Jammu & Kashmir High Court - Srinagar Bench
Gulafroz Khan & Ors. vs State Of J&K; & Ors on 14 October, 2016
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP no.832/2016 Date of decision: 14.10.2016
Gulafroz Khan & ors. v. State of J&K & ors.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearing counsel:
For the petitioner(s): Petitioners in person
For the respondent(s): Mr. M. I. Dar. AAG, for respondent no.1;
Mr. Hashim Hussain, Dy. AG, for no.3; and Mr. R. N. Watal, Member-Secretary of respondent no.2, present in person.
The petitioners, five in number, have filed this petition seeking writ of certiorari to quash the letter, bearing no. SLSA / Estt / RB / 08 / 2015 / 1476-79 dated 21.4.2016, whereby respondent no.2 informed respondent no.3 that the Select list of candidates for the post of Junior Legal Assistant, State Legal Services Authority, formulated and issued by the SSRB vide no. SSB / Secy / 2015 / 16309-15 dated 16.12.2015 and transmitted to the State Legal Services Authority for issuance of orders in favour of the selectees, stood cancelled on the grounds mentioned therein. The petitioners have also prayed for mandamus to command the respondents to issue orders of appointment in their favour against the posts in question advertised vide notice no.03/2012 dated 28.12.2012, to give them all the benefits of such appointment retrospectively and not to re-advertise the posts.
2. Before giving a description of the petitioners' claim and the grounds it is founded on, I deem it appropriate to give some semblance of the genesis of the matter.
3. The State Legal Services Authority (hereafter, the Legal Services Authority) is the creation of the Statute, namely, the Jammu and Kashmir Legal Services Authorities Act, 1997 (hereafter, the 1997 Act). The Act also creates some other Legal Services Committees / Authorities at the High Court level, District level and Tehsil level. Whereas various provisions of the Act provide for appointment of officers and employees of these Authorities / Committees, Section 27 thereof confers a power on the Legal Services Authority to make regulations not inconsistent with the provisions of the Act and the rules made thereunder to provide for all matters for which provision is necessary or expedient for the purposes of giving effect to the provisions of the 1997 Act.
4. In exercise of the powers under Section 27 of the 1997 Act, the Legal Services Authority made and promulgated the Jammu and Kashmir State Legal Services Authority Regulations, 1998 (hereinafter, the 1998 Regulations). Regulation 27 of the 1998 Regulations defines the word "Service" to mean the J&K Legal Services Authorities / Committees Service. Regulation 28 thereof prescribes the method of recruitment. Regulation 29(1) of the 1998 Regulations prescribes that there shall be a Recruitment Board for making selection of the person to be appointed to the service of the Authority/Committees. Regulation 29(2) provides that the Board shall consist of a Chairman and such number of persons as members as may be prescribed and nominated by the Chief Justice from time to time. Regulation 29(3) says that the Executive Chairman of the State Legal Services Authority shall be the Ex-officio Chairman of the Board. Regulation 29(4) provides that the Board shall adopt the method for making recruitment from time to time as it may think fit and as may be necessary for each such selection. Regulation 29(5) provides that the Authorities / Committees (created under the 1997 Act) shall refer all the vacancies to the aforesaid Board for making recruitment and that appointments to be made by the authorities shall be from the merit list prepared by such Board.
5. As seen above, Clauses (1) to (5) of Regulation 29 of the 1998 Regulations are complete and compact insofar as the object underlying the Regulation is concerned.
6. However, notwithstanding the above, the Legal Services Authority by notification no.01 of 2012 dated 27.04.2012 inserted clause (6) after clause (5) in Regulation 29 of the 1998 Regulations which read as under:
"(6) Notwithstanding anything contained in clauses (1) to (5), the posts in the service which are to be filled up by direct recruitment shall be referred to the Jammu and Kashmir Service Selection Board for selection."
7. After insertion of the above clause (6) in Regulation 29 of the 1998 Regulations, the Legal Services Authority through its Additional Secretary's, sent a requisition of direct recruitment under the cover of communication no. SLSA / ESTT / RB / 229 / 2011 / 1384 dated 27.07.2012 addressed to the Secretary, Services Selection Board, J&K, referring 14 posts of Junior Legal Assistant available in the Legal Services Authority, giving relevant break of open merit and reserved category posts.
8. Pursuant to the above requisition, the Service Selection Board, J&K (hereinafter, the SSB), issued advertisement notice no.03 of 2012 dated 28.12.2012, notifying the vacancies in question (see item nos. 182 and 222 of the advertisement notice). The Board appears to have conducted the written test of the competing candidates in the month of August, 2014.
9. On 18.11.2014 the Legal Services Authority appears to have issued notification no.01-SLSA of 2014 to the following effect:
"In exercise of the powers conferred under Section 27 of the Jammu and Kashmir Legal Services Authority Act, 1997, it is hereby ordered that clause (6) of Regulation 29 shall be deleted.
By order."
10. Subsequent to the issuance of the aforesaid notification dated 18.11.2014, the Legal Services Authority through its Administrative Officer, sent communication no. SLSA / Estt / 04 / 2014 / 2028 dated 27.11.2014, to the SSB intimating to it that the Legal Services Authority had amended its Regulations and in that view it had been decided to withdraw the posts of Junior Legal Assistants from SSRB so that the same are referred to the Recruitment Board of the Authority. The SSB was, accordingly, conveyed that the posts "shall be deemed to have been withdrawn".
11. In response thereto, the SSB on 10.12.2014 wrote to the Legal Services Authority through its Administrative Officer that the posts had been advertised by it vide notification dated 28.12.2012 and the written examination had been conducted on 23.08.2014 results whereof had already been published and that, since the process had been initiated by the Board, in terms of Circular issued by the General Administration Department under no.22-GAD of 1999 dated 22.09.1999, the withdrawal of the posts at that stage was not possible.
12. In reference to the above communication dated 10.12.2014 of the SSB, the Legal Services Authority wrote another letter dated 15.01.2015 to the SSB, intimating to it, inter alia, that the Legal Services Authority had its own recruitment board constituted under Regulation 29 of the 1998 Regulations and that the SSB was a creation of the J&K Civil Services Decentralization and Recruitment Rules, 2010, Rule 2 whereof provided that the said Rules shall ap0ply to the posts under the Government except the posts for which special treatment is expressly provided under any law, rule, order or notification. The SSB was intimated that since the special treatment is expressly provided for the State Legal Services Authority under the 1997 Act and Regulations framed thereunder, the J&K Civil Services Decentralization and Recruitment Rules, 2010 (for short, Decentralization Rules, 2010) do not apply to the posts borne on the establishment of the Legal Services Authority, nor does the SSB have jurisdiction over the said posts. It was also mentioned in the said letter that the SSB had not been able to complete the selection process even after a lapse of more than two years. The letter again conveyed to the SSB that the posts "shall be deemed to have been withdrawn from the SSB" and the SSB was requested not to proceed head with the finalization of the selection against the posts.
13. Thereafter, on 11.02.2015, the SSB wrote to the Legal Services Authority that since it had already completed the selection process for the posts, it was neither appropriate nor possible to withdraw the posts. Reference was again made to the Circular no.22-GAD of 1999 dated 22.09.1999. It was mentioned therein that in exceptional cases where advertisement has not been issued by the Recruiting Agencies and where it is necessary in public interest to withdraw any vacancy, the department concerned has to moot a specific proposal with full justification before the General Administration Department.
14. The General Administration Department of the State, which also happens to be the Administrative Department of SSB, at the behest of the SSB, also wrote communication no.GAD/Mtg/RB-IV/41/2015 dated 28.05.2015 to the Administrative Officer of the Legal Services Authority reiterating therein the above stand of the SSB and requesting the Authority not to press for withdrawal of the posts from the SSB at this stage.
15. The SSB meanwhile completed the process of selections, drew up the merit list and sent the same to the Secretary to Government, Law, Justice and Parliamentary Affairs, in two parts in terms of its communications, bearing nos. SSB / Sel / Secy / 2015 / 16309-15 dated 16.12.2015 and SSB / Sel / Secy / 2016 / 682-84 dated 09.01.2016, who in turn, vide communication nos. LD(Estt)2012/LA/JLA/JA dated 23.12.2015 and LD(Estt)2012/LA/JLA/JA dated 21.01.2016, forwarded the same to the Member Secretary of the Legal Services Authority.
16. On receipt of the select list in question, the Member Secretary of the Legal Services Authority addressed communication no. SLSA / Estt / R.B / 08 / 2015 / 1476-79 dated 21.04.2016 to the Chairman, Service Selection Recruitment Board informing him "that the said list stands cancelled" on the grounds mentioned therein.
17. The petitioners in this petition are the selectees of the recruitment process so undertaken by the SSB. They are aggrieved of the aforesaid communication dated 21.04.2016 of the Legal Services Authority and have challenged the same in this writ petition and have sought the reliefs as already mentioned in the very first paragraph of this judgment on the grounds enumerated in the writ petition.
18. Apart from the facts narrated in some detail hereinabove, the petitioners in their writ petition have stated that after publication of the results of the written test, when the SSB failed to call the petitioners for interview, petitioner no.5 filed a writ petition, SWP no.2076/2015 which was finally disposed of by the Court vide order dated 24.09.2015 directing the respondents to complete the process of selection, preferably, within eight weeks in accordance with the rules. It is averred in the petition that in consequence of the aforesaid order of the Court, they were interviewed and on the basis of their merit, they were selected.
19. It may also be mentioned here that originally this writ petition was filed only for mandamus. When the writ petition came up for consideration before the Court on 20.04.2016, the Court passed an order that respondent no.2 shall process the case of the petitioners for issuance of formal appointment orders on the strength of the recommendations of the Selection Board and that the delay that may occasion in the process shall not form a ground for re-advertising the posts in question. The petitioners in their writ petition state that after the Court passed the aforesaid interim direction on 20.04.2016, respondent no.2 issued the impugned communication dated 21.04.2016, by reason whereof the petitioners sought permission to amend the writ petition to incorporate the prayer for issuance of writ of certiorari impugning the said communication.
20. The Legal Services Authority, Respondent no.2, in its reply has stated that it has constituted its own Recruitment Board under Regulation 29 of the 1998 Regulations and, accordingly, the SSB was directed that the posts referred by the Legal Services Authority be deemed to have been withdrawn and was requested not to proceed ahead with the finalization of the selection process. The SSB, however, ignored the letters and completed the selection process. It is averred that the process of recruitment was completed after amendment to Regulation 29. It is further asserted that since the posts referred were divisional cadre posts, in terms Rule 6(5) of the Decentralization Rules, 2010, the SSB was obliged to associate a divisional level officer of the intending department, i.e., the Legal Services Authority, as a member of the Divisional Level Selection Committee. It is stated that instead, the SSB associated Director, Litigation, Kashmir as a member of the Committee who did not belong to the intending Department and, "hence the selection list of the Junior Legal Assistant has been cancelled". The respondent in its aforesaid reply has admitted the factual narrative given hereinabove. However, it is reiterated that after deletion of Clause (6) of Regulation 29 of the 1998 Regulations, letters dated 15.01.2015, 02.03.2015 and 31.03.2015 were sent to the Chairman, SSB, with request not to continue with the process of recruitment, but the same were ignored. It is also stated that the order dated 24.09.2015 passed by the Court while disposing of SWP no.2076/2015, filed by one of the petitioners, required the SSB to complete the process of recruitment under rules. Under the rules, when the posts were withdrawn from the SSB, they should have closed the process; instead it proceeded with the process. It is stated that it was on account of the above that the selection list has been cancelled.
21. However, at the same time, towards the end of paragraph 4(vii), respondent no.2 has stated as under:
"...The process of selection for available vacancies has to be initiated by Recruitment Board constituted in terms of J&K State Legal Services Authority Regulations, 1998. Relaxation in age will be granted to such of the candidates who applied pursuant to the SSRB Notification No.03 of 2012 dated 28.12.2012 for the post of Junior Legal Assistant, who may have crossed the prescribed age by now."
22. I heard the petitioners who, on account of non-availability of their counsel, appeared in person and Mr. R. K. Watal, the Member-Secretary, Legal Services Authority. Though Mr. M. I. Dar, learned AAG, represented respondent no.1, and Mr. Hashim Hussain, Dy. AG, represented the SSB before the Court, yet they did not have anything to contest against the petitioners in the petition.
23. The case of the petitioners is crystal clear and unambiguous. Factual details have been elaborately delineated above. Their simple case is that the SSB having advertised the posts referred to it by the Legal Services Authority and they having responded thereto, a right accrued to them to participate in the selection process and be considered for selection. Any amendment in the Service Rules or Regulations governing recruitment would not operate retrospectively. Even if Clause (6) of Regulation 29 of the 1998 Regulations was deleted, its effect would have application prospectively and would not impact the selection process initiated pursuant to advertisement notice no.03 dated 28.12.2012 vis-a- vis the posts in question. Further, it is the case of the petitioners that since they have been finally selected, they have a right to be considered for appointment against the posts in question and that the impugned communication dated 21.04.2016 is violative of their rights guaranteed under Articles 14 and 16 of the Constitution. Therefore, it is liable to be quashed. The petitioners during the course of their submissions cited and relied upon the decisions of the Supreme Court in N. T. Devin Katti v. Karnataka PSC, (1990) 3 SCC 157; and Comptroller & Auditor General of India v. Mohan Lal Mehrotra, (1992) 1 SCC 20.
24. On behalf of the Legal Services Authority, Mr. R. N. Watal, its Member Secretary referred to the statements and submissions made in their reply and the correspondence that had been addressed to the SSB.
25. In my view the result of this petition hinges on determination of the following questions:
i) Whether notification no.01-SLSA of 2014 dated 18.11.2014 could operate retrospectively and whether in consequence thereof, deletion of Clause (6) of Regulation 29 of the 1998 Regulations would entitle the Legal Services Authority to withdraw the posts referred by it to SSB for selection when the posts had been advertised, written examination of competing candidates held and results thereof published?
ii) Whether pursuant to communication no. SLSA / Estt / 04 / 2014 / 2028 dated 27.11.2014 and the communications those followed from respondent no.2, the SSB was legally obliged to close the recruitment process?
iii) Whether the Legal Services Authority was legally justified in cancelling the select list drawn by the SSB at the close of the selection process on the ground that the quorum of the Selection Committee constituted by the SSB did not conform to Rule 6(5) of the Decentralization Rules, 2010?
26. As mentioned earlier, Regulation 28 of the 1998 Regulations provides for the method of recruitment. It provides five modes of appointment to the service viz., by direct recruitment; by promotion; partly by direct recruitment and partly by promotion; by deputation; or by transfer from other service. Regulation 28 for ready reference is quoted hereunder:
"28. Method of recruitment.-- Appointment to the service shall be made as under: -
a) by direct recruitment; or b) by promotion from cadre or class; or c) partly by direct recruitment and partly by promotion; or d) by deputation; or e) by transfer from other service."
Regulation 29 of the 1998 Regulations prescribing constitution of Recruitment Board for making selection of the persons to be appointed to the service originally seem to have contained only five clauses quoted hereunder:
"29. (1) There shall be a Recruitment Board for making selection of the person to be appointed to the service of J&K Legal Services Authorities/Committees;
(2) The Board shall consist of a Chairman and such number of persons as members as may be prescribed and nominated by the Chief Justice from time to time. Chief Justice may nominate any of the members as its Member Secretary.
(3) Executive Chairman of the State Legal Services Authority shall be the Ex-officio Chairman of the Board.
(4) The Board shall adopt the method for making recruitment from time to time as it may think fit and as may be necessary for each such selection.
(5) State Legal Services Authority, High Court Legal Services Committee, District Legal Services Authority and Tehsil Legal Services Committee may refer all vacancies to the Board for making recruitment. All appointments to be made by the authority shall be from the merit list prepared by such Board."
It, however, appears that with the sanction of certain posts, particularly those involved in the selection process which constitutes the subject matter of this writ petition, the Legal Services Authority took a decision to refer such posts, meant to be filled up by direct recruitment, to the Service Selection Board. Since there was no such provision made in the 1998 Regulations, the Authority issued Notification no.01 of SLSA of 2012 dated 27.04.2012 inserting clause (6) in Regulation 29 of the 1998 Regulations to the following effect:
"(6) Notwithstanding anything contained in clauses (1) to (5), the posts in the service which are to be filled up by direct recruitment shall be referred to the Jammu and Kashmir Service Selection Board for selection".
Simultaneous with insertion of the above Clause (6) in Regulation 29, the Legal Services Authority vide its communication dated 27.07.2012 referred the posts in question to the SSB. The SSB issued the advertisement notice on 28.12.2012. It conducted the written examination of the competing candidates, who responded to the advertisement notice, on 23.08.2014 and published / uploaded on its website the result of such written examination. It is, thereafter, that the Member Secretary of the Legal Services Authority issued notification no.01-SLSAS of 2014 dated 18.11.2014 to the "following effect:
"In exercise of the powers conferred under Section 27 of the Jammu and Kashmir Legal Services Authority Act, 1997, it is hereby ordered that in Regulation 29 of the J&K SLSA Regulations, 1998, Clause (6) shall be deleted."
After issue of the aforesaid notification, the Legal Services Authority vide its communication dated 27.11.2014 informed the SSB that the Legal Services Authority had amended its Regulations relating to the constitution of Recruitment Board and that in view of the amendments it had been decided to withdraw the posts of Junior Legal Assistants from SSB for reference to the Recruitment Board of the Legal Services Authority. The Communication informed the SSB that the posts "shall be deemed to have been withdrawn".
27. The Legal Services Authority has not brought on record any document to show that there was, in fact, a formal decision taken by it and/or any order issued by it to withdraw the posts from the SSB or even to the effect that the posts be deemed to have been withdrawn from the SSB. Further there is also nothing on record to show that, in fact, any formal order was passed or issued by the competent authority cancelling the Select List. Section 3(7) of the 1997 Act provides that all orders and decisions of the Legal Services Authority shall be authenticated by the Member Secretary or any other officers of the Legal Services Authority duly authorized by the Executive Chairman of the Legal Services Authority. No such order authenticated under the said provision of law has been brought on record. Be that as it may, assuming that the statement made in communication dated 27.11.2014 addressed by the Administrative Officer of the Legal Services Authority to the SSB, that the posts "shall be deemed to have been withdrawn" tantamount to be an order under the provisions of the 1997 Act / Rules / Regulations, the crucial question is whether the posts could be withdrawn at such a stage of the selection process on the ground that Regulation 29 was amended. The law in this regard is not res integra. There are numerous judgments of the Supreme Court on the point. As mentioned above, the petitioners in this regard cited and relied upon the decision of the Supreme Court in N. T. Devin Katti v. Karnataka PSC (supra).
28. The facts of the case in N. T. Devin Katti v. Karnataka PSC (supra) were that Karnataka Public Service Commission issued a Notification on 23.05.1975 which was published on 29.05.1975 inviting applications from in-service candidates for recruitment to 50 posts of Tehsildars. The competitive examination was to be governed by the provisions of the Karnataka Administrative Services (Tehsildars) Recruitment (Special) Rules, 1975; and Rules 7 and 14 of the Karnataka Recruitment of Gazetted Probationers (Class I and II posts Appointment by Competitive Examination) Rules, 1966 were to apply mutatis mutandis to the conduct of the competitive examination; and the provisions of the Karnataka State Civil Services (General Recruitment) Rules, 1957 were to apply in respect of matters for which no provision was made in the Rules. Pursuant to the advertisement notice, the appellants before the Supreme Court, who were in service of the State Government applied for their select ion and appointment to the posts. After the written examination and viva voce test, the Public Service Commission finalised the list of successful candidates and published the same in Karnataka Gazette dated 18.03.1976. The Commission also notified an additional list of successful candidates for appointment to the posts of Tehsildars in accordance with the 1975 Rules, which included the names of the appellants before the Supreme Court. In preparing the select list and making reservation to the various categories, the Commission followed the directions and the procedure as contained in Government order dated 06.09.1969. The State Government refused to approve the list prepared by the Commission as in its opinion the reservation for the Scheduled Castes, Scheduled Tribes and other backward classes should have been made in accordance with the directions and procedure contained in the Government order dated 09.07.1975. The State Government by its order dated 23.04.1976 directed the Commission to prepare a fresh list of successful candidates by making reservations in accordance with the procedure contained in Government order dated 09.07.1975. Pursuant to the directions of the State Government, the Commission prepared the select list afresh, after making reservations in accordance with the procedure prescribed by the Government order dated 09.07.1975, and published the same on 27.05.1976. Names of the appellants before the Supreme Court did not figure in the revised list of candidates. They challenged the validity of the Government order dated 23.04.1976 as well as the revised list prepared by the Commission and also the validity of Government order dated 09.07.1975 before the High Court. The Division Bench of the High Court dismissed the writ partitions.
29. The Supreme Court, relying on its earlier decisions in B. N. Nagarajan v. State of Mysore, AIR 1966 SC 1942; Y. V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284; Ganeshwar Rao v. State of A. P., 1988 Supp SCC 740; A. A. Calton v. Director of Education, (1983) 3 SCC 33; and P. Mahendran v. State of Karnataka, (1990) 1 SCC 411, at paragraph 11 of the judgment laid down that Candidates who apply and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. The relevant paragraph 11 of the judgment is extracted below:
"11. ...Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature."
It would be also advantageous to quote herein what was laid down by the Supreme Court in its earlier judgments relied upon in N. T. Devin Katti v. Karnataka PSC (supra).
30. In B. N. Nagarajan v. State of Mysore, (1966) 3 SCR 682 : AIR 1966 SC 1942, the dispute related to the validity of appointment of Assistant Engineers. The Public Service Commission invited applications by issuing Notifications for appointment to the post of Assistant Engineers in October 1958, May 1959 and April 1960. The Commission made selection, interviewed the candidates and sent the select list to the Government in October/November 1960. But before the appointment could be made, the Mysore Public Works, Engineering Department Services (Recruitment) Rules 1960 came into force which prescribed different provisions than those prescribed in the earlier Notifications in pursuance whereof the Public Service Commission had made the selections. The validity of the appointment made by the Government on the basis of the selection made by the Commission was challenged. The High Court quashed the selection and appointments made in pursuance thereof. On appeal before the Supreme Court, validity of the appointment was assailed on the ground that since the appointments had been made after the amendment of the Rules, the same should have been made in accordance with the amended Rules. A Constitution Bench of the Supreme Court rejected the contention holding that, since the whole procedure of issuing advertisement, holding interviews and recommending the names had been followed in accordance with the then existing Rules prior to the enforcement of the amended Rules, the appointments made on the basis of the recommendation made by the Public Service Commission could not be rendered invalid.
31. In Y. V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284, the question that arose for consideration before the Supreme Court was whether promotion should be made in accordance with the Rules in force on the date the vacancies occurred or in accordance with the amended Rules. The Supreme Court held that "we have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules".
32. Further, referring to the decisions in P. Ganeshwar Rao v. State of Andhra Pradesh, 1988 Supp SCC 740; A. A. Calton v. Director of Education, (1983) 3 SCC 33, and P. Mahendran v. State of Karnataka, (1990) 1 SCC 411, the Supreme Court in paragraph 13 of the judgment in N. T. Devin Katti v. Karnataka PSC (supra) laid down as under:
"...It is well accepted principle of construction that a statutory rule or Government Order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government Orders and any amendment of the rules or the Government Order pending the selection should not affect the validity of the selection made by the Selecting Authority or the Public Service Commission unless the amended Rules or the amended Government Orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections."
It, thus, becomes clear that though a person who applies for appointment to a post in response to an advertisement does not acquire any right much less a vested right to get selected, but, if he is eligible and is otherwise qualified in accordance with the recruitment rules governing the post and the terms and conditions contained in the advertisement, he gets a right of being considered for selection in accordance with the rules as they existed on the date of advertisement. This limited right cannot be taken away by any authority amending the terms and conditions in the advertisement or by amending the recruitment Rules unless the amendment is made with retrospective effect. The authority which issued the advertisement or which framed the recruitment rules has a right to amend the terms and conditions of appointment to the post and also to amend the recruitment rules but no such amendment shall affect the selection process which had already commenced prior to the amendment unless the amendment is made retrospectively. In other words, if an amendment is brought about in the recruitment rules with retrospective effect, then the selection to the post shall be governed by the amended rules and no candidate can be heard to say that he has a right to be considered for appointment in terms of the Rules as they stood at the time of the commencement of the selection process.
33. In the instant case, neither the advertisement notice indicated any contrary intention, nor did the notification no.01-SLSA of 2014 dated 18.11.2014, issued by the Legal Services Authority, contain or indicate anything to show that it was intended to have retrospective effect. In fact, if one strictly goes by the grammatical construction of the language used therein, the notification says 'it is hereby ordered that in Regulation 29 of the J&K SLSA Regulations, 1998, Clause (6) shall be deleted'; the term "shall be" expresses a future tense. Ordinarily, such a construction connotes an expression of command or instruction to do a thing which, in time, definitely follows the command and/or the instruction, but is not accomplished by the command or instruction itself. In other words, the language used suggests that the act of deletion was not accomplished by the notification itself but had to be accomplished in pursuance thereof. In other words, Clause (6) was not actually deleted but was ordered to be deleted which action was to be taken as a follow up but was not actually taken. In any case, even if be interpreted by any standards that the term "shall be" used in the notification actually meant "is" or "shall stand", then again these terms would not by any standards connote or suggest a retrospective tenor therein. It is reiterated that the notification by itself does not in any manner say that that it would operate retrospectively.
34. As mentioned earlier hereinabove, as on the date, the Legal Services Authority issued its communication dated 27.11.2014, the SSB had already issued advertisement notice, conducted written examination of the competing candidates and published the result thereof.
35. In view of the above, the judgment in N. T. Devin Katti v. Karnataka PSC (supra), as quoted above, squarely covers this case. In that view of the matter the answer to the first question drawn above has to be in the negative and it is held that neither the notification no.01- SLSA of 2014 dated 18.11.2014 could operate retrospectively, nor could deletion of Clause (6) of Regulation 29 of the 1998 Regulations entitle the Legal Services Authority to withdraw the posts referred by it to SSB for selection when the posts had been advertised, written examination of competing candidates held and results thereof published.
36. Keeping in view the settled position of law laid down by the Supreme Court that a person who applies for appointment to a post in response to an advertisement, if he is eligible and is otherwise qualified in accordance with the recruitment rules governing the post and the terms and conditions contained in the advertisement, he gets a right of being considered for selection in accordance with the rules as they existed on the date of advertisement and that this limited right cannot be taken away by any authority amending the terms and conditions in the advertisement or by amending the recruitment Rules unless the amendment is made with retrospective effect, it can safely be said that the SSB was legally obliged to proceed ahead with the selection and was not obliged to close the recruitment process as had been asked for from it in terms of communication no. SLSA / Estt / 04 / 2014 / 2028 dated 27.11.2014 and the communications those followed from respondent no.2. This answer the third question raised hereinabove.
37. As seen from the facts, after the SSB finalised the selection process, drew up the select list and forwarded the same, vide communication dated 16.12.2015, to the Legal Services Authority through the Secretary to Government, Law, Justice and Parliamentary Affairs, the Legal Services Authority issued communication dated 21.02.2016 informing the SSB that the said list stands cancelled on the grounds mentioned therein. The body of the communication is quoted hereunder:
"With reference to selection list of Junior Legal Assistants issued by SSRB vide No.SSB / Secy / 2015 / 16309-15 dated 16.12.2015 and transmitted to J&K SLSA for issuance of orders in favour of selectees, I am directed to inform your goodself that the said list stands cancelled on the following grounds:
a) That Regulation 29(6) of J&K State Legal Services Authority Regulations, 1998 provided for referring of vacant posts in J&K SLSA to SSRB and amendment was carried to said Regulation and Clause (6) of the Regulation 29 of the J&K SLSA Regulation, 1998 was deleted vide notification 1-SLSA of 2014 and J&K SLSA constituted its own recruitment Board under the orders of Hon'ble Chief Justice, J&K High Court. As a result of said development SSRB was requested not to continue with the process of recruitment of JLAs and said posts were also directed to be withdrawn from SSRB. Instead of closing the process of recruitment of said posts for J&K SLSA, SSRB ignored the same and completed the process of selection of Junior Legal Assistants under the garb of order passed in the SWP No.2076/2015 by Hon'ble High Court although the order provided for completion of selection process in accordance with the rules.
b) That the said list of Jr. Legal Assistants was also found defective as divisional level officer of the intending department was not associated as a member of the divisional level selection committee, instead Director Litigation Kashmir was nominated for the selection committee who is neither from the cadre of J&K SLSA nor an officer of J&K SLSA."
38. So far as the first reasoning assigned for cancellation of the select list mentioned at (a) above is concerned, this aspect stands conclusively dealt with hereinabove. Furthermore, reference to the rules made by the learned Writ Court in its order dated 24.09.2015 while disposing of writ petition, SWP no.2076/2015 has to be read in context of the law discussed above; meaning the rules which were in vogue at the time of issue of the advertisement notice; not those which came into force pursuant to notification dated 18.11.2014.
39. Now, let me deal with the second reasoning assigned in the impugned communication dated 16.12.2015 at para (b) thereof. It is stated therein that the select list of Junior Legal Assistants was defective as the divisional level officer of the intending department was not associated as a member of the Divisional Level Selection Committee and instead Director, Litigation, Kashmir, was nominated for the selection committee, who is neither from the cadre of the Legal Services Authority nor its officer. One of the grounds taken by the petitioners in this regard as mentioned at 16(d) of their writ petition is that pursuant to Notification SRO 342 dated 22.07.2013, sub-rules (4), (5) and (6) of Rule 6 of Decentralization Rules, 2010 were amended and that, in terms of the amendment so made in the Rules, the Chairman of the SSB has been conferred the power to nominate the divisional level officer of the concerned department to be a member of the Divisional Level Committee.
40. This Court, hereinabove, while dealing with the first reasoning given in the impugned communication, has held that it is the Rules as existed on the date the advertisement was issued which are applicable and that any amendment in the Rules made subsequently would not be attracted or applicable to the selection process. The contention raised by the petitioners in the writ petition, which they relied upon during the course of their submissions at the Bar, in law, therefore, is not tenable. The reasoning supplied in the impugned communication would need to be examined on the basis of the Rules as they existed on the date the advertisement notice was issued.
41. Mr. R. N. Watal, the Member Secretary of the Legal Services Authority, submitted that since the constitution of the Selection Committee was defective and not in accordance with the mandate of Rule 6(5) of the Decentralization Rules, the selection made by the SSB is rendered illegal and, therefore, the Select List cannot withstand the scrutiny of law. He also submitted that even if the Court comes to a conclusion that the process of selection upto the stage of publication of the results of the written examination was commensurate with the law, yet, since the constitution of the Interviewing Committee was dehors the Rules, the Select List cannot be sustained and that the Court may direct denovo process of the conduct of viva voce by the SSB associating an officer of the Legal Services Authority as a Member with any such Interviewing Committee. To buttress his submission, Mr. Watal relied upon and produced the photocopy of the Division Bench judgment of the Court in two clubbed writ petitions, the lead case being Mohammad Azhar Suharwardi & ors. v. State of J&K & ors, SWP no.1639/2013, decided on 06.04.2016. In that case the select list of 24 candidates formulated by the State Public Service Commission for appointment against the posts of Court Managers was returned by the Registrar of the High Court of J&K with the observation to conduct interviews afresh in accordance with Rule 10(2) of the J&K Civil Service (Judicial) Recruitment Rules, 1967 which provided that for the purpose of conducting viva voce examination, the Commission shall request the Chief Justice either by himself or through a Judge of the Court, nominated by him, to act as an expert on the Commission. The selected candidates challenged the communication dated 14.05.2013 of the Registrar General returning the select list. The writ petitions came to be disposed of by order dated 06.04.2016 with direction to the Public Service Commission to act upon the communication dated 14.05.2013 and make selection against the posts in question by associating High Court from the stage of viva voce strictly in accordance with the aforesaid Rule. In fact, there is yet another judgment rendered by a Division Bench of this Court wherein the SSB was directed to reconstitute the District Level Selection Committee and conduct the denovo process of interviews of the competing candidates. That was a bunch of Letters Patent Appeals, the lead case being LPA no.42/2013 titled Rehana Hassan & ors. v. Gazala Massodi & ors, decided by the Division Bench on 14.05.2013 (in which I was a member and the author of the DB judgment). While upholding the judgment rendered by the learned Writ Court therein, the SSB was directed to reconstitute the Selection Committee for denovo conduct of the process of interviews. Therein the Court found that the SSB had deliberately acted dehors Rule 6(6) of the Decentralization Rules, 2010 when the concerned officers were, and could have been made, available for the Selection Committee.
42. The decision in Mohammad Azhar Suharwardi & ors. v. State of J&K & ors. (supra) is not applicable to the facts of the present case, for, the same, as would be shown hereinbelow, are distinguishable.
43. Rule 6 (5) of the Decentralization Rules, 2010, as it existed on the date of issue of the advertisement notice and even beyond the date of publication of result of the written examination conducted by the SSB, provided that the Divisional Level Selection Committee shall, inter alia, consist of a divisional level officer of the indenting department. However, there is no Division Level Committee or Authority envisaged by the 1997 Act. The 1997 Act speaks of the State Legal Services Authority constituted under Section 3 of the 1997 Act; the High Court Legal Services Committee, constituted under Section 6 of the 1997 Act; and the District Legal Services Authority, constituted under Section 7 of the 1997 Act. Resultantly, there exists no divisional level officer in the Legal Services Authority. In fact, given the object and scheme of the 1997 Act and its various provisions, the concept of the requirement or existence of a divisional level officer does not seem to be there. May be, the object of the instant recruitment process is a first step towards establishing divisional level offices comprising of lower rank employees at Kashmir and Jammu, but there is no division level officer as such provided under the 1997 Act or the Rules and/or the Regulations framed thereunder. That was not the case in Mohammad Azhar Suharwardi & ors. v. State of J&K & ors. (supra); the Chief Justice and the Judges of the High Court were readily available to fulfil the mandate of Rule 10(2) of the J&K Civil Service (Judicial) Recruitment Rules, 1967. Therefore, the judgment is wholly distinguishable on the crucial facts.
44. The fact that there exists no divisional level officer in the Legal Services Authority was fairly admitted by Mr. R. K. Watal, the Member Secretary. If that be so, as it really is, that the Legal Services Authority, i.e., the intending department, did not have any divisional level officer, what options could or were available to the SSB to constitute the Divisional Level Selection Committee. The Decentralization Rules, 2010 did not provide for or contain any alternative or solution. Obviously, there existed an incompatibility between the law and the factual scenario as they existed. This, therefore, is a situation which can attract and be dealt with only under the well recognised principles of justice, equity and good conscience. Before I come to that, I may also make mention of another aspect of the matter.
45. During the course of arguments, Mr. Hashim Hussain Learned Dy. Advocate General, made a statement that presumably the Secretary to Government, Law, Justice and Parliamentary Affairs had, at some stage, written to the SSB that the Director Litigation, Kashmir, should be associated as a Member in the Divisional Level Selection Committee for interviewing candidates for the post of Legal Assistant. On this the learned counsel representing the SSB was directed to find out if there was any such communication available with the SSB and to produce the same for perusal of the Court. The records produced by him did not contain any such communication. However, Mr. Hashim subsequently produced photocopies of three communications written by the Law Department to the SSB on the subject of constitution of Selection / Interview Committee for the post of Legal Assistants, Divisional Cadre Kashmir. These communications obviously do not relate to the posts in question. Two of these communications have been written by the Additional Secretary to Government, Department of Law, Justice and Parliamentary Affairs and the third one by Deputy Legal Remembrancer to the Secretary of SSB. Though, they were and are non-entities insofar as the matters concerning the State Legal Services Authority are concerned, yet the contents of first of these three communications bearing no. LD(Estt)2015/01/Misc dated 20.03.2015 written by Additional Secretary to Government Department of Law, Justice and Parliamentary Affairs to the Secretary of SSB lends credence to the statement made before the Court by Mr. Watal that there was some existing arrangement whereunder the Director Litigation, Kashmir, was on the Selection / Interview Committee constituted for selection of the Legal Assistants, Divisional Cadre Kashmir. The communication, insofar as relevant, is extracted below:
"Subject: Constitution of Selection/Interview Committee for the post of Legal Assistant, Divisional Cadre Kashmir.
Sir, Kindly refer your communication No. SSB / Secy / Sel / 2015 / 3370-72 dated 19.03.2015. In this connection, the undersigned is directed to inform that Mtr. Tanveer Mufti, Director Litigation, Kashmir may not be able to be a part of Interview / Selection Committee due to her ill health, as such Mr. Abdul Majeed Bhat, Special Secretary, Department of Law, Justice and Parliamentary Affairs may kindly be nominated as one of the Members in the interview / Selection Committee constituted for selection of Legal Assistant, Divisional Cadre, Kashmir."
I am not even for a second saying that what is contained or directed in the above communication was in accordance with the Rules governing the subject; I am only trying to indicate that some credence is lend to what Mr. Hashim stated before the Court.
46. So, if some arrangement of this nature did already exist at the instance of the Secretary to Government, Law, Justice and Parliamentary Affairs, who also happened to be Ex-officio Member-Secretary of the Legal Services Authority till 21.10.2015 [the date Section 3 of the 1997 Act was substituted by the Jammu and Kashmir Legal Services Authorities (Amendment) Act, 2015 (Act No.VIII of 2015)], whereby the Director Litigation, Kashmir, was directed to be associated with the Divisional Level Selection Committee for conducting interview / viva voce of the candidates for the post of Legal Assistants, in face of the fact that there existed / exists no divisional level officer in the Legal Services Authority, it can safely be said that, in the peculiar facts and circumstances of the case, the mandate of Rule 6(5) of the Decentralization Rules, 2010 cannot be said to have been offended, for, there was and is no option left with the SSB but, as of necessity, to associate a divisional level officer of some sister department with the Interviewing Committee. This case, therefore, would also attract the doctrine of necessity. It is not that even so the Legal Services Authority of its own could have arranged an officer of that particular rank and status to be associated with the Selection Committee and such a course, even if allowed, would tantamount to one and the same thing.
47. As mentioned earlier, there existed an incompatibility between the rules as they stood and the factual scenario as it is. Knowing fully well that there did not and does not exist any divisional level officer in the Legal Services Authority, the question arises would this Court still direct the SSB to conduct a denovo process of interviews / viva voce of candidates associating a divisional level officer of the intending department with the Divisional Level Committee? The answer, obviously, is no, not at all. This Court will not issue a direction which, it knows, cannot, in any case, be complied with and/or implemented. This Court also cannot direct or permit associating a State level or a District level officer of the Legal Services Authority with the Divisional Level Selection Committee. That being so, this takes the Court to the vital question whether the selections so made by the SSB could be saved on any legally recognised principle? Here the principles of justice, equity and good conscience come to play the crucial role.
48. There is and can be no dispute that the object of the recruitment process is to put the posts for selection of the candidates in the open market and to conduct the process in a fair and impartial manner, and to select the best amongst the lot. There is not even a whisper made about the fairness or impartiality maintained during the course of selection process. It is not a case where an allegation of mala fides on the part of the SSB or any of the members of the Selection Committee is attributed. The candidates, who had responded to the advertisement notice, have undergone the process of selection and have been duly selected. A right has accrued to them for being accorded due consideration to be appointed against the posts. This right of the selectees is sought to be denied to them on the ground of infraction of Rule 6(5) of the Decentralization Rules, 2010 as it then existed. Since there was no divisional level officer available with the intending department, the infraction as such is not made out. Additionally, there also appears to have been an arrangement made at the instance of the Secretary to Government, Law, Justice and Parliamentary Affairs, who also happened to be the Member Secretary of the Legal Services Authority, that in case of Legal Assistants, Director, Litigation, Kashmir, should be associated as divisional level officer with the Selection Committee. The SSB cannot be directed to conduct a denovo process of viva voce, associating a divisional level officer of the Legal Services Authority with the Selection Committee, for, the same would tantamount to issuing a direction redundant ab initio.
49. Keeping all the above facts and factors in view, I am of the considered view that the selections made by the SSB deserve to be saved on the principles of justice, equity and good conscience. Since there is no infraction of any law, rule or regulation made out or established, there being a gulf in the relevant Rule, and this Court, apart from a Court of Law, being a Court of equity, I feel it would be just, equitable and in fairness of things to hold that the Legal Services Authority was legally not justified in cancelling the select list drawn by the SSB at the close of the selection process on the presumed ground that the quorum of the Selection Committee constituted by the SSB did not conform to Rule 6(5) of the Decentralization Rules, 2010.
50. In light of all that has been discussed above, this writ petition is allowed. The impugned communication no. SLSA / Estt / R.B / 08 / 2015 / 1476-79 dated 21.04.2016, addressed by respondent no.2 to respondent no.3, is quashed. Consequently, Respondent no.2, the State Legal Services Authority, is directed to issue orders of appointment in favour of the petitioner-selectees in terms of the select list formulated by the SSB. However, the prayer of the petitioners to direct their appointment from a retrospective date is declined, for, the same is not justified on any count.
52. In view of the direction made above, the other payer made that respondent no.2 be directed not to re-advertise the posts in question is rendered redundant.
53. This also disposes of connected CMPs.
54. No order as to costs.
(Ali Mohammad Magrey) Judge Srinagar, 14.10.2016 Syed Ayaz, Secretary