Jammu & Kashmir High Court - Srinagar Bench
Zahoor Ahmad Rather And Others vs State Of J&K; And Others on 1 August, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
SWP no.888/2015 c/w SWP no.991/2015 with connected MPs Date of order: 01.08.2017 Zahoor Ahmad Rather and others Versus State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:
For Petitioner(s): Mr Z.A.Qureshi, Sr. Advocate with Ms Rehana, Adv For Respondent(s): Mr R. A. Khan, AAG for respondent no.1 Mr Hashim Hussain, Dy. AG for respondent no.2 Mr R.A.Jan,Sr.Advocate with Ms Nazima, Adv for resp.3-9 Whether approved for reporting: Yes/No
1. Advertisement Notice No.04 of 2013 dated 23rd February 2013, J&K Services Selection Board - respondent no.2 issued, inviting applications from eligible candidates for selection against a number of posts, including Technician-
III for various Districts to be appointed in Power Development Department. Prescribed qualification reflected in the advertisement notice is "Matric with ITI in relevant trade".
2. Petitioners as well as private respondents applied for the post of Technician-III. Petitioners could not find place in select list. Aggrieved thereof they have knocked at portals of this Court with writ petitions on hand imploring following relief:
SWP no.888/2015 Page 1 of 12 2
"(SWP no.888/2015) a. Mandamus, command be issued to the respondents to consider the petitioners for selection to the post of Technician III on the basis of the merit obtained by them in the process of selection vis-à-vis the candidates of their respective districts and thereafter list for their respective Districts be reframed and in case the petitioners make the merit, the petitioners be appointed accordingly to the post of Technician III so advertised in pursuance of advertisement notice No.04 of 2014 dated 23.02.2013.
b. Certiorari, quashing the list so framed for the District of Budgam, Ganderbal and Srinagar as the same has been framed and published without considering the merit position of the petitioners, in consequence thereto the selection of respondents 3 to 9 be quashed in their respective Districts so that the petitioners are appointed against those posts.
(SWP no.991/2015) a. Mandamus, command be issued to the respondents to consider the petitioners for selection to the post of Technician III on the basis of the merit obtained by them in the process of selection vis-à-vis the candidates of their respective districts and thereafter list for their respective Districts be reframed and in case the petitioners make the merit, the petitioners be appointed accordingly to the post of Technician III so advertised in pursuance of advertisement notice No.04 of 2014 dated 23.02.2013.
b. Certiorari, quashing the list so framed for the District of Budgam, Ganderbal and Srinagar as the same has been framed and published without considering the merit position of the petitioners, in consequence thereto the selection of respondents 3 to 9 be quashed in their respective Districts so that the petitioners are appointed against those posts."
3. Respondents, both official as well private, have filed reply.
4. I have heard learned counsel for parties and considered the matter.
5. Learned counsel for petitioners states that petitioners are Diploma Holders in Electrical Engineering/Electronics Engineering and have studied subjects of electric/ SWP no.888/2015 Page 2 of 12 3 electronics, while pursuing their Diploma course, which are taught to persons having ITI in electric or electronics and in terms of condition no.12 of Advertisement Notice No.04 of 2013 dated 23rd February 2013, Matric with ITI is minimum qualification for the post of Technician-III, thus, petitioners have higher and better qualification. They even sat in written test and declared successful. Thereafter petitioners appeared in interview. But they do not figure in select list. According to learned counsel, respondent Board's contention - petitioners do not possess Matric with ITI in relevant trade, the minimum qualification prescribed for post of Technician-III, are ineligible for the post - is without any substance. Learned counsel also invites attention of this Court to Syllabus of Semester System for the Trade of Electrician under Craftsmen Training Scheme (CTS) Two Years/Four Years as also Curriculum/ Information Brochure for Three Years' Diploma Programme in Electrical Engineering of Government Polytechnic College Ganderbal (Annexure D-1 & D-2 to writ petition). To buttress his arguments that he advanced, learned counsel has cited decisions rendered in Shri Krishan v. The Kurukshetra University AIR 1976 SC 376; Life Insurance Corporation of India and others v. Triveni SWP no.888/2015 Page 3 of 12 4 Sharan Misra (2014) 10 SCC 346; S. Gurmeet Singh & anr v. State & ors 2008 (II) SLJ 875; judgement dated 20th May 2010 in SWP no.2670 of 2001 titled Ajay Kumar Uttam v. State of J&K and others; judgement dated 31st March 2016 passed by the Division Bench of this Court in LPA no.28/2016 titled Mohammad Maqbool Rather & anr v. Hamid Rauf Ganai & anr.
6. Per contra, learned counsel for respondent Board states that during selection process it was observed that petitioners did not possess minimum prescribed qualification of ITI with Matric in relevant trade and, therefore, were treated ineligible and that contention of petitioners that they possess higher qualification than what was prescribed in rules and advertisement notice, is misplaced because respondent Board is bound to make selection according to prescribed qualification and anybody, who actually does not have prescribed qualification as defined in advertisement notice and rules, cannot be presumed to have prescribed qualification only because qualification possessed by him is higher than one prescribed in rules. Unless one has prescribed qualification, according to learned counsel, he cannot be declared eligible and that petitioners do not possess prescribed SWP no.888/2015 Page 4 of 12 5 qualification, they are rendered ineligible notwithstanding the fact that the subject that may be taught in ITI Course may also be taught in Diploma Course.
7. While dilating opposite side of account, learned senior counsel appearing for respondents 3 to 5 states that petitioners are not eligible for posts in question as they do not possess requisite qualification, viz. ITI in relevant trade, because relevant trade for post of Technician-III in Power Development Department would very surely be an ITI in relevant trade and not Diploma. His further contention is that even if it is assumed that to allow petitioners to participate in selection process, wrong has been committed by respondents, then that wrong cannot be justified by committing another wrong, by granting the prayer(s) beseeched by petitioners in writ petitions as ineligible candidates cannot be allowed to man the posts in question.
8. Technician-III posts in Power Development Department, vide Advertisement Notice No.04 of 2013 dated 23rd February 2013, issued by J&K Services Selection Board - respondent no.2, were sought to be filled up. Eligible candidates, aspiring therefor, including present petitioners and private respondents, applied thereto. It is not in SWP no.888/2015 Page 5 of 12 6 dispute that respondent Board issued list of disqualified candidates, in which petitioners did not figure. Thus, they were called for written test. They sat in written test. They were declared successful. As a consequence, they were called for interview, in which they appeared. However, they do not find place in select list, impugned herein. According to respondent Board petitioners do not possess minimum prescribed qualification reflected in Advertisement Notice No.04 of 2013 dated 23rd February 2013 for the post of Technician-III. Was it open for respondents to exclude the candidates, petitioners herein, after process of selection was set in motion and after petitioners were subjected to written test as well as interview? Answer thereto is always in negative. Respondent board, first of all, entertained petitioners' application forms, issued List of Disqualified Candidates, in which, it is an admitted fact, petitioners did not figure, and thereafter allowed petitioners to partake in selection process, both in written test as well as in interview. During this period, respondent Board did not find any fault with the qualification that petitioners brought with their candidature and allowed petitioners to take part in selection process. However, on 31st January 2015, SWP no.888/2015 Page 6 of 12 7 respondents, altogether, took a contrastive decision to not consider petitioners for the post in question.
9. The merit, secured by petitioners, carries a weight to earn consideration and respondents, as rightly pointed out by learned counsel for petitioners, are not justified in changing the rules after the selection process has begun. It may not be out of place to mention here that disqualification list was issued by respondent board. Petitioners do not figure therein. The reason for not having figured in the list of disqualified candidates, is that petitioners were found eligible, therefore, allowed to partake in selection process. After partaking in the process of selection, respondent Board cannot be heard saying that petitioner are not eligible to be considered for selection against the post in question.
10. Learned counsel for petitioners invites attention of this Court to Government Order no.129-PD of 1996 dated 4th December 1996, whereby 23297 posts have been created in different State Departments. In Power Development Department 5340 fresh posts have been created, which includes 3675 posts of Technician-III and 200 posts of Junior Engineer. Qualification, shown against post of Technician-III, is Matric with ITI. Worth to be seen is SWP no.888/2015 Page 7 of 12 8 qualification shown against the higher post viz. Junior Engineer, which is B.E. (Elect)/Diploma Elect. Having said so, a person/candidate, possessing Diploma in Elect., is entitled to appointment against the post of Junior Engineer, which is higher post than Technician-III. In the present case petitioners possess Diploma in relevant trade. They are, therefore, even entitled to higher post. In the event petitioners are considered and offered appointment against the post of Technician-III, they can very well man the higher post viz. Junior Engineer. For a higher post when a direct recruitment has to be held, the qualification that has to be obtained, obviously, gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of Technician-III. In that view of matter, qualification of Diploma in electrical engineering presupposes the acquisition of the lower qualification of Matric with ITI in that subject prescribed for the post, shall be considered to be sufficient for the post in question. In such circumstances, if a person, possessed of Diploma in Engineering in Electricals, can be appointed against the post of Junior Engineer, which is for all practical purposes, a much higher post than Technician-III, and in a position SWP no.888/2015 Page 8 of 12 9 to man the post of Junior Engineer, it cannot be heard saying from respondents that a person/candidate, having Diploma in Engineering, is not a fit person to man the lower post of Technician-III. Such submission of respondents, per se, is preposterous.
11. Besides above, the Jammu and Kashmir Power Development Department (Subordinate) Service Recruitment Rules, 1981, give also a contrary look to what respondents try to show. Schedule II, Part A (Executive) of the Rules of 1981 envision that the persons/officials in respondent - Power Development Department, can be considered for promotion, if he possesses Diploma in Electric / Electronic Engineering, to the post of Junior Engineer, Grade-II. Plea of respondent Board that the petitioners, who do not possess Matric with ITI, the minimum qualification for the posts of Technician-III, are ineligible for the posts of Technician-III, is found without any substance and is accordingly, rejected.
12. The Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010, was passed on 10th May 2010. The Act provides for equitable opportunities of employment in the Civil Services in the State keeping in view its complex socio-economical and geographical/ SWP no.888/2015 Page 9 of 12 10 topographical / security concerns and matter connected therewith and incidental thereto. Section 3 of the Act stipulates that the provisions of the Act shall apply to all gazetted and non-gazetted posts borne on the establishment of any department or service of the Government. This was followed by notification of the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010, notified vide Notification/SRO 375 dated 21st October 2010. Rule 11 envisages procedure for referring of vacancies. It stipulates that the requisitioning authority shall refer vacancies meant for direct recruitment to the nodal agency for selection of candidates for appointment to the posts and while referring the vacancies, relevant recruitment rules shall be adhered to by requisitioning authority. Rule 14 envisions procedure for preparation of select lists by the Board. The Board is to ordinarily restrict the number of applicants for oral and/or written test to at least five times the number of vacancies on the basis of academic merit in the qualifying examination converted into points on pro rata basis out of the total points allocated for the basic eligibility/ qualification and grant weightage for higher qualification to be allowed in the manner and to extent as the Board SWP no.888/2015 Page 10 of 12 11 may deem appropriate for according due consideration to the merit and proficiency in higher qualification. It is provided that the committee may conduct written test for shortlisting the candidates for admission to oral test and for purpose of selection of candidates.
13. Certain amendments were made in J&K Civil Services Decentralization and Recruitment Rules, 2010 vide Notification/SRO 342 dated 22nd of July 2013. Sub-rule (1) of Rule 14 of the Rules of 2010 was recasted and it was provided that Services Selection Board shall hold a written test for all the eligible candidates who apply for advertised post(s) and viva-voce of eligible candidates shall not be less than three times and more than five times the number of vacancies to be filled up. The final selection shall be made by the Board on the basis of marks/points obtained in viva-voce added to the marks/ points in the written test plus the weightage that may be provided for any higher/additional/special qualification on pro rata basis. Petitioners herein, appeared both in written test as well as in viva-voce. The merit list/result has been submitted by respondent Board, reflecting therein the points/marks secured by all candidates, including petitioners. Petitioners have made mark to be selected against the posts of SWP no.888/2015 Page 11 of 12 12 Technician-III, therefore, entitled to be offered appointment by respondents.
14. For all what has been discussed herein before, writ petitions are disposed of in the following manner:
"Impugned select lists are, by writ of certiorari, quashed. As a consequence, respondent Board, by writ of mandamus, is directed to reframe the Select List according to the merit secured by the petitioners, private respondents and other candidates, and forward the same to respondent department. The respondent department, on receipt of fresh recommendations, proceed in the matter and offer appointment to recommended candidates. Let respondent Board undertake and conclude the exercise of reframing the Select List, within a period of three weeks from the date of receipt of copy of this order and respondent department, on its receipt, offer appointment within three weeks thereafter. In any case the whole exercise shall be concluded within a period of six weeks."
Disposed of.
( Tashi Rabstan ) Judge Srinagar 01 August 2017 Ajaz Ahmad SWP no.888/2015 Page 12 of 12