Renu Raina and Others vs State and Others

Muzaffar Hussain Attar, J.—Since the questions of law involved in all these writ petitions, are almost identical, these are taken up together

for final disposal. The controversies raised in these cases owe its origin to the Advertisement Notification No. 07 of 2010 dated 12-11-2010,

where under 295 posts of General Line Teachers were advertised in District Rajouri. The petitioners and private respondents in all these writ

petitions sought consideration for being selected/appointed or the advertised posts. In one of the petitions (SWP 2274/2012), selection of all the

selected candidates has been called in question whereas, in some of the petitions, selection of some of the candidates has been called in question

and in another writ petition, appointment of all the appointed candidates has been called in question. In most of the cases, the

selection/appointment of candidates belonging to general category (open merit), have been challenged and in some of the petitions, selection of

reserved category candidates has been called in question.

2-3. What is not in dispute is that the J&K Civil Services Decentralization and Recruitment Act 2010 is applicable in these cases. It is also not in

dispute that the J&K Civil Services Decentralization and Recruitment Rules 2010 (for short Rules of 2010) are also applicable to the selection

process which is subject-matter of these writ petitions.

The petitioners in their respective writ petitions have raised host of grounds to challenge the selection process which, inter alia, include breach of

Rules of 2010, unfair method adopted in making selections, close relatives of some members of the Selection Committee having been selected

illegally and arbitrarily. All these allegations have been controverted by the respondents in their reply affidavits.

Learned counsel for the petitioners submitted that rule 6(6) of the Rules of 2010 provides for composition of District Level Selection

Committee. Learned counsel submitted that the Selection Committee, which conducted the selection process, was not constituted in accordance

with rule 6(6) of the Rules of 2010, in as much as, the District Head of the Intending Office Department was not member of Selection Committee,

which conducted the selection process. Learned counsel further submitted that since the Selection Committee was not constituted in accordance

with Rules of 2010, the entire selection process, thus, stands vitiated and consequently, selection of the selectees on the posts of General Line

Teachers deserves to be quashed.

Learned counsel for the respondents strenuously argued that the petitioners, after participating in the selection process, cannot be permitted to

raise the issue about composition of Selection Committee. Learned counsel further submitted that at the time selection process was initiated, the

office of the Chief Education Officer, Rajouri, was vacant and it is for this reasons that another Learned counsel further submitted that the

petitioners should have raised objections about the constitution of the composition of the Selection Committee when they appeared before it.

Learned counsel further submitted that the petitioners have not raised any objection about the composition of the Selection Committee at the time

they appeared before it and also the issue was not raised when the provisional selection list was published. Learned counsel submitted that there is

complete acquiescence on the part of the petitioners and they are estopped from raising the issue at this point of time. Learned counsel also

submitted that the petitioners have not pleaded that they have been prejudiced by the composition of the Selection Committee, which conducted

the selection process. Learned counsel in support of their contention, referred to and relied upon judgment of the Hon'ble Supreme Court in case

titled Dhananjay Malik and others -- Dhananjay Malik and Others Vs. State of Uttaranchal and Others, and submitted that in view of law laid

down by the Apex Court in the said case, these writ petitions deserve to be dismissed. Learned counsel also referred to the judgment of this Court

in case titled Haseena Akhter and Others Vs. State of J. and K. and Others, . Learned counsel further submitted that even if there is breach of

statutory rules in making the selection, objections about the same cannot be entertained at this point of time. Learned counsel, accordingly, prayed

for dismissal of all these writ petitions.

Though many issues have been raised in these cases, yet the Court is considering only one issue leaving the petitioners free to raise all issues at

any subsequent point of time if cause arises for the same.

In order to appreciate the issue raised, it is deemed appropriate to take note of Rule 6(6) of the Rules of 2010:

Rule 6(6)--The district level selection committee shall

Nominated by Chairman Convener

District Head of Intending Department (Not more than one) Member

One Officer of or above rank of Dy. Secretary to Government in General Administrative Department Member

Provided that a member of the Board may be nominated by the Chairman as Convener of more than one District Level Committee.

Provided further that Chairman may if he feels necessary, to opt an expert/specialist in the concerned discipline with the committee.

It is also deemed appropriate to take note of paragraphs 4, 7, 8, 11 & 13 (Paras 10 & 12 of AIR) of the Dhananjay Malik's case afore-

mentioned:

An advertisement was issued on 26-06-2002 for Garhwal Region for the selection and appointment of the Physical Education Teachers (LT

Grade). The requisite qualification indicated in the advertisement is BPE or graduate with diploma in Physical Education. The unsuccessful

candidates in the interview challenged the selected candidates on various grounds. One of the grounds was that the advertisement and selection

were not based in accordance with the rules called the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 (in short

the Rules""). We will examine the Rules a little later. The unsuccessful writ petitions were dismissed by the single Judge. On appeal by the

unsuccessful candidates, the order of the single Judge was reversed and the appeals were allowed. Hence, these appeals by special leave.

It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational

qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully

participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement

and selection with regard to requisite educational qualifications were contrary to the rules.

In Madan Lal and Others Vs. State of Jammu and Kashmir and Others, this Court pointed out that when the petitioners appeared at the oral

interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents

concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, 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, they have filed writ petitions. This

Court further pointed out 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

We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the

learned single Judge.

The 1983 Rules prescribe the requisite educational qualifications for the post of Assistant Teacher, Physical Education as under:

Graduation degree in Physical Education or diploma in the Physical Education from any recognized Institution.

The aforesaid Rule has been clarified by Government of India, Ministry of Education, on 26-11-1965 to the effect that BPE degree-holders should

be treated on at par with those who hold B.A/B.Sc. B.Com degree plus a diploma in Physical Education and should not be required to possess an

additional B.A/B.Sc. B.Com degree for purposes of employment as Directors of Physical Education or on other similar posts. The aforesaid

position has been further clarified by the Government in para 12 of its counter-affidavit that qualification of BPE includes the graduation as well as

diploma of Physical Education.

Law is no more res integra that every public post is a national property and the employer, when takes a decision to fill up the posts, has to

accord consideration to all the eligible candidates, who seek such consideration for being selected/appointed on such posts. In our constitutional

scheme, the Selection Authority has to act fairly and in unbiased manner. Selection after selection, allegations are being made in respect of

improper and unfair manner, in which selections are being made.

Every Selection Committee is charged with the onerous duty of making selection to these public posts. The efforts are being made to ensure

that Selection Committee acts in most fair, proper and unbiased manner in making selections of meritorious candidates. Since repeated allegations

were being made in respect of the members of the Selection Committee, it appears that the State Government, in order to ensure that selections

are made in fair and unbiased manner, has constituted a Statutory Selection Committee in terms of Rule 6(6) of the Rules of 2010, which itself

defines the composition of the Selection Committee. No power is given to any executive authority in terms of the Rules of 2010 to change the

composition of the Statutory Committee. The selections are to be Constitution of India guarantees equality before law and equal protection of

laws. Any breach committed in respect of any statutory rule would, in turn, infringe the constitutional guarantee given under Article 14 of the

Constitution of India, which is reproduced hereunder:

Equality before law--The State shall not deny to any person equality before the law or the equal protection of the laws within the Territory of

India.

It is the settled principle of law that an act is to be done in the manner prescribed by the Statute or not at all. In these cases, it is admitted that

the District Head of the Intending Officer Department was not a member of the Selection Committee. The Selection Committee, which conducted

the selection process was not, thus, a Committee in terms of Rule 6(6) of the Rules of 2010. The selection process has been conducted by a non-

Statutory Selection Committee, which is not permissible in terms of Rules of 2010. The selection process in this case has been conducted by an

illegal and unauthorized Selection Committee. Any selection made by such Committee will have no recognition in law and in fact will not constitute

selection in law.

The whole hog reliance placed by learned counsel for the respondents on Dhananjay Malik and Others Vs. State of Uttaranchal and Others, ,

will not justify the illegal selection made by an illegal Selection Committee. In the said case at paragraph (4), the Apex Court observed that the

unsuccessful candidates in the interview challenged the selection of the selected candidates on various grounds and one of the ground was that the

advertisement and selection was not made in accordance with the rules. The Hon'ble Supreme Court, in the same paragraph, further observed that

the rules will be examined a little later. At paragraph (7) of the said judgment, the Apex Court also observed that the unsuccessful candidates had

participated in the process of selection knowing fully well that the educational qualification was clearly diploma in Physical Education. It was further

observed that having unsuccessfully participated in the selection process without any demur, they are estopped from challenging the selection

criterion on the ground that same were contrary to the rules. The Hon'ble Supreme Court at paragraph (13) of the judgment, however, while

examining the clarifications issued by the Government of India, stated that the educational qualification mentioned in the advertisement notice/rules

were equivalent to other qualifications which were possessed by the selected candidates.

There is a clear distinguishing factor involved in the cases on hand and in the case of Dhananjay Malik, in which educational qualification was

indicated in the advertisement notice itself and same was known to the candidates at the time of responding to the said notification. Even at

paragraph (13) of the judgment of the Apex Court supra, this position has been clarified by holding that the notified educational qualification was

equivalent to the qualification fixed by the Statutory Rules. In these cases it was not notified by the Service Selection Board at any point of time

that the composition of the Selection Committee, as determined by rule 6(6) of the Rules of 2010, was not in accordance with the said rule as the

District Head of the Intending Office Department was not one of its members. The candidates had no information about the same till such time they

appeared before the Selection Committee. There is one more distinguishing feature between the decision of the Apex Court and the facts of these

cases. As already stated the Statutory Rules determined the composition of the Selection Committee. The Statutory Selection Committee was not

in place. The purpose underlying for constituting the Statutory Selection Committee has been defeated in this case as the selection has been made

by an illegal Committee. The J&K Service Selection Board is itself a creature of Statute, so it has to function within the delineated borders of the

Statute. It has no cannot lie in the mouth of the Service Selection Board or the selected candidates that the petitioners were not prejudiced or they

are estopped from challenging the selection process as it was the duty of the Service Selection Board to act in accordance with the Act and Rules

of 2010, The legal selection could be made by the Statutory Selection Committee. The duty is cast by statute on the Service Selection Board to

make selections in a particular manner and by a particular Committee. There cannot be acquiescence in the action of a legally non-existent

Selection Committee.

The judgment of this Court, in Haseena Akhter's case afore mentioned, has proceeded on its own facts. In that case the issue in respect of

Selection Committee was not before the Court.

For the above stated reasons, these writ petitions along with their respective CMAs are disposed of in the following manner:

By issuance of writ of Certiorari, selection as also appointment of the private respondents in all these writ petitions, is quashed. The official

respondents are directed to initiate fresh selection process and take steps to conclude the same within a period of eight weeks from the date copy

of this order is served on them. Respondent J&K Service Selection Board is directed to make fresh selections on the posts of teachers by getting

the candidates, who were short listed, assessed by the Statutory Selection Committee. It is also provided that any short listed candidate, who has

turned over age, shall be deemed to be within the upper age limit for this selection process.

Disposed of along with all connected CMAs.