Jammu & Kashmir High Court
State Of J&K And Ors. And Prithpal Singh ... vs Altaf Hussain And Ors., Surrinder Kumar ... on 19 August, 2002
Equivalent citations: 2003(1)JKJ546
JUDGMENT
1. All the L.P.A.'s are being disposed of by this common order, as common question of law and facts are involved in the appeals
2. Vide Advertisement Notice No. Pers/Rectt/SIs/Ex-99/A-450 dated 22-02-1999 applications were invited from permanent residents of the State of J&K for the post of the Sub-Inspector in J&K (Executive) Police. Apart from other conditions the notices provided for the following :-
"5. The applications should be deposited in the offices of respective District Superintendents of Police under proper receipt. Applications incomplete in any manner shall not be entertained. The last date for receipt of application at all District Headquarters is 25-03-1999. All the District SSP of J&K provinces will submit these apllication forms to their respective Range DIGS by 5th April, 1999.
6. Only those candidates who will be found fit in physical measurement and possessing other prescribed standard will be allowed to compete in outdoor basis. Those candidates who qualify in all the five items of outdoor tests as per the standard prescribed above, will be allowed to appear in the written test and those who qualify written test shall be called for viva voce/ personality assessment test.
7. Final selection will be based on overall merit obtained by candidates in written and viva voce. Performance in the field of sport, NCC etc. will be given due weightage while evaluating the performance of candidates in viva voce test as per SRO on the Subject.
8. Persons already in Govt. service and conforming to the above standards can also apply with N.O.C. from their employers. Applications without N.O.C. will not be entertained. The fact of any candidate being in Govt. Service and having applied with out N.O.C. if as certained later will deny him the offer of appointment.
9. Reservation, where ever applicable under the relevant reservation rule shall also cover the existing vacancies.
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11. The candidate shall have to appear in the prescribed tests at their own expenses on the dates and venue to be communicated later on."
2. All eligible candidates applied for the post. After screening of the applications, two lists of the candidates found eligible for the written test, were published on Nov. 18, 1999, in newspapers. One list was for Kashmir Province and the other for Jammu Province. The candidates whose names were shown in two lists took the written test. The names of the candidates who qualified the written test were published in the newspaper dated 31-12-1999, vide which candidates from both from Kashmir and Jammu Provinces were called to appear for personality assessment and viva voce test on Jan. 15th and 16th 2000, at Srinagar and on Jan. 18th and 20th 2000 at Jammu respectively.On 24.3.2000 revised interview notice was issued directing eligible candidates from the districts of Kupwara, Baramulla, Anantag, Pulwama, Leh, Kargil, Srinagar and Budgam to appear for interview on April 7th & 8th 2000 at Police Control Room, Srinagar and the candidates eligible from the Districts of Doda, Udhampur, Kathua, Rajouri, Poonch, Jammu, Leh & Kargil were asked to appear for personality assessment and viva voce test on 20th and 22nd April 2000, at Police Control Room, Jammu. The candidates from Leh & Kargil were free to appear at either of the two places. Thereafter, personality assesment and viva voce test was held at the places indicated in the newspaper published. A list of selected candidates was then published and candidates selected for Jammu Province were to report to D.I.G. Jammu and for Kashmir Province before the D.I.G. Kashmir at Srinagar, alongwith all relevant certificates.
3. The selection came to be challenged on various grounds, including that the zone-wise selection was not permissible. Upon notice of writ petitions, State as well as the successful candidates denied that there was any irregularity in the process of selection. It was also submitted that the writ petitioners who had participated in the process of selection cannot challenged the selection on the ground that zone-wise selection is not permissible, as they are estopped by their own act and conduct.
4. Learned single Judge did not find any merit in the allegation regarding the irregularities alleged to have been committed in the process of selection. However, it was held that the merit should have been determined state-wise and not province-wise. Accordingly, the official respondents were directed by the writ-court to give a fresh look to the matter and determine the merit state-wise and after completing that exercise all candidates falling within the merit-zone were to be appointed and that was to be done without disturbing the selection already made. So far as the candidates belonging to reserved category were concerned, the official respondents were directed to take note of the observation made in SWP No. 609 of 2000, in which it was observed that Rule 15(1) of the J&K Reservation Rules, 1994, prescribe: the procedure for drawing up the merit list. For making the selection, the authorities have to prepare draft list of all the candidates irrespective of the class to which they belong. This has to be in order of merit. After doing so, further steps are required to be taken under Rule 15(2) of the said rules. The number of vacancies are to go to the candidates as per the ratio proportionate fixed in Rule 10. The learned Single Judge further directed that the claim of only those candidates would be considered who have obtained not less than 50 marks. In order to ob viate any difficulty in allocating the two Provinces to the selected can didates, it was directed their an un dertaking would be taken from the candidates belonging to Jammu Province that they would not raise any objection in joining at the places as per their merit.
5. The present appeals have been filed by the State and also by some of the writ petitioners. Mr. Ashok Parihar, Addl, A.G. appear ing for the State-appellant submit ted that the Province-wise selection was made because of the situation prevailing in the state as it was not possible to make selection Sate-
wise. He also submitted that the learned Single Judge though has directed the official respondents to prepare state-wise merit list but has also directed that the candidates al ready selected and appointed shall not be disturbed, meaning thereby that it would involve creation of more posts than the one which were available at the time selection was made. According to Mr. Parihar this direction not only would involve financial implication but also would create problem in increasing the strength of the belt force. Learned counsel appearing on behalf of some of the writ petitioners also submitted that the learned single judge ought not to have directed that the selection/appointment of the candidates already selected should not be disturbed, though they may not find their name in the merit list to be prepared state-wise.
6. In answer to this submission, learned counsel appearing on behalf of the successful candidates submitted that the challenge by the writ petitioners in regard to selection made zone-wise is belated, in as such as after the written test two list of the successful candidates were published, i.e. one for Kashmir province and the other for Jammu province, and objections, if any, should have been taken at that stage and not after the process is complete. It is also submitted that the selected candidates are continuing in service for the last two years and at this stage it would not be wise to quash their selection/appointments.
7. We have heard learned counsel for the parties at length and have carefully gone through the record of this case.
8. The first question which arises for our consideration is whether selection based on zonal basis is valid. It is well settled that the pervasive operation of Article 14 & 16 of the Constitution of India in matters relating to employment is now too elementary and needs no further discussion. It is, however, necessary to emphasise that Article 16 of the constitution expressly provides for equality of opportunity in matter relating to appointment to any office under the State.
9. In Minor P.Rajendran v. State of Madras, AIR 1968 SC 1012, the Supreme Court struck down District-wise distribution of seats for medical admission as providing for unit wise allocation was held to be violative of Article 14 & 16 of the constitution on the ground that it might result in candidates of inferior calibre being selected in one District and those of superior calibre not being selected in another District.
10. In Nidamurti Mahesh kumar v. State of Maharashtra, (1986) 2 SCC 534, region wise scheme adopted by the State Govt. was held to be void and struck by S.C by holding that it would result in denial of equal opportunity and was thus violative of Article 14 of the Constitution of India.
11 In Radhey Shyam Singh and Ors. v. Union of India and Ors. (1997) 1 Supreme Court Cases 60, Subordinate Services Commission constituted by the Govt. of India (DP & AR) in its advertisement dated 10-07-1993 to 16-07-1993 declared that after the examination it would draw up a separate list in respect of each zone in the order of merit. The question before the Su-
preme Court was whether such selection for the recruitment to Non technical Class III posts in the department of Govt. of India, based on zonal basis violated Article 14 & 16 of the constitution of India. The Supreme Court answered the question in the affirmative and held that there exists no nexus between the process of zone wise selection and the object to be achieved, that is, the selection of the best candidates. It was said that the process of zone wise selection would result in the devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidates who has secured more marks and consequently the rule of the equal chance for equal marks would be violated. The Supreme Court further held that such a process would not only be against the principles enunciated in Article 14 & 16 of the constitution but it would also result in heart burning and frustration amongst the young men of the country, and the rule of equality of opportunity for every individual in the country is an inalienable part of our constitutional guarantee and that being so a candidate who secure more marks than another is definitely entitled to get preference for the job as the merit must be the test when selecting a candidate for recruitment for the posts which are advertised. The Supreme Court, therefore, directed that in future no selection shall be made on zonal basis.
12. As regards the submission of learned counsel for the appellant that process of zone wise selection is in vogue for a long period in the state, it is only to be stated that in this context also the Supreme Court in the case of Radhey Sham (supra) has held that simply because such a practice is in vogue for long period, the zone wise selection cannot be upheld. The principle laid down in the case of Radhey Sham (Supra) was to operate prospec-tively as their Lordships of the Supreme court had in no uncertain terms said that in future no selection would be made on zonal basis. The judgement in Radhey Sham's case was delivered by the Supreme Court on Dec. 9, 1996 meaning thereby that the selection in the case in hand being of the year 2000, cannot be upheld.
13. We also do not find any merit in the submission of the learned counsel for the appellant that the writ petitions filed by the writ petitioners were belated. In the advertisement notice dated 22-02-1999 there was no indication that selection for the post of Sub Inspector in J&K (Executive) Police would be on zonal basis. The subsequent notification calling candidates to appear in personality and viva voce test too did not give any indication that final select list would be on zonal basis and not on the State wise merit. We rather find merit in the submission of learned Counsel for the writ petitioners that the writ petitioners all along believed that for the convenience of the candidates belonging to two provinces of the state, the personality test and viva voce test are being held at Srinagar and Jammu. They never thought that ultimate selection would be on zonal basis.
14. In the aforesaid view of the matter, we are of the view that the learned Single Judge was well justified in directing the official respondents to prepare state-wise merit list. We however, find merit in the submission of learned counsel for the state and also counsel for some of the writ petitioners that the learned Single Judge while giving direction to the official respondents to re draw the state-wise merit list should have set aside the impunged selection/appointments. In our view, the High Court has no power to direct the State Govt. to make appointment more than the vacancy available for selection at the relevant point of time, as this involves financial implication and so decision, if any, in this regard can be taken by the State Govt. No other point is urged.
15. In view of the above, the appeals are allowed and judgement of the learned Single Judge is modified and it is ordered that :
(i) the State Govt. would re draw the merit list State-Wise within a period of three months from the date of receipt of copy of this judgement.
(ii) On redrawing of the merit list, if the candidates who have already been selected/appointed and come within the merit zone, they would not be disturbed. But their seniority would be determined in accordance with the merit list which would be finally prepared.
(iii) the State Govt. shall take an undertaking from selected candidates that they would join at the places as per allocation made by the State on the basis their merit position, &
(iv) while re drawing the merit list, Rule 15 of the J&K Reservation Rules, 1994, would be kept in view, meaning there by that reservation shall be made in accordance with the Roster provided under Rule 14 of the said Reservation Rules and the candidates obtaining higher merit would be appointed in terms of the category to which they belong.
16. Appeals are disposed of accordingly, without any order as to costs.