Jammu & Kashmir High Court - Srinagar Bench
Parvaiz Ahmad Dar & Ors vs State Of J&K And Others on 29 April, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 310 of 2011 Parvaiz Ahmad Dar & ors Petitioners State of J&K and others Respondents !Mr. Altaf Hussain Naik, Advocate ^Mr. Z. A. Shah, Advocate Mr. Azhar-ul-Amin, Advocate Honble Mr. Justice Hakim Imtiyaz Hussain, Judge Date: 29/04/2011 :J U D G M E N T:
When the present matter was taken up for preliminarily hearing it was suggested to the learned counsels that let the process of selection and appointment proceed and can be made subject to outcome of the petition. But the learned counsels insisted for consideration and final disposal of the case.
Since the pleadings are complete. The petition is admitted to hearing and considered for final disposal.
This petition pertains to the selection of candidates for the post of Veterinary Assistant Surgeon in Animal Husbandry Department and Veterinary Assistant Surgeon in Sheep Husbandry Department. Vide notification no. 3-PSC of 2010 dated 28th May 2010, State Public Service Commission notified 28 posts of Veterinary Assistant Surgeon in Animal Husbandry Department. Applications were invited for these posts and the qualification prescribed was Bachelors Degree in Veterinary Science and Animal Husbandry from a recognized University. Last date for receipt of applications was fixed as 28th June 2010.
On 4th June 2010 another notification was issued in continuation to notice no. 3- PSC of 2010 dated 28th May 2010 which gave the break up of the posts. It also notified 27 posts of Veterinary Assistant Surgeons in Sheep Husbandry Department in addition to 28 posts of Veterinary Assistant Surgeons in Animal Husbandry Department notified under notification no. 3 PSC of 2010 dated 28th May 2010. Break up for both the category of posts was given as under:-
Discipline OM RBA SC ST ALC SLC Total Veterinary 15 06 03 03 01 - 28 Assistant Surgeon in Animal Husbandry Department. Veterinary Assistant 15 05 03 03 01 - 27 Surgeon in Sheep Husbandry Deptt.
Other conditions contained in the notice dated 4th June 2010 were as under:-
Note I: Qualification for the posts as mentioned in the notification dated 28/05/2010 viz. Bachelors Degree in Veterinary Science and animal husbandry from a recognized university shall remain unchanged.
Note. II: The other terms and conditions in the notification no. 03-PSC of 2010 dated 28.05.2010 shall remain the same including procedure as may be adopted for shortlisting of candidates in pursuance as may be adopted for shortlisting of candidates in pursuance of Rule 40 of J&K Public Service Commission (Business and Procedure) Rules, 1980.
Note. III: The last date for receipt of application as mentioned in the notification viz. 28.06.2010 shall remain unchanged. Thereafter process of selection started. The petitioners as well as private respondents participated in the process. In the process, the petitioners have been dropped, while as, private respondents got selected against the posts notified vide notice dated 4th June 2010. Petitioners are aggrieved of the same.
Various pleas have been raised to assail the selection made but the main contention raised by the petitioners in the writ petition which was vehemently reiterated by Mr. Naik during arguments is that the State Public Service Commission has clubbed two posts i.e. Animal Husbandry Gazetted Services posts and Sheep Husbandry Gazetted Services by issuing 2nd notice dated 4th June 2010 which is not permissible under the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules 1980.
Respondents have filed their reply.
It is stated by them that Animal and Sheep Husbandry Department vide their requisition dated 24.05.2010 referred 28 posts of Veterinary Assistant Surgeons in Animal Husbandry Department. The Commission accordingly advertised these posts with category wise breakup vide notification dated 28/05/2010. Meanwhile, Animal and Sheep Husbandry Department vide their letter dated 25.05.2010 referred 27 pots of Veterinary Assistant Surgeons in Sheep Husbandry Department. Since for both these posts requisite qualification is same viz. BVSC & AH, the Commission in order to expedite the selection instead of issuing separate notification for these posts, issued notice dated 04.06.2010 in continuation to the earlier notification advertising 27 posts of Veterinary Assistant Surgeons in Sheep Husbandry Department also with a clear condition that candidates who had already applied pursuant to earlier notification and who may apply in response to above mentioned shall have to exercise an option at the time of interview to indicate preference for selection in Sheep Husbandry Department or Animal Husbandry Department. The cut off date for filing of the applications was fixed as 28.06.2010. Thus it was made clear before the initiation of process of selection that these posts shall be filled up through a common selection process. The respondent has further stated that no prejudice at all is caused to the competing candidates by the clubbing of posts of the two departments and all the competing candidates participated in the selection process without any demur.
423 applications were received by the Commission in response to the said notification. Since the number of candidates was large, short listing in terms of rule 40 of Public Service Commission (Business and Procedure) Rules 1980 was adopted by the Commission.
Respondents have further stated that in accordance with rule 40, the Commission shortlisted the candidates by giving weightage to their academic qualification and higher qualification. The interview of shortlisted candidates was conducted on 22.01.2011 to 28.01.2011 at Jammu and 08.02.2011 at Srinagar. The interview committee consisted of two members of the Commission and subject matter expert from outside.
In terms of the advertisement notifications all the candidates indicated their preference for allocation of the department was made on the basis of merit cum preference after which selection list was notified on 17.02.2011 and forwarded to the Government vide letter dated 21.02.2011.
Respondent has further stated that the ultimate selection of the candidates was made through a process of comparative assessment of their academic merit, viva voce and other relevant parameters provided for in Rule 51. The relevant portion of Rule 51 is as under:-
The assessment at a selection which is solely by means of an interview shall be based on the following principles:-
A) Performance of the candidates in the viva-voce Test 50 marks.
B) Academic Merit i) Percentage of Marks obtained in the degree (i.e. Minimum Qualification prescribed for the post. 30 marks. ii) Where Bachelors degree is prescribed as the minimum qualifications:- a. One year post graduate Diploma/Equivalent in the concerned subject. 01 marks. b. Two years post graduate Diploma/Equivalent in the concerned subject. 02 marks. c. Post graduate degree in the concerned Subject e.g. MA/M.Sc/M. Tech/ MD/ MS/M.Phil/equivalent. 03 marks. d. Ph.D/DM/Equivalent in the concerned subject. 05 marks.
Where a Masters degree is prescribed as the minimum qualification:-
a. One year Post Graduate Diploma/Equivalent
in the concerned subject. 01 marks.
b. Two years post graduate Diploma/
Equivalent in the concerned subject.
02 marks
c. M.Phil/Equivalent
03 marks.
d. Ph.D/DM/Equivalent in the
concerned subject. 05 marks.
Note: Marks awarded shall be only for the highest degree obtained.
Where Ph.D degree is prescribed as the minimum qualification:-
For Post-Doctoral Degree/Fellowship: Upto a maximum of 05 marks.
C) Experience acquired by the candidate in the concerned speciality/sub-speciality subject/discipline. 05 marks D) i. Sports/Games.
Distinction in Sports/games (i.e. representing a University, State or Region in any Regional or national sports/games) upto 03 marks.
ii. Distinction in NCC activities (i.e. having held the rank of Junior Under Officer or Senior Under Officer or having passed the top grade certificate examination of NCC) 02 marks.
E. Special attributes relatable to record to be identified. If no such attributes are identified for each post of category of posts, these marks shall be added to the academic merit.
Total A to E 100 marks.
Heard. I have considered the matter.
Learned counsel for the petitioners urges that the selection candidates made by the Commission are not in accordance with the rules. Relying on various provisions of the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules, 1980, ( for short the rules) particularly rule 2 (7) and rule 19, Mr. Naik would submit that in the present selection the Commission has clubbed the posts of two service and made a joint selection which is not permissible under the rules. He has referred to notification dated 4.6.2010 and stated that the notification has been issued by the Deputy Secretary of the Commission, who is not competent to do so in terms of rule 19 of the rules as under the rules only the Secretary of the Commission is authorised to issue such a notification.
Mr. Naik has referred to other pleas also raised in the present petition to assail the impugned selection.
Mr. Z.A. Shah, Sr. Advocate and Mr. Azhar-ul-Amin learned counsels for the private respondents and the Commission have on the other hand vehemently defended the impugned selection and have raised various pleas to challenge the very maintainability of the petition.
Mr. Azhar-ul-Amin learned counsel for the Commission has referred to the circumstances under which notification dated 4.6.2010 was issued, details of which are contained in the objections filed by the Commission. He submits that clubbing of posts was done by the Commission to expedite the selection process and avoid delay in the matter. He submits that since requisite qualification for the posts under the two services was the same the Commission decided to have only one process of selection of the candidates and while doing so candidates were given a choice to exercise their option in respect of the two services. The petitioners, who too have given their option and have participated in the selection process cannot now turn around and ask for quashment of the notification and setting aside of the selection after they failed to get selected because of their low merit.
Mr. Z. A. Shah Sr. Advocate appearing for the private respondents too has vehemently opposed the present petition. He submits that all the ground taken in the petition are misconceived. The Commission was competent to initiate single selection process for the posts of Veterinary Assistant Surgeons as the eligibility under both the services is identical. A person holding graduation in Veterinary Sciences can seek appointment either in Sheep Husbandry Department and/or in the Animal Husbandry Department. It is further stated that in terms of the notification dated 4.6.2010 every candidate before interview was to indicate his preference, in the event of his selection as regards the choice of service. With this procedure a candidate on the basis of his merit was entitled to be appointed in either of the two services in accordance with his preference, thus no candidate was prejudiced in any manner.
Various other pleas have also been taken.
The rules contain provisions relating to business and procedure in making selection by the State Public Service Commission. Rule 3 contains the procedure for transaction of business. It provides as under:-
3. Procedure for transaction of business.
The Commission shall meet as often as may be necessary for the transaction of its business as may be brought formally or informally before it. Formal agenda will be got prepared and circulated in advance by the Secretary for consideration of the Commission. The Commission may meet and consider such matters as may be brought up before it even in the absence of a formal agenda. However, action on decisions taken in the absence of a formal agenda not circulated in advance shall not be taken until the minutes thereon are confirmed.
Main business of the Commission is to conduct examination for appointment to a post in a service. Service is defined by Rule 2 (7) of the rules as under:-
f) Service means any service of the State for appointment to which the Commission is required to conduct examination or in which it is required to be consulted in terms of section 133 of the Constitution of Jammu and Kashmir.
Rule 14 deals with the examination and tests. It provides:-
14. Examination and Tests.
Subject to the provisions of Rule 46 and 47, the Secretary shall make arrangements for the holding of examinations and viva-voce tests on such dates as may be decided upon under Rule 4.
Under rule 18 requests made to the Commission to make selection for different posts or to hold competitive examination shall indicate clearly the number of vacancies, if any, reserved for scheduled castes & ors.
Rule 19 of the rules deals with issue of notifications by the Commission. It provides:-
19. Issue of notifications.
Applications for permission to appear in an examination or for appointment to a post intended to be filled in by direct recruitment shall be invited by the Secretary by publishing a notification in the Government Gazette and two local dailies i.e. one each from Srinagar and Jammu. The substance of every notification shall also be got broadcast/telecast through electronic media.
These provisions would show that the Commission can conduct examination in respect of the posts in any service of the State for appointment.
Learned counsel for the petitioners, on the basis of the definition of service as contained in Rule 2 (7) submits the Commission can hold examination in respect of posts of a particular service and while doing so the Commission cannot combine posts of different service.
As noticed above, the first notification contained posts from Animal Husbandry Gazetted Service. Subsequently notification dated 4.6.2010 combined these posts with the posts under Sheep Husbandry Gazetted Service.
Animal Husbandry Gazetted Service and Sheep Husbandry Gazetted Service are two different services having two separate recruitment rules. Animal Husbandry Gazetted Service is governed by the Jammu and Kashmir Animal Husbandry (Gazetted) Service Recruitment Rules, 1988 which were made vide SRO 359 of 1988 and which came into force w.e.f. 1.12. 1988, while as Sheep Husbandry Gazetted Service is governed by the Jammu and Kashmir Sheep Husbandry (Gazetted) Service Recruitment Rules 1980 which were made vide SRO 119 of 1987 and which came into force w.e.f. 6.3. 1987.
There is no provision in the Rules which permit combining of posts from different services to make appointment of posts.
Normally selection should be made of a particular service only, posts of which are referred to the PSC/ or any other selection body. Each service has got its own requirements and these requirements cannot be mixed up by combing the posts. Combining of the posts from different services is permissible only when it is expressly provided by the rules.
28 posts in Animal Husbandry Department were notified vide notification no. 03 PSC of 2010 dated 28.05.2010. Subsequently 27 more posts were added vide notice dated 4.6.2010.
Notice dated 4.6.2010 would show that there is no formal invitation of application in the said notice. It only gives break up of posts for the posts of Veterinary Assistant Surgeons in the two departments. There is no mention whether the candidates have to apply for fresh 27 posts also.
Clubbing of vacancies from different services is also not proper particularly when option is given to the candidates to indicate their preference for selection in the department. Notice dated 4.6.2010 gives a choice to the candidates who applied for the posts to exercise an option at the time of interview to indicate preference for selection in the department viz. Animal Husbandry Department or Sheep Husbandry Department.
Meritorious and efficient candidates will always exercise their option for a service where service conditions are better and avenues for promotion are more which would mean the left over candidates will go to other service. Thus one of the services will in such circumstances, get best of the talent and the rest will have to be adjusted in other service, which would not be in the interest of and for proper functioning of such service.
Since the posts of the two services cannot be clubbed, I find the selection made on the basis of notice dated 4.6. 2010 cannot sustain.
It was urged by the learned counsel for the respondents that since the petitioners have participated in the process of selection in terms of notification no. 3 PSC of 2010 dated 28-5-2010 and notice dated 4.6.2010, they cannot turn round to assail these notifications. On consideration, I find the argument cannot be accepted. Participation of the petitioners in the selection process cannot disentitle them to challenge the notification on the above mentioned ground for the reason that combination of vacancy was not in accordance with the rules/permitted by the rules.
It was stated by the respondents that there was no wrong in combining the vacancies from different services and the Commission has been doing so and has made various selection through this mode. Reference in this behalf has been made to the Combined Service Examinations in the Administrative Services.
I do not find combining of vacancies from entirely different services can be allowed if there is no express provision in the rules notwithstanding the fact that qualification required for the posts in the two services is the same. If something wrong has been done, for which there is no provision in the rules, that cannot be used as an example to perpetuate an illegality. In any case those cases are not before me and it is difficult for me to comment if there was violation of any rules regarding these selection. Respondents, however, cannot take advantage of any illegality, if there is any Animal Husbandry Service and Veterinary Service are altogether different services with separate cadre strength and method of recruitment for various post higher than the Assistant Surgeon. The services have got altogether different hierarchy and the very fact that different service recruitment rules have been framed for the two services would show that the two services cannot be mixed up together. Qualification for the posts at the entry level are same. Technically that may be so but when the appointment is made, the candidate goes to entirely a different service and the two services do not have any connection at all. Keeping in view the different nature of job, even the experts for interview should be different having specialisation in their respective field. Mixing up of selection processes cannot be allowed on the ground of convenience of the Selection Body.
Selection made for various post under Combined Service Rules is entirely a different matter as there are specific rules for the same. Existence of separate rules for this purpose would itself show that vacancies from different services cannot be combined unless the rules contain a specific provision for the same.
Since combination of vacancies has rendered the whole process of selection as bad in law, I find the whole process can be set aside on this ground alone and that there is no need to consider other grounds raised in the petition.
In the circumstances, this petition is allowed and the process of selection conduced on notice dated 4.6.2010 is set aside.
Order accordingly.
(Hakim Imtiyaz Hussain) Judge Srinagar 29-04-2011