Jammu & Kashmir High Court - Srinagar Bench
Gazala Masoodi And Others vs State And Others on 4 December, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP NO. 1506 of 2012 CMP No. 2436 of 2012 CMP No. 3357 of 2012 CMP No. 3318 of 2012 CMP No. 3319 of 2012 CMP No. 3422 of 2012 Gazala Masoodi and others Petitioners State and others. Respondents !Mr. Z. A Shah, Advocate Mr. Asif Maqbool, Advocate ^M/s S.A.Naik, Advocate Mr. S. N. Ratanpuri, Advocate Mr. M. A. Qayoom, Advocate Mr. FA Bhat, Advocate Mr. B.A.Khan, Advocate Mr. F.A.Parray, Advocate Mr. B.A. Tak, Advocate for applicant in CMP No. 3357 of 2012 Mr. OwaisGeelani, Advocate for applicant in CMP No. 3422 of 2012 Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date:04/12/2012 : J U D G M E N T :
1. Considered.
2. The main contentions of the learned counsel for the petitioners for annulling the select list are :
(a) that the aspiring candidates of District Kupwara for the posts of teachers (District Cadre, Kupwara) formed one class so interview of all the candidates who were called for interview should have been conducted only by the members of District Level Selection Committee constituted for District Kupwara, but interview has been conducted by three Committees, as a result thereof, rule of uniformity has been offended rendering interview process as invalid;
(b) that the constitution of third Committee is in violation of the statutory rules;
(c) learned AAG contended that the replacement of the Convenor for 20.06.2011 and 21.06.2011, the dates of interview was circumstantial as the mother of the earlier Convenor Mr.Shabir was hospitalised; and
(d) constitution of the Committee at Central Level was necessary in view of the representations and Court directions to conduct the interview of the candidates of all the Districts.
3. Learned counsel appearing for the respondents would contend
(a) that the select list under challenge is provisional, open to objections, therefore, writ petition is premature; and
(b) the petitioners have participated in the process of interview but have failed to make the grade, now it is not open for them to turn around and to say that the interview process was bad.
4. On perusal of the respective pleadings of the parties, admitted position as has emerged is that vide Advertisement Notice No.07 of 2010 dated 12.11.2010 for supplying 5845 posts of teachers in the Districts of Jammu and Kashmir, the applications have been invited by respondent-Service Selection Board (hereinafter for short referred to as Board). For District Kupwara, 563 posts were to be supplied with following break up:-
i) O.M. (Open merit) : 322
ii) S.C. (Social Caste) : 46
iii) S.T. (Scheduled Tribe) : 56
iv) R.B.A. (Resident of Backward Area) : 112
v) A.L.C. (Actual Line of Control) : 17
vi) O.S.C. (Other Social Caste) : 10
5. As against the said posts, the candidates belonging to District Kupwara were only to be considered subject to eligibility, except for the candidates belonging to reserved categories. The criteria for the selection was notified as under:-
i. 10+2 - 25 points (on pro-rata basis)
ii. Graduation - 10 points (on pro-rata basis)
iii. ETT/NTT - 05 points (on pro-rata basis)
iv. B.Ed. - 15 points (on pro-rata basis)
v. Post Graduation - 10 points (on pro-rata basis)
vi. M.Ed. - 10 points (on pro-rata basis)
vii. M.Phil - 02 points (across the board)
viii. Ph.D. after M.Phil. - 03 points (across the board)
Or Ph.D (direct without M.Phil)
- 05 points (across the board)
x. Viva voce - 20 points (across the board).
Total = 100 points.
6. For selection to the said posts of teachers, process in accordance with the provisions of the Jammu and Kashmir Civil Services Decentralization and Recruitment Act 2010 (hereinafter referred to as Act of 2010) and the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules 2010 (hereinafter referred to as Rules of 2010), seems to have been initiated.
7. Section 4 of the Act of 2010 provides for constitution of District, Divisional and State cadre of the services to be organized on department basis.
8. Section 5 of the Act of 2010 provides for mode of recruitment, which envisages that the appointment to District, Divisional and State cadre posts shall be made by the competent authority on the basis of selection made by the Public Service Commission or the State Service Selection Board, as the case may be.
9. Rule 6 of Rules of 2010 provides for constitution of Services Selection Board, and sub rule 3 of Rule 6 provides that the Board shall have a three tier setup as under:-
(i) State Level Selection Committee for making selection to State Cadre posts;
(ii) Divisional Level Selection Committee for making selection to the Divisional Cadre posts; and
(iii) District Level Selection Committee for making selection to the District Cadre posts.
10. For the purpose of present case, sub rule 6 of Rule 6 of Rules of 2010 is relevant to be quoted as under:-
(6). The District Level Selection Committee shall consist of-
(i) Chairman or a member of the Board to be nominated by the Chairman Convene r
(ii) District head of the indenting office/Department (not more than one) Member
(iii) One officer of, or above, the rank of Deputy Secretary to Government in the General Administration Department.
Member
11. In keeping with the scheme of sub rule 6, the Board has constituted District Level Selection Committee comprising of Mr.Shabir Ahmad Kanth (Member of Service Selection Board as Convener; (ii) Mr.QasimWani, Dy. Director Employment, Kupwara (Member Secretary); and (iii) Ghulam Muhammad Kumar, Head of Department, District Institute of Education and Trainings, Kupwara (Member).
12. The interview of general category candidates was held w.e.f. 04.05.2011 till 21.06.2011. During the said period, Convener of the Selection Committee, Mr.Shabir Ahmad Kanth was replaced by one Gulzar Ahmed, Member Service Selection Board. The same is explained by respondents 2, 3 and 6 to 9 in their objections by stating that during the process of interview, mother of the Convener- Mr.Shabir Ahmad Kanth was hospitalised so was not able to continue with the interview process.
13. Vide communication No. SSB/N/Adm/858-59 (A)/2011 dated 20.06.2012 addressed by the Secretary, Services Selection Board, Srinagar to Mr.GulzarHussain, KAS, Member, Services Selection Board, Srinagar, it was conveyed to Mr.GulzarHussain that Mr.Shabir Ahmad Kanth is not available for interview process, for the posts of teachers District Cadre, Kupwara as he has to attend his ailing mother on 20.06.2011 and 21.06.2011 so he (Mr.GulzarHussain) shall attend the interview process in place of Mr.Shabir Ahmad Kanth on 20.06.2011 and 21.06.2011 at DakBunglow, Kupwara as Convener of the Selection Committee.
14. Subsequently, the Board received number of claims/representations of various candidates to the effect that they were not called for interview, some had represented that they missed their interviews due to some unavoidable circumstances and some had obtained Court directions, based on which the candidates whose claims were found genuine according to the Board, were called for interview vide supplementary Notification published in daily newspaper Greater Kashmir in its issue dated 22.07.2011.
15. The Board constituted a Committee comprising of following members:-
(i) Sh. B.D.Bhagat, Chairman, Service Selection Board;
(ii) Sh. Farooq Ahmad Peer, Member Service Selection Board; and
(iii) Sh. Ashok Kumar, Member, Service Selection Board.
16. The interview was conducted at the Central Office of the Board at Srinagar.
17. Finally, a provisional select list of the candidates selected for District Kupwara was notified and published in the newspaper dated 12.06.2012 inviting objections from all the concerned as against such selection.
18. The petitioners did not figure in the said select list, they instead of representing before the Board, have chosen to invoke the extra ordinary jurisdiction of this Court by filing the instant writ petition.
19. At the very outset, learned counsel appearing for the respondents, questioned the maintainability of the writ petition as being premature, but during the course of arguments, learned counsel for the parties addressed both on merit as well as on maintainability of the petition.
20. Mr.Qayoom, learned counsel appearing for some of the private respondents projected that the select list is provisional and is subject to objections. After objections, the Board has to make recommendation to the Government and then appointing authority has the power either to accept the select list or to return the same to the Board for its re-consideration as is mandate of Rule 14 of Rules of 2010.
21. Rule 14 of the Rules of 2010 provides that the respective Selection Committees 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. Huge number of candidates had applied. By adhering to sub rule 1 of Rule 14 of Rules of 2010, the candidates for interview in the ratio of 1:5 were shortlisted. Sub rule 4 of Rule 14 provides that when select list is finalized by the respective Committees, it shall be equal to number of vacancies for which requisition was made and recommend it to the requisitioning authority with prior approval of the Board. Then sub rule 6 of Rule 14 provides that appointing authority may not accept the select list received from the Board and on recording reasons can return the same to the Board for reconsideration by the respective Selection Committee, which is controlled by a condition, i.e., such action is permissible only with the prior approval in writing of the Administrative Department.
22. Learned counsel for the respondents would contend that the procedure prescribed under Rule 14, as referred hereinabove has yet to be completed, therefore, there was no occasion for the petitioners to challenge the provisional select list.
23. In support of this contention, learned counsel for the respondents placed much reliance on the judgment rendered by the Honble Apex Court in case Mrs.KundaS.Kadam and others v. Dr.K.K.Soman and others reported in AIR 1980 SC 881, wherein it is provided that the recommendation of Public Service Commission for appointment of Deputy Municipal Commissioner in Municipal Corporation of the Greater Bombay, was under
consideration of the appointing authority and after decision of the appointing authority for appointment, confirmation of the Government was required and it is only thereafter, regular appointment was made. The recommendation was challenged by the petitioners therein. The writ petition was dismissed in limine by the learned Single Judge but on appeal, the said decision was set aside by the Division Bench as the Division Bench took the view that the appellant did not possess one of the qualification, namely, 10 years administrative experience, and therefore, quashed the recommendation itself.
24. The Honble Apex Court while setting aside the judgment of the Division Bench left the matter open for Municipal Corporation of Greater Bombay to take a decision in accordance with law and it was only thereafter aggrieved parties, had the occasion to challenge the appointments. In this connection, it shall be quite relevant to quote following portion from para no.3 of the judgment:-
..We are not called upon to state what the powers of the Corporation in such a situation are. It was also open to the State Government even if the Corporation had made an appointment to confirm or not to confirm it, depending on its own view of the matter. We mention all this only to emphasis that it was too early for a writ petition to be entertained and decided on the merits.
25. Further, learned counsel for the respondents relied on the judgment rendered by co-ordinate Bench of this Court in Dr.Mushtaq Ahmad Lone v. State of J&K, reported in (2000) 7 SLR 487, wherein appointment was not challenged, only recommendation was challenged and this Court held as under:-
..The very appointment as lecturers in Medicine in the Medical Education Department of the State is not under challenge in this petition. Merely because these respondents have been panellist on the select list does not confer any right of substantive appointment on these respondents. So long this recommendation and empanelment made by Public Service Commission is not acted upon by issuance of appointment order(s), petitioners have no right to question empanelling of respondents as selectees for appointment. Viewed thus, the petition itself is premature and in any case in absence of challenge to appointment order, is not maintainable.
26. In opposition, learned counsel for the petitioners, Mr. Shah projected that the whole process of interview is vitiated for want of uniformity. According to him, three Committees had conducted the interview of the candidates and have awarded marks for interview according to their own standards when interview process is one for maintaining uniformity, standard of adjudging the merit of the candidates for awarding marks for viva must be one. The change in the second Committee and then constitution of third Committee is not only in violation to the Act and Rules of 2010 but is also tainted with malafides and on such basis challenge even to the provisional select list is permissible. In support thereof, he has placed reliance on the judgment rendered by the Honble Apex Court in case M.V.Thimmaiah and others v. Union Public Service Commission and others reported in (2008) 2 SCC 119. In the aforesaid judgment, in para 21, the Honble Apex Court has observed that normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. In para No.22, The Honble Apex Court has further observed as under :-
Keeping in view the ratio laid down by this court in several decision, now we shall examine the argument of learned senior counsel for the appellants which had been addressed. But we, may at the very outset observe that the court while considering the proceedings of the selection committee does not sit as a court of appeal. Courts have limited scope to interfere, either selection is actuated with mala fide or statutory provisions have not been followed ..
27. Now again important question for consideration is as to whether the ground of malafide or serious violation of statutory rules exists so as to maintain writ petition challenging the provisional select list.
28. In the writ petition, various allegations have been levelled so as to bring the case within the scope of malafide. On careful scrutiny and keeping in view the stand taken by the respondents by controverting the allegations of malafide, sufficient material is not on record so as to persuade the Court to opine that there has been an element of malafide. In this connection, it shall be quite relevant to quote following portion of para No.19 of the judgement rendered by the Honble Apex Court in M.V.Thimmaiahs case.
19. .. The allegation of malafide is very easy to be levelled and it is very difficult to substantiate it, specially in the matter of selection or whoever is involved in the decision-making process. People are prone to make such allegations but the courts owe a duty to scrutinise the allegation meticulously because the person who is making the allegation of animus does sometimes bona fidely or sometimes mala fidely due to his non-selection. He has a vested interest. Therefore, unless the allegations are substantiated beyond doubt, till that time the court cannot draw its conclusion. Therefore, we reject the allegation of mala fide.
29. Now coming to another aspect of the matter, i.e., as to whether there is serious violation of the statutory rules? The answer has to be in affirmative for the reasons to follow.
(a) Admittedly, selection of the teachers was to be made from amongst the candidates of District Kupwara as being District Cadre posts. The Committee for selection was strictly constituted in accordance with Rule 6 (6) of Rules 2010 but when Convener Mr.Shabir Ahmad Kant conducted the interview along with other two members from 04.05.2011, then on 20.06.2011 and 21.06.2011 in view of ill health of his mother, he was not available so was replaced by Mr.GulzarHussain as Convener of the said Selection Committee. Such change or replacement is not countenanced by Rules as awarding of marks out of 20 for viva was within the domain of the Selection Committee. Every person has his own standard of adjudging the merit of the candidate for awarding such marks. The respondent- Board no doubt projected that all the three members have awarded the marks and there has been a cumulative assessment, but it is a human nature that one can be very tough and other may be soft, one can be liberal and other cannot be so, therefore, breach of rule of uniformity.
(b) The third Committee is totally de hors the Rules. Rules of 2010, nowhere provide for constitution of such Committee. The respondent-Board in its objections has projected three types of candidates viz., (i) the candidates who due to some unavoidable circumstances missed their participation on the dates of interview, (ii) the candidates who otherwise were eligible but did not figure in the short list; and (iii), the candidates who in view of directions of the Court are to be admitted to interview.
(c) Said position emerged in all the districts of Kashmir and Jammu Divisions. It was not feasible to reassemble all the District Level Selection Committees in view of pre- occupations of the concerned officers and it is only in view of this position, a Single Committee was constituted vide Order No.132-SSB of 2011 dated 22.07.2011. The reason for constitution of the said Committee so as to conduct the interview of the aforesaid categories of candidates of District Kupwara, is totally unacceptable. The proper course for the Board was to ensure interview of the said categories of candidates only through the same Selection Committee, who had conducted the interview of the candidates from 04.05.2011 until 20.06.2011. To say that it was not feasible to reassemble the District Selection Committee in view of the pre-occupations of the officers concerned, is not a valid reason for constitution of the aforesaid Committee. Furthermore, same is constituted in breach of the statutory rules, as Rules of 2010 nowhere provide for constitution of such Committee to the exclusion of the respective District Level Selection Committee. The standard of adjudging the merit of the candidates for awarding marks in the interview has absolutely undergone a change, which in turn offends standard of uniformity.
(d) As noticed hereinabove, the mind set of each person is different, and standard of thinking and assessment varies from person to person. All the competing candidates formed one class so were to be interviewed by one Committee. They could have no claim to say that the Committee was tough or soft and standard of adjudging the position of the candidates was different because treatment would have been equal to all. When the third Committee constituted was altogether different for conducting interview of the aforesaid categories of candidates, treatment would be different, which is impermissible as selection was to be made in single process.
(e) In District Kupwara, replacement of the Convener of Committee then constitution and composition of third Committee has serious implications on the rights of the candidates because of violence to rule of uniformity.
30. While applying ratio of the law as has been laid down by the Honble Apex Court in M.V. Thimmaiah case (supra) it has to be held that constitution of the third Committee vide Order No. 132- SSB of 2011 dated 22.07.2011 is in serious violation of the statutory rules, therefore, writ petition against the provisional select list has to be maintained as it cannot be thrown out on count of being premature. Every case has to be considered in the backdrop of its own particular facts and features.
31. Learned counsel for the respondents next contended that the petitioners have actively participated in the interview, therefore, they cannot turn around to claim that they were not considered fairly. In support of this contention, learned counsel for the respondents placed reliance on judgment rendered by this Court in (A) Mahroof Ahmed and others v. State and others reported in 2012 (2) JKJ 358 (HC). In the said judgment, the position was altogether different as it was noticed that there was no element of fraud, bias, ill treatment, favouritism or any other hostility in the process of selection and it was in the same backdrop, it was held that the petitioners therein could not challenge the process of selection.
(B) Reliance has also been placed on the judgment captioned Pawan Kumar and others v. State and others reported in 2011(4) JKJ 38 (HC). In the said judgment, it was held that allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Therefore, challenge thrown to the appointment on the basis of malafide, was not accepted.
(C) Next learned counsel for the respondents placed reliance on a judgment of Honble Apex Court in TrivediHimanshuGhanshyambhaiv. Ahmedabad Municipal Corporation and others reported in AIR 2008 SCC 148, wherein challenge was thrown by the candidates, who had passed the written examination, but failed in the interview. It was held that the candidates who did not figure in the merit list, cannot challenge the select list and appointment of other selected candidates, as no malafide intention was attributed to Corporation. In absence of any material on record to show that Corporation conducted the tests in unlawful manner, the case was dismissed.
(D) In the judgment rendered by the Honble Apex Court in Om ParkashShuklav. Akhilesh Kumar Shukla and others, reported in AIR 1986 SC 1043, it is held that the candidates after participating in the Examination without protest and on realisation that they would not succeed in the Examination, had challenged the entire selection process, which was not accepted as they had participated in the said selection process, no malafide or violation of statutory rules was noticed. It was in the said background, the petition was dismissed.
32. It was not possible for the petitioners to anticipate after they were interviewed, that there would be change in composition of the Committee. So at that stage when they had participated in the interview process till then had no occasion to lodge any protest. The stand of the respondent-Board that since the petitioners have participated in the interview process, they cannot turn around to challenge the same process, is totally fallacious so is rejected as such.
33. Learned counsel for the petitioners while praying for quashment of interview process and select list relied on the judgment rendered by the Division Bench of this Court in J&K SSRB v.NeelamGupta and others, reported in 2012 (2) JKJ 268. In the reported judgment, it is held that for selection to the posts of Physical Education Teachers, a Committee was constituted. Chief Agriculture Officer, Udhampur was its member, in view of his other occupations could not continue to associate himself with the selection process and was replaced by the District Employment Officer, Udhampur. Before his replacement, some of the candidates were interviewed, such replacement was termed as change in composition of the Committee. After change of composition of the Committee, other candidates were interviewed. It was held that since competing candidates formed a class in itself so were required to be adjudged only by one Committee. The standard of adjudging the merit of the competing candidates admittedly was changed. There was no uniformity in adjudging the merit of the competing candidates, the selection process was rendered arbitrary, violative of rights guaranteed under Articles 14 and 16 of the Constitution of India.
34. The facts of the present case are not only almost similar but more weighty, therefore, by applying ratio as has been laid down by the Division Bench of this Court (supra), provisional select list is outcome of the interview process which lacked uniformity.
35. Mr.Shabir Ahmad Kanth as Convener of the Committee along with two members had conducted the interview of the candidates of district Kupwara from 04.05.2011 except for two days, i.e. 20.06.2011 and 21.06.2011 on which dates Mr.GulzarHussain and other two members conducted the interview of the candidates. Firstly, such replacement is impermissible under rules; secondly, it has caused prejudice for the reasons detailed hereinabove; and thirdly constitution of third Committee, is totally in breach of rules.
36. Interviews of the candidates who formed one class by three Committees offended the rule of uniformity and gave rise to the element of unjust treatment which in turn offends the rights guaranteed under Articles 14 and 16 of the Constitution of India.
37. In the final analysis, the interview conducted by the District Selection Committee comprising of Mr.GulzarHussain and other two members on 20.06.2011 and 21.06.2011 shall stand quashed. Similarly interview of the candidates conducted by another altogether different Committee constituted pursuant to order dated 22.07.2012 in respect of the candidates of District Kupwara shall also stand quashed. Resultantly, provisional select list impugned in this petition, is quashed.
38. Respondent-Board shall fix schedule for interview of the candidates, whose interviews were conducted on 20.06.2011 and 21.06.2011 by the Committee headed by Mr.GulzarHussain, and of the candidates, who were interviewed by the Committee constituted vide order dated 22.07.2012. The interview shall be conducted by the same District Level Selection Committee comprising of Mr.Shabir Ahmad Kanth (Member of Service Selection Board as Convener; (ii) Mr.QasimWani, Dy. Director Employment, Kupwara (Member Secretary); and (iii) Ghulam Muhammad Kumar, Head of Department, District Institute of Education and Trainings, Kupwara (Member) Thereafter, same District Level Selection Committee shall prepare the select list afresh and follow the procedure for finalization of the selection in accordance with the provisions of Act and Rules of 2010, more particularly, in accordance with Rule 14 of Rules of 2010.
39. The process of selection and appointment has remained halted; resultantly deficiency of teachers in the Schools shall have the impact on the teaching functioning of the Schools of District Kupwara. The respondent-Board shall ensure that process aforesaid is undertaken and completed within a period of six weeks and consequent upon recommendation, the appointing authority shall finalise the process of appointment thereafter within three weeks positively.
40. It is further provided that in case members of the first constituted District Level Selection Committee for any unavoidable circumstances, viz. on account of retirement or otherwise, are not now available, then the entire interview process held from 04.05.2011 shall stand quashed. Fresh District Level Selection Committee be constituted for District Kupwara in accordance with Rule 6(6) of the Rules of 2010 which shall ensure that the interview and selection at their level is concluded at an earliest.
41. Disposed of as above along with all connected CMPs.
(Mohammad Yaqoob Mir) Judge 04/12/2012 Madan PS