. According to the

petitioner under Rule 15 (4) SRO 126 of 1994 the vacancy was required to be filled up from open category.

(iii) The criterion fixed for the selection has not been applied. The selection was to be based by taking into account the merit in Matric as also the

Diploma in Opthalmic Assistant, the basic qualification notified whereas the selection has been made by only taking into consideration the merit in

Diploma (Technical Qualification) and not the Matric which was one of the basic qualification as notified in Advertisement.

The respondent Board contested the claim of the petitioner on the ground that the petitioner has failed to secure the merit over and above the

private respondent in the process of selection. It is disclosed that the petitioner secured 54.91 points whereas respondents No.4 & 5 secured

55.20 and 56.60 points. The merit of the petitioner being less he could not be selected. Regarding the association of expert, it is specifically

mentioned that Dr. M.P. Gupta, Dy Director (State Malaria Officer) was coopted as expert Member as Dr Mohd Hussain could not be present

on the date when the petitioner was interviewed.

This petition was decided by this Court vide judgment dated 178 1999. However, in the appeal preferred being LPA (SW) No. 18/2000 the

judgment of this Court was set aside and the case remanded to the writ Court, for deciding afresh after giving an opportunity to the private

respondents who were the appellants before the appellate Court.

Respondents No.4 & 5 appeared through Mr. M.A. Bhat, Advocate. However, on 16112005 Mr. Bhat reported that despite communication

made by him these respondents have not responded and he is not able to file the reply as directed by Hon'ble Division Bench. After the remand the

State respondents did not file the counter. The matter was accordingly heard, on the basis of available pleadings.

The respondents in their reply have specifically mentioned that Dr. M.P Gupta, an expert was associated with the process of selection. I have no

reason to disbelieve this statement of the respondents. The only relevant question which needs examination and consideration is whether the

criterion adopted for selection has been adhered to or not. From the record produced which was called for, it is evident that the following criterion

relating to the basic qualification was fixed:

Basic qualification: 80 points

Viva voce 20 points

Total 100 points.

The advertisement notice (copy placed on record) for the post in question indicated the qualification academic/technical as under:

Matric with Diploma in Opthalmic Assistant Training under the criteria adopted by Board, 80% weightage has to be given for basic qualification

i.e. Matric with Diploma.

From the reply filed, it becomes evident that weightage only for Diploma in Opthalmic Assistant has been given and the academic qualification

which is one of the essential basic qualification has not been taken into consideration at all.

This Court in case Bharat Bhushan v. State and others, SWP No. 2844/2001 decided on 17102003, considered the similar issue. The

judgment has been upheld by a Division Bench in case Jasbir Kour and others v. State and others, 2004 (3) JKJ 63. On consideration of the

question of weightage following was held

The eligibility criteria for selection was the academic qualification and the technical qualification but the J&K SSRB at the time of selection has

neither considered nor given weightage to the academic qualification and based the selection upon the weightage given to the technical qualification

and thus the selection is made in an arbitrary manner. From the record, it appears that the entire weightage of 80% applied to the technical

qualification, whereas due weightage was required to be given to matric and higher qualification equally along with technical qualification. The

advertisement notice clearly indicated the essential eligibility criteria matriculation with diploma in Laboratory Assistant or any other equal

qualification and initially fixed by the selection committee. The selection having been made by the J&K SSRB being in contravention of the criteria

laid down in the advertisement notice and fixed by the selection committee initially, is arbitrary and without application of mind. Both the academic

qualification and the technical qualification as indicated in the advertisement notice were the essential eligibility criteria and weightage was to be

given to both these qualifications but the J&K SSRB has given weightage only to technical qualification and ignored and the academic qualification

while making the selection. The learned Single Judge after having considered all these aspects of the matter in detail, in his elucid judgment,

quashed the selection of the private respondents before the writ court and directed the J&K SSRB to make the selection afresh out of the

candidates who appeared pursuant to both notifications (Supra) and giving proper weightage to the academic and higher qualification along with

technical qualification equally as per the criteria laid down in the advertisement notice. The view expressed by the learned Single Judge, in our

considered opinion, is the view to which no exception can be taken. The very selection process stands vitiated. We do not find any infirmity in the

judgment and order impugned passed by the learned Single Judge, necessitating interference in an appeal.

In view of the above legal position, selection of private respondents for the post of Opthalmic Assistant is hereby set aside. Respondent Board

is directed to give weightage to both the Matric as also the Diploma in Opthalmic Assistant, being basic qualification after adding the marks of

interview already awarded, the merit of candidates be redetermined and the candidates rearranged in the order of merit. Selection to follow on

redetermined merit.