Jammu & Kashmir High Court
Iftikhar Hussain Shah vs State Of J&K; And Others on 28 August, 2018
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 311/2007
IA Nos. 422/2007,
728/2008 and 01/2017.
Date of order:28.08.2018
Iftikhar Hussain Shah
Vs.
State of J&K and others
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge
Appearance:
For the petitioner(s) : Mr.Aditya Gupta, Advocate
For the respondent(s) : Mr.Aseem Sawhney, AAG for R-1
Mr.S.S.Nanda, Sr. AAG for R-2.
Ms.Garima Gupta, Advocate for R-3.
Mr.P.N.Raina, Sr. Advocate with Mr. JA Hamal, Advocate for R-7.
i/ Whether to be reported in Yes.
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. Impugned in this petition is the appointment of respondents Nos. 5 to 43 as Junior Engineers (Electrical) on contractual basis in District Doda made by respondent No.1 vide Order No 404-DCP of 2006 dated 31.08.2006, Order No. 424-DCP of 2006 dated 18.09.2006 and Order No.526-DCP of 2006 dated 27.11.2006.
2. Before I take up for consideration the grounds of challenge urged by the petitioner to assail the impugned SWP No. 311/2007 Page 1 of 20 appointments, it would be appropriate to briefly take note of the factual antecedents leading to filing of this petition.
3. Vide Notification No.03 of 2006 dated 27.06.2006 issued by respondent No.2, the applications were invited from the eligible candidates for filling up different posts including the posts of Junior Engineers (Electrical) on contractual basis for a period of one year. The break-up of the posts given in the Notification was as under :-
i. Public Works Department (Roads &Bridges)-
Junior Engineer(Electrical): 4500-7000.
Open : 01
Total : 01
ii. Power Development Department Junior
Engineer (Electrical): 4500-7000.
Open : 14
SC : 02
ST : 03
RBA : 05
ALC : 00
OSC : 01
Total : 25
The qualification prescribed for the post was as under :-
"Degree/three years diploma in Electrical Engineering from a recognized Institute."SWP No. 311/2007 Page 2 of 20
4. The petitioner claiming to hold a degree in Electrical Engineering from the University of Jammu and otherwise eligible in terms of the Advertisement Notification submitted his application form for the post-in-question. The petitioner also claims the benefit of reserved category, i.e, RBA. Besides the petitioner, several other candidates claiming to be possessed of eligibility, applied for the posts-in-question. The selection was conducted by the respondents by adopting the following selection criteria:-
(i) Weightage to the marks obtained in
diploma/degree (Pro rata) : 80 points
(ii) Weightage for viva voce : 20 points
(iii) Total : 100 points
5. The eligible candidates were interviewed by the Selection Committee in which respondent No.3 participated as an Expert Member. On the conclusion of the process of viva- voce, general merit list of the candidates was prepared and on the basis of merit obtained by the eligible candidates evaluated in terms of the selection criteria, a select list was issued in which 28 candidates in the open, 07 in SC, 09 in RBA and 01 in ALC categories came to be selected. Consequently, vide impugned order, all the 45 candidates belonging to different categories were SWP No. 311/2007 Page 3 of 20 appointed. The petitioner could not make it to the select list as he could only secured 53.56 points in the selection whereas the merit of the candidates last selected under RBA category was 56.78 marks. This is how the petitioner came to be excluded from the zone of selection.
6. Having faced exclusion from the select list and feeling aggrieved of the manner in which the selection is conducted, the petitioner is before this Court by way of instant petition. The selection and appointment of respondents No. 5 to 43 (hereinafter referred to as private respondents) has been called-in-question primarily on the following grounds :-
(i) That the entire selection is vitiated by the fact that the Expert Member in the Selection Committee, i.e., respondent No.3 was not qualified to be the member of such Committee, inasmuch as, his own son, i.e., respondent No.7 was one of the candidates participating in the selection process;
(ii) That the selection criteria adopted by the official respondents is arbitrary and discriminatory, inasmuch as, respondent No.2 has treated the degree holders and diploma holders at par for evaluating the points earmarked for academic qualification;SWP No. 311/2007 Page 4 of 20
(iii) That some of the selected candidates, more particularly, the respondents No. 5 and 6 were neither possessing a degree nor a diploma in the Electrical Engineering but were considered on the basis of their ITI certificates in the trade of Electrician, which also vitiates the selection;
(iv) That the points earmarked for viva-voce, i.e., 20 points were on the higher side and have been actually used by the official respondents to convert merit into de-merit and vice-versa;
(v) That the selection made is totally arbitrary inasmuch as for the purposes of evaluating the merit as per the prescribed criteria, in some of the cases, the marks secured in the final semester of the qualifying Examination have been taken into consideration, and in some of the cases, it is the aggregate of the marks in the qualifying Examination. This has resulted into conversion of merit into de-merit and vice-versa; and
(vi) That the notified qualification in the Advertisement Notification is degree/diploma in the Electrical Engineering but many candidates possessing qualification of degree or diploma in the Electronics and Communication, have also been selected and this vitiates the selection.SWP No. 311/2007 Page 5 of 20
7. The official respondents have filed their reply and in the reply, other than submitting that the candidature of the petitioner was considered under RBA category and was found to secure 53.56 points as against 56.78 points secured by the last candidate selected in the said category, nothing more has been said towards meeting the grounds of challenge taken by the petitioner. There is, however, a general defence taken by the respondents that the petitioner, who had participated in the selection process could not be permitted to turn around and challenge the selection criteria after having found the result of selection not favouring him.
8. With regard to the participation of the respondent No.3 as an Expert Member in the Selection Committee, it is submitted that the respondent No.3 had recused from the Selection Committee when his son was being interviewed; and merely being a member of the Selection Committee conducting selection in which his son was participating, does not vitiate the selection process. Both the respondents No. 3 and 7, i.e., father and son duo, have filed their separate set of objections.
9. The stand taken by the respondents No. 3 and 4 is that though the respondent No.3 was an Expert Member of the Committee constituted by the District Development Commissioner, Doda for interviewing the candidates, yet SWP No. 311/2007 Page 6 of 20 he voluntarily recused from the Committee when his son- respondent No.7 was to be interviewed. It is, thus, contended that the respondent No.7 has come in the select list on the basis of his overall merit, i.e., academic and viva-voce and no undue favour has been shown to him.
10. Having considered the submissions made by the learned counsel for the parties and perused the record, I am of the considered view that the selection impugned is not fully sustainable. The plea of the petitioner that presence of respondent No.3 in the Selection Committee conducting interviews of the candidates in which son of the respondent No.3 was also participating was sufficient to apprehend reasonable likelihood of bias, is not wholly without any substance. It is true, as is pleaded by the official respondents, the respondent No.3 had recused from the Selection Committee when his son respondent No.7 was interviewed but that does not mean that he had no influence over the Selection Committee and that there is no ground to assume the possibility of reasonable likelihood of bias in the selection. The respondent No.3 was an Expert Member and had a vital role to play in the selection process. He was signatory to the final select list. He very well knew that his son is participating in the selection process, yet he did not recuse from the Selection Committee altogether. After all, he was a nominated SWP No. 311/2007 Page 7 of 20 Expert and his services were indispensable. The respondent No.2 could have conveniently appointed some other Executive Engineer to serve as an Expert in the Selection Committee. The doctrine of necessity, though not specifically invoked by the respondents, is also not attracted in the facts and circumstances of the case. The mere fact that the respondent No.3 knowing fully well that his son was participating in the selection process associated himself in the selection is a reason good enough to infer reasonable likelihood of bias. Moreso, when his son ultimately got into the select list. Whether there is reasonable likelihood of bias or there is real bias are, of course, questions of fact and therefore, their existence would depend upon the facts and circumstances of the each case.
11. Most celebrated judgment dealing with the issue was rendered by the Supreme Court in the case of A.K.Kraipak and others v. Union of India and others reported in (1969) 2 SCC 282. Paragraph No.20 of the judgment which is relevant in the context of controversy raised in this petition reads thus:-
"20. The members of the selection board other than Naqishbund, each one of them separately, have filed affidavits in this Court swearing that Naqishbund in no manner influenced their decision in making the selections. In a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge.SWP No. 311/2007 Page 8 of 20
Ms bias is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion. It is not as if the records spoke of themselves. We are unable to believe that the members of selection board functioned like computers. At this stage it may also be noted that at the time the selections were made, the members of the selection board other than Naqishbund were not likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government. Therefore there was no occasion for them to distrust the opinion expressed by Naqishbund. Hence the board in making the selections must necessarily have given weight to the opinion expressed by Naqishbund.
12. While elaborating the principle of "reasonable likelihood of bias", the Supreme Court in its judgment rendered in the case of Ashok Kumar Yadav & others v. State of Haryana & others reported in 1985(4) SCC 417 in paragraph No.16 has held thus:-
"We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a Judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only SWP No. 311/2007 Page 9 of 20 be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies in increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. This was the basis on which the applicability of this rule was extended to the decision-making process of a selection committee constituted for selecting officers to the Indian Forests Service in A.K. Kraipak v. Union of India happened in this case was that one Naquisbund, the acting Chief Conservator of Forests, Jammu and Kashmir was a member of the Selection Board which had been set up to select officers to the Indian Forest Service from those serving in the Forest Department of Jammu and Kashmir. Naquisbund who was a member of the Selection Board was also one of the candidates for selection to the Indian Forest Service. He did not sit on the Selection Board at the time when his name was considered for selection but he did sit on the Selection Board and participated in the deliberations when the names of his rival officers were considered for selection and took part in the deliberations of the Selection Board while preparing the list of the selected candidates in order of preference. This Court held that the presence of Naquishbund vitiated the selection on the ground that there was reasonable likelihood of bias affecting the process of selection. Hegde, J. speaking on behalf of the Court countered the argument that Naquisbund did not take part in the deliberations of the Selection Board when his name was considered, by saying:
"But then the very fact that he was a member of the Selection Board must have its own impact on the decision SWP No. 311/2007 Page 10 of 20 of the Selection Board. Further, admittedly, he participated in the deliberations of the Selection Board when the claims of his rivals ... were considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberation of the selection board, there was a conflict between his interest and duty . ... The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased .......... There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct."
This Court emphasized that it was not necessary to establishes as but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietory interest or on account of personal reasons, such as, hostility to one party or personal friendship or family relationship with the other. Where reasonable likelihood of basis is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection."
13. This Court is also aware of the decision rendered by the Supreme Court in the case of Javid Rasool Bhat & ors v. State of J&K and others reported in 1994(2) SCC 631 wherein Supreme Court held that selection of a candidate to admission in a Medical College on the grounds of presence of his father in the Selection Board was not vitiated. In the aforesaid case, the Principal of Medical College whose daughter was a candidate for admission, had at the very outset informed the Selection Committee about the aforesaid fact and had shown his SWP No. 311/2007 Page 11 of 20 willingness to be dis-associated from the Committee when his daughter would be interviewed but the facts of the aforesaid case were entirely different. There, the member had at the very outset declared the fact that he was father of one of the candidates participating in the process of selection and other members had agreed that he would recuse when his daughter would be interviewed. There is another judgment of the Supreme Court in the case of Jaswant Singh Nerwal v. State of Punjab and others reported in 1991 Supp. (1) SCC 313, wherein also the Supreme Court has toed the similar line. The facts of both the cases are different and distinguishable. In the instant case, the presence of respondent No.3 in the Selection Committee was not indispensable. He was only a nominated Expert in the Committee and could have very conveniently recused from the selection process. With the equal convenience, respondent No.2 could have replaced him by other Expert. It is true that during the period his son was interviewed, he was not present in the Selection Committee and had recused but the fact remains that he sat with other members of the Committee for interviewing the rest of the candidates. He was party to the modalities worked out by the Committee to evaluate the candidates in the interview. It is he, who was party to the interview for other candidates who were competing for the limited SWP No. 311/2007 Page 12 of 20 posts-in-question along with his son. To top it all, respondent No.3 being an Expert in the Selection Committee was expected to wield clout on other members and was in a position to influence the selection. In these circumstances, to say that there is no material to infer the reasonable likelihood of bias, is not acceptable. This is, moreso, when this Court finds that two different yardsticks were applied by the Selection Committee to evaluate the academic merit of the candidates in terms of the selection criteria. In the case of some candidates, the marks of the last semester/last year of the degree or diploma were taken into consideration whereas in case of others, the aggregate marks of the candidates in the degree/diploma were taken into account. In the case of respondent No.7, marks of the final year of the degree, i.e., 974 out of 1500 which comes to 64.93% were taken into consideration. Whereas, in the cases of many others, the aggregate percentage in the degree/diploma have been taken into consideration. Had the official respondents taken the aggregate marks of the respondent No.7 in the degree, i.e., 3610 out of 6000 which comes to 60.16%, the petitioner would not have made it to the select list. By taking into consideration the marks obtained by the petitioner in the final year of the B.E. degree, the merit of the petitioner as per selection criteria was evaluated as SWP No. 311/2007 Page 13 of 20 51.95% (This is worked out of 80 points). If the aggregate marks obtained by the petitioner in all the four years would have been taken into consideration, the respondent No.7 would have got 48.13 points. He has been awarded 12 points in the viva-voce and this would have taken his merit to 60.13 points in the open merit, whereas the candidate last selected in the open merit had got 60.16 points. This would have naturally ousted the petitioner from the zone of consideration.
14. Viewed thus, this Court is in agreement with the petitioner that association of respondent No.3 as an Expert Member in the selection process has given rise to the assumption of reasonable likelihood of bias. The selection of respondent No.7 is, thus, vitiated and cannot be sustained.
15. Next contention of learned counsel for the petitioner that by treating the degree holders and diploma holders at par, the official respondents have acted arbitrarily and have actually discriminated with the candidates possessing higher qualification is without any substance. When Advertisement Notification prescribes the minimum eligibility qualification for the post as degree/diploma and treat the same at par, the Selection Committee could not have gone beyond the terms of the Advertisement Notification and granted extra weightage SWP No. 311/2007 Page 14 of 20 to the degree holders. The diploma in Electrical Engineering was provided as an alternative/equivalent qualification for the post. There is, thus, no discrimination in equating two qualifications for the purposes of evaluating the merit as per selection criteria earmarking 80 points for the purpose.
16. From the perusal of the records, it is evident that respondents Nos. 5 and 6 neither possess the degree nor diploma qualification in Electrical Engineering. The qualification certificates of both the respondents Nos. 5 and 6 have already been placed on record, a perusal whereof would show that they hold ITI certificates in the trade of Electrician which qualification by no means can be held equivalent to the degree and diploma in Electrical Engineering. The respondents 5 and 6 were, thus, ineligible and were wrongly selected and appointed. Their selection and appointment is vitiated and deserves to be quashed.
17. The contention of the petitioner that reserving 20 points out of 100 points viva-voce was on the higher side and has actually resulted into converting merit into demerit and vice versa is also not sustainable in view of the settled legal position on the subject. I have gone through the general merit list of the candidates, who were interviewed by the Selection Committee and do not find SWP No. 311/2007 Page 15 of 20 any such pattern, which would conclusively suggest that the merit has been converted into demerit and vice versa.
18. The contention raised on behalf of petitioner that for the purposes of evaluating academic merit, no uniform procedure was adopted, is also not without substance. After having gone through the record carefully, it is found that in case of some of the selected candidates, the marks of last semesters/final year of BE/diploma qualification have been taken into consideration for evaluating the academic merit, whereas in the case of others, the aggregate marks of all the four years of the degree or three years of the diploma have been taken into consideration. No reasons are coming forth to indicate adoption of this non-uniform procedure.
19. During the course of arguments, learned counsel for respondent No.7 passed on the marks card of BE examination of respondent No.7. On perusal, it is found that if the aggregate marks of all the four years are taken into consideration, the total percentage of marks obtained by respondent No.7-Sandeep Gupta comes to 60.16%, but if only the marks obtained by respondent No.7 in the final year are taken into consideration, the same would come to 64.93 points. As already noted, had the aggregate marks of respondent No. 7 been taken into consideration, he would have not made it to the select list. This could be SWP No. 311/2007 Page 16 of 20 true about other candidates as well. Once the Advertisement Notification prescribes degree or diploma in Electrical Engineering as the minimum qualification and the selection criteria adopted provides that the academic merit of the candidates in degree/diploma shall be calculated as per 80% points out of the 20% points earmarked in the selection criteria, how could the respondents of their own taken into consideration only the marks obtained by the candidates in the final year of such degree/diploma. The mode and manner in which the evaluation has been done by the Selection Committee tantamount to arbitrariness. Needless to say that arbitrariness is antithetic to equality and therefore, violates Articles 14 and 16 of the Constitution. This ground itself is sufficient to vitiate the whole selection process in question.
20. This brings me to the last contention raised on behalf of petitioner that the candidates possessing the qualifying degree/diploma in Electronic and Communication could not have been considered and selected in the selection process. It is contended that the Advertisement Notification prescribes only the degree/diploma in Electrical Engineering as the essential qualification and Selection Committee could not have provided the qualification different from the one prescribed in the SWP No. 311/2007 Page 17 of 20 Notification and selected the candidates not possessing the qualification indicated in the Advertisement Notification. Argument raised on first blush appears to be attractive but on close scrutiny is found to be without any substance. True it is, that minimum qualification prescribes in the Advertisement Notification is degree/diploma in Electrical Engineering but in the terms and conditions of appointment laid down in the Advertisement Notification itself, it is provided that a contractual appointee shall be in the matter of age, qualification, discipline, conduct and other allied matters governed by the recruitment rules and orders in vogue in the state civil in general. It would not be out of place to reproduce Clause 4 (viii) of the Advertisement Notification here under:-
"4(viii). A contractual appointee shall be in the matter of age, qualification, discipline, conduct and other allied matters governed by the recruitment rules and orders in vogue in the state civil in general."
21. As per the J&K Power Development Subordinate Services Recruitment Rules, 1981, the minimum qualification prescribes for the post of Junior Engineers is degree/diploma in Electrical/Electronic and Communication Engineering. That being so, the Selection Committee committed no illegality in considering the candidates possessing the qualification of degree in SWP No. 311/2007 Page 18 of 20 Electronic and Communication. This ground of challenge, therefore, fails.
22. In view of the facts and circumstances and the reasons given herein above, the appointment of respondents 5 to 43 cannot be wholly sustained. The selection and appointment of respondents 5 and 6 has already been held to be bad, the same shall, therefore, stand quashed. Similar is the fate of respondent No.7 whose selection and appointment is also vitiated and shall be deemed to have been quashed. The respondent No.2 shall re-evaluate the academic merit of all eligible candidates who had participated in the selection process by taking into consideration the aggregate of the marks of all the years of degree/diploma, as the case may be. The marks given by the Selection Committee in the viva-voce shall, however, remain the same. The merit of eligible candidates shall be re-worked and determined afresh and select list shall be re-drawn. Those of the appointed candidates, who will still make it to the select list, shall not be disturbed, whereas those who on re-determination of the merit fall short of requisite merit to be in the select list, shall be ousted. The new candidates, if any, coming in the selection zone, shall be offered the appointment retrospectively with effect from the date the private respondents were appointed with all consequential SWP No. 311/2007 Page 19 of 20 benefits minus the monetary benefits. Let the exercise, as directed above, be undertaken and concluded within a period of eight weeks from the date the certified copy of this order is made available to respondent No.2.
23. Disposed of as above along with connected MP(s).
Jammu (Sanjeev Kumar)
28.08.2018 Judge
(Madan-PS)
SWP No. 311/2007 Page 20 of 20