Jammu & Kashmir High Court
Sudesh Kumar & Ors. vs State Of J&K & Ors. on 6 March, 2019
Bench: Dhiraj Singh Thakur, Sindhu Sharma
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No. 68/2008, IA No. 4/2008.
c/w
LPASW No. 110/2008, IA No. 115/2008.
Date of decision:06.03.2019
Sudesh Kumar & ors. vs State of J&K & ors.
Naveen Gupta vs. State of J&K & ors.
Coram:
Hon'ble Mr. Justice Dhiraj Singh Thakur, Judge
Hon'ble Mrs. Sindhu Sharma, Judge
Appearance:
For the appellant/petitioner(s) : Mr Sunil Sethi, Sr. Advocate with Mr. Ravi Abrol, Adv.
For the respondent(s) : Mr. H.A. Siddiqui, Sr. AAG. For R Nos. 1 & 2 in
LPASW No. 68/2008 and R. Nos. 1 & 3 in LPASW No. 110/2008.
Mr. Amit Gupta, AAG for R. Nos. 3 and 4 in LPASW No. 68/2008 and R. No. 2 in LPASW No. 110/2008.
Mr. Mazhar Ali Khan, Adv. for R-21 in LPASW No. 68/2008.
i. Whether approved for
reporting in Press/Media : No
ii. Whether to be reported in
Digest/Journal : Yes
(Per: D.S. Thakur-J)
1. The present Letters Patent Appeals have been preferred against a common judgment and order dated 25.4.2008 whereby the writ petitions filed by the appellants herein have been dismissed.
2. Briefly stated the material facts are as under:
3. The Jammu and Kashmir Services Selection Board (for short, 'Board') issued an advertisement notice bearing No. 3 of 2004 dated 14.9.2004, inter alia, inviting applications for 38 posts of Foresters in various categories for the Jammu Division.
LPA SW Nos. 68/2008 & 110/2008 Page 1 of 114. According to the Jammu and Kashmir Forest Subordinate Service Recruitment Rules, 1991 (for short, Rules of 1991), the minimum qualification prescribed for the post of Forester is 10+2 or equivalent with science subject. The petitioners being eligible applied and were subjected to the procedure of shortlisting by undergoing a height test and a physical test. All the petitioners were then called for interview. For the purposes of making the selection, the following criteria was prescribed:
(i) 10+2 : 30 points.
(ii) Simple graduation : 10 points.
(iii) B.Sc. Forestry : 25 points.
(iv) Post graduation : 5 points.
(v) D.D.R : 10 points.
(vi) Interview : 20 points.
5. The admitted case of the parties is that the candidates were subjected to the process of interview on the basis of the aforementioned criteria. However, according to the stand of the Board, during the process of interview, some of the candidates highlighted that they were possessed of a four years professional degree of B.Sc. in Forestry as against a three years academic degree in B.Sc. Forestry obtained by some of the candidates, who were also appearing in the selection process. Their grievance, according to the Board, was that two sets of candidates could not have been treated as equal for purposes of grant of 25 points as were prescribed for the candidates possessing B.Sc. degree in Forestry.
LPA SW Nos. 68/2008 & 110/2008 Page 2 of 116. According to the stand of the Board, the matter was discussed with the Forest department, which responded with a clarification dated 30.8.2007, by observing as under:
"The Three years B.Sc. Forestry Degree of HNB Garhwal University, Srinagar, Uttranchal, may not be considered equivalent to Four years B.Sc. Forestry Degree in view of the difference in duration."
The Board thereafter discussed the matter in its meeting held on 16.11.2007 and unilaterally decided to reduce five points from the earlier notified criteria as regards the candidates possessing a three year bachelor's degree in Forestry. The revised criteria as approved and adopted in the selection was thus:
B.Sc Forestry (four years Professional Degree) : 25 points. B.Sc. Forestry (three years Academic Degree) : 20 points.
It needs to be pointed out that the aforementioned clarification was given by the Forest Department after the matter had been taken up with the Association of Indian Universities.
7. In the select list prepared pursuant to the adoption of the revised criteria, the petitioners failed to make up the merit. Two petitions, therefore, were filed challenging the selection of the private respondents.
SWP No. 2136/2007.
8. In Sudesh Kumar & ors vs. State of J&K & ors, the challenge is that the criteria for selection having been fixed once and resorted to could not have been subsequently changed mid way. Reliance was placed upon K. Manjusree vs. State of Andhra Pradesh & anr, (2008) 3 LPA SW Nos. 68/2008 & 110/2008 Page 3 of 11 SCC 512 and Bishnu Biswas & ors vs. Union of India, (2014) 5 SCC 774.SWP No. 2163/2007
9. In Naveen Gupta Vs. State of J&K & ors, the petitioner's challenge is limited to the extent that 25 marks prescribed for B.Sc Forestry were excessive and that more weightage ought to have been prescribed in the criteria for candidates who had undergone DDR training.
10. Both these petitions came to be heard by a Bench of this court and were dismissed by virtue of a common judgment and order dated 25.04.2008, which is impugned in the present Letters Patent Appeal.
11. Briefly stated the reasoning given by the learned Single Judge in dismissing the petitions were thus:
(a) the weightage allocated cannot be termed as arbitrary in the absence of material contrary to the opinion of the experts;
(b) change in the weightage could not strictly be said to be a change in the criteria as it only classified the degrees for just and adequate reasons.
It was held that the petitioner-Naveen Gupta (appellant in LPA No. 110/2008) was only a graduate and had rightly been allocated 10 points in accordance with the criteria prescribed and, therefore, there was no right vested in the petitioner to claim marks more than what were prescribed as per the criteria.
It was further held that the petitioner had taken a chance to participate in the selection process despite having full knowledge of the criteria and, thus, could not be permitted to turn around to challenge the same.
LPA SW Nos. 68/2008 & 110/2008 Page 4 of 1112. Admittedly, the rules of 1991 do not prescribe the criteria for selection to the post of Forester and, therefore, it was open to the Board to fix a criteria, which was non-discriminatory and fair. According to the criteria fixed, 25 points were earmarked for any candidate possessing the additional qualification of B.Sc Forestry.
13. It is also admitted that the interviews were conducted and marks were allocated on the basis of the criteria so fixed. It was only thereafter that the criteria was changed on the purported representations of some of the candidates possessing a 4 year degree in B.Sc Forestry allegedly on the ground that a 3 year academic degree could not be equated with the 4 years professional degree. Change of criteria by the Board, post the interview, is stated to be on the basis of the clarification issued by the Forest Department based upon some communication from the Association of Indian Universities.
14. On a perusal of the clarification issued by the Forest Department, there can be no doubt that a B.Sc Forestry Degree granted after undergoing 4 years course duration is not equivalent to a B.Sc Forestry degree granted after undergoing 3 years course duration. The clarification was only to highlight the issue of equivalence based upon duration. The clarification did not mean anything more. It requires to be understood that notwithstanding the difference in the duration of the course, a B.Sc Forestry degree granted after undergoing a 3 years course does not cease to be a degree in B.Sc Forestry. Such a degree does not lose its status when compared to a degree in B.Sc Forestry granted after undergoing 4 years course duration. If that be so, then the criteria was rightly fixed by the Board at the beginning of the selection process and before the candidates LPA SW Nos. 68/2008 & 110/2008 Page 5 of 11 were subjected to the interview earmarking 25 points for any candidate, who had to its credit a B.Sc Degree in Forestry. There was no distinction ever envisaged in the criteria so fixed between the two degrees.
15. Needless to say that in the absence of any specific criteria prescribed under the relevant rules, governing the post of Forester, it was open to the Board to prescribe a different weightage for the additional qualification in regard to a 3 years degree course and a different weightage for a 4 years degree course, yet having not prescribed so at the beginning of the selection process, the rules of the game could not have been changed after the process of selection had started.
16. In Maharashtra State Road Transport Corporation & ors. vs. Rajendra Bhimrao Mandve and others, 2001 (10) SCC 51, the Apex court held thus:
".....It has been repeatedly held by this Court that the games of the rules meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the Circular Orders dated 24-6-1996, does not merit acceptance in our hand and the same are set aside....."
17. In K Manjusree vs. State of Andhra Pradesh & anr, (2008) 3 SCC 512, the Apex Court held that the criteria for selection had to be adopted and declared at the commencement or beginning of the recruitment process and further that the rules of the game cannot be changed after the game is over." It was held that change of criteria of selection in the midst of the selection process was not permissible.
LPA SW Nos. 68/2008 & 110/2008 Page 6 of 11Similar was the view expressed by the Apex Court in Hemani Malhotra vs. High Court of Delhi, 2008 (7) SCC 11. What was stated by the Apex court in the said judgment reproduced thus:
"15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal."
18. Testing the facts of the present case on the touchstone of the judgments (supra), it can, thus, be clearly seen that the rules of the game had been changed by the SSRB after the process of selection had been initiated and interviews conducted. This can be seen from the reply affidavit filed by the SSRB, which reads thus:
"That during the process of interview, some of the candidates who were possessing 4 years professional degree of B.Sc Forestry, made representations contending therein that 3 years academic degree of B.Sc Forestry is inferior qualification and as such cannot be equated or treated at bar with 4 yeas professional degree of B.Sc Forestry......"
The change of criteria was, thus, clearly impermissible and therefore any selection based upon such a changed criteria would be unsustainable in law.
19. The learned Single Judge, however, appears to have ignored completely the aforementioned position of law and proceeded on LPA SW Nos. 68/2008 & 110/2008 Page 7 of 11 the premise that the change of criteria was actually not a change in criteria and further that it was necessitated on account of the advice of the experts. We, however, are unable to persuade ourselves to accept that view. Reducing the marks for a 3 year degree from 25 to 20 points is nothing but a change in criteria notwithstanding the fact that the same was based upon a clarification obtained from the Association of Indian Universities. Even on that score, we are of the opinion that while the clarification was only on the issue of equivalence between a 3 years and a 4 years degree course, it did not in any manner have the effect of holding that the petitioners were not possessed of a valid degree in B.Sc Forestry, which would have otherwise entitled them as per the criteria to obtain 25 points.
20. In LPA No. 110/2008 Naveen Gupta Vs. State of J&K & ors, in our opinion, the view expressed by the writ court calls for no interference inasmuch as the petitioners in SWP No. 2163/2007 had taken a chance and participated in the process of selection and having failed to succeed on merit had filed the petition, challenging the criteria.
21. In Dr. G. Sarana Vs. University of Lucknow& ors, (1976) 3 SCC 585, the Apex court held thus:
"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable LPA SW Nos. 68/2008 & 110/2008 Page 8 of 11 recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee....."
The aforementioned case was a case where after having appeared in the interview for the post of Professor and having failed, the allegations of bias were raised against the experts constituting the select committee. In Madan Lal and ors vs State of J&K & ors, 1995 (3) SCC 486, challenge was thrown by the petitioners to the process of conduct of viva voce after having failed in the selection process. What was held by the court was thus:
"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found eligible in the light of (-sic-) marks obtained in the written test, to be eligible to be called for oral interview. Upto this state there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected a the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed that petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and others, AIR 1986 SC 1043, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."LPA SW Nos. 68/2008 & 110/2008 Page 9 of 11
22. In our view, the petitioner/appellant herein in LPA No. 110/2008 Naveen Gupta Vs. State of J&K & ors, cannot thus be permitted to challenge the process of selection, having taken a chance in the same. The view expressed by the learned Single Judge in this case, therefore, deserves no interference. LPA No. 110/2008 is accordingly dismissed to the extent of the challenge thrown by him.
23. Be that as it may, we hold that the process of selection conducted by the Board based upon the change in criteria is unsustainable in law and, therefore, the same is quashed. The appellants in LPA No. 68/2008 are held entitled to allocation of 25 points on account of possessing 3 years degree in B.Sc Forestry. In case the appellants make up merit, they shall be appointed within a period of three weeks from today. Their appointment shall be deemed to have taken effect from the date when others similarly situate were so appointed in the said process of selection. The appellants will not be held entitled to any salary and allowance for the said period. The period, however, shall count for pensionary and other benefits.
24. By virtue of order dated 14.5.2008, a Division bench of this Court while admitting the Letters Patent Appeals had held the selection and appointment of the private respondents to be provisional and subject to the outcome of the appeal. In case, no appointments were made pursuant to the selection in question, selection of such of the respondents as would be effected on account of the re-drawing of the merit would stand LPA SW Nos. 68/2008 & 110/2008 Page 10 of 11 quashed. However, in case, appointments were made pursuant to the selection in question, it would be highly inequitable to quash their appointments in view of the fact that more than 11 years have passed since the admission of the appeals before us.
25. The respondents, if ousted, would be prevented from seeking any other Govt. job on account of age restrictions. Even otherwise, the respondents would then not only be deprived of their social status, which they have acquired in the interregnum, the same would also affect their families harshly. Such of the appellants, who make up the merit shall, in that case, be considered against any of the vacant post of Foresters or if there are none then additional posts be created for their adjustment with the benefits as have been directed to be given in the preceding paragraph. Let the needful be done within a period of three months from today.
26. LPA No. 68/2008 is disposed of accordingly.
(Sindhu Sharma) (Dhiraj Singh Thakur)
Judge Judge.
Jammu:
06.03.2019
(Naresh)
NARESH KUMAR
2019.03.07 13:59
I attest to the accuracy and
LPA SW Nos. 68/2008 & 110/2008
integrity of this document Page 11 of 11