Rohit Chib And Others vs UT Of J&K And Others

In all, 348 persons have invoked the extraordinary jurisdiction of this Court to challenge the order dated 06.08.2021 passed by the Central Administrative Tribunal, Jammu Bench, Jammu (for short „the Tribunal‟) in Original Application no. 1107 of 2021 titled Rohit Chib and others v. Service Selection Board, J&K UT.

The aforesaid order of the Tribunal is an interlocutory order by which the Original Application of the petitioners has been entertained but they have been denied interim order as prayed for on the ground that the grant of the same would amount to granting the final relief which is not permissible in law.

It appears that some other candidates had filed a similar writ petition WP(C) no. 1886/2021, Irshid Ahmed Dar and others v. Govt. of Jammu and Kashmir and others in the Srinagar wing of the High Court challenging the similar order of the Tribunal entertaining their Original Application no. 1102/2021 but refusing to grant the interim order.

In one another Original Application No.1011/2021 of a similar nature, some interim protection was granted to the candidates therein.

In view of the above, WP(C) No.1886/2021 was disposed of on 27.09.2021 with the direction to club the Original Application No.1102/2021 with Original Application No.1011/2021 for decision together with liberty to the petitioners therein to apply for interim order afresh.

The above facts reveal that the controversy involved in the Original Application giving rise to this writ petition is also involved in some other original applications and the interlocutory orders passed in those original applications have become the subject matter of consideration of various writ petitions filed before this Court. In the facts and circumstances, we considered it appropriate to end the controversy fully and finally and, as such, allowed the parties to address us not only on the merits of the stay but even on the merits of the controversy involved in the original applications.

The short controversy which actually arises in the original application or as a matter of fact in the writ petition is as to whether petitioners are entitled to grant of interim protection pending the original application which is dependent upon the eligibility of the petitioners to participate in the selection for the post of Class-IV employees in the various departments of the Union Territory of Jammu and Kashmir. If the petitioners are not qualified and eligible to participate in the selection process, obviously, they are not entitled to any interim protection.

The Advertisement No.1 of 2020 dated 26.06.2020 invited applications for appointment on 8575 employees on Class-IV posts with one of the conditions that the minimum and maximum qualification for appointment to Class-IV posts under direct recruitment shall be "minimum matric and maximum 10+2"with thefurther conditionthat any candidate having qualification other than prescribed shall not be eligible for Class-IV post.

The petitioners are candidates who are graduates or possessing even higher qualification and, as such, have been denied participation in the selection process.

The submission of Sh. Sunil Sethi, senior counsel is that the higher qualification such as graduation possessed by the petitioners presupposes the possession of minimum matric and maximum 10+2 qualification and, as such, they are all eligible and cannot be denied participation in the selection process.

Learned Advocate General, on the other hand, contends that the selection has to be made strictly in accordance with the terms and conditions advertised. The persons with higher qualifications, which may presupposes possession of lower qualification, would not be eligible as the eligibility conditions prescribe the maximum qualification to be 10+2. Any person possessing a higher qualification of graduation, etc. would not be suitable for the job of Class-IV post.

It is well settled and recognized that appointments on public posts have to be made strictly in accordance with the Rules of service or the terms and conditions of the advertisement. In Yogesh Kumar v. Government of NCT of Delhi, (2013) 3 SCC 548, it has been clearly held by the Supreme Court that recruitment to public service should be held strictly in accordance with the terms and conditions of the advertisement and the recruitment Rules, if any. Any deviation from the Rules or the terms of the advertisement amounts to allowing ineligible persons and depriving right of consideration of many deserving eligible candidates.

The appointment to Class-IV posts in Jammu and Kashmir Public Service has to be in accordance with the Jammu and Kashmir Appointment to Class-IV (Special Recruitment) Rules, 2020 as promulgated vide S.O. 184 dated 04.06.2020 issued in exercise of powers under Article 309 of the Constitution of India. These Rules specifically provide that the Board i.e.Jammu and Kashmir Services Selection Board shall invite applications from the persons who are domiciled in the Union Territory of Jammu and Kashmir and who possess minimum and maximum educational qualification as prescribed in notification SRO 99 of 2008 dated 07.04.2008.

The SRO 99 of 2008 categorically lays down that for the purposes of recruitment of Class-IV posts, the minimum and maximum qualification shall be matric and 10+2, respectively.

The advertisement also specifically provides that in accordance with the above Rules and the SRO 99 of 2008, the maximum and minimum qualification for appointment to Class-IV posts through direct recruitment shall be "minimum matric and maximum 10+2" with the further rider that any candidate having qualification other than prescribed shall not be eligible for Class-IV post.

It may be noted as the appointment to such posts has to be on the basis of the suitability vis-à-vis the qualification held by the person and the nature of the job, for which purpose the decision of the employer is final provided it is not arbitrary in nature. In other words, the suitability and the qualifications for any post have to be laid down by the employer and the same are not liable to be interfered with judicially, until and unless the policy decision in that regard is found to be irrational or arbitrary. In the case of appointments to Class-IV posts, higher qualification than 10+2 may not be a suitable for many reasons; the first being that a highly qualified person may not be in a position to discharge the menial work which is required to be done by Class-IV employee; secondly, if such highly qualified candidates are allowed to compete with candidates with lower qualification as prescribed, it is but obvious that they will score above them and would get selected to the detriment of the candidates possessing the requisite eligibility; and thirdly, such candidates of higher qualification, if selected, would always be looking for a better job and, as soon as they are selected in some other better discipline, they would leave the Class-IV post rendering the entire selection as useless forcing the employer to get those posts re-advertised and re-filled.

Thus, in the above circumstances, the laying down of the criteria of the minimum and the maximum qualification for the Class-IV post as matric and 10+2 respectively is neither irrational, unreasonable nor arbitrary.

Learned senior counsel for the petitioners relied upon the judgment of the Supreme Court in the case Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 to contend that the holders of higher qualifications cannot be disqualified for applying on a post which prescribes some lower qualification. In the said case, the appointment was to the post of Sub Engineers Electricity and the relevant service rule i.e. Rule 10(A)(ii) provided as under:

"Notwithstanding anything contained in these rules or in the special rules, the qualifications recognized by executive orders or standing orders of government as equivalent to a qualification specified for a post in the special rules and such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post."

The aforesaid Rule clearly provides that "such of those higher qualifications which presuppose the acquisition of lower qualification prescribed for the post shall also be sufficient for the post." It was in the light of the aforesaid Rule that the Court held that the relevant rules do not mean to disqualify the holders of higher qualification in the same faculty.

The aforesaid decision was considered by another Bench of the Supreme Court in Zahoor Ahmed Rather and others v. Sheikh Imitiaz Ahmed, (2019) 2 SCC 404wherein agreeing with the proposition of law laid down therein, it appropriately distinguished by saying that it was rendered in the facts and circumstances of that particular case wherein therewas a specific Rule which provided that higher qualifications, which presuppose the acquisition of lower qualification prescribed for the post, shall also be sufficient. But in the absence of such a rule, it would not be permissible to draw inference that higher qualification necessarily presupposes the acquisition of lower qualification. The State as an employer legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification in laying down the eligibility and the suitability criteria for appointment to the public post. The State as a public employer may also have to take into account social perspectives that require the creation of job opportunities depending upon the social structure prevailing in the country. All these matters are essentially matters of policy where judicial review is hardly permissible.

In Mohd. Riazul Usman Gani and others v. District and Session Judge, Nagpur and others, (2000) 2 SCC 606 which has also been heavily relied upon from the side of the petitioners, it has been held that higher qualifications cannot put a candidate into a disadvantageous position. Any criterion which has the effect of denying a candidate his right to be considered for a post on the ground that he is having a higher qualification than the prescribed cannot be a rational criterion.

The aforesaid decision is also of no help to the petitioners, inasmuch as, it has been considered by a three-judges Bench of the Supreme Court in the case of Chief Manager, Punjab National Bank and another v. Anit Kumar Das, Civil Appeal No.3602 of 2020 decided on 03.11.2020. In the said case also, the controversy was with regard to the appointment on the post of peons in a Bank. The advertisement specifically mentioned that the candidate should have passed 12th class or its equivalent and should not have qualification of graduationwhich was excluded and the candidates possessing the same were not eligible. Thus, the court was approached with the same controversy as in the case in hand as to whether candidates possessing higher qualification than the prescribed would be eligible for the post or not.

The Supreme Court discussing the entire case law on the subject including Mohd. Riazul Usman Gani (supra), Jyoti K. K. (supra), and Zahoor Ahmed Rather (supra), held that the recruitment on public post has to be in accordance with the eligibility criteria laid down in the Rules or the advertisement; it is for the employer to determine the relevancy and suitability of the qualification for the post keeping in view the interest of the institution and that the courts are not fit to assess the expediency or advisability or utility of such prescriptions of qualifications. The qualification of 12th pass for the post of peons in the Bank is justified as it is a conscious decision taken by the Bank and no candidate with superior qualification can be recognized as eligible for the post.

In view of the aforesaid facts and circumstances, the law is well settled that any higher qualification than prescribed for a particular post may not be a suitable qualification and that the employer in its wisdom is justified in excluding candidates with higher qualification from the ambit of selection.

It may not be out of context to refer to one more decision of the Supreme Court in the case of P M Lathav. State of Kerala, (2003) 3 SCC 541 wherein the issue was whether the B.Ed. qualification which is a higher qualification than the Trained Teacher‟s Certificate (TTC) should be recognized as an eligible qualification for the post of primary school teacher. The Supreme Court has held as under:

"We find absolutely no force in the argument advanced by the respondents that BEd qualification is a higher qualification than TTC and therefore, the BEd candidates should be held to be eligible to compete for the post. On behalf of the appellants, it is pointed out before us that Trained Teacher's Certificate is given to teachers specially trained to teach small children in Primary classes whereas for BEd degree, the training imparted is to teach students of classes above primary.BEd degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in Primary Schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or BEd qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for the post of Primary Teachers as only TTC and not BEd. Whether BEd qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot considered BEd candidates, for the present vacancies advertised, as eligible."

In short, what we mean to express is that higher qualification may not be suitable qualification for every post and,if candidates with higher qualifications are excluded, the action on the part of the employer in this regard cannot be faulted with and said to be unfair or arbitrary.

In view of the law as discussed above, we are of the opinion that the Tribunal is justified in refusing interim protection to the petitioners at the interim stage of the original application, and the controversy arising in the original applications stands to rest in view of ratio decidendi of the three judges decision in the case of PNB (supra) and P M. Latha (supra) detailed above.

Accordingly, the writ petition is dismissed with the request to the Tribunal to dispose of all original applications on the subject in the light of the observations and the law as discussed above.