Viney Kumar Gupta And Ors vs State Of J&K And Ors on 14 December, 2012

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Jammu & Kashmir High Court

Viney Kumar Gupta And Ors vs State Of J&K And Ors on 14 December, 2012

1. These two*appeals under Clause 12 of the Letters Patent are directed against judgment and order dated 19.02.2009 rendered by the learned Single Judge of this Court, allowing the writ petition filed by the writ petitioner-respondents, namely, SWP no. 95/2005 along with CMPs. The matter pertains to recruitment to the post of Junior Engineer in Military Engineering Service. The pivotal issue raised before and decided by the learned Single Judge is whether marks for higher qualification could be allocated as a criteria of selection. The learned Single Judge has considered the prescribed qualifications laid down in the Rules, and the Recruitment Guidelines dated 02.07.2003. The learned Writ Court then 2 proceeded to set aside allocation of 10 marks to the candidates possessing Degree in Engineering, holding that once the Degree in Engineering is considered to be the basic qualification and equivalent to the Diploma, then allocation of 10 marks for Degree holders by the Recruitment Guidelines was wholly unjustified. Feeling aggrieved the Union of India and its officers has filed a Letters Patent Appeal whereas the other Appeal has been preferred by Engineer Graduates who are adversely affected.

FACTS:

2. In the Military Engineering Services there is a service for Junior Engineers Civil, Electrical and Mechanical. For recruitment of Junior Engineer and other cognate matters, the Government of India, Ministry of Defence has framed statutory rules under proviso to Article 309 of the Constitution which are known as the Military Engineer Services Junior Engineer (Civil) and Junior Engineer (Electrical and Mechanical) Recruitment Rules, 2001 (for brevity the Rules). In the aforesaid Rules an amendment was made on 18.06.2008 but for the purposes of the case in hand the amendment is not relevant.

3. For recruitment to the post of Junior Engineer the appellant-Union of India issued advertisement in July, 2003 which appeared in the employment news dated 19-25 July, 2003 (Annexure H). The advertisement invited applications for 3 appointment to the post of Junior Engineer (Civil, Electrical and Mechanical). The total number of posts for Junior Engineer (Civil) were 85 and for Junior Engineer (Electrical and Mechanical) it was 39. The advertisement also prescribed minimum qualification for Civil and Electrical/Mechanical Junior Engineers. Item no. 5 prescribing the minimum qualification would read as under:-

Minimum qualification:

(a) JEs (Civil) (i)Matriculation or equivalent,

(ii)Dip[loma in Civil Engineering from recognized University/ Institution or equivalent.

(b) JEs (E&M) (i) Matriculation or equivalent,

(ii) Diploma in Electrical or Mechanical or Automobile Engineering from recognised University/Institution or equivalent.

(c) HHHHHHHHHHHHHHHHHHHHHHHHHHH

4. It is thus clear that the minimum qualification prescribed for the post was Matriculation or equivalent and Diploma in respect of Civil as well as Electrical/Mechanical or Automobile Engineering. The advertisement did not prescribe Bachelors Degree as a minimum qualification.

5. The appellant (in LPASW no. 32/2009) as well as the writ petitioner-respondents applied for the post. The writ petitionersrespondents possess the qualification of Diploma in Mechanical and Electrical Engineering and they applied under the General/OBC categories. Likewise the appellants (in LPASW no. 32/2009) also applied who were Degree holders in Engineering. The official respondents evolved Recruitment Guidelines issued vide Military Engineering Services, Engineer4 in-Chief Branch No. A/14/DG/PERS/POL dated 02.07.2003, the relevant extract of which is set out below and it reads thus:-

Recruitment Guidelines issued vide M.E.S Engineer-in Chiefs branch No. A/14/DG/PERS/POL dated July 02, 2003 provide inter alia as follows:-

3. Recruitment of JEs: It has been decided that a common written test will be made for the post of JE B/R, JE E/M and JE (QS&C). The CE comds will nominate CE Zones in their commands to appoint a Board of Officers to conduct this written test and carry out the recruitment process. The Board of Officers will be commended by CE Zone and approve by CE Comd. Paper for the written test will be provided to the concerned CE Zone one week in advance so that he can take out number of copies as required depending on the candidates who are to be examined in his Centre. The proposed date for this examination will be 31 Aug 2003. The CE Zones nominated by CE Comd to carry out this recruitment will be intimated to Directorate General (Personnel)/EI by 15 Jul 2003. The marking procedure/marking system to be done by the BOO is given in attached Appx 'A'.

Annexure-I MARKS TO BE GIVEN IN THE RECRUITMENT TEST S.No .

Categor y Total mark s Basic Qualificatio n (as per rules) Experienc e Physica l test Intervie w Writte n test X X X

01. J.E.Civil

02. J.E(E/M) 100 10* 10** -- 15 65

03. JE(QS&C) - - - -- -- --

* Basic Diploma-0 marks, Degree in Engg. In relevant field 10 marks. ** Experience :02 marks/year, Maximum 10 marks. Experience should be in respective field from reputed firm organization.

6. The Union of India and its Officer, Engineer-in-Chief, who are the appellant in LPASW no. 161/2009, proceeded with the selection and appointed respondent nos. 5 to 19 in addition to others. It is appropriate to mention that the weightage of 10 marks was given to the respondent nos. 5 to 19 on the basis of Recruitment Guidelines dated 02.07.2003 (ibid). The aforesaid marks were given on the basis of disclosure made in Annexure- I, which clearly stipulates that 10 marks were to be given for Degree in Engineering in the relevant field. However, the 5 Diploma holder engineers, namely, respondent nos. 1 to 4 (Pankaj Kumar and others) challenged the selection and appointment of Degree holder respondent nos. 5 to 19 on the ground that allocation of 10 marks to Degree holder engineers was wholly unwarranted because both Diploma holder and Degree holder engineers were made eligible for appointment to the post of Junior Engineer. They were able to persuade the learned Single Judge that the allocation of 10 marks to the Degree holders was arbitrary and violative of Article 14 and 16 (1) of the Constitution. Accordingly, the learned Single Judge by the impugned judgment and order held that once the Rules lay down the qualification for the post, making Diploma in Engineering and Degree in Engineering as equivalent then for the purpose of recruitment there could not be any further discrimination. The view of the learned Single Judge is discernable from the following paras, which read thus:-

8. In terms of the Recruitment Guidelines, ten (10) marks have been earmarked for basic qualification, in terms of the rules, meaning thereby that merit of the eligible candidates had to be assessed on the basis of the percentage of marks obtained by them in Diploma in Electrical and Mechanical Engineering, which is the basic qualification prescribed as such under the Recruitment Rules of 2001.

9. Explanation appended in Annexure-1, however, indicates that no marks were required to be given for basic Diploma whereas all candidates possessing Degree in Engineering in the relevant field had to be given 10 marks. This explanation appearing in Annexure-1 to the guidelines is the bone of contention between the parties.

10. According to the petitioners, the explanation appearing in Annexure I of the Guidelines for 6 selection nullifies the basic criterion prescribed in the first part of Annexure-1, in terms whereof 10 marks are earmarked for assessing merit of candidates on the basis of their merit in the basic qualification, whereas the contesting respondents supports the explanation saying that awarding of 10 marks to those possessing Degree in Engineering was justified because respondent nos. 5 to 19 were entitled to weightage at the selection on the basis of their higher qualification.

11. I do not find any justification in the explanation appearing in Annexure-1, to the Selection guidelines, in that, the explanation to the basic Criterion, according to the rules of interpretation cannot be read in such a fashion that it destroys the very spirit of the criterion itself, in terms whereof 10 marks had been earmarked for the basic qualification which in terms of the Rules is Diploma in Electric/Mechanical Engineering and not Degree in Engineering.

12. The explanation appearing in Annexure-1 providing for allocation of 10 marks to all those candidates possessing the qualification of Degree in Engineering, is even otherwise irrational, in that, the criterion may not contemplate providing of full 10 marks to all the candidates possessing the qualification of Degree in Engineering, regardless of the percentage of marks obtained by each candidate in such examination. This is so because the basic criterion contemplates only maximum marks earmarked for assessment of merit of each candidate on the basis of his performance contemplated under various heads in the Annexure i.e. for the BASIC QUALIFICATION, EXPERICENCE, PHYSICAL FITNESS, INTERVIEW, WRITTEN TEST ETC.

13. This apart, the explanation treats Degree in Engineering in relevant field as basic qualification, which on the face of it is misconceived in view of the clear indication in the Recruitment Rules which prescribes Diploma in Electrical and Mechanical Engineering, as basic qualification for the post of JE (E/M).

14. Respondents have thus adopted irrational and unsustainable Criterion for making selection and consequent appointment of Junior Engineers (Electrical/Mechanical) relying upon the explanation to the Criterion for selection of Junior Engineers (E/M) appearing in Annexure-1 of the Selection guidelines, which has adversely affected the candidature of candidates like the petitioners possessing basic qualification of Diploma in Engineering.

7. Mr. K. K. Pangotra, learned Assistant Solicitor General of India and Mr. M. K. Bhardwaj, learned senior counsel, have 7 argued that the criteria of selection was known to the writ petitioner-respondents and they participated in the selection process with full knowledge that Degree holder engineers were to be awarded 10 marks for possessing the higher qualification of Degree. According to the learned counsel, the learned Single Judge has proceeded on a wrong premise by presuming that there was no difference between Diploma and Degree holders in the Rules or in the advertisement. They have maintained that the qualification of Degree in engineering was not prescribed either by the advertisement or the Rules applicable at that time. The qualification of Degree has been made applicable only by virtue of amendment notification issued on 18.06.2008 and would not be relevant to the selection process initiated in July, 2003 when advertisement was issued (Annexure H). The argument proceeds that once the writ petitioner-respondent nos. 1 to 4 were aware about the criteria evolved by the appellants by issuing the Recruitment Guidelines in the year 2003, which allocated 10 marks for a graduate engineer, then the plea in the nature of estopple would arise debarring the writ petitioner-respondents to raise any such issue after having participated in the selection. In that regard reliance has been placed on the judgment of Honble the Supreme Court in Madan lal and ors vs. State of J&K and ors, (1995) 3 SCC 486.

8. It was then contended that the preference or weightage to higher qualification like Degree in Engineering cannot be considered as violative of Article 14 and 16(i) of the Constitution because the Degree is in the same line as that of the prescribed qualification. A candidate with Degree may even be more suitable for appointment to the post of Junior Engineer. In support of their argument learned counsel have placed reliance on a judgment of Honble the Supreme Court rendered in the case of Jyoti K.K v. Kerala Public Service Commission, 2002 (Supp l) JT 85, and have argued that there cannot be any bar for bestowing consideration on a Graduate Engineer in the same line if the qualification prescribed by the Rule is Diploma holder. Our attention has been specifically drawn to the observations made by their Lordships of the Supreme Court in para 9 and 10 of the judgment rendered in Jyoti K.K (supra), to argue that if a person has acquired higher qualification in the same faculty then such a candidate can be presumed to have acquired the lower qualification prescribed for the post. Accordingly, it has been contended that if Diploma qualification has been prescribed under the Rules and in the advertisement then the higher qualification of Degree in the same faculty cannot be disregarded, particularly when the preference for such Degree holder has been incorporated in the Recruitment Guidelines issued on 02.07.2003, which were issued even 9 before the issuance of the advertisement notice inviting applications. It has thus been argued that the learned Single Judge has committed grave error in law by quashing the selection of Degree holder Engineers, namely, respondent nos. 5 to 19.

9. Another submission made by learned counsel for the appellants is that all the selected candidates have not been impleaded as party-respondent which results in retention of some of the Degree holders. Even the rights of those who have not been impleaded as party have been adversely affected if their appointment has to be cancelled on the basis of the view taken by the learned Single Judge.

10. Mr. Sunil Sethi, learned senior counsel for the writ petitioners-Diploma holders (respondent nos. 1 to 4) has argued that there cannot be any discrimination for the purpose of appointment or promotion once both Diploma holders and Degree holders have been considered equivalent and eligible for the post. According to the learned counsel any further discrimination between the two on the basis of educational qualification would violate Article 14 and 16(1) of the Constitution, as has been rightly held by the learned Single Judge. Mr. Sethi has also supported the view taken by the learned Single Judge by arguing that awarding of 10 marks in a blanket fashion to a Degree holder, without distribution of marks 10 on the basis of score obtained by them in Degree classes would also suffer from vice of arbitrariness. In other words the argument is that the 3rd Division and 1st Division Degree holder cannot be clubbed together for purposes of granting weightage of 10 marks. It has also been submitted that the acquisition of Degree in engineering is not a course available after Diploma. An engineering Graduate does not need to have a 3 year Diploma in order to qualify a Degree in engineering the way a Degree holder acquire the post-graduation. Therefore, the allocation of 10 marks to a Degree holder by Recruitment Guidelines is wholly arbitrary and the view taken by the learned Single Judge does not suffer from any legal infirmity.

11. Referring to the table figuring in the Recruitment Guidelines, Mr. Sethi has further argued that for basic qualification 10 marks have been allocated. According to the learned counsel, the basic qualification is Diploma and in the explanation clarified by star mark, for Diploma 0 marks have been given which is wholly arbitrary.

12. Having heard the learned counsel for the parties, perusing the paper book with their able assistance and the Rules applicable to the Junior Engineers of Military Engineering Services, we are of the view that these appeals would merit acceptance.

13. In order to put the controversy in its proper perspective the Rules may first be examined. A perusal of the rule would show that Degree in Engineering is not the qualification prescribed for appointment to the post of Junior Engineer. However, same was added much later on 18.06.2008. Column 8 of Schedule I, as appended to the Rules is set out below in juxta position to each other and the same reads as under:-

Before amendment: After amendment

(a) Matriculation or equivalent. (a) Matriculation or equivalent.

(b) Three years Diploma in (b) Three years Diploma in Electrical or Mechanical or Electrical or Mechanical or Automobile Engineer from a Automobile Engineering from Recognised Institute/University/ recognised Institute or Univer-

Board or equivalent. sity or Board Or Degree in Electrical or Mechanical or Automobile Engineering from recognised Institute or University or Board or equivalent.

14. A perusal of the juxtaposed column no.8 of Schedule I would reveal that on the date of issuance of advertisement notice in the year 2003 the qualification for appointment to the post of Junior Engineer was prescribed as matriculation or equivalent plus three years Diploma in Electrical or Mechanical or Automobile Engineer from a recognized Institute/University/Board or equivalent. However, an amendment was incorporated on 18.06.2008 which prescribed the qualification for the post of Junior Engineer as matriculation or equivalent and 3 years Diploma in Electrical or Mechanical or Automobile Engineering from recognised Institute or University 12 or Board or Degree in Electrical or Mechanical or Automobile Engineering from recognised Institute or University or Board or equivalent. The selection process in the present case concluded in the year 2004 as the appointment letters were issued on 01.03.2004, therefore, the amendment made in the year 2008 would not have any operation to the selection process which stood concluded in the year 2004.

15. Even otherwise, the Recruitment Guidelines, in categorical terms, stated that a Graduate Engineer would be entitled to 10 extra marks. The Recruitment Guidelines dated 02.07.2003 which are issued before the advertisement of the post would read as under:-

3. Recruitment of JEs: It has been decided that a common written test will be made for the post of JE B/R, JE E/M and JE (QS&C). The CE comds will nominate CE Zones in their commands to appoint a Board of Officers to conduct this written test and carry out the recruitment process. The Board of Officers will be commended by CE Zone and approve by CE Comd. Paper for the written test will be provided to the concerned CE Zone one week in advance so that he can take out number of copies as required depending on the candidates who are to be examined in his Centre. The proposed date for this examination will be 31 Aug 2003. The CE Zones nominated by CE Comd to carry out this recruitment will be intimated to Directorate General (Personnel)/EI by 15 Jul 2003. The marking procedure/marking system to be done by the BOO is given in attached Appx 'A'. Annexure-I MARKS TO BE GIVEN IN THE RECRUITMENT TEST S.No .

Categor y Total mark s Basic Qualificatio n (as per rules) Experienc e Physica l test Intervie w Writte n test X X X

04. J.E.Civil

05. J.E(E/M) 100 10* 10** -- 15 65

06. JE(QS&C) - - - -- -- --

* Basic Diploma-0 marks, Degree in Engg. in relevant field 10 marks. ** Experience :02 marks/year, Maximum 10 marks. Experience should be in respective field from reputed firm organization. 13

16. The selection has apparently been made on the basis of criteria incorporated in the Recruitment Guidelines by awarding 10 marks for Degree in Engineering in the relevant field. The Engineering Graduates have been allocated 10 marks by the Recruitment Guidelines (Annexure-1) which has been clarified by star (*) mark. It clarifies that for basic qualification of Diploma no marks have to be awarded and for Dagger in Engineering in the relevant field 10 marks have to be allocated. This was also known to the writ petitioner-respondents who participated in the selection process. Once the aforesaid fact is clear then the plea in the nature of estoppel would get on to the writ petitioner-respondents 1 to 4 and they are debarred from questioning the allocation of 10 marks to the Degree holders. For the aforesaid proposition reliance may be placed on various judgments of Honble the Supreme Court in the cases of Madan Lal v. State of J&K and ors., 1995 (3) SCC 486, Marripati Nagaraja v. Govt. of A.P, (2007) 11 SCC 522, Union of India and ors v. S. Vinodh Kumar and ors, (2007) 8 SCC 100, Dhananjay Malik and ors v. State of Uttaranchal and ors, (2008) 4 SCC 171. In para 7, 8, 9 and 10, the whole law on the issue has been summed up by Honble the Supreme Court in Dhananjay Maliks case (supra) and the same reads as under:-

7. It is not disputed that the respondents-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. 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.

8. In Madan Lal vs. State of J & K, 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 the Selection Committee was not properly constituted.

9. In the present case, as already pointed out, the respondents-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.

10. In a recent judgment in the case of Marripati Nagaraja v. Govt. of A.P,SCR at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.

17. Even otherwise, it is well settled that educational qualification would constitute a valid basis for classification for 15 promotion, pay scale and recruitment. The proposition laid to the contrary by Honble the Supreme Court in Roshan Lal Tandon v. Union of India and ors, AIR 1967 SC 1889 has been overruled in view of the later judgment of a 5-judge Bench of Honble the Supreme Court in State of Jammu and Kashmir v.

Triloki Nath Khosa & ors, (1974) 1 SCC 19. The aforesaid view has been expressed in Kuldeep Kumar Gupta & ors v. H.P. State Electricity Board & Ors, (2001) 1 SCC 475. Following the view rendered in the case of P. Murugeson v. State of T.N, (1993) 2 SCC 340, and 5-judge Bench judgment in case of Mohd Shujat Ali v. Union of India, (1975) 3 SCC 76, their Lordships of the Supreme Court proceeded to observe as under:-

So far as the first question is concerned, it is no doubt true that in earlier decisions of this Court in Roshan Lal Tandon, and Mervyn Coutindo, this Court has held that once the direct recruits and promotees were absorbed in one cadre, they form one class and they could not be discriminated against, for the purpose of further promotion to the higher grade. But this view has not been found favour with in the later Constitution Bench decision in Triloki Nath Khosa. It has been laid down in the aforesaid case that even where direct recruits and promotees are integrated into a common class, they could, for the purpose of promotion to the higher cadre be classified on the basis of educational qualification. It was held by this Court in Triloki Nath that classification in matters of promotion with academic or technical qualification as basis is a matter for legislative determination and such a classification is permissible unless it is found to be unjust on the face of it and the onus lies upon the party attacking the classification to show by 16 pleadings the necessary material before the Court that the said classification is unreasonable and violative of Article 16. It is in that context the Court further observed that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis and that being the position, it would be for the party assailing such classification to establish that the classification is unreasonable and bears no rational nexus with its purported object. In the absence of furnishing necessary particulars, it must be construed that the plea of unlawful discrimination had no basis. In Triloki Nath, a word of caution has been indicated that the right to classify is hedged in with salient restraints. Classification must be truly founded on substantial differences which distinguish person grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved and judicial scrutiny extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation on the basis of classification. In Triloki Nath, the court held that Roshan Lals case is no authority for the proposition that there cannot be a classification for the purpose of promotion on a basis other than the one that they were drawn from different sources. Triloki Nath, thus distinguishes both the earlier decision in Mervyn Coutindo and Rohan Lal Tandon. Trilokinath has been followed in Murugesan, where this Court held that it would be open for the rule making authority, having regard to the efficiency of the administration and other relevant circumstances to restrict the chance of promotion of the less qualified people in the feeder category. In Murugesan, the Court upheld the quota in the matter of promotion in favour of graduate engineersHHHHHHHHHHHHHH 17

18. Discussing the issue for carving out specific percentage of posts on the basis of educational qualification their Lordships of Honble the Supreme Court in para 7 of the judgment observed as under:-

7. So far as the third question is concerned, if it is permissible to have a specified percentage of posts on the basis of educational qualification, as has been held by this Court in Murugesan, we really fail to understand, as to why employer or the rule making authority would be debarred to allot a specific percentage in favour of unqualified matriculate promotee Junior Engineers. The Regulation provides that out of 46% of promotional quota in the cadre of Assistant Engineer, 28% will be available for qualified diploma holder Junior Engineers and 8% would be for unqualified matriculate Junior Engineers, 6% meant for A and B passed and 4% for draftsman. According to Mr. Subramanium the quota available for A and B and Draftsman could come within the ambit of the decision of this Court in Triloki Nath or Murugesan, but not the respondents- unqualified matriculate Junior Engineers in whose favour 8% quota has been fixed. We are unable to accept this contention of the learned counsel. It may be noticed at this stage that so far as the unqualified Junior Engineers are concerned those of them who possess I.T.I. qualification must have twelve years of service in the grade for being eligible for promotion to the Assistant Engineers and those who are merely matriculates and without I.T.I. qualification, must have fifteen years of service in the grade for being eligible for promotion to the post of Assistant Engineer. These unqualified Junior Engineers have been brought to the cadre of Junior Engineers by promotion and in most cases they can maximum aspire to retire as Assistant Engineers. If the rule making authority considers that the stagnation at the stage of Junior Engineer will not be conducive for administration and provides the promotional avenue for them, by providing a quota in the promotional cadre and the service history itself indicates that such provision has been made right from the inception, we see really no constitutional infraction therein, so as to be interfered with by this Court. We, therefore, do not find any substance in submission of Mr. Subramanium on this Score and in our considered opinion there is no bar for providing a quota in the promotional post, even in favour of unqualified matriculate Junior Engineers. 18

19. On precedent and principle it stands established that educational qualification can constitute a valid basis for according preference. Hence a Degree holder Engineer has rightly been given 10 marks for selection and appointment to the post of Junior Engineer. The Recruitment Guidelines would not suffer from any legal infirmity or violate Article 14 and 16(1) of the Constitution. The view taken by the learned Single Judge would thus be unsustainable.

20. It is pertinent to notice another aspect on the basis of a judgment of Honble the Supreme Court rendered in case of Secretary Health Department v. Dr. Anita Puri and ors, (1996) 6 SCC 282. In that case the advertisement stipulated B.D.S as minimum qualification but also mentions that preference was to be given to higher qualification like M.D.S. In para 9 of the judgment Honble the Supreme Court considered the question whether awarding 2 = marks for higher qualification would be arbitrary. It has been held that when the expert body has to evolve some procedure for assessing the merit and suitability of the competing candidates then the same necessarily has to be made only by allotting marks under different facets. The awarding of marks for higher qualification in the field for which the selection has to be made would not be open to interference and the Court should be slow to set aside such allocation of 19 marks by the experts unless the Court is persuaded by the allegations of malafide.

21. When the aforesaid principles are applied to the facts of the present case it is evident that the advertisement invited applications from Diploma holder Engineers but there was no bar on the Graduate Engineers to apply. In fact the Recruitment Guidelines put it beyond any doubt that Graduate Engineers were not only eligible but would also be entitled to 10 marks on account of their higher qualification. The Recruitment Guidelines are supplementary and not to supplant the Rules.

The guidelines do not run contrary to the Rules. This view has been fully supported by the observations made in para 9 of the judgment in Jyoti K.Ks case (supra).

22. The argument raised by Mr. Sethi is devoid of any merit when he submitted that 10 marks have been allocated for basic qualification of Degree as is clear from appendix I attached to the Recruitment Guidelines. If the aforesaid argument is accepted then the star (*) mark on digit 10, which is explained in the foot note, would be rendered illusory. It is appropriate to notice that in the foot note, explaining the star (*) mark in digit 10, it has been clearly mentioned that for Diploma holder no marks are to be allocated and it is only for Degree holder in Engineering that 10 marks are to be awarded. The other 20 argument that the Recruitment Guidelines run counter to the Rules would also not require any serious consideration in view of the simple language used.

23. As a sequel to the above discussion both the appeals are allowed and the judgment rendered by the learned Single Judge is set aside. The selection and appointment of gtraduate engineers by awarding them 10 marks is declared to be valid and the writ petition filed by the writ petitioners is dismissed.

22. Keeping in view the peculiar facts we leave the parties to bear their own costs.

(Mohammad Yaqoob Mir) (M. M. Kumar) Judge Chief Justice JAAMU:

14.12.2012 Anil Raina, Secy.

* Sr. No. Case no. & Year Title

1. LPASW no.

32/2009 CMA 51/2009 Vinay Kumar & Ors v. Pankaj Kumar Gupta & Ors

2. LPASW 161/2009 CMA 215/2009 Union of India & Ors v. Pankaj Kumar & Ors (Mohammad Yaqoob Mir) (M. M. Kumar) Judge Chief Justice JAMMU:

14.12.2012

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