Jammu & Kashmir High Court
Manzoor Ahed Dar And Ors. vs State Of J&K And Ors. on 4 June, 2002
Equivalent citations: 2003(2)JKJ546
JUDGMENT Syed Bashir-ud-Din, J.
1. Petitioners in all three applied for the posts (in District Badgam) of physical Education Teachers in the grade of Rs. 1200-2040 in the department of Youth Service and Sports of J&K Govt. pursuant to advertisement Notice No. 4 of 1997 dated 29.5.1997. Having been left out and not selected by J&K Services Selection Board, they have preferred these writ petitions.
2. The selection and consequent appointment of the selectees including respondents 3 to 23 against the posts of physical Education Teachers of District Budgam is challenged in terms of petition averment and submissions of the Ld. Counsel for the petitioner on the grounds that minimum qualification prescribed in the advertisement notice Annexure-B to the writ petition is matric with certificate course in physical Education. The candidates with B.P.Ed and M.P.Ed degree could not have been selected as the minimum prescribed qualification is not met in their case. As the selectees have to fill physical education teacher posts, the emphasis is on physical education course, body fitness, skill etc. rather than higher academic qualification. The Board without indicating in advertisement notice change of norms to include the B.P.Ed and M.P.Ed, could not have selected the candidates in violation of the above prescribed minimum qualification norms. The familiarity and skill with the basic element of the physical education course has been given go-by. In absence of any equivalent or higher qualification prescribed in the advertisement notice the norm of prescribed qualification of matric with certificate course in physical Education could not be ignored at the cost of petitioners. Counsel has also questioned method and mode of selection, in as much as, the Service Selection Recruitment Board has not maintained any record to show the division and merit for interview. The counsel in his oral submissions contends that the District-wise selection of posts is bad as the process itself violates provisions of Articles 14 & 16 of the Constitution.
3. Respondent-Service Selection Board and/or private respondents have not come-forth with reply, despite opportunities, though Board counsel Mr. A.M. Magray has made oral submissions. He too is heard.
4. The first question for consideration is if a candidate possess, B.P.Ed or M.P.Ed qualification can it be treated higher qualification than the minimum matric with certificate course in physical Education and another connected issue is whether matric with certificate course in physical education can be said to be the only qualification prescribed for the physical education teachers in this case.
5. Annexure-A to advertisement Notice No. 4 of 1997 dated 29.5.1997 inviting application for the post of physical Education teachers at column 5 prescribed "qualification, academic/technical" as "matric with certificate course in physical education." Condition (ix) to the main advertisement notice reads as under:
"The prescribed qualification are minimum and mere possession of the same does not entitle the candidates to be called for interview."
6. Obviously the interpretation of the clause is to clinch the matter either-way, The basic rule is that the words appearing as above have to be given their ordinary meaning. It is again settled position that prescription of the qualification for a particular post is for rule making body/authority and the court is only to interpret and not add or substitute qualifications for those prescribed. The wisdom behind prescribing the qualification cannot be questioned by the courts.
In Somdut v. State of Haryana, 1984 Lab. & I.C, 368 Punjab & Haryana High Court at para 10 it is observed:-
"Way back in Banarsi Das v. State of Uttar Pradesh, 1956 SCR 357 : AIR 1956 SC 520 it was held as axiomatic that it is clear that the Government is within its rights to lay down certain qualifications for the new recruits and again in University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491 their Lordships even in the absence of statutory rules had observed that on the aspect of academic qualifications, the Courts would naturally hesitate to intervene particularly when the matter has been duly considered by the persons authorized to do so."
7. Contextually, the concept of compliance conveys that meticulous satisfaction and qualifications other than prescribed would be irrelevant. It is not even admissible for the court to embark on enquiry to determine whether a particular qualification is higher or superior to the prescribed one. The qualifications are to be viewed from the stand-point whether they are made to suit specific requirement of a post. At physical education level, matric with certificate course in physical education appear quite plausible when the selectees are to serve at the lower rung of the school education Department. However, it is to be noted that B.P.Ed and M.P.Ed convey 'Bachelor in physical education 'and' Master in physical education' respectively. These higher qualifications (academic/technical) in terms also include the course for physical education. It cannot be said that these higher academic/technical qualifications do not take within their sweep physical education course aspect of the requirement (s) in the field. The qualifications partake the characteristics or both the academic and technical qualifications of physical education course. The qualifications B.P.Ed, and M.P.Ed pressed into service by the selection board in fact is covered by term minimum qualification. Not only matric with certificate course in physical education but B.P.Ed and M.P.Ed as additional qualifications are also covered and can be treated as components of the minimum qualification. After all both these qualifications have the physical education aspect and are definitely at higher pedestal than p. Matriculate with physical education certificate course. This superior qualification higher than the prescribed minimum is undoubtedly qualification which can be treated to be prescribed for the post of physical education teacher.
In Karnatka P.S.C. v. N. C. Huger (1981 Lab. I. C. 386) (F.B.) Rama Jois, J. taking a minority view observed:
"It is necessary to point out that both before the learned single Judge and Division Bench both the parties have proceeded on the basis and in my opinion very rightly that the degree qualification in Library Sciences possessed by the respondents in the appeals, is higher qualification than certificate or Diploma in Library Science which are the alternative minimum qualifications specified in the recruitment rules." Thus construing the expression minimum qualification it was held to include every qualification which is higher qualification specified for the post of Library Science.
8. The advertisement notice would clearly show that the prescribed qualification of matric with certificate course in physical Education' is the minimum qualification prescribed. In other words the qualification higher than this minimum is also to be considered as the prescribed qualification. This is however, made clear by the notice itself when Clause 9 says that mere possession of the minimum qualification would not entitle a candidate to be called for interview. Obviously it is to convey that notwithstanding that a candidate may be having academic/technical qualification in physical Education course he may not be even called for interview.
9. Viewed thus it cannot be construed or interpreted that only matriculate candidate(s) with certificate course in physical education shall be considered for selection to the posts of physical education teachers and not others with higher qualification and physical education course. The select list show besides B.P. Ed and M.P. Ed candidates, number of other candidates with qualification as matric with certificate course in physical education, have been also selected. It is interesting to note that petitioners applied for the posts pursuant to the advertisement notice, participated in the selection process, and appeared in the interview. It was only when they did not find their name in select list, they have turned around to challenge the procedure & mode of selection as also the select list. As unsuccessful candidates, in the facts and circumstances of this case, they are not entitled to challenge the selection, process within their contemplation and knowledge, in which they participated and went through full distance. It is for the competent authority to make selection. No allegation of arbitrariness or malafide are leveled against the Board. Merely because petitioners have not been selected they cannot look other way and turn around to question the selection. The contention in my opinion is not in the above view of the matter, will merited and therefore not accepted.
10. The other contention that the selection/recruitment in question on district-wise basis is discriminatory and not sustainable needs a little deliberation. At the out-set it may be pointed out that all the petitioners belong to District Budgam and the selected candidate are also from District Budgam. The very locus of the petitioners questioning the selection on district-wise basis in this case is questionable. It is not as if the petitioners are questioning the selection to physical education teacher posts in other districts. The petitioners and selected candidates have all applied for the posts available and to be filled up from District Budgam. On this score the selected as well as unsuccessful candidates like petitioners, cannot complain of discrimination on the basis of respondents restricting the advertisement to district cadre posts of District Budgam. The authority cited as Farooq Ahmed v. State and Ors., 2000 SLJ 135 for the preposition that the Zone-wise selection is unsustainable, is not as such in the totality or facts and circumstances appearing on record, applicable to this case. The notice is taken of the fact that the advertisement notice as such is for filling of as many as about 550 posts through-out the State of J&K with District-wise availability of the posts indicated. It is a fact that there appears a condition that for the District cadre posts the application of candidates "belonging" to other districts or with ambiguous permanent residential certificate shall not be considered. Obviously it is construed to mean that those with ambiguous permanent resident certificate shall be excluded from consideration and those who are from other District(s) shall not be considered for the District other than their Districts of domicile. The service rules do provide for selection to District cadre, Divisional cadre and State cadre, posts and also places limitations and impose restriction to appointments and also supply full/part eligibility criteria, for filling such posts. If so, providing of the conditions as above, has reference to the requirement of periodicity of domicile and requirement of the cadresise posts/service. The State of Orrisa v. Sudhir Kumar Biswal, 1994 Supp (3) SCC 245 cited by Mr. S.T. Hussain in support of his contentions that the condition of recruitment to the posts on District-wise basis from the candidates belonged to that particular District is not applicable to the facts and circumstances of this case. In the cited case/authority selection of respondents to the cadres of Revenue inspectors, Amins/collections Moharrirs, on District-wise basis was negated on interpretation and application District (s), did not interfere with the High Court Judgment but instead gave directions for selection/appointment against the advertised posts still unfilled and available for selection.
11. For the conclusion reached and the view taken as above, the writ petitions are dismissed.