Jammu & Kashmir High Court
Azar Khan vs State Of J&K; And Others on 25 October, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.2657/2015, MP No.1/2015
c/w
SWP No.2676/2015, MP No.1/2015
SWP No.2715/2015, MP No.1/2015
Date of order:-25.10.2017
Azar Khan Vs. State of J&K and others
Deep Kumar and ors. Vs. State of J&K and ors.
Rahul Singh Rana and anr. Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Tashi Rabstan, Judge
Appearance:
For the petitioner(s) : Mr Abhinav Sharma, Advocate in
SWP Nos.2657/2015 & 2676/2015.
Mr D.C Raina, Sr. Advocate with
Mr Anuj Dewan Raina, Advocate
in SWP No.2715/2015.
For the respondent(s) : Mr Eshan Mirza, Dy.AG.
Mr Raman Sharma, Dy.AG.
Whether approved for reporting? Yes/No.
1. As the issue involved in the instant petitions is same and therefore these petitions are disposed of by a common order/judgment.
2. Before dealing with the pleadings and arguments putforth by learned counsel for both the sides in the petitions it is deemed appropriate to give brief narration of the facts of the case which is as under:-
3. Respondent No.2 i.e., Jammu and Kashmir Service Selection Board vide Advertisement Notice No.1 of 2015 dated 7th of April, 2015 invited applications for various posts of State/Divisional/District Cadres including 134 posts of Naib Tehsildar, break up of which is 82 under Open Merit, 14-RBA, 13-SC, 13-ST, 2-ALC, 1-OSC, 6-ESM and 3-HC. It is contended that as per Advertisement Notice, minimum qualification prescribed for the post of Naib Tehsildar is Graduate with knowledge of Urdu. Petitioners being fully eligible, applied for the posts of Naib SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 1 of 12 Tehsildars in pursuance of aforesaid notification. Petitioners contend that Advertisement Notification itself does not specify as to of which standard, such knowledge of Urdu is required to be possessed by the petitioners and there is no practice of including Urdu in the descriptive type test. It is contended that respondents in terms of Notice dated 31.07.2015 published syllabus for written test for the posts in question, wherein besides other stipulations, 30 marks are earmarked for descriptive test in Urdu. It is contended that in terms of notice dated 31.07.2015, respondents-authority has, for the first time, in violation of earlier notifications as well as other criteria, kept a separate written test for the subject Urdu, which has the effect on contesting persons without Urdu as a subject, which is against the mandate of Articles 14 and 16 of Constitution of India. However, there is no specific/definite clarification to the fact that as to which standard, such knowledge of Urdu is required to have, since there was no practice of inclusion of Urdu in objective type test. It is also the contention of petitioners that prior to issuance of notice dated 07.04.2015, respondents authorities have advertised posts of Naib Tehsildar through the medium of advertisement notice dated 26.04.2002, followed by advertisement notice dated 14.12.2005 and notice dated 4 of 2008 dated 26.05.2008 wherein the criteria for making selection to the posts of Naib Tehsildar was graduation with knowledge of Urdu. As the said advertisement notice was issued in the year 2002 on the basis of Jammu and Kashmir Revenue Subordinate Recruitment Rules, 1973, followed by its amendment in 2003 vide SRO No.178 and lastly as per present recruitment criteria laid down by recruitment rules of 2009, the method of selection to the post of Naib Tehsildar was adopted on the basis of graduation with knowledge of Urdu as a prerequisite. It is also averred that the recruitment rules leave no doubt that Urdu is not a prerequisite, but certainly it was a requirement for the purpose of SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 2 of 12 knowledge only, which the petitioners should possess. But at the same time, it does not mean that the respondents-authorities can fix a separate written test of 30 marks in Urdu subject which is clear violation of recruitment rules and the same was not the intention of legislature. The impugned notice has deprived the petitioners of fair chance of competition as the petitioners have neither studied Urdu language in their elementary schooling nor till 10th standard. The recruitment rules of 2009 only prescribe for knowledge of Urdu but that does not mean respondents can fix separate written test in Urdu subject, which is against the scheme of recruitment rules as well as advertisement notices viz. 1 of 2015 dated 07.04.2015, therefore, the petitioners are aggrieved of the impugned notice dated 31.07.2015 to the extent it envisages descriptive test in Urdu for the purpose of making selection to the post of Naib Tehsildar in pursuance of advertisement notice dated 07.04.2015.
4. On notice, objections have been filed by respondents No.2 and 3-J&K Service Selection Board stating therein that they are merely a recruiting agency and undertake selection process for the posts which are referred to by the user departments of the State Government who place indent indicating the number of posts, details of reservations in favour of various classes of society and qualifications required for the said posts. It is also averred in the objections that respondents No. 2 and 3 do not go into the rationality of the prescribed eligibility conditions laid down by the indenting department nor they are competent to do so. In respect of present selection process, Government had earlier made Jammu and Kashmir Revenue (Subordinate) Service Recruitment Rules 1973 prescribing the qualifications for it and later on altered by SRO 178 dated 03.06.2003 and subsequently the said rules were replaced by Jammu and Kashmir Revenue (Subordinate) Service Recruitment Rules, 2009. It is also averred that before 2009, the qualification prescribed for the post of SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 3 of 12 Naib Tehsildar was graduation having passed matric in Urdu as one of the subject, however, the same has been altered by amendment made in the rules in the year 2009 whereby the qualification for the post of Naib Tehsildar is graduation with knowledge of Urdu. It is contended by respondents No. 2 and 3 that the said condition fully conforms to the job requirement of a cadre which forms its backbone and the entire revenue record being in Urdu which is also a State official Language, therefore, the implications of the words "Graduate with knowledge of Urdu"
implies that for the recruitment to the post of Naib Tehsildars, the requirement of knowledge of Urdu has been placed on the same pedestal as that of Graduation. It is further averred that the requirement of knowledge of Urdu is the outcome of exercise of delegated legislation powers by the Government delegated to it by proviso to Section 124 of Constitution of Jammu and Kashmir.
5. Objections filed by respondent No.1 contend that the methodology and the standard adopted for making the selection for various posts are continuously upgraded and refined on the basis of the experience gained and consideration and analysis of the inputs received. The descriptive test for ascertaining the knowledge and proficiency in Urdu has been introduced, in view of the fact that the Naib Tehsildars in face of Jammu and Kashmir Land Revenue Act, 1996 and standing orders 22 and 23-A mandatorily supposed to pass orders on mutation, deal with the preparations of revenue records including that of Kharief, Rabi and Girdawri records. The Girdawari and Jamabandi records are being prepared in the Urdu language. A Naib Tehsildar in view of the job functions, thus, has to be a person who can read and write Urdu. It is for this reason that Urdu has been prescribed as one of the eligibility qualifications. In support of his contention, learned counsel appearing for respondent No.1 relies upon the judgment passed by coordinate Bench of SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 4 of 12 this Court reported as 2015 Vol.3 JKJ 345(HC) titled Inamul-Haq Hajam Vs. State and ors. Therefore, learned counsel appearing for the respondents justified the notification impugned whereby 30 marks have been earmarked for descriptive test of Urdu subject.
6. Heard learned counsel for the parties.
7. The petitioners being fully eligible submitted their applications for consideration to the post of Naib Tehsildars in pursuance of Advertisement Notice No. 1 of 2015 dated 07.04.2015 and in terms of notice dated 21.07.2015 respondents-Board has notified syllabus for written test earmarking 30 marks meant for descriptive test in Urdu, however in all other subjects the test to be conducted prescribed in objective type test, meaning thereby deviation of descriptive test in Urdu from other subjects is contradictory to the rules position as well as violation of Articles 14 and 16 of Constitution of India. That too, to such an extent that syllabus has been published on the last date which hardly spares only one month for preparation.
8. Per contra, learned counsel for the respondents argued that methodology and standard adopted for making the selection for various posts are continuously refined on the basis of experience gained and consideration and analysis of the knowledge received, therefore, the descriptive test for ascertaining the knowledge and proficiency in Urdu has been introduced because a Naib Tehsildar in face of Jammu and Kashmir Land Revenue Act, 1996 and standing orders 22 and 23-A has to pass orders on mutation, deal with the preparations of revenue records including that of Kharief, Rabi and Girdawri records. It is also argued that as the State records are being prepared in the Urdu language, therefore, a Naib Tehsildar has to be a person who can read and write Urdu. It is for this reason that Urdu has been prescribed as one of the eligibility SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 5 of 12 qualifications. Learned counsel further contends that the requirement of Urdu Language by the Revenue Officer is also considered by the Coordinate Bench in Inamul-Haq Hajam supra.
9. The judgment relied upon by the respondents rendered in Inamul-Haq Hajam supra, is not applicable to the case in hand, as petitioners in the said petition, have challenged appointment of private respondents as they were not eligible in terms of rules 1973 of which the schedule was substituted by SRO 178 dated 03.06.2003 in as much as, the private respondents had not passed matric in Urdu as one of the subjects because as per the rules candidate would require to have the prerequisite qualification of graduation and having passed matric in Urdu as one of the subjects. In the present case, as per rules the candidates are required to have requisite qualification of graduation with knowledge of Urdu, therefore the judgment referred to is clearly distinguishable on facts.
10. For proper adjudication of the issue, it would be appropriate to quote relevant portion of the rules prescribing qualification for the post in question, i.e., SRO No. 74 of 2009 dated 31st of March, 2009, hereunder:-
Class Category Pay Scale Designation Minimum Method of qualification recruitment for direct recruitment I -- 6500- 1. Naib Tehsildar Graduate with (i) 45 % by direct 10500 2. Assistant Revenue knowledge of recruitment Attorney Urdu (ii) 50 % by
3. Reader to FC/Div. promotion from Commissioner Class-II amongst
4. P.A to (N.T) to D.C persons having not
5. Instructor (Naib Tehsildar) less than two years service in the said class and having qualified the prescribed departmental examination in order of seniority including those having worked in settlement.
(iii)5 % by promotion from Class-II on the basis of SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 6 of 12 seniority from amongst those who have worked satisfactorily in survey team of settlement for at least 2 years subject to qualifying the departmental examination.
11. A bare perusal of above rules indicates that the qualification has been mentioned in the Advertisement Notice dated 07.04.2015 as it has been prescribed in the rules. The above referred rules with respect to knowledge of Urdu is not illustrative therefore, it is not understandable to be working knowledge of Urdu without any formal diploma/degree in Urdu subject. It is fact that respondents have published the syllabus much after it notified advertisement notification. As a matter of fact, syllabus has been notified in the month of July, 2015 of different subjects including Urdu, except the test to be conducted for Urdu subject other tests being as per syllabus shown to be of objective type. Further, it is for the first time respondents have published syllabus for Urdu to be conducted in descriptive type. Earlier respondents had issued notification in the year 2002 on the basis of recruitment rules of 1973 in which same qualification for the post in question i.e., graduation with knowledge of Urdu has been prescribed, however, after that there was amendment in the recruitment rules of 1973 which was made effective vide SRO No.178 dated 178 in the year 2003 and as per amended recruitment rules, minimum qualification fixed for direct recruitment will be at least matriculation and graduation. Based upon advertisement notices of 2002, 2005 and 2008, a joint written test for the post of Naib Tehsildar was conducted in terms of notice dated 21.01.2009 in which it is mentioned that an examination will be of objective type with multiple choice and the candidate shall be required to indicate the right choice and it is also mentioned in the said notice that total marks earmarked are 120.
SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 7 of 1212. The amended rules of 2003 do not make mention about the knowledge of Urdu however, as per SRO 74 of 2009, the qualification prescribed as Graudation with knowledge of Urdu but to which standard/extent it is required is not defined in the recruitment rules. It only stipulates that the method of selection to the post of Naib Tehsildar was always on the basis of Graduation with knowledge of Urdu as a pre-requisite. It does not mean that the respondents authority can earmark separate written test in Urdu subject which is clearly violation of the rules and if in case it would be case of respondents that minimum required qualification is graduation with knowledge of Urdu who possess degree and diploma in Urdu or Urdu is a compulsory subject then question would not have been arisen. However, 30 marks earmarked for descriptive test in Urdu is a clear violation of recruitment rules.
13. The Supreme Court in AIR 1987 SC 2267, AIR 1984 SC 541, AIR 1981 SC 561, AIR 1985 SC 1351 held that in absence of enabling provision for fixation of minimum marks in interview would amount to amending the rules itself. However, the Supreme Court further held that there was no "inherent jurisdiction" of the Selection Committee/Authority to lay down such norms for selection in addition to the procedure prescribed by the Rules. Selection is to be made giving strict adherence to the statutory provisions and if such power i.e., "inherent jurisdiction" is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm. While considering earlier judgment passed by Supreme Court, it is held by the Supreme Court in AIR 1996 SC 352, that Government neither issued any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined and in absence of any instruction by the Government the selection Board did not have the SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 8 of 12 jurisdiction to lay down the criteria for selection unless they are authorized specifically in that regard by the rules.
14. Apart from above discussion, it may be mentioned that when the Government deals with public related matters even in distribution of bounty, the democratic form of Government exacts equivalence and absence of arbitrariness and discrimination. The government actions have a public element and, therefore, there should be fairness and equality in all provinces of the society. The State need not to venture into any such accord having discriminatory ramifications on other set of stratum. It may not be out of place to mention here that Article 14 of the Constitution of India strikes at arbitrariness in the State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non- discriminatory; it must not be guided by any extraneous or irrelevant considerations, for, that would be denial of equality. Principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is protected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. This proposition, as held by the Supreme Court in Ramana Dayaram Shetty v. International Airport Authority of India and Others reported in 1979 (3) SCC 48, would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving job so entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 9 of 12 arbitrary, irrational or irrelevant. The power or discretion or the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
15. It has been repeatedly held that even in the matter of granting largesse, Government has to act fairly and without even any semblance of discrimination. Law on this subject has been very clearly laid down by the Supreme Court in Ramana Dayaram Shetty case (supra). A three- Judge Bench of the Supreme Court in the said decision has recognized that the Government, in a welfare State, is in a position of distributing largesse in a large measure and in doing so the Government cannot act at its pleasure. The Supreme Court, perusing the new jurisprudential theory of Professor Reich in his article on the "The New Property" (73 Yale Law Journal 733), accepted the following dictum contained therein:
"The government action be based on standards that are not arbitrary and unauthorized."
16. The Supreme Court explained the purport of the aforesaid formulation by holding:
"The government cannot be permitted to say that it will give jobs or benefits only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith or practising a particular or special activity. The government is still the SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 10 of 12 government when it acts in the matter of granting largesse, and it cannot act arbitrarily. It does not stand in the same position as a private individual."
17. The aforesaid dictum in Ramana (supra) is being still followed by the Courts as the correct exposition of law and has been subsequently followed in many other decisions. Further to say here that whenever any governmental action fails to satisfy the test of reasonableness and public interest, it is liable to be struck down as invalid. A necessary corollary of this proposition is that the Government cannot act in a manner which would benefit a particular set of persons or party. Such an action will be contrary to public interest.
18. In the present case, respondents-Board has not produced any document by virtue of which Government has issued any instructions giving power to the selection Board to publish separate syllabus for the Urdu subject to be conducted in descriptive type test earmarking 30 marks for it. However, the only requirement as per the rules is Graduation with knowledge of Urdu. The knowledge of Urdu is not defined in the rules itself, therefore, publishing of separate test is violation of rules as well as mandate of Articles 14 and 16 of Constitution of India.
19. For all what has been stated and discussed above, the writ petitions are allowed and the impugned Notification No.01 of 2015 dated 07.04.2015 so far it relates to publication of syllabus with regard to descriptive test in Urdu subject, is set aside.
20. So far objections raised by respondents No.2 and 3 in SWP No.2657/2015 that the said petitioner was not possessing the requisite qualification, i.e., degree of B. Tech Civil on the last date of receipt of application, in this aspect of the matter, respondents are at liberty to take SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 11 of 12 a decision in the matter strictly in terms of the notification and rules at their own.
21. Disposed of as above along with connected MPs.
Jammu (Tashi Rabstan)
25.10.2017 Judge
Surinder
SWP No.2657/2015 , 2676/2015 & 2715/2015 Page 12 of 12