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Jammu & Kashmir High Court

Adan John Kohli vs State Of J&K; And Others on 30 January, 2018

             HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU
SWP No. 2840/2016
MP Nos. 01/2017 & 01/2016
                      Date of decision: 30.01.2018
Adan John Kohlivs.State &ors.
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge.
Appearance:
For the appellant/petitioner(s) :            Mr. Sunil Sethi, Sr. Advocate with
                                             Mr. WaheedChoudhary, Advocate.
For the respondent(s)                 :      Mr.D.C.Raina, Sr. Advocate with

Mr.F.A.Natnoo, Advocate.

     i.          Whether approved for
                 reporting in Press/Media           :   Yes/No
     ii.         Whether to be reported in
                 Digest/Journal                     :   Yes/No

1. This writ petition has been filed by the petitioner after she was not selected for the post of Medical Officer (Ayurvedic) for which she had applied pursuant to vacancy Notification No. PSC/DR/2016/02 dated 04.02.2016 issued by the State Public Service Commission, herein respondents 2 & 3.

2. Heard learned counsel for the parties and perused the record.

3. 45 posts of Medical Officer (Ayurvedic) in Health and Medical Education Department were advertised by respondents 2 & 3 vide Notification dated 04.02.2016 (supra). 05 posts were reserved underST category, besides reservation under other categories. Petitioner applied under ST category. Rule 51 of the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules, 1980 (for short, the Rules) lays down the criteria for assessment of the candidates at a selection process. After issuance of the vacancy Notification, respondents 2 & 3 issued Notification No. PSC/Exam/2016/48 dated 12.05.2016, whereby Rule 51 has SWP No. 2840/2016 Page 1 of 8 beenamended. The candidates were evaluated in terms of the amended rule. Respondents 2 & 3 issued Select List vide Notification No. 30-PSC (DR-P) of 2016 dated 14.11.2016. Petitioner has not been selected.Only one candidate could make it under ST category. Hence this writ petition.

4. Petitioner seeks writ of Mandamusdeclaring Notification dated 12.05.2016, whereby Rule 51 of the Rules has been amended, as ultra virus the Constitution of India being violative of Articles 14 and 16. She seeks further Mandamus commanding respondents to carry out denovo selection process strictly in accordance with the unamended selection criteria provided in Rule 51 and to award her 2 marks for the experience, which she has acquired by serving the Government Department and to select her for one of the posts under ST category.

5. Case set up by the petitioner is that at the time of the vacancy Notification, the selection process was governed by the selection criteria prescribed in Rule 51 of the Rules as it at that time was. Rule 51, which was in vogue when the selection process was initiated with issuance of the vacancy Notification (hereinafter to be referred as unamended criteria), however, was amended by respondents 2 & 3 in the middle of the selection process in a totally illegal and arbitrary manner to confer undue benefit upon their blue eyed persons and to oust the eligible and qualified candidates (hereinafter to be referred as the amendedcriteria). The petitioner and other candidates were evaluated in terms of the amended criteria and as a result, only one candidate under ST category was selected and other posts have been kept as backlog. It is contended that change in selection criteria in the middle of the selection process is illegal and therefore, selection process completed in terms of the amended criteria is bad in the eye of law.Contextually, it is contended that the vacancy notification did not containthe selection criteriaas the same was SWP No. 2840/2016 Page 2 of 8 formulated much after issuance of the said notification. The amended criteria and selection on the basis thereof is challenged also on the ground that the Government, General Administration Department, vide Circular No. 17 GAD of 2016 dated 14.03.2016 has clarified that Rules or Regulations always have prospective effect and cannot be applied retrospectively. A specific objection to the amended criteria raised is that it has raised the required percentage of points for reserved category candidates including ST category from 40 to 45 points without corresponding revision for the candidates in open merit, which offends Articles 14 & 16 of the Constitution and the amendedcriteria, therefore, is illegal, discriminatory and violative of the fundamental rights of the petitioner. Another specific plea taken is that in the unamended criteria points up to 03 were earmarked for experience against the post in Government/Government recognized institutions as weightage to be calculated as 0.25 points for every completed three months. The petitioner was, thus, entitled to weightage point as she had to her credit experience against the post in a Government Department and had the selection criteria not been changed she would have been awarded 02 points on this count.

6. Respondents 2 & 3 have raised a preliminarily objection against maintainability of the writ petition on the ground that the petitioner participated in the selection process as per the amended criteria and after having failed to make her grade for being recommended for appointment in view of her lower merit has filed the writ petition on misconceived assertions. On merit, it is contended on their behalf that amendment to Rule 51 was necessitated due to SRO 438, Notification dated 11.12.2015 issued by the State Government, General Administration Department read along with its clarification issued vide Circular No. 17 GAD of 2016 SWP No. 2840/2016 Page 3 of 8 dated 14.03.2016, whereby the selection agencies have been directed to conduct a written test for all the advertised posts.

7. The baseline of the submissions made by learned Senior Advocate, Mr. Sunil Sethi, appearing on behalf of the petitioner was that amendment in the selection criteria after the selection process had commenced is illegal and entire selection process conducted and completed on the basis of the amended criteria is vitiated. Reliance was placed on Supreme Court Judgment in K. Manjusree v State of Andra Pradesh and anr, 2008 (3) SCC 512 and BishnuBiswas and ors. v U.O.I and ors, (2014) 5 SCC

774.In addition, learned counsel argued that due to the midway amendment of the selection criteria, petitioner has been deprived of 02 points, which she would have secured on account of her experience and in terms of the unamended criteria her score would have exceeded 40 points and she would have been selected. Learned counsel argued also that the Notification SRO 438 provided only for making a provision for written test whereas the amendment took away petitioner's entitlement to 02 points for experience and arbitrarily raised the cutoff point for the category candidates to 45 points from 40. In addition, learned counsel also sought benefit of decimal breaker pointing out that the petitioner has secured 39.63, points which are required to be rounded up to 40 points and in that case also she will make it to the select list in terms of the unamended criteria.

8. Per contra, learned Senior Advocate, Mr. D.C.Raina, appearing on behalf of respondents 2 & 3, argued vehemently that the selection has been conducted entirely in terms of the amended criteria inasmuch as the process commenced with the written test of all the candidates as provided under the amended criteria. The petitioner participated in the selection process held in terms of the amended criteria and after having remained SWP No. 2840/2016 Page 4 of 8 unsuccessful is not entitled to invoke the power of judicial review of this Court to challenge the amended criteria and the selection made on the basis thereof. Learned counsel cited Supreme Court judgment in Dhananjay Malik and others v State of Uttaranchal and others, (2008) 4 SCC 171. Learned counsel also pointed out that since the amendment to Rule 51 of the Rules pursuant to SRO 438 was in pipeline, it was clearly mentioned in the vacancy notification that 'the scheme of selection shall be notified separately'.

9. I would first explore the circumstances in which Rule 51 of the Rules has been amended, what in this case has been termed as the amended criteria. Rule 51, as it was prior to its amendment,does not provide for holding any written test for making selection to the posts advertised by the Public Service Commission. The assessment under the unamended criteriaused to be made on the basis of performance of the candidates in the viva voce test, their academic merit and higher qualification in the relevant subject, besides weightage for experience, distinction in sports and NCC activities and special attributes. The State Government by virtue of Notification SRO 438 (supra) in exercise of powers conferred by Section 124 of the State Constitution, however, issued a direction to all the selecting agencies to hold written test for recruitment to all Gazetted and subordinate services. SRO 438 is reproduced in its substance:

                    "         Notification
                              Jammu, 11th December, 2015
                    SRO 438. - In exercise of the powers, conferred by

Section 124 of the Constitution of Jammu and Kashmir, the Government hereby directs that in all Gazetted and Subordinate Services Recruitment Rules governing different services/posts under the Government, except where written test has already been provided therein, the following proviso shall be inserted at appropriate place in the rule relating to qualification and method of recruitment, namely:-

"Provided that the selection agency shall conduct a written test for all advertised posts and the marks/points obtained by the participating candidates shall be apportioned proportionately against the marks earmarked for written test in the selection criteria. On the basis of merit obtained by the candidates in the written examination, the Selection Agency shall conduct an oral test which may be restricted to five times the number of vacancies advertised. The Selection Agency shall therefore, prepare a selection list based on the merit obtained by the candidates in the written and oral test."

By order of the Government of Jammu and Kashmir."

10. By virtue of Circular No. 17-GAD of 2016 dated 14.03.2016 (supra) which has been cited by each side in its support, the Government issued clarification in reference to SRO 438 to the effect that "Notification SRO 438 of 2015 has been issued on 11th December, 2015 and shall have a prospective effect. This Notification will be applicable to the selections made after issuance of this Notification and the selection process already initiated before issuance of this Notification is to be conducted as per rules in vogue before issuance of Notification SRO 438of 2015."

11. Combined reading of Notification SRO 438 of 2015 dated 11.12.2015 and the Circular No. 17-GAD of 2016 dated 14.03.2016 would make it clear that the Government in exercise of its powers under Section 124 of the State Constitution has made written test mandatory for making selection to all Gazetted and Subordinate services and the selection agencies have been directed accordingly. The written test so mandated is applicable to all the selections made after the date of issuance of the SRO,that is, 11.12.2015 and is not applicable to the selection processes initiated prior thereto. The vacancy Notification in question was issued on 04.02.2016, that is, after coming into force of SRO 438 on 11.12.2015 and therefore, it had become indispensable for respondents 2 & 3 to hold a written test to commence with the selection process. The amended criteria primarily SWP No. 2840/2016 Page 6 of 8 incorporates the provision for holding written test carrying 60 points and readjustment of the points provided for viva voce test and on other counts. Significantly, weightage for experience against post, which valued up to 03 points in unamended criteria has been done away in the amended criteria provided after amendment of Rule 51.

12. In view of the mandate of Notification SRO-438, the clarification provided by Circular No. 17-GAD of 2016 and having regard to the date of the vacancy Notification and the nature of amendment effected to Rule 51 of the Rules, I would have no hesitation in holding that the amendment was necessitated because of the said SRO inasmuch as it was impossible to hold selection without making a provision for written test and was not a device to help some blue eyed persons or to weed out the meritorious candidatesas alleged by the petitioner. Here it is important to note that the vacancy Notification dated 04.02.2016 had made it clear that the Scheme of Selection shall be notified separately. This supports the plea taken on behalf of the respondents 2 & 3 that amendment to Rule 51 in compliance to SRO 438 read with Circular No. 17-GAD of 2016 was in-offing and the selection process had to commence with holding the written test. The amendment came to be effected shortly after the vacancy notification followed by Circular No. 17-GAD of 2016. Since the amendment was necessitated due to a statutory direction issued by the Government and indication in this regard was duly given in the vacancy Notification in terms that the "scheme of Selection shall be notified separately," it cannot be taken as a case of changing the selection criteria after commencement of the selection process,also because selection process in effect had to start with making a provision for holding the written test. The case law relied upon on behalf of the petitioner, therefore, would not apply in the fact situation of this case, to say briefly, as the selection criteria cannot be said to have been changed after commencement of the selection process.

13. There is another aspect, which is important too. It is not disputed that the petitioner took part in the entire selection process starting with taking part in the written test as per the amended criteria,which, besidesproviding for a written test, inter alia provided for minimum 45 percent of the total weightage for reserved categories and no weightage for experience against the post. Respondents 2 & 3 in their reply have given breakup of the points secured by the petitioner in the selection process indicating that she secured 29.00 points in the written test and 10.63 points in viva voce. The petitioner did not raise any objection to the amended criteria and availed the chance of taking part in the selection process. After having unsuccessfully participated in the entire selection process as per the amended criteria without raising any objection, the petitioner cannot be heard saying that selection criteria was changed after commencement of the selection process and challenge the amendment and the selection process on any ground arising from change in selection criteria. Legal position in this regard is well settled. [see Dhananjay Malik and ors. (supra) ].

14. The benefit of decimal breaker would be of no help to the petitioner's claim as such benefit, even if found available, would raise petitioner's score to 40 as against minimum requirement of 45 per cent of the total weightage for reserved categories.

15. For all that said and discussed above, this petition does not succeed and is dismissed.

(Janak Raj Kotwal) Judge Jammu:

30.01.2018 Pawan Chopra SWP No. 2840/2016 Page 8 of 8