Jammu & Kashmir High Court
Romesh Kr. Samotra And Ors. vs State Of J And K And Ors. on 22 September, 2004
Equivalent citations: 2004(3)JKJ258
JUDGMENT V.K. Jhanji, J.
1. Vide order No. 122/Estt of 2000 dated 1-8-2000 of the Transport Commissioner J&K Government, S/Shri Swaran Singh s/o Shri Gurcharan Singh and Pawan Kumar son of Suraj Parkash have been appointed as Motor Vehicle Inspectors (Technical) in the Transport Department in the Jammu Divisional Cadre, whereas S/Shri Abdul Majid Bhat son of Khazir Mohammad, Peerzada Shabir Ahmed son of Peerzada Ghulam Ahmed and Tariq Ahmed Mughal son Haji Mohd Sultan came to be appointed as Motor Vehicle Inspectors (Technical) in the Kashmir Divisional Cadre. Under challenge is their selection/appointments to the post of Motor Vehicle Inspectors (Technical).
2. In brief, the facts are that vide advertisement Notice No. 3 of 1997 dated 29.4.1997 J&K Service Selection Board (hereinafter referred to as the Board) advertised three posts of Motor Vehicle Inspector (Technical) under Open Category. Out of the three advertised posts, two were for Kashmir Division and one for Jammu Division. Before the Board could complete the process of selection, communication No. TR-57/MVD-95 dated 4.12.1997 was addressed to the Secretary of the Board by the Under Secretary to Government Transport Department, whereby two more posts of Motor Vehicle Inspector (Technical), one for RBA category (roster point 2) and one for Scheduled Caste category (roster point 3), were also referred for selection to the Board. Accordingly, the Board was requested to make selection of five candidates instead of three already referred to the Board. It appears that in response to Notice No. 3 of 1997 dated 29.4.1997 the Board received large number of applications. The Board short-listed the candidates and in this regard notice came to be issued in leading newspaper in its issue dated 15.6.1998 and candidates were called for interview as per short-listed criterion, which was as under:-
OPEN CATEGORY B.E. (i) Automobile/Mech Engg.
All eligible candidates.
(ii) Diploma in Automobile/Mech Engg. 69.70% or above marks in Diploma.
3. All eligible candidates who had applied for the aforesaid post and who fall in the said criterion are advised to appear before the Selection Committee on the scheduled dates, time and venue alongwith all original certificates/documents as required vide advertisement Notice No. 3 of 1997 dated 29.4.1997.
4. On 30.6.1998 Pawan Kumar son of Shri Suraj Parkash (one of the selectees whose selection/appointment is under challenge) filed OWP No. 519/1998, inter alia, challenging Notification No. 3/1997 dated 29.4.1997 and also for directing respondents to interview him for the post of Motor Vehicle Inspector (Technical) which was scheduled to be held on 1.7.1998. On 30.6.1998 the writ-Court directed issuance of notice to other side for 14.7.1998 and in the meanwhile directed the Board to interview the petitioner (Pawan Kumar s/o Shri Suraj Parkash). The interim order was made subject to the decision of writ petition. On 15.12.1999, when writ petition came up for hearing before the writ-Court, the Board took a stand that tenure of the Board to which vacancies were referred for selection has come to an end and fresh Board has been constituted and the Government has decided not to implement selection made by the erstwhile Board. It appears, that subsequently on 3.3.2000 Cabinet took a decision to approve the selections made by the erstwhile Board. In pursuance of Cabinet decision dated 3.3.2000, General Administration Department, vide communication dated 10.3.2000, informed Chairman J&K Service Selection Board to proceed further in the matter in accordance with the Cabinet decision. Pawan Kumar s/o Shri Suraj Parkash filed review petition No. 1/2000 in OWP No. 519/1998 seeking review of order dated 15.12.1999 dismissing his writ petition on the basis of above Cabinet Decision. Vide order dated 17.4.2000 review petition was disposed of with the direction that nothing said in order dated 15.12.1999 passed in OWP No. 519/1999 shall stand in the way of Pawan Kumar and other candidates in getting benefit of the abovementioned Cabinet decision, in so far as their selection/appointment is concerned. On 28.4.2000 the Board issued a select list for the posts of Motor Vehicle Inspectors for both the Divisional Cadres of Jammu and Kashmir. The select list dated 28.4.2000 comprised of only below-named three candidates belonging to Open Category:-
Divisional Cadre Jammu.
Shri Swarn Singh ..Open Category.
Divisional Cadre Kashmir.
S/Shri Abdul Majid Bhat &
Peerzada Shabir Ahmed. ...Open Category.
5. On the very next day i.e. on 29th April 2000, Pawan Kumar s/o Shri Suraj Parkash filed another writ petition (i.e. OWP No. 256/2000) seeking quashing of select list dated 26.4.2000 published in Daily Excelsior in its issue dated 28.4.2000. He further sought writ in the nature of Mandamus directing respondents to issue fresh select list of five candidates referred to the Board by the State and select and appoint him against the post of Motor Vehicle Inspector, being highly meritorious.
6. On 1-5-2000 the writ petition was listed before R.C.Gandhi, J and the following order was passed:-
"Mr. D. C. Raina, Advocate for the petitioner.
Mr Raina, learned counsel for the petitioner submits that petitioner submits that petitioner though selected for the post of Motor Vehicle Inspector, pursuant to advertisement No. 3 of 1997 dated 29-4-1997 has not been appointed. Earlier also petitioner filed writ petition for his appointment in terms of the select list, which was dismissed on the ground that State has taken a stand that recommendation made by the Board has not been accepted. In review petition, the order of dismissing the petition was upset and the petition was allowed, noticing the stand taken, proved contrary. Learned counsel for the petitioner submits that despite selection, the petitioner has not been appointed though other candidates have been appointed.
Notice. Notice 'dasti' also. Notice in CMP also.
In the meantime, the respondents are directed not to fill up one post of Motor Vehicle Inspector of the selection made pursuant to advertisement No. 3 of 1997 dated 29.4.1997.
List immediately after two weeks."
7. On 29.5.2000 Pawan Kumar filed CMP No. 412/2000 in OWP No. 256/2000 seeking permission to place on record copy of communication No. TR-57-MVD/95 dated 23.5.2000 addressed to the Secretary, Service Selection Board, J&K, Srinagar, by the Under Secretary to Government Transport Department, requesting the Board to furnish select list for remaining two posts of Motor Vehicle Inspector (Technical), thereby making the total list of five as against the list of three candidates already sent to the Transport Department. In the application, apart from placing on record the copy of said communication Pawan Kumar had made no other prayer. On the very date the application was filed before the Registry, the same was listed before R. C. Gandhi J. and the following order was passed:-
"Mr. D.C. Raina, Adv. for the petitioner. Mr. R. K. Bhatia, Adv. for the respondents.
This is long pending litigation wherein respondent State has taken different stand in different occasions. Having come to know that stand taken was against record and the decision taken by the court, in review petition No. (SWP) 1/2000, writ petition earlier dismissed accepting the stand of the respondent, was allowed on having found that the respondents conveyed wrong information to the court. While allowing the writ petition the respondents were directed to consider the claim of the petitioner against the post of Motor Vehicle. Inspector (Technical). Despite that direction respondents have not considered the petitioner. Accordingly, petitioner has filed OWP 256/2000, where this CMP has been filed.
The respondents State has expressed dire need of five posts of Motor Vehicle Inspectors (Technical) and to fill up these posts the respondents have requested the Service Selection Board to furnish a list of remaining two candidates also as per their letter dated 23-5-2000 annexed with this application. By virtue of this letter, the controversy involved in this petition is minimized.
L/counsel Mr. Bhatia objects it unmindful of it that the Board is only selection authority and cannot take a stand contrary to the State or the requisitioning authority. Respondents Service Selection Board is directed to furnish a list of remaining two candidates also in terms of letter dated 23.5.2000 within 15 days from today, making list of five candidates for appointment to the post of Motor Vehicle Inspector (Technical).
CMP disposed of."
8. The record of the Board as well as of the Transport Department indicates that Secretary of the Board vide communication No SSB/PA/Secy/224-228/2000 dated 5.7.2000 in due deference of the order passed by the Court on 1.5.2000, quoted above, recommended two candidates in addition to the list of three selected candidates already submitted by the Board. These two candidates were Tariq Ahmed Mughal for Kashmir Division and Pawan Kumar for Jammu Division. On receipt of the recommendation from the Board, the Transport Commissioner J&K Govt Srinagar vide order No. 122/Estt of 2000 dated 1.8.2000, appointed five candidates as Motor Vehicle Inspector (Technical) in the Transport Department in the divisional Cadres of Kashmir and Jammu.
9. It appears that before the respondents could file objections to the writ petition (OWP No. 256/2000) filed by Pawan Kumar or the Court could have the opportunity to decide the writ petition on merits, as his interview and selection/appointment was subject to result of writ petition, he in order to over reach the Court, filed an application seeking withdrawal of his writ petition. Perusal of record shows that without registering or numbering the said application or even notice to other side, the Registry listed the writ petition alongwith the application before the court on 12.9.2000, when R.C. Gandhi J permitted the writ-petitioner Pawan Kumar to withdraw the writ petition. The order dated 12.9.2000 reads as under:-
"Mr. D. C. Raina, Advocate.
Learned counsel for the petitioner submits that this petition has rendered infructuous now. His statement is recorded. This petition is dismissed accordingly as having rendered infructuous."
10. The selection/appointment of five selectees/appointees is under challenge in the present writ petitions, which are being disposed of by this common judgment.
11. The challenge to the appointments, inter alia, is on the ground that writ petitioners are more meritorious than the persons who have been selected/appointed and as such writ-petitioners ought to have been selected/appointed; that the posts meant for reserve category of Scheduled Caste and RBA category, against which Pawan Kumar and Tariq Ahmed Mughal have been selected/appointed, could not have been filled unless these two posts were de-reserved under SRO 126 of 1994; that two posts meant for reserved categories were referred to the Board subsequent to advertisement Notice No. 3 of 1997 dated 29.4.1997, vide which applications were invited only against three posts under Open Category, but no advertisement notice regarding two posts meant for reserved categories was issued nor applications were invited from the eligible candidates belonging to the two reserved category; that Pawan Kumar, a Diploma holder, had secured only 44% marks; that Pawan Kumar and Tariq Ahmed Mughal were not falling within the shortlisting criterion which was fixed at 69.70% and above marks in Diploma but by making relaxation in their favour the Board has selected them for extraneous reasons and considerations.
12. On the other hand, the Board in its Counter-affidavit filed in SWP No. 1080/2001 has conceded that Pawan Kumar did not satisfy the shortlisting criterian but was interviewed by the Board in compliance of order dated 30.6.1998 passed by the court in OWP No. 519/1998 directing the Board that he be interviewed on 1.7.1998. The Board has further conceded that subsequently Pawan Kumar filed OWP No. 256/2000 in which vide order dated 29.5.2000 the Court directed the Board to furnish list of two additional candidates, which was in addition to the list of three candidates already furnished, the stand taken by the Board is that there were only two eligible candidates and, therefore, in terms of the directions given by the Court, names of Pawan Kumar and Tariq Ahmed Mughal were forwarded to the department. The Board in its counter has also conceded that marks obtained by Pawan Kumar were less than prescribed for the Diploma Holders.
13. In regard to selection/appointment of Swaran Singh, Abdul Majid Bhat and Peerzada Shabir Ahmed, who were in the first select list, learned counsel appearing on their behalf contended that their names were recommended by the Board in the first select list because in Jammu Division Swaran Singh had obtained maximum marks besides possessing driving licence whereas in Kashmir Division Abdul Majid Bhat and Peerzada Shabir Ahmed, besides possessing driving licences, had obtained highest percentage of marks compared to other candidates, who after short-listing, were called for interview and had competed in the process of selection.
14. Learned counsel appearing for respondents, namely Pawan Kumar and Tariq Ahmed Mughal objected to the maintainability of the writ petition on the ground that none of the writ petitioners were eligible for the post of Motor Vehicle Inspectors as none of them possessed driving licence authorizing them to drive the Heavy Passenger Motor Vehicles by or before the last date of submission of the application forms. Further according to the learned counsel the initial advertisement notice dated 29.4.1997 in clear terms provided that posts advertised were tentative and were likely to be increased or decreased without further notice and since the two additional posts of Motor Vehicle Inspectors (Technical) were referred to the Board within a period of one year from the date of advertisement notice dated 29.4.1997 as such no prejudice has been caused to any of the candidate who had applied in response to Notice No. 3/1997 dated 29.4.1997. In regard to submission of the writ-petitioners that selection made for the posts meant for Scheduled Caste and RBA category could not have been made without inviting applications from persons belonging to both these reserved categories, learned counsel for Pawan Kumar and Tariq Ahmed Mughal referred to letter No. TR-57-MVD/95 dated 11.2.1999, whereby Transport Department had asked the Board to select suitable substitutes from the Open Category due to non-availability of candidates from the reserved categories. Learned counsel submitted that in view of aforesaid letter dated 11.2.1999 two posts meant for reserved category would be deemed to have been de-reserved and, therefore, selection of Pawan Kumar and Tariq Ahmed Mughal is not open to challenge on this count.
15. I have heard learned counsel for the parties and carefully gone through the record of the case. I have also called record of Service Selection Board and of the Transport Department and perused the same meticulously.
16. On perusal of the record, I find that, vide advertisement Notice No. 3 of 1997 dated 29.4.1997, the Board invited applications from all eligible persons for three posts of Motor Vehicle Inspectors (Technical) under Open Category. The qualification prescribed for the posts were:
(i) minimum general educational qualification of a pass in X standard, and
(ii) a diploma in Automobile Engineering (3 year course) or a diploma in Mechanical Engineering awarded by the State Board of Technical Education (3 year course); and
(iii) working experience of at least one year in a reputed automobile workshop which undertakes repairs of both light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine, and
(iv) must hold a driving licence authorizing him to drive motor cycle, heavy good vehicles and heavy passenger motor vehicles.
17. The selection committee under the convenorship of Shri M.N. Khan was constituted to conduct interview at Srinagar and Jammu. The selection committee initially made selection of only three candidates in Open Category, but subsequently on the asking of the Transport Department recommended the names of two more candidates, namely Pawan Kumar and Tariq Ahmed Mughal. The recommendation of these two candidates was against the posts meant for Scheduled Caste and RBA categories. Note dated 25/4 of the Secretary of the Board shows that selection of Pawan Kumar and Tariq Ahmed Mughal against the posts meant for Scheduled Caste and RBA categories was objected to. Paras 4, 5, 6, 7 and 8 of the note, which are relevant are extracted below:-
"4. The committee without taking the cognizance of the qualification prescribed for the post and also the fact that posts were not notified, these two posts have been included in the selection. Since the posts were referred at later stage and not notified, it will not be legally prudent and correct to make the selection of additional prospective vacancies. The two posts are required to be formally notified and application invited on the basis of the qualifications prescribed by the department. (Underlining supplied)
5. The Transport Department vide its letter No. TR-57-MVD/95 dated 11.2.1999 have advised to utilize the posts meant for RBA category in the open merit in case suitable candidates is not available (photocopy of the letter placed opposite on the file). The proceedings revealed that none of the candidates under RBA category in Kashmir Division was found eligible, as such taking cognizance of the instructions from the Transport Department, the post has been utilized for open merit category candidate.
6. In view of the above, the selection is to be restricted to only three candidates, (i.e. two from Kashmir and One from Jammu Division) who are high up in merit. As such the following candidates amongst the list of selected candidates submitted by the selection committee qualify for the selection.
I. Jammu Division.
Swarn Singh s/o Gurcharan Singh OC
r/o. New Plot Jammu Tawi
II Srinagar Division.
1. Abdul Majid Bhat s/o Khazir Mohd R/o Chrusoo, OC
Tral, Pulwama
2. Peerzada Shabir Ahmed s/o Peerzada Ghulam OC
Ahmed r/o Qazigund Anantnag.
7. The Convenor in his proceedings has stated that the interview of Shri Pawan Kumar placed at S.No. 02 of the select list was conducted under the Court orders and his selection is subject to the final outcome of the court decision. The Convenor also admits that though the candidate had less merit so-far as Technical Qualification is concerned but he was "placed on the select list" on the grounds that he possess the required driving licence.
8. In the light of the relevant procedure and rules his selection cannot be made just because he is in possession of Driving Licence. He has secured 47.56 points whereas there are number of candidates who are high up in merit. Moreover the selection in respect of Jammu Division is to be restricted to one candidate only. Therefore, inclusion of 2nd candidate is not warranted under rules. In case the Hon'ble High Court directs for declaration of the result of Shri Pawan Kumar the same shall be conveyed to the Hon'ble High Court when-ever demanded."
The note of the Secretary was put up to Chairman of the Service Selection Board, who in his note dated 26.4.2000 remarked:
"...............
that the two additional posts being of a different nature and requiring different qualification need to be advertised separately (if the department shall stand by the requisition communicated).
The matter was again taken up by the Secretary of the Board and on 6th July the Secretary made the following recommendation for perusal of the Chairman:-
"May kindly peruse pre paras wherein selection of 3 candidates was recommended to the transport department. The two candidates namely Sh.Tariq Ahmed Mughal of Kashmir Division and Shri Pawan Kumar of Jammu Division were dropped from the selection in view of the justification recorded earlier. Shri Pawan Kumar who was interviewed by the selection committee on the basis of court directions, subsequently approached the Hon'ble Court by way of OWP Nos. 256/2000 and on 3.5.2000 kl the Hon'ble Court directed as under:-
"...in the meantime the respondents are irected not to fill up one post of Motor Vehicle Inspector out of selection made pursuant of advertisement No. 3 of 1997 dated 29.4.97."
18. Simultaneously the transport department vide its communication No. even dated 23.5.2000 requested the Board to furnish the selection list of 2 more candidates taking the trial of selection to five. The Hon'ble Court again on 29.5.2000 disposed of the CMP No. 412/2000 in the above quoted writ petition with the following directions:-
"...The respondent state has expressed dire need of five posts of Motor Vehicle Inspector (Technical) and to fill-up these posts. The respondents have requested the SSB to furnish a list of remaining two candidates also as per their letter dated 23.5.2000 annexed with this application. By virtue of this letter the controversy involved in this petition is minimized.
L/Counsel Mr. Bhatia objects it unmindful of it that the Board is only selection authority and cannot take a stand contrary to the State or the requisitioning authority. Respondent Services Selection Board is directed to furnish a list of remaining two candidates also in terms of letter dated 23.5.2000 within 15 days from today making list of five candidates for appointment to the post of Motor Vehicle Inspector (Technical).
The matter was discussed in the review meeting held on 30.5.2000 which was attended by Secretary, Public Law Officer and Legal Assistant, the meeting was chaired by the Chairman. It was observed that the Board should have pointed out the deficiencies in respect of requisition made by the concerned Administrative Department before initiating selection process for two additional vacancies. It was found that although Shri Pawan Kumar (Petitioner) is academically lower in the merit as compared to many other candidates figuring in the award, the Selection Committee taking the cognizance of his being in possession of driving license placed him in the Select List (subject to the Court decision). On further scrutiny it was observed that since possession of driving license forms essential part of the prescribed recruitment rules, the petitioners claim cannot be ignored. Considering the above facts the Chairman desired that the selection of 2 candidates namely Shri Pawan Kumar s/o Shri Suraj Parkash r/o H. No. 248-B.C, Mohalla Kumran, below Purani Mandi, Jammu, and Shri Tariq Ahmad Mughal s/o Shri Haji Mohd, Mohd Sultan R/o Basant Bagh, Srinagar, be recommended to the Transport Department. Accordingly, the recommendation letter placed opposite has been prepared and forwarded to the concerned department as directed verbally on 3.7.2000. May pl see and approve the same please."
The aforementioned note was put up before the Chairman who directed "may issue and keep the file on record". Thereafter, Secretary of the Board sent the following communication dated 5.7.2000 to the Commissioner/Secretary to Govt. Transport Department J&K, Srinagar:-
"J&K Services Selection Board, Srinagar.
To The Commr/Secretary to Govt., Transport Department, J&K, Srinagar.
No: SSB/Secy/228/2000 dated 5.7.2000.
Subject: Selection of candidates for the post of Motor Vehicle Inspector(Technical).
Sir, I am directed to refer your letter No. TR-57-MVD/95 Dt. 23.5.2000 regarding the subject cited above. In this connection I am to say that selection list of 3 candidates two from Kashmir Division and one from Jammu Division was forwarded to your department vide this office letter No. SSB/PA/Secy/344-47/2000 dated 26.4.2000, one Shri Pawan Kumar who had appeared in the interview on the basis of court directions approached the Hon'ble Court in OWP No. 256/2000 the Hon'ble Court directed as under on 3.5.2000:
".. In the meantime the respondents are directed not to fill up one post of Motor Vehicle Inspector out of the selection made pursuant to Advertisement No. 3 of 97 dated 29.4.97.
The case was again listed after two weeks. The Hon'ble Justice R.C.Gandhi, in the said OWP (CMP No. 412/2000) disposed off CMP with the following directions.
"...The respondent State has expressed dire need of five posts of Motor Vehicle Inspectors (Technical) and to fill up these posts. The respondents have requested the SSB to furnish a list of remaining two candidates also as per their letter dated 23.5.2000 annexed with this application. By virtue of this letter the controversy involved in this petition is minimized.
L/Counsel Mr Bhatia objects it unmindful of it that the Board is only selection authority and cannot take a stand contrary to the State or the requisitioning authority. Respondents Services Selection Board is directed to furnish a list of remaining two candidates also in terms of letter dated 23.5.2000 within 15 days from today making list of five candidates for appointment to the post of Motor Vehicle Inspector (Technical).
It may be mentioned that Board formally received the requisition for three posts only, however, subsequently during course of selection process, the Transport Department vide their letter No. TR/57/MVD/95 dated 31.7.98 informed the availability of one more post of Motor Vehicle Inspector. The letter No. even dated 3.3.97 quoted in your correspondence wherein the Board was requested to communicate the selection of five candidates is not forth-coming from our records. The erstwhile selection committee, however, recommended list of five candidates to be placed on the select list. It is pertinent to mention that the Board takes the cognizance of the requisitions which are forwarded by the Administrative Department on the relevant prescribed format. Since two additional posts purportedly were referred by the Transport Department at a latter stage the selection list was restricted only to three candidates.
In the light of Transport Department's letter and subsequent court directions the issue was discussed in the meeting convened by the Chairman on 30.6.2000, it was agreed that the two left- out selectees in the selection list forwarded by this Board on 26.4.2000 shall be recommended to the Transport Department to ensure implementation of the court order.
Accordingly following two candidates are hereby recommended:-
KASHMIR DIVISION Tariq Ahmad Mughal s/o Haji Diploma in Auto-Engineering Mohd Sultan r/o Basant Bagh, Srinagar JAMMU DIVISION.
1. Pawan Kumar I.M.E. (subject to court decision) s/o Sh. Suraj Parkash, r/o.H. No. 248-BC Mohalla Kumaran below Purani Mandi, Jammu It is requested that their appointment orders may be issued only after verifying the genuiness of the certificates as required under rules. A copy of orders so issued may pleased be endorsed to the Board Office for reference and records."
19. It is on the basis of aforementioned recommendation of the Board that Tariq Ahmed Mughal and Pawan Kumar came to be selected/appointed
20. Firstly coming to the challenge to the appointment of Swarn Singh, Abdul Majid Bhat and Peerzada Shabir Ahmed, I find from perusal of the record of the Board that Swarn Singh had obtained 64.80 marks, Abdul Majid Bhat 74.13 and and Peerzada Shabir Ahmed 66.48 marks. The marks obtained by them were more than what other candidates called for interview had obtained in Jammu Division and Kashmir Division respectively. Out of writ-petitioners, only two petitioners namely Gurmeet Singh and Rajan Singh, (in SWP 1436/2000 and SWP No. 966/2000 ) alone were called for interview as they were falling within the short-listing criterion, but obtained 61.60 marks and 58.60 marks respectively. The marks obtained by them were less than the marks obtained by Swarn Singh. Other writ petitioners were not called for interview for the reason that they were not falling within the short-listing criterion. The short-listing criterion was published way back in 1998 and no challenge to the said criterion was made by any of the writ petitioners and, therefore, no grievance can be made in regard to selection/appointments of Swarn Singh, Abdul Majid Bhat and Peerzada Shabir Ahmed. Writ petitions so far they challenge their selection/appointments are accordingly dismissed.
21. In regard to selection/appointment of Pawan Kumar it is to be noted that he had applied in response to advertisement notice No. 3 of 1997 dated 29.4.1997 under Open Category against one post meant for Jammu Division. He was not called for interview because he did not fall within the shortlisting criterion. He came to be interviewed on the basis of interim order dated 30.6.1998 passed by the writ-Court. The marks obtained by Pawan Kumar were less than the marks obtained by the last candidate who appeared in the interview for the post meant for Jammu Division. The name of Pawan Kumar came to be recommended by the Board solely on the ground that he was possessing licence for driving heavy motor vehicles. In order to test the correctness pf the stand taken by the Board that Pawan Kumar alone was possessing licence for driving heavy motor vehicles, the Board was asked to produce the application forms or other relevant record of all the candidates who had applied in response to advertisement Notice No. 3 of 1997 dated 29.4.1997 and had obtained more marks in Diploma than Pawan Kumar, but no record in this regard has been produced. In absence of record it cannot be held conclusively that Pawan Kumar was the only candidate holding license to drive heavy motor vehicle.
22. Otherwise too, selection/appointment of Pawan Kumar and Tariq Ahmed Mughal is not sustainable in law for the reason that they have been selected/appointed against the posts meant for Scheduled Caste and RBA category. Admittedly, no advertisement notice in regard to these two posts meant for reserved category was published inviting applications from all eligible candidates belonging to Scheduled Caste and RBA category.
23. It is now well settled that inviting applications from eligible candidates is an essential precondition for recruitment to public employment. The mode of inviting applications is, however, in the discretion of the employer subject to the constitutional obligations to ensure equal opportunity for applying to all such eligible candidates. Advertisement of the vacancies is the commonest and, from the point of view of publicity, the most effective means of inviting applications from the world at large i.e. open market.
24. In Mrs. Jayashree Bhattacharya v. The Patna University and Ors., 1976 (1) Service Law Reporter 382, original advertisement was for one post but subsequently two more posts were sanctioned. The recommendation made by the Commission out of the original list prepared pursuant to advertisement notice and without publishing any fresh advertisement for the two subsequently created posts, was held to be arbitrary and violative of Article 16 of the Constitution of India.
25. Further their selection/appointment is also in violation of Statutory Rules, known as, J&K Subordinate Service Recruitment Rules 1992, notified vide SRO 194 of 1992 dated 18.8.1992. Rule 13 provides a procedure to be adopted for selection by the Board. It provides that the Board shall, on receipt of the reference of vacancies, advertise the posts communicating copies of advertisements to the respective Employment Exchange, Government Gazette, Press and other publicity media so as to achieve wide publicity. Admittedly, two posts meant for Scheduled Caste and RBA category, against which Pawan Kumar & Tariq Ahmad Mughal came to be selected/appointed, were referred to the Board subsequent to the publication of advertisement Notice No. 3/1997 dated 29.4.1997. The Board was required to advertise these two posts so as to enable all the eligible persons of these two reserved categories to apply and compete in the process of selection, but the procedure was not followed.
26. There is yet another ground to hold the selection/appointment of Pawan Kumar and Tariq Ahmad Mughal to be not sustainable in law being violative to the provisions of J&K Reservation Rules 1994 notified vide SRO 126 of 1994.
27. Rule 10 of the rules provides that available vacancies shall be reserved for the direct recruitment in each service, class, category and grade in favour of permanent residents of the State belonging to any of the below mentioned categories which shall, as nearly as possible, constitute the percentage of available vacancies shown against each:-
(a) Scheduled Castes - 8%
(b) Scheduled Tribe -10%
(c) Socially and educationally backward classes (other than
scheduled castes and scheduled tribes),
(i) Weak and under privileged classes.
(Social Castes) -- 2%.
(ii) Residents of areas adjoining Line
of Actual Control. -- 3%.
(iii) Residents of backward areas. - 20%
28. Rule 13 of the Rules provides as under:-
"13. Vacancies to be carried forward.-(i) Subject to the provisions hereafter contained in this part, if sufficient number of candidates are not available from the Scheduled Castes, Scheduled Tribe and Backward Classes during a recruitment process, the posts shall remain vacant and will be carried forward to the next recruitment process:
Provided that nothing in these rules shall prevent launching of a special drive by s selection agency to fill the carried forward vacancies by inviting applications exclusively from persons belonging to the relevant categories for such posts.
Provided further that the number of reserved posts that can be filled through a special drive or otherwise shall not exceed fifty percent of available vacancies:
(ii) if in the first attempt of recruitment, suitable candidates are not available, second attempt may be made in the same recruitment year and if even then suitable candidates are not available, the vacancies shall be treated as 'backlog vacancies' provided that the total number of reserved vacancies shall not exceed 50% OF total available vacancies.
(iii) in subsequent year, when recruitment is made for reserved vacancies, the 'backlog' vacancies shall also be announced provided that total number of reserved vacancies shall not exceed 50% of total available vacancies.
(iv) the reserved vacancies remaining vacant for a period exceeding three years despite recruitment drive shall be treated as de-reserved.
(v) where the vacancies cannot be allowed to remain un-filled in public interest, the department concerned shall make a proposal for de-reservation of the vacancies giving full justification therefor. The Administrative Department concerned shall place the proposal for de-reservation to the General Administration Department for final decision."
29. Clause (v) of Rule 13, extracted hereinabove, clearly provides that if in the public interest reserved vacancies cannot be allowed to remain unfilled, the Department concerned shall make a proposal for de-reservation of the vacancies giving full justification therefor and such proposal for de-reservation has to be placed before the General Administration Department for taking final decision in this regard.
30. The record of the Transport Department Commr/Secy MVD File No. TR-57/MVD/95 does not show that the Transport Department ever sent any proposal to the General Administration Department for de-reservation of the two vacancies meant for reserved categories. In absence of any proposal from the Transport Department giving full justification to de-reserve the two posts taking decision by the General Administration Department did not arise. In case suitable candidates were not available the vacancies were required to be carried forward in terms of Rule 13 of the J&K Reservation Rules 1994. Simply asking the Board by the Transport Department vide its letter dated 11.2.1999 to send list of suitable candidates from Open Category, as candidates belonging to reserved categories were not available, would not satisfy the requirement of Clause (v) of Rule 13 of the J&K Reservation Rules 1994. Requiring the Board to confine its choice for further posts from amongst those who had applied in response to earlier advertisement notice amounts to acting contrary to the Statute.
31. In view of the above, writ petitions, so far as they challenge the selection/appointment of Pawan Kumar and Tariq Ahmad Mughal, are allowed and the selection/appointments of Pawan Kumar and Tariq Ahmed Mughal are quashed being against the Statutory Rules and mandate of Articles 14 & 16 of the Constitution of India.
32. J&K Service Selection Board is directed to advertise the two posts of Motor Vehicle Inspector (Technical), one reserved for Scheduled Caste and the other for RBA category, inviting applications from all eligible candidates belonging to these two reserved categories and thereafter complete the process of selection in accordance with law.
Writ petitions, in so far as they challenge the selection/appointment of Swam Singh, Abdul Majid Bhat and Peerzada Shabir Ahmed, are dismissed.
Registry is directed to place copy of this judgment on the file of each connected petitions.