Shavada Parveen and others. vs State and others.

Y.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 : 23

Scheduled Tribe : 27

Open Merit : 148

RBA : 55

HC : 09

ALC : 08

OBC : 05

The eligibility qualification as prescribed was ""10+2"" with 50% marks and above. However, bar of 50% marks was not to apply to graduates

and above. The experience was 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.

(v) M.Ed. : 10 Points.

(vi) 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. 732SSB of 2006 dated 7.8.2006 constituted an interview committee.

After the completion of the selection process the Board issued select list and recommended the names of selected candidates for appointment to

the competent authority. The petitioners in this writ petition were also the candidates for 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 petition 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 marginalized. 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 Kaur v. State and others,

2000 KLJ 42 is legally invalid.

In Balwinder Kaur's case (supra), the appellant Balwinder Kaur 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) Postgraduation : 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) Vivavoice : 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 advance 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 Pariakaruppan v. State of

Tamil Nadu, AIR 1971 SC 2303 (supra). Again reserving 50 marks out of 150 under one head in the case of Nishi Maghu v. State of J & K and

Others, AIR 1980 SC 1975 and 331/2 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 vivavoce. 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. 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 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, 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 recast 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 Kaur'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 Kaur'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 Kaur'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 Kaur'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 Kaur'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 for 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 Articles 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 Kaur, 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 Kaur'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 SRO 194

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 examination as 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 10 or 13 of the

relevant rules to show that the recast criterion was in any way suffering from any infirmity whatsoever. Besides, it is no more res integra 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 v. Navnit Kumar Potdar, 1995(1)

SCT 50 : AIR 1995 SC 77"".

It may be noticed that in the criterion, the validity of which was considered by this Court in Balwinder Kaur'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 to30. 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 vivavoce 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 Kaur'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 Kaur'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.

Learned counsel for petitioners contends that petitioners had fared well in the interview but had been given lesser marks. The contention is

untenable. 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 v. Strate of Jammu and Kashmir, 1995(2) SCT 880 :

1995(3) SCC 486 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 said oral 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 v. Akhilesh Kumar Shukla and Ors., (AIR 1986 SC 1043), 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 petitioners. 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 unfavourable treatment to the petitioners.

Consequently this contention also is found to be devoid of any merit and is rejected"".

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 candidate in Open Merit Category is 47.06 points, whereas the petitioners in

open category obtained the points as under :

(i) Petitioner No. 1 Shayada Parveen: 42.73 Points

(ii) Petitioner No. 2 Shafiq Ahmed 30.76 Points

(iii) Petitioner No. 3 Mohd Maneem: 43.06 Points

(iv) Petitioner No. 4 Ushaq Ahmed; 40.06 Points

(v) Petitioner No. 5 Abdul Rehman 38.33 Points

(vi) Petitioner No. 6 Nighat Parveen 39.06 Points

(vii) Petitioner No. 7 Mohd Yaqoob 39.66 Points

(viii) Petitioner No. 8 Maqsood Begum 38.26 Points

From the above merit of the petitioners when compared with the merit of the last selected candidates in the open category, it is manifest that all

the writ petitioners have obtained lesser merit than the last selected candidate in open merit category and as such had no right to be selected over

the selected candidates.

For the aforesaid reasons, the writ petition shall stand dismissed, alongwith the connected CMP.

Petition dismissed.