Surinder Singh and Others vs State and Others

Sunil Hali, J.—The process for appointment to the post of Junior Engineer (Mechanical) initiated in the year 1997 vide Advertisement

Notice No. 3 of 1997 dated 29.04.1997 has yet to assume its finality. Unsuccessful candidates including petitioners are litigating in the Courts by

questioning the appointments made by the respondents vide Order dated 21.10.2004 in pursuance to the aforesaid Notification.

A batch of writ petitions came to be filed in this Court which are being disposed of by a common judgment as identical questions of law and

facts are involved in all the petitions.

In order to understand the controversy involved in the writ petitions, the brief resume of the case is as under.

The process of appointment to the post of Junior Engineer (Mechanical) was initiated by respondent No. 3 by inviting applications from the eligible

candidates vide Advertisement Notice No. 3 of 1997 dated 29.04.1997. No rules were in existence at the time when the said notification was

issued. Consequently on 26.05.1997 vide SRO 180, J&K Engineering Subordinate Services Recruitment Rules, 1997 (hereinafter called as ""Rules

of 1997"") came to be promulgated. On its promulgation, a fresh Advertisement Notice No. 6 of 1997 dated 01.07.1997 was issued by

respondent No. 3. It was stated that those candidates who had applied in pursuance to the earlier notification need not to apply afresh. Under both

the Advertisement Notices, 162 posts of Junior Engineers were notified.

The selection to the notified posts was made on the basis of interview. The Service Selection Recruitment Board (hereinafter referred to as

Board"") constituted a Committee of three members with Chairman as its Convener. It is pertinent to mention that Board interviewed all the

candidates who had applied and did not adhere to Rule 13 Sub Rule (ii) of J&K Subordinate Services Recruitment Rules, 1992 (hereinafter

referred to as ""Rules of 1992"") by restricting the number of applicants to be admitted in oral or written test to a maximum of five times the number

of vacancies which were advertised. As the selection process was yet to conclude, a writ petition being OWP 667/1997 titled as H.S. Sahani and

Ors. v. State of J & K and Ors. came to be filed in this Court. In fact batch of writ petitions came to be filed wherein constitutional validity of

Note-3 of Schedule-II of Rules of 1997 was challenged. The note provides that recruitment to the post of Junior Engineer both from degree and

diploma holders should be made in the ratio of 1:3. The said petitions came to be disposed of by a co-ordinate bench of this Court vide its order

dated 10.03.1998, wherein direction was issued to the official respondents to consider the said writ petitions as representations and decide the

same within six months. Being aggrieved of the aforesaid order, LP A 63/1998 came to be filed. The Learned judges who constituted the Division

Bench delivered split judgments differing in their views. The matter was referred to a third judge, who vide its judgment dated 16.04.1999 agreed

with one of the Learned judges of the Division Bench holding that Note-3 appended to schedule-II-A of SR0 180 of 1997 was ultra vires of the

Constitution. Being aggrieved of the same, the State filed appeal being Civil Appeal No. 8269 of 2003 in the Apex Court, who vide its order

dated 03.09.2003 disposed of the same by observing that it is open to the State Government to frame appropriate Recruitment Rules for

appointment to the posts of Junior Engineer by considering various factOrs. For facility of reference the said order is reproduced herein below:

It is suggested by the Learned Counsel for the parties that it is open to the State Government to frame appropriate recruitment rules for

appointment of Junior Engineers taking into consideration the various factors including the requirement of Department and no further order is

required to be passed in this appeal. In our view, the aforesaid suggestion requires to be accepted. It would be open to the State Government to

frame the appropriate recruitment rules for the said post by considering various factOrs. Hence, no further orders are required to be passed in this

appeal. Interim order passed by this Court directing the parties to maintain status quo is vacated.

On an application filed by the State for clarification of orders dated 04.09.2003 and 16.02.2004, the Apex Court passed the following order:

It is urged that this Court has issued direction to the applicant-State of Jammu and Kashmir for framing fresh Rules. It is stated that the Rules are

already in existence. If that is so, State may continue with those Rules.

After having obtained this clarification from the apex court, the respondent-State proceeded to make selection vide Govt. Order No. 416-PW

(R&B) of 2004 dated 21.10.2004. It is important to note that after order dated 04.09.2003 passed by the Apex Court, the State Government

vide SRO 05 of 2004 dated 09.01.2004 deleted Note-3 appended to Schedule-II of SRO 180 of 1997. The effect of deletion was that ratio of

1:3 was abrogated.

It seems that one more application came to be filed by one of the degree holders seeking clarification of the Apex Court's orders dated

04.09.2003 and 16.02.2004. The clarification sought was as to whether the selection to the post of Junior Engineer was to be made in accordance

with the previous Rules or in accordance with the amended Rules framed by the State in pursuance to the directions of the Apex Court regarding

ratio of 1:3. The Supreme Court vide its order dated 25.07.2005 while clarifying two earlier orders held as under:

The upshot of the two orders passed by the court is that the Rules would continue to operate with the Note-3 deleted therefrom as had been found

categorically by the High Court, this Court has done no more than to affirm the High Court judgment which will hold the field. The order dated

16.02.2004 disposing of IA filed by the State Government for modification is clarified in its own turn in the manner aforesaid.

The IAs are disposed of. It is made clear that there is no question of State Government recruiting on the basis of Note-3 in any fashion

whatsoever.

Analyzing the import of the order of the Apex Court it clearly emerges that no selection could be made in the ratio of 1:3 which stands quashed

by the Division Bench of this Court and affirmed by the Apex Court.

In the instant writ petitions, the appointments made vide Govt. Order No. 416-PW(R&B) of 2004 dated 21.10.2004 are subject matter of

challenge. The petitioners have questioned the appointments essentially on three issues which are as under:

(i) That the appointments have been made by following the ratio of 1:3 between degree and diploma holders despite Note-3 of Rules of 1997

being declared ultra vires of the Constitution.

(ii) That the appointments have been made without there being any recommendation made by the Service Selection Board in terms of Rule 10 of

Rules of 1992. It is categorically stated that the Board has not finalized the selection and any appointment made without there being any selection

finalized by the Board was non est in the eyes of law.

(iii) That while making selection, Rule 13 Sub Rule (ii) of Rules of 1992 was not adhered to. The aforesaid Rule states that number of applicants to

be admitted in oral or written tests is subject to a maximum of five times number of vacancies available. The Board had invited all the candidates

who had applied under the aforesaid notifications.

In response to this the respondents stated that the merit list was prepared by the Board ignoring the ratio of 1:3 as both degree and diploma

holders were treated at par as per existing rules.

It is further averred that during the pendency of the writ petitions, respondent-SSRB was asked to reframe the merit list of the candidates

ignoring the ratio of 1:3 and upon examination of reframed merit list, it was found that only five candidates who figured in the earlier select list were

ousted as against eight candidates who were included in the select list. Out of 162 candidates only 131 have joined and 31 posts remained vacant.

The respondent-SSRB also filed counter affidavit through its Administrative Officer on 20.07.2006 and following stand was taken by them:

(a) That Board had made no recommendation in case of Junior Engineers (Mechanical) and had only referred the matter to General Administration

Department keeping in view the discrepancies noted by It in the selection process. It is further averred that it is hot in position to defend the

appointment as the same have been made by the intending department in consultation with the General Administration Department.

(b) That on the basis of the opinion given by the Law department the selection of Junior Engineers (Mechanical) has been made in accordance with

the ratio of 1:3;

(c) Discrepancies detected in the selection of some candidates, the matter was referred to the Government for seeking approval of the select list by

invoking power of relaxation under Rule 22(a)(b) of Rules of 1992.

It is during the pendency of the writ petitions, some developments took place, which are stated as under:

That vide order dated 03.07.2007 passed by this Court, the Chief Secretary of the State was directed to look into the matter and pass

appropriate orders according to the rules. On 24.07.2007, the Learned AAG made a statement that the matter was examined by the Chief

Secretary and compliance report will be filed by next date. The compliance report seems to have been filed on 08.08.2007. This Court vide its

order dated 12.12.2007 observed as under:

During the consideration of these petitions, it transpired that the State Government has not come up with a specific stand regarding the

discrepancies in the select list pointed put in the affidavit of Babila Rakwal, Administrative Officer, J & K Services Selection Board for and on

behalf of the Board.

Mrs. Seema Shekhar, Learned AAG appearing for the State Government is, accordingly, called upon to file a specific, affidavit of the

Commissioner/Secretary to Government, General Administration Department, indicating the steps taken by the Government on irregularities in the

selection, pointed out in paragraph No. 3(i) the Board. Two weeks time is allowed to the State Government to do the needful. List thereafter along

with connected matters.

In pursuance to the aforesaid directions of the court, affidavit came to be filed by the Principal Secretary to Govt., General Administration

Department on 19.02.2008. It is also in the record that the Chief, Secretary J & K Government has filed compliance report wherein it is submitted

as under:

(a) That after examining the directions of the Supreme Court, instructions, were issued to Service Selection Board to reframe the merit list vide

communication dated 29.03.2007 treating both degree and diploma holders at par, i.e., after ignoring ratio fixed by Note-3.

(b) That in pursuance to the directions issued, the Service Selection Board has forwarded the reframed merit list vide its communication dated

03.07.2007.

Whereas the affidavit filed by the Principal Secretary to Govt., General Administration Department reveals following things:

(a) That on the basis of the communication received from the Chairman, Service Selection Board who had raised certain issues, came to be

resolved after consultation with the Law Department. One of the issues raised by the Service Selection Board was whether ratio between degree

and diploma holders has to be followed in the selection process or not. After consultation on this issue with the Law Department, the selection was

made on the basis of ratio of 1:3.

(b) That after conclusions were arrived at, it was finally approved tha t the list which was prepared by the Selection Committee constituted by the

Chairman was to be approved except in respect of those in whose cases marks awarded have been tampered with;

(c) That revised select list was prepared by the selection board ignoring the ratio of 1:3 between degree and diploma holders.

It is also important to state that respondents have produced the record. After going through the same following things emerge from the noting:

(a) That the Service Selection Board had"" considered the select list framed by the Select Committee in the year 1998 but was unable to give

approval on account of certain discrepancies which were detected in the said select list. The Service Selection Board was of the opinion that it did

not have the power to approve the select list. Accordingly, it recommended that selection list be approved after invoking the provisions of Rule

22(b) of Rules of 1992. Note further reveals that it was not a question of the relaxation of any rule which had caused hardship to any person but it

was purely a question where selection procedure adopted by the Board was irregular and whether it should be approved or not. Note further

states that Supreme Court vide its order dated 16.02.2004 had taken note of amendments which had been made in the recruitment rules on

09.01.2004 removing note specifying the ratio of 1:3 ratio between degree and diploma holders from the rules. The note questions the opinion of

the Law Department who had directed that selection had to be made by following ratio of 1:3. The note recommended constitution of sub

committee which would make recommendation for consideration of the Cabinet. This note has been prepared by the Addl. Secy. (Admn.) on

01.07.2004.

(b) It seems that on 20.08.2004, Principal Secretary to Govt., General* Administration Department advised the Chairman, Service Selection

Board to consider the matter within the parameters of law, equality and practicability. In pursuance to this, Chairman vide its communication dated

09.09.2004 has made recommendation which is reproduced as under:

The Board has decided to hold fresh interviews of those who had appeared before it earlier, on the following grounds:

(i) there are number of cuttings in the earlier select list which is unauthenticated by the then Selection Committee;

(ii) the merit of the candidates has been altered in the award sheet and manipulated select list has been prepared;

(iii) while sending requisition, the PWD had not indicated that the selection had to be made in the ratio of 1:3 between Degree and Diploma

holders, and while issuing advertisement notice, the Board had not also prescribed any such ratio. The Board has stated that as against this

position, the erstwhile Board had prepared the list by applying ratio of 1:3 between Degree and Diploma holders;

The recommendation of the Chairman clearly reveals that he had asked for fresh interview of those who had earlier appeared in the interview in

pursuance to the Notification issued in the year 1997.

After having received this recommendation, the matter was referred to the Law Department, who again reiterated that ratio of 1:3 has to be

followed while making selection for the posts advertised in the year 1997. The respondents ultimately agreed with the opinion of the Law

Department for making appointments on the said posts by following the ratio of 1:3.

After scanning through the facts enumerated (supra) the following things emerge:

(a) That appointments made on 21.10.2004 were based upon the un-amended Rules of 1997. The selection was made on the basis of ratio of 1:3

for degree and diploma holders respectively on the advice of the Law Department, despite the fact that the State Government in compliance to the

order of Supreme Court dated 04.09.2003 and after considering the various factors issued SRO 05 dated 09.01.2004 thereby deleting Note-3

appended to Schedule II of the J&K Engineering Subordinate Services Recruitment Rules, 1997. The respondents were aware of the fact that

Note-3 had already been deleted and no selection could have been made on the basis of un-amended Rules.

(b) That reframed select list has been submitted by the Service Selection Board to the Principle Secretary Govt., General Administration

Department in pursuance to the direction issued by this Court The said reframed list has been framed on the basis of selection conducted by

respondent-Board in terms of un-amended Rules of 1997;

(c) That select list upto 21.10.2004 was not finalized by the Board in consonance with Rule 10(i) of Rules of 1992 as no recommendation was

made by the Service Selection Board to the State Government for making appointments as is revealed from the counter affidavit filed by the

Boards.

It is in the light of above facts the present controversy is to be resolved by determining the validity of appointments made by the respondents.

I have heard Learned Counsel for the parties and perused the record. In the matter of public appointments, following principles are to be

followed:

(a) The appointments made without following the appropriate procedure under the rules/Governments circulars would amount to breach of Articles

14 and 16 of the Constitution;

(b) The appointments made in violation of the mandatory provisions of statutes and in particular, ignoring the minimum educational qualification and

other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization;

(c) If the mischief played is so widespread and all pervasive, affecting the result so as to make it difficult to pick out the persons who have been

unlawfully benefited or wrongfully deprived of their selection whole selection has to be quashed;

(d) When entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be

set aside.

Examining the present controversy in the light of the principles noted above, it is important to crystalize the facts in the present case as under:

(a)That the selection of Junior Engineers (Mechanical) made on 21.12.2004 was based upon the ratio of 1:3 which was in contravention of the

Supreme Court judgments as also amended

(b) That while analyzing the selection, General Administration Department did not address itself to the questions referred to it by the Service

Selection Recruitment Board vide its communication dated 29.06.2004;

(c) That the direction to reframe the select list ignoring ratio of 1:3 was prepared only after Chief Secretary, J&K, Government was directed by

this Court to file compliance, report.

While issuing communication dated 29.03.2907, the General Administration Department without taking action in pursuance to the

communication addressed by the Service Selection Recruitment Board directed it to make selection by submitting reframed select list after

observing the following things:

(a) That ratio of 1:3 is to be ignored;

(b) That those persons, who got selected in process, be selected.

The dispute with respect to the selection process undertaken by the Service Selection Recruitment Board is clearly enumerated in the

communication addressed to by the Service Selection Recruitment Board on 29.06.2004 to the General Administration Department. It is revealed

from the said communication that select list was framed by the selection committee which was submitted to the Chairman on 15.05.1998. This

select list was not approved by the Board for the following reasons:

(a) The unattested corrections made in the marks recorded in the merit list are irregular. It is averred that the corrections were made in the marks

which were not signed by the members of the selection committee. Only the merit list was signed by the Selection Committee without any

attestation being made on the corrections in the marks.

(b) That the select list was irregular in view of the fact that no short listing seems to have been done by the selection committee. This was in

violation of Rule 13(ii) of Rules 1992.

(c) That there were contradictions between the select list and the proceedings of the selection;

(d) That fixation by the selection committee of the marks equivalent to the grades obtained by the candidates who did their study in the erstwhile

Soviet Union and for the qualifications obtained by the ex-servicemen is arbitrary;

(e) That entire process adopted by the selection committee appears to have been less than satisfactory and not entirely in consonance with the

procedures laid down in the J & K Subordinate Services Recruitment Rules, 1992.

The recommendation was made seeking State's Intervention for invoking its powers in terms of Rule 22(b) of Rules of 1992.

A specific recommendation was made that selection initiated in violation of Rule 13(ii) of Rules of 1992 be regularized.

This communication was considered by the respondents and following decisions were taken:

(a) That selection has to be based by following the ratio of 1:3 in respect of degree and diploma holders.

(b) That the select list submitted by the Board for approval was accepted except in respect of those in whose cases marks awarded in the

interview were tampered with, their number was shown to be 14.

It is interesting to note that communication dated 19.10.20004 states that the selection of five candidates, against whom it has been found that

there was tampering in their marks, decision with regard to their appointments was deferred. In the earlier communication it was stated by the

Board that number of such candidates were 14 as is reflected in Note-46 dated 07.10.2004 prepared by the Principal Secretary, General

Administration Department.

The communication dated 29.03.2007 directs the Board to reframe the select list by ignoring the ratio of 1:3 between degree and diploma

holders. In the process of refraining the select list by the Board, in case the candidates who would now make it to the select list are from amongst

those in whose case the award roll has been tampered with, then the Board shall take into account his/her pre-tampered marks which was adopted

earlier. The import of the direction contained in this letter reveals that the persons who could get selected on the basis of reframed list, their pre-

tampered award roll should be taken into consideration. The communication dated 03.07.2007 which is sought to be the recommendation made

by the Chairman, SSRB after ignoring ratio of 1:3 reveals that three degree holders and two diploma holders find their place in the new select list

and two degree holders and three diploma holders came to be ousted. It is mentioned in the communication dated 03.07.2007 that no tampering

has been found in case of five candidates who succeeded in making to the selection on the basis of merit.

After scanning through the aforementioned communications, the following things emerge:

(a) That the communication addressed by the Chairman SSRB dated 29.06.2004 where he had raised so many issues, more particularly, regarding

the process adopted in making selection has not been addressed to. He had sought invocation of Rule 22 (b) of Rule of 1992 by the Government

for regularizing selection which was improper and irregular and sought dispensation of Rule 13 (2) of Rules of 1992. He had also sought opinion

regarding the application of Rules which were required to be invoked while making appointments to the post whether in the ratio of 1:3 or not.

(b) That it seems that respondents after taking into account the recommendation of the Board allowed the merit list prepared by the Board to

operate except in respect of 14 candidates against whom it was detected by the Board that their marks were tampered.

(c) That on the intervention of the court, the Chief Secretary, J&K Government had directed the Chairman, SSRB to reframe the merit list by

ignoring ratio of 1:3.

An interesting feature in the communication dated 29.03.2007 can be seen which indicates that those candidates who can get selected on the

basis of reframe merit list, if it is found that their marks have been tampered, their selection would be made on the basis of pre-tampered marks.

The Service Selection Recruitment Board had communicated that 14 candidates were detected in whose cases it was found that their marks were

tampered with. However, when direction was issued to exclude these 14 candidates, the Board only recommended five persons against whom

there were allegations of their marks having been tampered. The fate of rest of nine persons is not known from the record. The controversy should

have rested here. Whether persons 5 or 14 were identified, they were not required to be considered for appointment. The direction issued vide

letter dated 29.03.2007 states that in case any person who got selected on the basis of reframe select list, if it is found that their marks are

tampered, then in their case pre-tampered marks should be considered. It clearly reveals that there were more than 14 candidates whose marks

were tampered, otherwise there was no necessity of issuing such directions. This further gets corroborated from the facts enumerated in the

communication dated 29.06.2004, wherein the Chairman had not given number of candidates in whose cases tampering was found but he had

stated that the process adopted by the selection committee appears to have been less than satisfactory and not entirely in consonance with the

procedures laid down in the J&K Subordinate Services Recruitment Rules, 1992. Once the selection body itself stated that there were

irregularities and the entire process of selection was less than satisfactory, it clearly reveals that there was some thing more than meets the eyes.

Both the Service Selection Board and General Administration Department have not clearly reflected number of persons whose marks sheets were

tampered with.

The other features which is visible is that the recommendations have been made by the Board seeking invocation of Rule 22(b) of Rules of

1992 for according relaxation in respect of those rules which were causing undue hardship. For facility of reference Rule 22(b) is quoted

hereunder:

The Government in the General Administration Department may where it is satisfied that the operation of any provision of these rules causes undue

hardship in any particular case or class of cases, by order, dispense with or relax the requirement of that rule as it may-consider necessary.

The rule provides that in case operation of any provision of these rules causes undue hardship in any particular case or class of cases, the

government has the power either to dispense with or relax the requirements of that rule as if may consider necessary. The communication dated

29.06.2004 seeks relaxation of Rule on account of two factors:

(a) That in view of the irregularities committed by the selection committee, the selection cannot be on confirmed by the Board as such relaxation by

invoking Rule 22 (b) Rules of 1992 be granted;

(b) That action taken by the Selection Committee in not short listing the candidates terms of Rule 13(ii) of Rules of 1992, the operation of the Rule

either be dispensed with or to relax.

In respect of first contention, the selection has been approved by the General Administration Department without taking recourse to the

aforementioned rules and rightly so. There is no power vested with the Government to relax the rules for the purpose of legalizing any illegal

selection. The relaxation sought in this regard by invoking Rule 22(b) of Rules of 1992 was misplaced.

In order to understand the import of Rule 13(ii) of Rules of 1992, it is quoted herein below:

Ordinarily the Board shall restrict the, number of applicants to be admitted to oral or written test to a maximum or five times the number of

vacancies after doing the preliminary screening on the basis of marks obtained in the qualifying examination and such other criteria as the Board

may deem fit.

A plain reading of the Rule (supra) shows that the procedure for selection has to be made strictly in consonance with the aforementioned Rule.

The Board ordinarily shall restrict the number of applicant's to be admitted to oral or written test to a maximum of five times the number of

vacancies. The word 'ordinarily' entails, the Board to conform to this criterion for making selection. In essence, the word 'ordinarily' would not

make it optional for the Board to call more than five times the number of vacancies available.

Be that as it may, the recommendation made by the Board clearly reveals that no circumstance has been explained or disclosed while calling

more number of candidates then the required or It was conscious of the facts that Rule 13(ii) of Rules of 1992 has not been complied with. It is

only in this case that relaxation could be granted by the General Administration Department. No such relaxation has been granted in this case by

the General Administration Department. The illegality/irregularity in the selection list prepared in May 2004 persists

Admittedly the select list was not made in consonance with Rule 10 of Rule of 1992 which is quoted as under:

Recruitment and selection:

(i) The Board shall finalize the selection after holding such tests or examinations as may be prescribed under rules, or of there are no such rules as

the Board may consider necessary.

(ii) The Board white making selection and allocating candidates to various cadres shall take into account the reservations made from time to time

for various categories;

(iii) The Board shall finalise the select list which shall be equal to the number of vacancies for which requisition was made and recommend it to the

appointing authority;

(iv) The select list shall remain in force for a period of six months from the date it is accepted by the appointing authority;

(v) The appointing authority, for reasons to recorded may not accept the select list received from the Board and return the same to the Board for

making afresh selection.

Provided that no such action shall be taken by the appointing authority without prior approval in writing of the Administrative Department.

(vi) The Board shall also finalise waiting list upto 20% of the total number of selected candidates and forward the same, if considered necessary in

public interest to the concerned department on their request only. The waiting list shall remain in force for a period of six month from the date of the

receipt of the waiting list from the Board or three months from the date the selected candidates in the select list are appointed, whichever is earlier.

It is imperative that the select list has to be approved by the Board. The appointment orders issued on 21.10.2004 have been made by the

General Administration: Department in consultation with the administrative department without it being confirmed by the Board. It is not in dispute

that select list which was not being approved by the Board, the appointment orders have been issued by the administrative department in

consultation with the General Administration Department. The selection perse is bad in the eyes of law and cannot be sustained.

The next question that calls for consideration is that what is the effect of reframed select list made by the Board in terms pf direction issued by

the General Administration Department on 29.03.2007 in the present case.

On perusal of the communication dated 29.03.2007, the following things are required to be noted:

(a) That reframed select list was prepared only after this Court directed the Chief Secretary, J & K Government to file the compliance report.

(b) That reframed list was based upon the selection process initiated on 19.05.2005 by the selection committee whose role in making such

selection was found to be irregular and illegal by its Chairman not only on the question of adopting ratio of 1:3 but in the actual process for

selecting the candidates,

(c) That select list prepared by the selection committee is in violation of Rule 13(ii) of Rules of 1992.

(d) That there was no select list in existence on 29.03.2007 which was required to be reframed. The persons who figured in the select list, which

was not approved by the Board were appointed on 21.10.2004.

(e) That the select list, on the basis of which the appointments were made, was not approved by the Board. The reframed list without earlier

selection being approved by the Board makes recommendation in respect of the persons who could find their names in it. No approval was given

by the Board to the earlier select list on the basis of which appointments have been made.

Analyzing the import of facts which emerge (supra) it clearly reveals that the earlier select list on the basis of which the appointments were

made on 21.10.2004, was not approved by the Board. The appointments made on the basis of that list are illegal and cannot be sustained. The

reframed list only redraws the merit after ignoring the ratio of 1:3 and makes recommendation of only those candidates who have come after that.

The recommendation of the Board would confine only to those candidates who could find their place in the reframed list. No approval was given

by the Board to the earlier select list on the basis of which the appointments were made. As a matter of fact, the letter dated 03.07.2007 does not

make any mention about the same. Even doubts have been created as to whether the reframed list issued by the Board was confirmed as required

u/s 10(i) and (iii) of Rules of 1992. All that is on the record is a communication dated 03.07.2007. In the said communication, the Chairman,

SSRB has made the following observations:

The PWD Department shall have to further scrutinize the redrawn list in the light of certain changes which might have been effected at the

Secretariat level.

This endorsement in the note clearly reveals that it was not a list which was approved u/s 10 of Rules of 1992. The Board seems to have only

forwarded the recommendation without approving it after preparing the merit list by ignoring the ratio of 1:3. In fact, the reframed list is also not the

approved list as required u/s 10 of Rules of 1992.1 say so because once the select list was reframed then the question of certain changes to be

effected in the said list issued by the P.W.D. was uncalled for.

One more aspect which requires to be examined is that even those candidates in whose cases it was found that there was tampering in their

award rolls, have been appointed. While allowing their appointments, it has been observed that if we take pre-tampered position into consideration

then S/Shri Neeraj Sharma and Subash Chander would come in the main select list as their percentage of marks would be within the cut off

percentage of last candidate selected and appointed. Shri Reyaz Ahmad Khan would come within the waiting list and is well within the cut of

percentage. Other two candidates S/Shri Fayaz Ahmad Hurra and Irshad Ahmad will not come either in the select list or in the waiting list on the

basis of pre-tampered marks awarded to them. The decision with regard to their cases would be scrutinized further in consultation with Board.

This decision seems to have been approved by the Chief Minister on 17.02.2005.

While analyzing the facts of the present case, it is visible that contrived self deception has been pursued by the General Administration

Department in ensuring that the select list is sustained. All efforts have been made to protect those candidates in whose cases it was found that they

have managed to tamper the record in connivance with the members of selection committee. Even no notice was taken by the General

Administration Department to the observation made by the Chairman, S.S.R.B. that the selection was irregular and not in accordance with the

procedure. The other important aspect which is noted is that it was known to both General Administration Department as well as the Law

Department that SRO 05 of 2004 was issued on 09.01.2004 whereby the Note-3 was deleted. The said SRO could not have been issued without

the knowledge of the Law Department but despite that they permitted the selection process to be conducted on the basis of ratio of 1:3. What

were the compelling circumstances which prevailed upon the Law Department to give opinion contrary to the orders of the Supreme Court can

only be explained by them. Additional Secretary, General Administration Department issued a communication dated 09.09.2004 whereby he had

categorically mentioned at Note-37 that the Chairman, Service Selection Board had stated that the ratio of 1:3 was to be deleted and the selection

process has to be conducted on the basis of order of the Supreme Court dated 16.02.2004. Despite this communication being on record, the

General Administration Department proceeded to rely upon the opinion of the Law Department which was contrary to the direction of the

Supreme Court.

The Chairman, SSRB vide its communication dated 29.06.2004 has indicated that the entire process adopted by the selection committee

appears to have been less than satisfactory and not entirely in consonance with the procedure laid down in the J&K Subordinate Services

Recruitment Rules, 1992. It is clearly mentioned that besides tampering in the marks and award roll, there were irregularities committed by the

Board. Even though the letter is silent as to what were the irregularities, this Court cannot ignore this aspect in view of the circumstances which

have been noticed hereinabove. It will not be safe to hold that the selection process which culminated into issuance of appointment orders was

legally correct. The reframed list based upon the select list will suffer the same consequence. The net result is that the appointment, made on the

basis of select list cannot be sustained on the following reasons;

(a) That appointments have been made based upon unconfirmed select list by following the ratio of 1:3 between degree and diploma holders

despite Note-3 of Rules of 1997 been declared ultra vires by the Supreme Court.

(b) That appointments were made in pursuahce to the select list which was not in conformity with Rule 10 of Rules of 1992 as it was not finatized

by the Board;

(c) That, no relaxation was granted in terms of Rule 22(b) of Rules of 1992, for having called more number of candidates than the required as

envisaged under Rule 13(ii) of Rules of 1992;

(d) That the entire process of making selection being illegal as indicated by the Service Selection Board vide its communication dated 29.06.2004

cannot be sustained. The mischief played in making me selection is so widespread and all pervasive that cannot be sustained.

The question now arises is as to what relief the petitioners are entitled to. Would it be appropriate to quash the list as a whole or in part is an

issue which is required to be determined. The Apex Court has in various judgments held that the appointments which are illegal cannot be

sustained. The only way out would be to cancel the whole selection.

I am fortified by the various judgments of the Supreme Court in quashing the whole list. The apex court has while making a distinction between

the list which can be quashed as a whole or in part, laid down certain principles which are indicated in the judgments referred herein below.

In Union of India and Others Vs. O. Chakradhar, , their lordships have observed as under:

The nature and the extent of illegalities and irregularities committed in conducting a selection have to be scrutinized in each case so as to come to a

conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all-pervasive, affecting the result,

so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be

possible nor necessary to issue individual show cause notices to each selectee. The only way out would be to cancel the whole Selection. Motive

behind the irregularities committed also has its relevance.

In Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, , their lordships have held as under:

It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of

an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of the law, which renders the

appointment to be a nullity.

In making appointment of the appellant, the provisions of Articles 14 and 16 of the Constitution arid statutory rules were not complied with. The

appointment, therefore, was illegal and in that view of the matter, it would be wholly improper for the Supreme Court to invoke its equity

jurisdiction. The principles of equity in a case of this nature will have no role to play. Sympathy, as is well known, should not be misplaced.

Their lordships of the apex court have very clearly held that the appointments which are illegal cannot be sustained. Applying these judgments

in the present case, it is manifestly clear that the select list was not approved by the Board, therefore, any appointment made thereunder would be

void abinito. There being no power vested with the State Government or G.A.D. to approve the select list, such appointments cannot be sustained.

The recommendation of the Chairman/S$RB that there were tampering in the award roll and the process adopted by the selection committee in

making selection as a whole was illegal, any appointment made on that basis cannot be sustained.

The selection was made in violation, of amended Rules of 1997 which renders the appointments made thereunder illegal. It was suggested at

the Bar by the Learned Counsel for the petitioners that since the private respondents are working for the last more than four years it would be

appropriate if a direction is issued to the official respondents to consider the petitioners also for appointment. This prayer pf the, petitioner cannot

be accepted for the reason that price the court holds that the whole selection was illegal, no direction can be issued to appoint the petitioners also

on the basis of select list which is illegal and goes to the root of appointment.

In view of the aforesaid discussion, I allow the writ petitions and hold that the appointments made oh the basis of the select list and reframed

select list cannot be sustained and as such are requited to be quashed. It is ordered accordingly. The official respondents are directed to conduct

the interview afresh in pursuance to the Notification No. 3 of 1997 dated 29.04.1997 and all those persons who had participated in the selection

process conducted in pursuance to the aforesaid Notification may be called after following the mandate of Rule 13(ii) of Rules of 1992. However,

the Service Selection Recruitment Board may exercise the option of seeking relaxation in terms of Rule 22(b) of Rules of 1992. The selection

process shall be completed by the respondents within a period of four months from today. For a period of four months from the date of this order,

private respondents shall not be disturbed.

Disposed of along with connected CMP(s).