Jammu & Kashmir High Court - Srinagar Bench
Dr. Aijaz Ahmed Wani & Ors vs State Of J&K & Ors on 2 April, 2007
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 1920 of 2009 Dr. Aijaz Ahmed Wani & Ors Petitioners State of J&K & Ors Respondents !M/s A Haqani, Advocate M. Ashraf, Advocate Mir Manzoor, Advocate Arshad Hussain, Advocate ^Mr. A. M. Magray, Advocate HONBLE MR. JUSTICE HAKIM IMTIYAZ HUSSAIN, Judge Date: 02/04/2007 :J U D G M E N T:
Jammu and Kashmir Public Service Commission ( for short the Commission) invited applications for the posts of Assistant Surgeons vide notification No. 4-PSC of 2007 dated 20.3.2007 , 13- PSC of 2007 dated 31`.8.2007 and 4-PSC dated 8.4.2008. The number of posts from open merit category notified under advertisement notices are 114, 40 & 113 respectively. Petitioners of the present petitions have also applied. Since the number was very large the Commission conducted screening test to short list the candidates. The result of the screening test has been declared and the candidates who could get the cut off marks fixed by the Commission have been called for interview. The petitioners in all these petitions though applied and appeared in the test conducted by the Commission have not been called for interview.They are aggrieved of their non-selection and have challenged lists of successful candidates issued by the Commission, on various grounds. The main ground is that the Commission under the provisions of Rule 40 of J&K Public Service Commission Business and Procedure Rules, 1980 was required to call candidates three times of number of clear vacancies but this condition has not been adhered to by the Commission as less number of candidates have been called for interview thus the petitioners have been arbitrarily deprived to participate in the process of selection. The petitioners have in these circumstances prayed for a writ of certiorari quashing the impugned notice dated 4.12.2009 which has sought to exclude the petitioners from the zone of consideration for appointment to the posts of Assistant Surgeons under the open merit category. They have also prayed for a writ of mandamus commanding the respondents not to give effect to the impugned notice dated 4.12.2009 and to accord due consideration to the petitioners for appointment of the posts of Asstt. Surgeons in the Open Merit Category.
Respondents have in their detailed objections stated that the petitioners have participated in the screening test conducted by the Commission for purpose of short listing the candidates, but they have failed to make their grade because of their lower merit position against the last cut off in their respective category. The respondents state that on receipt of the letter of requisition vide Notification No. 4-PSC of 2007 dated 20.3.2007 the Commission notified 200 posts of Assistant Surgeons, as per the break up given in the Notification itself, against which 2211 applications forms were received by the respondents. Vide another notification No. 13-PSC of 2007 dated 31.8.2007, 69 more posts were notified for selection against which 242 fresh applications were received by the respondents. They state that the Notification dated 31.8.2007 contained a specific clause that the candidates who had already applied in response to Notification dated 31.8.2007, need not apply again. This was provided by the respondents so that the candidates who have already applied do not have to pay any additional fee or they are not put to any inconvenience of whatsoever. However, this is always subject to fulfilment of the eligibility of the candidates in respect to age as well as qualification prescribed in the Recruitment Rules.
The respondent-Commission has further stated that on receipt of letter of requisition, 199 more posts were notified by the Commission vide No. 4-PSc of 2008 dated 08.04.2008, against which 491 additional application forms were received by the Commission.
The Commission states that although the number of candidates who have applied against the three Notifications comes to 2994, yet if number of candidates who have presumed to have applied as per the stipulation contained in the Notification, the number of candidates against each notification will be basic number plus additional number against each notification minus those ineligible against the particular Notification. Thus the number against each notification comes to 2211, 2253, 2944 tentatively.
The respondent vide Notification No. PSC/Exam/09/57 dated 10.11.2009, declared the result of the said screening test. It is submitted that as per Rule 40, the number of candidates to be called for interview on the basis of screening test shall be in the ratio 1:3 i. e 3 candidates for each vacancy plus those additional candidates who have secured marks equal to the last candidate. The respondent in furtherance of the Rule has notified a provisional cut off merit up to which the number of candidates had to be called for interview as per the notice dated 04.12.2009, as under:
Notification OM RBA SC ST ALC SLC 04-PSC of 2007 dated 30.3.2007 No. of posts cut off marks 114 85.7143 40 67.563 16 67.563 20 52.437 6 64.5378 4 83.6975 13-PSC of 2007 dated 31.8.2007 No. of posts cut off marks 40 92.7731 13 86.7227 6 79.6639 7 75.6303 2 80.6723 1 91.7647 04-PSC of 2008 dated 8.4.2008 No. of posts cut off marks 113 87.7311 40 76.6218 16 73.6134 20 66.5546 6 73.6134 4 83.6975 While determining the cut off merit, the merit has been worked out separately on the basis of number of vacancies available in each Notification and cut off point arrived in merit of each category, has been arrived at point which would correspond to three times of number of vacancies in accordance with the mandate of Rule 40 (IV). Accordingly as against 113 posts in the open merit category 339 candidates have been short listed which is exclusive of the additional candidates to be called under rule 40 (iv).
Similarly against 2nd notification, 120 candidates had to be short listed against 40 open merit posts. This would include candidates who had applied earlier in response to first notification but were given an option not to apply against the 2nd notification. In respect of 3rd notification as well the same criteria has been followed by the respondent.
The respondent-Commission states that the vacancies which have been notified separately cannot be bunched and have to be treated separately. Therefore, the allegations as being made and projected as if the Commission has violated the conditions as contained in the notification and rules providing the short listing criteria being totally incorrect and untenable does not require any consideration in law as well as on facts.
The respondents have given the notification wise details of candidates shortlisted/called for interview for the post of Assistant surgeons as under:-
Notificdation Total No. of posts No. of candidates short listed No. of candidates who availed exemption over and above short listing Total : short listing +Exemption 04-PSC of 2007 dated 30.3.2007 200 619 94 713 13-PSC of 2007 dated 31.8.2007 69 225 140 365 04-PSC of 2008 dated 8.4.2008 199 640 162 802 Category wise breakup of shortlisted candidates and those called over and above is as under:
Notification OM RBA SC ST ALC SLC PHC 04-PSC of 2007 dated 30.3.2007 No. of posts ______________ Candidates shortlisted 114 357 40 123 16 49 20 60 6 18 4 12
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Candidates called over and above on the basis of Higher Qualifications 89 2 2
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1-
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13-PSC of 2007 dated 31.8.2007 No. of posts.
Candidates shortlisted 40 135 13 39 6 20 7 21 2 7 1 3
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Candidates called over and above on the basis of higher qualifications 132 3 3
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1 104-PSC of 2008 dated 8.4.2008 No. of Posts Candidates shortlisted 113 370 40 126 16 48 20 63 6 20 4 13
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Candidates called over and above on the basis of Higher Qualifications 155 3 3
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1Heard. I have considered the matter.
Mr. Haqani learned counsel for the petitioners has referred to Rule 40 of the Jammu & Kashmir Public Service Commission (Business and Procedure ) Rules which provides as under:-
In every notification inviting applications for a post it shall be mentioned that the prescribed qualifications are minimum and mere possession of same does not entitle candidates to be called for interview. Where the commission consider that the number of candidates who have applied for a post to be filled up by direct recruitment on the basis of interview is large and it is not convenient or possible for the commission to interview all the candidates the commission may restrict the number of limit pm the basis of higher percentage of marks secured in the qualifying examination and/or qualifications and experience, higher than the minimum prescribed in the advertisement as may be fixed by the commission, or by holding a written screening test.
Provided that in case of written screening test, the syllabus of the same shall be made known to the candidates at least one month before the date of holding such test.
Provided further that the marks secured by the candidates in the screening test shall not be taken into account for determining the final order of merit.
Provided further that the number of candidates to be called for the interview on the basis of screening test shall not be mdore than three times of number of clear vacancies referred to the Commission. Learned counsel would on the basis of this rule submit that the respondents were required to summon candidates for interview in the ratio of 1:3. Since 267 vacancies were notified in the open merit category, the respondents were required to summon 801 candidates which the respondent-Commission has failed to adhere to as only 538 candidates have been called for interview. The learned counsel would submit that the procedure adopted by the respondents is irrational and arbitrary and has led to denial of right of consideration to the petitioners as guaranteed under Article 14 and 16 of the Constitution of India.
Per contra, learned counsel for respondents has relying on results prepared by the Commission submitted that the petitioners have not been called for interview as they could not obtain the cut off marks prescribed for the examination. Cut off marks for notification no. 1 has been fixed as 85.7413 for notification No. 2 as 92.7731 and notification No. 3 as 87.311. The petitioners in the present petitions could not get cut off marks as such were not called for interview. Learned counsel has also stated that the merit of the candidates who applied for the posts has been worked out separately on the basis of number of vacancies available in each notification and cut off point arrived in merit of each category has been arrived at point which would correspond three times to number of vacancies in accordance with the mandate of rule 40.
On consideration of the matter I find no merit in the pleas taken and the submissions made on behalf of the petitioners.
The petitioners seek clubbing of the posts notified under the three notifications and seek summoning of the candidates in the ratio of 1:3 of the total posts. Since the total number of posts in all the three notifications is 267 the learned counsel wants that 801 candidates should be summoned for interview but this is not possible for the reason that the Commission has to work out the merit separately for each notification and fix the cut off point in each notification separately. The petitioners admittedly have not obtained the cut off marks as fixed by the respondents shown by them in para 4(i) of their reply. The respondents have rightly worked out the vacancies notified under the advertisement notices separately. Bunching of posts was not permissible in such circumstances cut off points have, therefore, been fixed separately for each selection. The argument of the learned counsel regarding clubbing of the vacancies cannot be accepted.
In these circumstances I find no ground is made out for admission of the petitions which are hereby dismissed.
Srinagar 2/4/2010 (H. Imtiyaz Hussain) Judge Mujtaba