Jammu & Kashmir High Court
Mahroof Ahmed & Ors vs State & Ors on 11 May, 2012
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 2096 OF 2011 Mahroof Ahmed & ors Petitioners State & Ors Respondent !Mr. M.I.Sherkhan, Advocate. ^Mr. M.I.Qadiri, Advocate General with Mr. Gagan Basotra, AAG Mr. Z.A.Shah, Sr. Advocate with Mr. Vipin Gandotra, Advocate. Mr. Sunil Sethi, Sr. Advocate with Ms Veenu Gupta, Advocate. Mr. Tashi Rabstan, Advocate. Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 11.05.2012 :J U D G M E N T :
CMA No. 1231/2012, CMA No. 1296/2012, CMA No. 619/2011, CMA No. 3106/2012, CMA No. 3446/2011, CMA No. 3563/2011, CMA No. 3515/2011, CMA No. 3732/2011, CMA No. 3551/2011 and CMA No. 3562/2011
1. Vide advertisement Notice No. 8 of 2010 dated 24th of December 2010, respondent-Board has invited applications in respect of various posts, which include the posts of Junior Engineers (Civil) Grade-II. The qualification as has been notified for the said post is:-
Three years Diploma in Civil Engineering from Government recognised Institute/Indian University, Degree in Civil Engineering or AMIE Section (A & B).
2. The criteria has been fixed as under:-
1) Weightage to basic qualification = 70 points i.e. Degree in Civil Engineering/ AMIE section (A & B) India or three years Diploma in Civil Engineering.
2) Weightage to M.E = 10 points
across the board
3) Viva Voce = 20 points
Total =100 points
3. The petitioners claim to have applied for the said posts under the category Schedule Tribe (S.T). The process culminated in selection to their exclusion as having failed to make the grade so have filed the Writ Petition and later on have filed amended Writ Petition. Hence, the instant amended Writ Petition wherein amongst others the following prayer has been made.
(a) Writ of certiorari quashing the select list of Junior Engineers (Civil) Grade-II;
(b) To quash the criteria as prescribed for basic qualification Degree and Diploma;
(c) To quash the Schedule II appended to the J&K Engineering Subordinate Services Recruitment Rules, 1997 issued vide SRO No. 180 dated 26th of May 1997 to the extent it equates Degree with Diploma for the purpose of basic qualification;
(d) For issuance of Writ of mandamus so as to command the official respondents to select and appoint the petitioners being meritorious under the S.T Category.
4. Initially vide order dated 15th of October 2011 direction was issued that the selection list of Junior Engineers, Grade-II (Civil) dated 21st of September 2011 shall not be acted upon till next date of hearing. Then vide order dated 18th of January 2012, said order dated 15th of October 2011 stand modified and it was directed that The respondents shall leave five posts of Junior Engineers Grade II under ST Category notified vide Advertisement Notice 08 of 2010 dated 24th of December 2010 unfilled and may act upon the selection list except to the extent of said five posts, in accordance with rules, without any equities flowing out of the appointments that may be made, in favour of the appointees and subject to outcome of the writ petition.
5. In conformity with the Schedule II A to Jammu and Kashmir Engineering Subordinate Services Recruitment Rules, 1997 (hereinafter referred to as 1997 Rules) and Rule 14 of the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010 (hereinafter referred to 2010 Rules) in the Advertisement Notice qualification and criteria as quoted above has been notified. The petitioners along with other eligible candidates competed, but failed to make the grade and on noticing their exclusion have turned around and challenged the entire process of selection, then after amending the Petition have challenged the validity of the Schedule II A appended to 1997 Rules by projecting that for basic qualification Degree equated with the Diploma is discriminatory. Therefore, have sought quashment of the whole process including selection/appointment.
6. Learned counsel appearing for the respondents have projected that the petitioners after participating in the selection process and finding their exclusion cannot be permitted to challenge the whole process as well as selection/appointment. Secondly, no foundation has been laid for challenging the Rules of 1997 to the extent of prescribing basic qualification wherein Degree in Civil Engineering and three years Diploma has been equated as being basic qualification.
7. It is further stated that the selected candidates in other categories including Open Merit (for short O.M) category have been left open to be appointed, which position is supported by the order dated 18th of January 2012. When it is so, to stall the appointment of selected candidates under the S.T category operates harshly.
8. The questions for determination which emerges are as under:-
Question No.1:- Whether it is open for the petitioners to challenge the entire process when they have actively participated in the selection process and have failed to make the grade?
Question No.2:- Whether equating Degree with the Diploma for the purpose of basic qualification for the post of Junior Engineer (Civil) Grade-II is un-warranted?
9. On the basis of 1997 Rules, the selection and appointment might have been made from time to time. Now, in the year 2011, when the petitioner after all calculations participated in the selection process and competed on the basis of the qualification and criteria and then finding themselves excluded as having failed to make the grade, cannot be permitted on such basis now to challenge the entire process of selection/appointment.
10. The claim of the petitioners that in terms of Rule 14 of the 2010 Rules weightage is to be granted for the higher qualification in the discipline concerned. The Degree being higher qualification as against the Diploma was to be granted weightage as has been given to the Master in Engineering (for short M.E).
11. The process of selection has culminated in the selection/appointment in pursuance to the Advertisement Notice dated 24th of December 2010. The petitioners have participated in the process of selection, now at this stage, when finding to be excluded as having failed to make the grade claim weightage for higher qualification which in view of the existing rules is impermissible. In the aforesaid background, to upset the entire process so undertaken and completed shall be unwarranted. The petitioners in fact have aquicised because of having participated in the entire process.
12. The selection process in conformity with the existing Rules, prescribed qualification and criteria has been finalised. No element of fraud, bias, ill-treatment, favouritism or any other hostility in the process of selection is discernible, which otherwise would warrant interference.
13. Coming to next question:-
Question No.2: Whether equating Degree with the Diploma for the purpose of basic qualification for the post of Junior Engineer (Civil) Grade-II is un-warranted?
The basic qualification prescribed for filling up the post of Junior Engineers (Civil) Grade-II as per the Schedule II A appended to the Jammu and Kashmir Engineering Subordinate Recruitment Rules, 1997 is as under:-
Three years Diploma in Civil Engineering from Government recognised Institute/Indian University, Degree in Civil Engineering or AMIE Section (A & B).
14. The method of recruitment as prescribed is as under:-
(i) 90% by direct recruitment.
(ii) 10% by promotion through Department Promotion Committee from Draftsman/Work Supervisor and shift Attendant/Field Workers/Field Supervisors having obtained Degree/AMIE Section (A&B), 3 years Diploma from Indian University/Government recognized Institute in Civil/Mechanical/Electrical Engineering Discipline as applicable in the ration of 4:4:2 respectively with at least five years are continuous/experience service in their respective categories. In case the required number of eligible persons are not available then the vacancies shall be filled up by direct recruitment.
15. Rule 14 of the Jammu and Kashmir Decentralization and Recruitment Rules, 2010, reads as under:-
14. Procedure for preparation of select lists by the Board.- (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 rate 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 the manner and to extent as the Board may deem appropriate for according due consideration to the merit and proficiency in higher qualification.
16. In conformity with the said Rule 14 criteria fixed as reflected in the Advertisement Notice is as under:-
1) Weightage to basic qualification = 70 points i.e. Degree in Civil Engineering/ AMIE section (A & B) India or three years Diploma in Civil Engineering.
2) Weightage to M.E = 10 points
across the board
3) Viva Voce = 20 points
Total =100 points
17. The contention of the learned counsel for the petitioners is that for the post of Junior Engineers (Civil) Grade-II, the basic qualification should have been only three years Diploma/AMIE Section (A&B). Equating the Degree in Civil Engineering with that of three years Diploma for the purpose of basic qualification is unwarranted because in terms of Rule 14 of 2010 Rules, grant of weightage to higher qualification is prescribed. By prescribing three years Diploma in Civil Engineering as basic qualification, Degree in Civil Engineering, being higher qualification would be given weightage and points for such Degree would be allocated as has been done vis-`-vis Masters Degree in Engineering. Thus fixing the basis qualification as three years Diploma or Degree in Civil Engineering is discriminatory because in any case Degree in Civil Engineering cannot be equated with the Diploma.
18. The contention as raised vis-`-vis basic qualification as prescribed in terms of Schedule II A to 1997 Rules has substance.
19. The Degree in Civil Engineering equated with Diploma for basic qualification negates the grant of weightage to Degree, being higher qualification which otherwise is permissible in terms of Rule 14 of 2010 Rules. Therefore, basic qualification as prescribed is required to be re-examined in the same background.
20. In the context of afore-stated position, the basic qualification as prescribed in the Schedule II A to 1997 Rules, may have to be amended so as to bring it in conformity with the Rule 14 of the 2010 Rules. Therefore, the Government is required to look into the issue before any fresh process for selection of Junior Engineers Grade-II is initiated in future.
21. In the instant case in view of the findings recorded vis-`-vis question No.1, challenge to the rule position, more particularly the Schedule II A to the extent it prescribes basic qualification as aforesaid is of no help to the petitioners.
22. Decision vis-`-vis Question No.1 as formulated being against the petitioners therefore, dismissal of the Writ Petition shall be the only conclusion. Accordingly, dismissed along with all connected CMPs.
(Mohammad Yaqoob Mir) Judge Jammu 11-05-2012 Sanjay