Jammu & Kashmir High Court - Srinagar Bench
Rehana Hassan & Ors vs Gazala Massodi & Ors on 14 May, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 42 of 2013 with IA(C) Nos. 34 of 2013 & 87 of 2013 LPA No. 67 of 2013 with IA(C) No. 77 of 2013 LPA No. 234 of 2012 with IA(C) No. 388 of 2012 & IA(C) No. 69 of 2013 LPA No. 04 of 2013 with IA(C) No. 04 of 2013 LPA No. 07 of 2013 with (c) Nos. 07 of 2013 & 70 of 2013 LPA No. 76 of 2013 and Cross Objection No. 77 of 2013 & CMP No. 86 of 2013, Caveat No. 17/2013 Rehana Hassan & ors. Parvez Ahmad Bhat & ors Aijaz Ahmad Khan & ors. Abdul Rashid Lone & ors. Sunita Kumari & ors. Gazala Massodi & ors. Altaf Hussain Pirzada & ors. Petitioners Gazala Massodi & ors. State of J&K & ors. Gazala Massodi & ors. Gazala Massodi & ors. Gazala Massodi & ors. State of J&K & ors. State of J&K & ors. Respondents !Mr. M. A. Qayoom, Advocate in LPA no. 42/2013 Mr. F. A. Bhat, Advocate, in LPA no. 67/2013 Mr. R. A. Jan, Advocate in LPA nos. 234/2013, 04/2013 & 07/2013 Mr. Z. A. Shah, Sr. Advocate in LPA no. 76/2013, Cross Appeal no. 77/2013 and Caveat no. 17/2013 ^Mr. S. A. Naik, AAG, for official respondents Mr. Z. A. Shah, Sr. Advocate in LPA nos. 42/2013, 67/2013, 234/2013, 04/2013 and LPA no. 07/2013 Mr. M. A. Qayoom, Advocate in LPA no. 76/2013 & Cross appeal no. 77/2013 Mr. R. A. Jan, Advocate in LPA no. 76/2013 Honble Mr. Justice Hasnain Massodi, Judge Honble Mr. Justice Ali Mohammad Magrey, Judge Date: 14/05/2013 : J U D G M E N T :
Per Magrey, J:
1. These appeals arise out of the judgment and order dated 04.12.2012 whereby the learned Writ Court has allowed the writ petition, SWP no.1506/2012, quashing the select list of candidates for the posts of teachers in District Kupwara. Since the reliefs granted by the learned Writ Court are multi-faceted, we would refer to the same at appropriate place in this judgment. Bare facts shrouding the controversy are summarised hereunder.
2. The Service Selection Board issued a composite advertisement notice no.07 of 2010 dated 12.11.2010 inviting applications for 5845 State / Divisional / District cadre posts borne on different departments of the State Government, which included the posts of teachers requisitioned by the School Education Department to fill up the vacancies of the posts in the Government Schools in various districts of the State. There is no dispute that the posts of teachers are borne on the district cadre of the service. Therefore, it was stipulated that only those candidates belonging to the concerned district could apply. This condition, however, did not bind the candidates belonging to Scheduled Caste category.
For District Kupwara, 563 posts were so notified with the following break up:
i) O.M. (Open Merit) : 322
ii) S.C. (Social Caste) : 46
iii) ST (Scheduled Tribe) : 56
iv) R.B.A. (Residents of Backward Area) : 112
v) A. L. C. (Actual Line of Control) : 17
vi) O. S. C. (Other Social Caste) : 10
The criteria for making the selection, as notified in the advertisement, earmarked 80 points for educational and other qualifications, as per break up given thereunder, and 20 points for viva voce.
3. The names of short listed candidates were published in a local daily on 26.04.2011, whereby the candidates belonging to Open Merit category were informed that their interviews would commence from 04.05.2011. In respect of candidates belonging to reserved categories, it was stated therein that the dates of their interviews would be notified separately.
4. Consequent upon the above, the Open Merit Category candidates are stated to have been interviewed from 04.05.2011 to 03.06.2011 and reserved category candidates on 21.06.2011 and 22.06.2011.
5. It needs a mention here that the constitution and composition of the District Level Selection Committee for making selection to the District Cadre posts is prescribed by the rules governing the subject, namely, the Jammu and Kashmir Civil Service Decentralization and Recruitment Rules, 2010. We shall refer to these Rules a bit later. At this stage, it would suffice to mention here that the dispute is not only in relation to the composition of the Selection Committee, but also about the mid-stream change therein, inasmuch as the two sets of candidates one belonging to the Open Merit Category and the other to the Reserved category were interviewed by two Selection Committees with different compositions insofar as the Convener was concerned.
6. The matter does not stop there; after the aforesaid interviews were over, the Service Selection Board published another notification on 22.07.2011. By this notification, the Board published the names of 68 candidates in a local daily, informing them that their interviews would be held with effect from 28.07.2011. These candidates are stated to have those who (i) due to some unavoidable circumstances missed their participation on the dates of interview; (ii) were otherwise eligible but did not figure in the short list; and (iii) had approached the Writ Court and succeeded in obtaining orders for admitting them to interviews. The interviews of these 68 candidates were concluded on 30.07.2011.
7. The aforesaid 68 candidates were interviewed at the Central Office of the Service Selection Board by an entirely different Committee constituted by the Board.
8. Thus the three set of candidates were interviewed by three Selection Committees having different compositions.
9. Finally, the Board notified and published the provisional Select List of candidates for District Kupwara in a local daily in its issue dated 12.06.2012, inviting objections from all concerned against such selection.
10. Some of the non-selected candidates belonging to Open Merit as well as Reserved categories, feeling aggrieved of the aforesaid Provisional Select List, challenged the same in writ petition, SWP no.1506/2012. In the writ petition, the writ petitioners (private respondents in five of the present appeals), prayed for the following reliefs:
It is accordingly prayed that by an appropriate writ direction or order including a writ in the nature of certiorari selection list notified by the Service Selection Board as published in the News Paper dated 14.06.2012 relating to the post of Teacher in District Kupwara be quashed and by a writ of mandamus Service Selection Board be directed to accord fresh consideration to the eligible candidates.
Any other appropriate writ direction or order as the Honble Court may deem fit in the facts and circumstances of the case be also passed in favour of the petitioners and against the respondents.
11. The learned Writ Court, vide the impugned judgment and order dated 04.12.2012, allowed the writ petition. For facility of reference, the operative portion of the judgment is quoted hereunder:
In the final analysis, the interview conducted by the District Selection Committee comprising of Mr. Gulzar Hussain and other two members on 20.06.2011 and 21.06.2011 shall stand quashed. Similarly, interview of the candidates conducted by another altogether different Committee constituted pursuant to order dated 22.07.2012 in respect of the candidates of District Kupwara shall also stand quashed. Resultantly, provisional select list impugned in this petition is quashed.
Respondent-Board shall fix schedule for interview of the candidates, whose interviews were conducted on 20.06.2011 and 21.06.2011 by the Committee headed by Mr. Gulzar Hussain, and of the candidates, who were interviewed by the Committee constituted vide order dated 22.07.2012. The interview shall be conducted by the same District Level Selection Committee comprising of Mr. Shabir Ahmad Kanth (Member of Service Selection Board as Convener; (ii) Mr. Qasim Wani, Dy. Director, Employment, Kupwara (Member Secretary); and (iii) Ghulam Muhammad Kumar, Head of Department, District Institute of Education and Trainings, Kupwara (Member).
Thereafter, same District Level Selection Committee shall prepare the select list afresh and follow the procedure for finalization of the selection in accordance with the provisions of Act and Rules of 2010, more particularly, in accordance with Rule 14 of Rules of 2010.
The process of selection and appointment has remained halted; resultantly deficiency of teachers in the Schools shall have the impact on the teaching functioning of the Schools of District Kupwara. The respondent-Board shall ensure that process aforesaid is undertaken and completed within a period of six weeks and consequent upon recommendation, the appointing authority shall finalise the process of appointment thereafter within three weeks positively.
It is further provided that in case members of the fist constituted District Level Selection Committee for any unavoidable circumstances, viz. on account of retirement or otherwise, are not now available, then the entire interview process held from 04.05.2011 shall stand quashed. Fresh District Level Selection Committee be constituted for District Kupwara in accordance with Rule 6(6) of the Rules of 2010 which shall ensure that the interview and selection at their level is concluded at an earliest.
12. It may be observed here that the non-selectee writ petitioners in their writ petition had essentially challenged the acts of omission and commission of the Service Selection Board and the members of the Selection Committees in the process of selections so made, which have been held to be illegal by the Writ Court in the manner quoted hereinabove. However, neither the Service Selection Board, nor any of the members of the Selection Committees, though impleaded as respondents in the writ petition, has chosen to file any appeal against the judgment rendered by the learned Writ Court. The Selection Board has thus accepted the judgment in its totality. However, the selectees (private respondents in the writ petition) have filed five of the present appeals, namely, LPA nos.42/2013, 67/2013 234/2012, 04/2013 and 07/2013. Some of the non-selectees (writ petitioners), feeling aggrieved of some of the findings / observations made by the learned Writ Court in the judgment, too, have filed Cross objections as well as an LPA, bearing no.76/2013.
13. We have heard learned counsel for the parties and considered the matter. During the course of arguments several issues were raised by the learned counsel ranging from maintainability of the writ petition to the legality of the impugned order. We shall deal with them one by one hereunder. However, since the whole gamut of issues sprout from the constitution and composition of the Selection Committees, we would first deal with that aspect of the matter. This necessarily requires examination of the Rule position governing selections for recruitment to non-gazetted posts under the State.
14. Prior to 21.10.2010, recruitment to all non-gazetted posts under the Government, except a few, was governed by the Jammu and Kashmir Subordinate Services Recruitment Rules, 1992 (for short Rules of 1992). Rule 4 of these Rules provided for constitution of the Services Selection Board. For facility of reference, it is extracted below:
4. Constitution of the Board. (i) There shall be constituted a Service Selection Board for making recruitment to subordinate services.
(ii) The Board shall consist of a Chairman and two or more members to be appointed by the Government; provided that any temporary vacancy caused in the Board by temporary absence, death, removal or resignation of the Chairman or any of the members shall not affect the constitution of the Board; Rule 9 of the Rules of 1992 provided for nomination of committees. It read as under:
9. Nomination of committees. (i) The Chairman may nominate a committee of not less than two members of the Board for conducting examination and for holding interviews and tests for purposes of selection of candidates for being appointed to the State Cadre.
(ii) Every such committee shall be chaired by the Chairman and where the Chairman is not a member of the committee, by a member to be nominated by the Chairman.
(iii) Chairman may, if he feels necessary co-opt an expert, specialist in the discipline in which recruitment is to be made.
(iv) The Chairman may nominate a committee of not less than three persons for conducting and holding examinations, interviews and tests for purposes of making selection of candidates for being appointed to Divisional and District Cadre;
Provided that the said committee shall be presided over by a member of the Board nominated by the Chairman and the other members of the committee shall be nominated by the Chairman out of the panel of names drawn up and approved by the Board from time to time in this behalf. The selection made by the said committee shall be approved by the Board before the same is forwarded to the appointing authority;
Provided further that in respect of selection for the posts falling in the District Cadre, the District Officer of the discipline in which selection is required to be made, may also be co-opted as member in the said committee.
In case it is not convenient to co-opt a District Officer of the discipline in the committee, any other Officer of the Department or discipline not below the rank of District Officer may be appointed as member of the said committee.
Provided also that the Chairman of the Board may constitute District Level Selection Committees for each District with Deputy Commissioner as convener / chairman for selection of Patwaries as one time exception for year 1995-1996. Analysing the aforesaid provision of Rule 9(iv) of the Rules of 1992, it emerges that for purposes of making selection of candidates for being appointed to District Cadre posts, it was competent for the Chairman of the Services Selection Board to nominate a committee of not less than three persons for conducting and holding examinations, interviews and tests. It is further seen that the second proviso to sub-rule (iv) of Rule 9 left it discretionary for the Chairman whether or not to co- opt the District Officer of the discipline in which selection was required to be made, inasmuch as the Chairman could co-opt any other officer of the Department or discipline not below the rank of District Officer and appoint him as member of such selection committee. In other words, the Chairman had the discretion to co-opt with the selection committee any other Officer of the Department or discipline equivalent in rank to that of the District Officer.
15. The Rules of 1992 were repealed by the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010 (hereinafter referred to as the Recruitment Rules of 2010). These Rules came into force vide SRO 375 dated 21.10.2010. The advertisement notification with respect to the posts in question was issued on 12.11.2010. Admittedly, therefore, the Recruitment Rules of 2010 governed the field and, consequently, the selection process had to be conducted in terms of the provisions of the said Rules. These Rules, as would be shown below, expressly provided the constitution and composition of different Selection Committees, limiting the discretion of the Chairman of the Selection Board conferred under the repealed Rules of 1992.
16. Rule 5 of the Recruitment Rules of 2010 deals with Recruitments. It reads as under:
5. Recruitment:
All appointments shall be made by the appointing authorities to the posts to be filled by direct recruitment strictly in accordance with the selection made by.
(a) the Commission, in case of Gazetted services / posts;
(b) the Board, in case of subordinate services / non-gazetted posts; and
(c) the selection agencies / authorities constituted by the Government from time to time in case of Class IV and equivalent level posts.
17. The Constitution of the Services Selection Board and that of the various Selection Committees and their composition is prescribed by Rule 6 under Chapter III of the Recruitment Rules of 2010. It would be profitable to extract Rule 6, insofar as relevant, hereunder:
6. Constitution of the Services Selection Board:
(1) There shall be constituted a Service Selection Board for making selection for recruitment to subordinate services / non-
gazetted posts.
(2) The Board shall consist of a Chairman and such number of members as may be appointed by the Government from time to time;
Provided that the Board constituted under the Jammu and Kashmir Subordinate Services Recruitment Rules, 1992 shall be deemed to be the Board constituted under these rules.
(3) The Board shall have a three tier setup as under:
(i) ;
(ii) ;
(iii) District Level Selection Committee for making
selection to the District Cadre posts.
(4)
(5)
(6) The District Level Selection Committee shall consist of.
(i) Chairman or a member of the Board to be nominated by the Chairman.
Conven er
(ii) District head of the intending office / Department (not more than one).
Member
(iii) One officer of, or above, the rank of Deputy Secretary to Government in the General Administration Department.
Member Provided that a member of the Board may be nominated by the Chairman as Convener of more than one District Level Selection Committee.
Provided further that the Chairman may, if he feels necessary, co-opt an expert / specialist in the concerned discipline with the Committee.
(7) Any vacancy caused in the Board by temporary absence, death, removal or resignation of the Chairman or any of the members shall not affect the constitution of the Board;
(8) No action of the Board shall be invalid or called in question on the ground merely of temporary absence or existence of any vacancy of the Chairman or member of the Board. There is no dispute that the posts of teachers advertised are District Cadre posts. As seen above, Rule 5 of the Recruitment Rules of 2010 prescribes that all appointments to subordinate services / non-gazetted posts to be filled by direct recruitment shall be made by the appointing authorities strictly in accordance with the selection made by the Board. Sub-rule (3) of Rule 6 provides that the Board shall have a three tier setup. The setup provided at district level is the District Level Selection Committee. Rule 6(6), as seen above, prescribes the constitution and composition of the District Level Committee. It uses the words shall consist of. The use of word shall makes the provision mandatory. It thus becomes manifest that, whereas sub-rule (iv) of Rule 9 of the Rules of 1992 had given a discretion to the Chairman of the Board to co-opt or not to co-opt the District Cadre officer of the intending Department with the selection committee, Rule 6(6) of the Rules of 2010 leaves no such discretion with the Chairman in so far as first Member of the Selection Committee is concerned. It makes it mandatory that the Selection Committee shall consist of the District head of the intending office / Department. However, in so far as the Convener and the second Member of the Committee are concerned, a choice is left with the Chairman of the Board to nominate a member of the Board to act as Convener and one officer of, or above, the rank of Deputy Secretary to Government in the General Administration Department as second Member.
18. In the present case, the District Level Committee, admittedly, was constituted and comprised of:
i) Mr. Shabir Ahmad Kanth, Member of Services Selection Board, as Convener of the Committee;
ii) Mr. Qasim Wani, Deputy Director, Employment, Kupwara, as Member Secretary of the Committee; and
iii) Mr. Ghulam Muhammad Kumar, Head of Department, District Institute of Education and Trainings, Kupwara, as Member.
The above committee has admittedly conducted the interviews of the Open Merit candidates and some of the RBA candidates with effect from 04.05.2011 to 19.06.2011. There is no dispute about the fact that there were in all 2815 short listed candidates and the aforesaid committee interviewed 2632 of them. It is also not in dispute that the said committee selected 511 candidates on the basis of the interviews conducted by them. We would call this committee hereafter as the first Committee.
19. The first contention raised by the non-selectees (writ petitioners) before us is that Mr. Ghulam Muhammad Kumar, Head of Department, District Institute of Education and Trainings, Kupwara, who was appointed as Member of the first Committee is not the District Head of the Education Department, Kupwara; instead, it is the Chief Education Officer who is the District Head of Education Department in a district.
20. Before we proceed further on this point, it needs a mention here that in the grounds of their writ petition, the non-selectee writ petitioners had challenged the constitution of the Selection Committee relying on the Rules of 1992. However, as is obvious from the contents of the impugned judgment, they had projected their case on the basis of the Recruitment Rules of 2010. Mr. M. A. Qayoom, learned counsel appearing in one of these appeals, argued that since the non-selectees had relied on the Rules of 1992, they had to amend the writ petition and, since they had not done so, the writ petition was liable to be dismissed. Relying on two judgments of the Constitutional Benches of the Apex Court in Jabalpur Municipality v. State of M. P., AIR 1966 SC 837, and Kavalappara Kottarathil Kochuni v. State of Madrass & Kerala, AIR 1960 SC 1080, learned counsel submitted that the writ petitioners could not have been allowed to change their case during arguments and that appellants have been greatly prejudiced by the judgment of the learned Writ Court. The argument is recorded only to be rejected, because there is no estoppel against raising any ground based on law. The substratum of the judgments cited at the Bar is that when a question raised in a matter depends upon elucidation of further facts, not disclosed in the statements already filed, the Court would be very reluctant to allow a party to raise such a plea at the time of arguments. In the instant case, it was not the elucidation of any further fact, but elucidation of the Rules governing the field. It is not the case of the appellants that they did not know as to which Rules governed the selections. Therefore, there is no question of any prejudice caused to them. In any case, the appellants do not seem to have raised this issue before the learned Writ Court.
21. Coming to the constitution of the Selection Committee again, it may be observed here, the learned Writ Court has held that the committee for selection was strictly constituted in accordance with Rule 6(6) of Rules of 2010, but the later change in its composition was not countenanced by Rules.
22. During the pendency of these appeals both sides, i.e., the non-selectees as well as selectees have brought on record several documents. The non- selectees have produced documents containing information supplied to them on 26.11.2012 by the Public Information Officer of the Directorate of School Education, Kashmir. The information reads as under:
The information asked for is as under:
Point No.1: Chief Education Officer Kupwara alike other CEOs is the major District Head of the Education Department. He is to control all the functioning and management of the schools upto Senior Secondary level. The DIET HOD is at par with Principal of any Senior Secondary School. Therefore, the two have no comparison as per the Administrative Control at District level is concerned.
Point No.2: Alike other Chief Education Officers, CEO, Kupwara is to administer the School organism at the District level. Point No.3 The DIET HOD is heading one or more wings in the DIETs looking after various curricular area to ensure qualitative development of the Human resources. The aforesaid information, emanating from none other than the Directorate of School Education, makes it abundantly clear that the District Head of the Education Department is, in fact, the Chief Education Officer and not the HOD, DIET. The other document brought on record is a certificate issued by the Principal, DIET, Kupwara, bearing no. DIET/Kup/2723 dated 15.11.2012 certifying that Mr. Ghulam Mohammad Kumar is working as Incharge HOD, DIET, Kupwara, with effect from 13.11.2010. Obviously, on the date he was associated with the District Level Committee till the finalization of the Select List, he was not the District Head of the Education Department.
23. A contention was sought to be raised that the Chief Education Officer was not available to be associated with the Selection Committee, firstly because there was no person holding the post of Chief Education Officer; and secondly that the senior most person, namely, Muhammad Ramzan Bhat, who at the relevant time was posted as Principal, DIET, Kupwara, was deputed on Panchayat Election Duties. However, this is belied by the documents brought on record by the parties before us.
24. Mr. M. A. Qayoom, learned counsel, has appended photocopies of several documents to his objections to the Cross Objections filed by the non-selectees writ petitioners. One of these documents is order dated 08.03.2011 issued by District Panchayat Election Officer. Its perusal reveals that one Shri Muhammad Ramzan Bhat, Principal, DIET, Kupwara, had been appointed as Returning Officer for Panchayat Block Wavoora. The summary of the schedule of Panchayat Elections is contained in another document produced by the Selection Board. It depicts that the date of poll and counting for Block Wavoora was fixed on 17.04.2011. Prior to this date, the Government in the Education Department issued Order no.250-Edu of 2011 dated 07.04.2011, whereby, among others, the aforesaid Principal, DIET, Kupwara, was ordered to hold the additional charge of Chief Education Officer, Kupwara. It may also be apt to mention here that the order, bearing no. 87-SSB of 2011, constituting the first District Level Selection Committee, was issued by the Chairman, Services Selection Board on 29.04.2011. The said order also mentioned the date of commencement of the interviews as 04.05.2011. It is thus manifest that on 29.04.2011 Shri Muhammad Ramzan Bhat, Principal, DIET, Kupwara, who had in the meantime been appointed as Incharge Chief Education Officer, was very much available for being associated with the District Level Selection Committee in terms of the mandate of Sub-rule (6) of Rule 6 of the Recruitment Rules of 2010. The plea that the Chief Education Officer was not available to be associated with the Selection Committee is, thus, falsified by the records.
25. It is curious to note that order dated 29.04.2011, constituting the first District Level Selection Committee, is shown to have been issued by the Chairman, Services Selection Board in pursuance of Rule 9 of the J&K Subordinate Services Recruitment Rules, 1992 followed by Rule 6 Chapter III of SRO 375 dated 21.10.2010. It would be suitable to quote hereunder the relevant portion of the said order:
Subject: Constitution of Selection / Interview Committee.
Office Order No.87-SSB of 2011
Dated: 28-04-2011
In pursuance of Rule 9 of the J&K Subordinate Services
Recruitment Rule, 1992, followed by Rule 6, chapter III of SRO 375 dated 21.10.2010, the following Committee is hereby constituted for conducting the interview of eligible / short listed candidates for the post of Teacher District Cadre Kathua, Kupwara and Srinagar advertised vide Notification No.07 of 2010, dated 12.11.2010 scheduled to be conducted on the dates / venues shown against each: The above fact by itself makes it axiomatic that the Chairman, Services Selection Board had been under a serious misconception, or else living in oblivion, that he was still enjoying the discretion that was conferred on him under Rule 9(iv) of the Rules of 1992, quoted hereinabove, whereby and whereunder he could co-opt any other officer of the Department or discipline in which selections were to be made, as member of such selection committee. The fact of the matter is that the two Rules are quite contrasty on that count and the Chairman did not have such a power or authority under the Recruitment Rules of 2010.
26. In light of the above facts, the District Level Committee with Mr. Ghulam Muhammad Kumar, HOD, DIET, as its member, was not in accordance with the statutory provision contained in Rule 6(6) of the Recruitment Rules of 2010, but was, rather, void ab initio.
27. Above being the factual and the legal position as to the Selection Committee which conducted the interviews and selected 511 candidates, we have no hesitation in holding that the whole process of interviews and the consequent Select List formulated by the said committee are rendered illegal. This is one aspect of the matter. On the same ground, the constitution and composition of the second Selection Committee, its proceedings and the consequent selections made by it must meet the same fate. That apart, the second District Level Selection Committee was rendered illegal on another ground.
28. As already noted, the reserved category candidates were scheduled to be interviewed on 20.6.2011 and 21.6.2011. The Convener of the Committee, Mr. Shabir Ahmad Kanth, is said to have proceeded on two days casual leave on the aforesaid two dates. He was substituted by one Mr. Gulzar Ahmad, Member Service Selection Board who chaired the Selection Committee on the aforesaid two dates. In this manner, the composition of the Selection Committee was altered and changed midstream. This Committee, chaired by Mr. Gulzar Ahmad, is said to have interviewed 115 candidates out of whom 25 candidates stand selected. The learned Writ Court, dealing with this aspect of the matter, has held as under:
[W]hen Convener Mr. Shabir Ahmad Kant conducted the interview along with other two members from 04.05.2011, then on 20.06.2011 and 21.06.2011, in view of ill health of his mother, he was not available so was replaced by Mr. Gulzar Hussain as Convener of the said Selection Committee. Such change or replacement is not countenanced by Rules as awarding of marks out of 20 for viva voce was within the domain of the Selection Committee. Every person has his own standard of adjudging the merit of the candidate for awarding such marks. The respondent-Board no doubt projected that all the three members have awarded the marks and there has been a cumulative assessment, but it is a human nature that one can be very tough and other may be sort, one can be liberal and other cannot be so, therefore, breach of rule of uniformity.
29. Mr. R. A. Jan, learned counsel, representing the appellants in three of the appeals submitted that, applying the doctrine of necessity, the proceedings conducted and the selections made by the aforesaid committee could be saved.
This submission pales into insignificance on two counts: firstly, because there has been wilful gross violation of the statutory provision of Rule 6(6) as held vis-a- vis the first Selection Committee hereinabove; and secondly, there is no reason coming forth why the interviews could not be postponed for two days to ensure uniformity in the standard of evaluation of candidates. We, therefore, do not see any illegality in the aforesaid finding recorded by the learned Writ Court and we wholly concur with the same.
30. Mr. R. A. Jan also raised an argument that the open merit candidates and the reserved category candidates formed two different classes, therefore, if the two classes were interviewed by two different Selection Committees, no discrimination or inequality could be claimed, as, according to him, principle of equality arises only where the candidates belonging to the same class/category are treated dissimilarly. There can be no dispute about the preposition of, but the argument is irrelevant to the fact situation. The object of reservations is to provide a uniform field of competition to all classes of candidates not the vice versa. For the purposes of interviews, they constitute one homogeneous group and, therefore, form one class; they cannot be treated differently and subjected to interviews by two Selections Committees on the ground of belonging to different categories of candidates. That by itself would be antithetic to the very object of reservations.
31. Then, there is another aspect of the matter; almost a month after the interviews were over, the Board issued a notification on 22.7.2011 whereby it called about 68 more candidates for interviews. These candidates are projected to have been those: (i) who, due to some unavoidable circumstances, had missed their participation on the dates of interview and absented themselves; (ii) who otherwise were eligible, but did not figure in the short list; and (iii) the candidates who in view of directions of the Court were to be admitted to interviews. These candidates were interviewed by an entirely different Committee constituted vide Boards order no.132-SSB of 2011 dated 22.07.2011 comprising of:
i) Dr. B. D. Bhagat, Chairman, Service Selection Board;
ii) Mr. Farooq Ahmad Peer, Member, Service Selection Board;
iii) Ashok Kumar, Member, Service Selection Board.
Obviously, the said committee, too, was grossly in disregard of and dehors Rule 6(6). It is the case of the Board that the aforesaid position emerged in all the districts of Kashmir and Jammu Divisions and, therefore, it was not feasible to reassemble the District Level Selection Committees. This Committee has selected 16 of the 68 candidates interviewed by it.
32. Mr. Qayoom, relying on paragraphs 25 and 27 of the judgment of the Apex Court in M. V. Thimmaiah v UPSC, (2008) 2 SCC 119, submitted that the selectees should not be allowed to suffer for the failures on the part of the Board. However, in the same judgment, the Apex Court in paragraph 21 has held that normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. Again, in paragraph 22 of the same judgment, it has been observed that we may at the very outset observe that the Court while considering the proceedings of the Selection Committee does not sit as a court of appeal. Courts have limited scope to interfere, either selection is actuated with mala fide or statutory provisions have not been followed. In the instant case, the statutory provision of Rule 6(6) of the Recruitment Rules of 2010 in relation to the constitution and composition of the Selection Committee has been grossly violated.
33. The question of change of composition of Selection Committee during interviews had come up before a Coordinate Bench of this Court in J&K SSRB v. Neelam Gupta, 2012(2) JKJ 268, and it has been held therein as under:
By changing the composition of the selection committee, merit of the competing candidates which formed a class in itself was thus adjudged not by one single committee but by the two committees. The standards of adjudging the merit of the candidates, admittedly, got changed. There having been no uniformity in adjudging the merit of the competing candidates, the selection process was rendered arbitrary, violating the constitutional guarantees contained in Articles 14 and 16 of the constitution of India.
34. In the instant case, there has not only been change in the composition of the District Level Selection Committee, but the Committee was composed in flagrant violation of the statutory provision ab initio, that too invoking the power under a repealed Statute. And then, the third Committee was constituted in a total despotic manner. Such a course adopted by the Board is wholly antithesis to the equality clauses as enshrined in Articles 14 and 16 of the Constitution.
35. In light of the above, we hold that all the three Selection Committees were constituted in total violation of the Statute. Consequently, all the proceedings conducted by them and the Select List prepared on the basis of their evaluation of candidates cannot withstand the scrutiny of law.
36. Now coming to the maintainability of the writ petition, it was argued by M/s M. A. Qayoom, R. A. Jan and F. A. Bhat, learned counsels for the appellants, that the writ petition was premature, inasmuch as it was filed against the Provisional Select List. It was submitted that if the non-selectees were aggrieved of the Provisional Select List, it was open to them to file objections thereto within the time stipulated in the notification publishing the select list. Learned counsels submitted that, after considering objections, if any, filed, the Board had to forward the list to the Government and it was within the competence of the Department / Government not to accept the Select List, and return the same to the Board for reconsideration by the respective Selection Committees. According to the learned counsel, since the Provisional Select List had not yet assumed finality and the non-selectees had not objected thereto, the writ petition was not maintainable. On the aforesaid counts, it was urged that the learned Writ Court erred in entertaining the writ petition. To buttress this argument, learned counsels referred to Rule 14 of the J&K Civil Services Decentralization and Recruitment Rules, 2010 governing the field.
37. On the other hand, Mr. Z. A. Shah, learned Senior Counsel, submitted that in so far as the non-selectees are concerned, the Select List prepared and published by the Board has assumed finality and they stand eliminated and excluded from any further process that may be visualised or contemplated by the relevant Rules. He further submitted that Rule 14 of the Decentralization Rules, 2010 do not contemplate issuance of a Provisional Select List or inviting objections thereto. Therefore, even if the notification publishing the Select List did make a mention about filing of objections and even if any such objection had been filed with respect to the said Select List, there is no mechanism provided under the Rules authorising the Selection Board to deal with such objections and take a decision thereon, or, in any case, to order a denovo selection process. He submitted that in the circumstances of the case, the aggrieved non-selectees had no alternative left, but to file the writ petition and, since their rights vis-`-vis the selections stand finally determined, it cannot be said that the writ petition was premature.
38. There is no dispute about the fact that the Board had got the names of the selected candidates published in a local daily under the caption Provisional Select List, inviting objections thereto from all concerned. But that does not seem to be the requirement of the Rules. The procedure for preparation of select lists by the Board is prescribed in Rule 14 of the Decentralization Rules, 2010. For facility of reference, it is reproduced hereunder:
14.(1) The respective Selection Committee of the Board shall ordinarily restrict the number of applicants for oral and/or written test, as the case may be, to at least five times the number of vacancies on the basis of academic merit in the qualifying examination converted into points on pro rata basis out of the total points allocated for the basic eligibility / qualification and grant of weightage for the higher qualification in the discipline concerned to be allowed in he manner and to extent as the Board may deem appropriate for according due consideration to the merit and proficiency in higher qualification:
Provided that the committee may, for reasons to be recorded in writing, conduct a written test for short listing the candidates for admission to the oral test and for purpose of selection of candidates.
(2) The Board shall prescribe such pro-formae, as are required for reference of vacancies by, and for communicating the select lists, to the requisitioning authorities from time to time.
(3) The respective Selection Committees, while making selections and allocating candidates to various cadres, shall taken into account the reservations made from time to time for various categories subject to the provisions of sub-rule (5) of rule 13.
(4) The select list so finalized by the respective Committees shall be equal to the number of vacancies for which requisition was made and recommend it to the requisitioning authority with prior approval of the Board.
(5) The select list shall remain in force for a period of one year from the date the select list is sent to the requisitioning authority.
(6) The appointing authority, for reasons to be recorded, may not accept the select list received from the Board and return the same to the Board for reconsideration by the respective Selection Committees:
Provided that no such action shall be taken by the appointing authority without prior approval in writing of the Administrative Department.
(7) The concerned Selection Committees of the Board shall also draw up a waiting list of 25% of the total number of selected candidates and forward the same through the Board, to the requisition authority for consideration against dropout vacancies. The waiting list shall remain in force for a period of one year from the date the original select list is sent to the requisitioning authority. The Selection Committees shall not maintain or recommend any select or waiting list for any future vacancy or any vacancy caused on account of resignation by any selectee after appointment.
(8) The appointing authority shall restrict the appointments to the extent of referred vacancies only and any violation thereof shall subject the officer concerned to disciplinary proceedings and any appointment in excess of the referred vacancies shall not confer any right on such appointee to hold such post. Sub-rule (4) of Rule 14, as quoted above, uses the words the select list so finalized by the respective committees. The word finalize, in context of the language employed in the Rule, would connote completion of the process of selection, more particularly the process of interviews and the allied steps required to be taken in connection therewith, like giving weightage to qualifications, drawing of comparative merit list of candidates and preparation of a list of candidates equal to the number of vacancies requisitioned for. Sub-rule (4) of Rule 14 is, thus, couched in a language which does not leave any scope or room to assume that the select list so prepared by the selection committee would, in any manner of thought, be tentative or provisional in its nature, at least to the extent of viva voce is concerned and in relation to the candidates who are excluded from the select list. A candidate who does not get into the select list so prepared would not stand a second chance to have him interviewed afresh; therefore, for all practical purpose he would stand eliminated from any further process, if any contemplated by the Rules. The provision of Sub-Rule (6) of Rule 14 only speaks of reconsideration by the respective Selection Committees; it does not contemplate that if the appointing authority, for reasons to be recorded, does not accept the select list received from the Board and returns the same to the Board, the Selection Committees would be conferred with any authority to repeat the process of interviews. In any case, if the Board, as per their own showing, could not reassemble the Selection Committee even for conducting the interview of those of the candidates stated to have been later interviewed by the third Committee, how could it be possible to comply with the provision of Sub-Rule (6)?
Be that as it may, in relation to a candidate who does not figure in the select list, be it styled as provisional or otherwise, his rights would stand finally determined. Further, Rule 14 does not contemplate publishing of any provisional select list and/or inviting objections thereto. This seems to be a methodology devised to give a transparent colour to an otherwise illegal select list and, therefore, cannot be read anything more than a cover up of the casual approach employed by the Selection Board in a selection process wherein thousands of posts of one or the other nature were to be filled up. Since the controversy related to the very legality of the constitution and composition of the Selection Committee(s) nominated by the Board itself, that too, deriving power under a repealed Statute, it is unthinkable that even if an objection was raised to the Select List, that would have made any difference. Anything that the Rules do not admit of, would not debar the petitioners from challenging the constitution of the Selection Committees, the process undertaken by them and the result of such process.
39. Learned counsel for the appellants cited a number of judgments of the Supreme Court to contend that the writ petition was not maintainable since the Select List was only provisional in nature and no approval had been accorded to it as yet. These judgments are Sant Lal Gupta v. Modern Co-operative Group Housing Society Ltd., 2010 AIR SCW 7184; G. Sarana v. Kucknow University, AIR 1976 SC 2428; Kunda S. Kadam v. K. K. Soman, AIR 1980 SC 881; Dr. Inder Prakash Gupta v. State of J&K, SLJ 1992 110 and Venhnuaithanga v. State of Mizoram (Gauhati), 2000 (7) SLR 487 (J&K). Since we have come to the conclusion that the Selection Committee(s) were constituted or composed in total violation of the statutory rules, the judgments cited are distinguishable on facts and, therefore, not applicable.
40. Learned counsel also submitted and, in fact, strenuously stressed on the maintainability of the writ petition on the ground that the non-selectees writ petitioners, having participated in the process of selection, they were estopped under law to throw challenge to the composition of the Selection Committees, the process undertaken by these committees and the Select List prepared by them. A catena of judgments were cited at the Bar to convince us that the writ petition was not maintainable and that the learned Writ Court had erred in granting the reliefs as contained in the impugned judgment. The judgments cited include Madan Lal v State of J&K, AIR 1995 SC 1088; Union of India v. N. Chandrasekharan, AIR 1998 SC 795; K. H. Siraj v. High Court of Kerala, AIR 2006 SC 2339; Trevedi Himanshu Ghanshyambhai v. Ahmedabad Municipal Corpn., AIR 2008 SC 148; Dhananjay Malik v. State of Uttaranchal, 2008 (4) SCC 171; Manish Kumar Shahi v. State of Bihar, 2010 (12) SCC 576; Dr. Shamas-ud-Din v. State of J&K, 1990 KLJ 56; Dr. Nissar Ahmad Chowdery v. Institute of Medical Sciences, 2000 SLJ 37; Manzoor Ahmad Dar v. State of J&K, 2002 (2) SLJ 542; and Dr. Irfan Rasool Gadda v. State of J&K, 2005 (2) SLJ 423.
41. We are conscious of the fact that the non-selectees (writ petitioners) had appeared in the interviews and approached the Court only when they found that their names did not figure in the Provisional Select List published by the Board. That, in fact, is the admitted position. The real question that arises is whether, in the peculiar facts and circumstances of the instant case, there can be any sanctity attached to process undertaken by the three Selection Committees which culminated into formulation of the provisional select list; and, if not, whether the participating candidates would still be debarred from challenging the process as a whole? It be seen that the Recruitment Rules, 2010 have been framed in exercise of the powers conferred by Section 124 of the Constitution of Jammu and Kashmir and Section 15 of the Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010. This Act is objected at providing for equitable opportunities of employment in the Civil Services in the State. In order to achieve the aforesaid objective of providing equitable opportunity, the Recruitment Rules of 2010 have provided not only constitution of the Services Selection Board and its set up at State, Divisional and District level, but also the constitution and composition of the Selection Committees. These Selection Committees provided in the Rules are, therefore, statutory in character, deriving their power to make selections from the Rules. The sanctity of the processes undertaken by such Committees flows from the Rules. If a selection committee is constituted dehors the Rules, it loses the statutory character and, consequently, its processes are denuded of the sanctity. That precisely is the case here. In such circumstances, the very nature of the Selection Committee being ingenuine, it cannot be said that the candidates had subjected themselves to any genuine exercise envisaged by the Recruitment Rules, 2010. There cannot be any estoppel against Statute. Therefore, it is held that the non-selectee writ petitioners were not estopped from filing the writ petition or seeking the reliefs claimed by them. The numerous judgments cited by the learned counsels at the Bar are distinguishable both on facts and law.
42. Mr. Shah, learned Senior Counsel, in the Cross Objections and LPA no.76/2013 has also challenged the findings of the learned Writ Court to the extent the plea of mala fides has been held to be not made out. In view of our conclusions recorded hereinabove, we deem it unnecessary, rather irrelevant, to go into this question. Mala fides or no mala fides, it is established that the whole process undertaken by the Board right from the word go, except the act of advertising the posts, has been marked by arbitrary exercise of power.
43. Last, but not the least, we reiterate that the Services Selection Board is not in appeal before us against the judgment and order rendered by the learned Writ Court. Ostensibly, the Board seems to have realised its mistake, and, therefore, inferentially, it has accepted the judgment. The learned counsel for the appellants have, in effect, sought to stand in the shoes of the Board and tried to defend its illegal actions, which they could not.
44. Summarising all what we have said and discussed above, we hold that the two District Level Selection Committees and the third Central Level Selection Committee constituted by the Services Selection Board to interview one homogeneous class of candidates for selection for filling up the posts of teachers in District Kupwara pursuant to advertisement notice no.07 of 2010 dated 12.11.2010 were dehors the Recruitment Rules of 2010 as well as the norms established by law. Consequently, the processes undertaken by these Selection Committees and the Select List prepared by such Committees are rendered unconstitutional and illegal. Resultantly, the interviews held by the three Committees and the Select List based thereon shall stand quashed.
45. Accordingly, we dismiss the Letters Patent Appeals alongwith the connected CMPs filed by the selectees and allow the Cross Objection and the Letters Patent Appeal filed on behalf of the non-selectees writ petitioners to the extent indicated above. We direct the Services Selection Board to constitute the District Level Selection Committee strictly in accordance with the relevant provision(s) of the Recruitment Rules of 2010, undertake the denovo interview process of the candidates who had responded pursuant to the advertisement in question in District Kupwara and complete the process within a period of three months from today.
46. Before parting with the judgment, we may observe here that the non- selectees had filed CMP no.86/2013 seeking to place on record certain documents. Similarly, some of the selectee-appellants have filed objections to the Cross Objection no.77/2013 appending therewith certain documents. These documents have been relied upon by learned counsel on both sides and, in fact, referred to us in this judgment. However, no formal orders have been recorded in relation to the aforesaid CMP so far. It shall, accordingly, stand allowed and all the documents produced during the course of hearing of these appeals by the learned counsel shall stand brought on record. Caveat no.17/2013 also shall stand discharged.
47. There shall be no order as to costs.
(Ali Mohammad Magrey) (Hasnain Massodi)
Judge Judge
Srinagar
14.05.2013