Central Administrative Tribunal - Jammu
Tahir Maqbool And Anr vs Health And Medical Education ... on 19 December, 2025
:: 1 :: TA 247/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
JAMMU BENCH, JAMMU (RESERVED)
Hearing through video conferencing
Transfer Application No. 247/2022
Reserved on: - 29.08.2025
Pronounced on: - 19.12.2025
HON'BLE MR. RAJINDER SINGH DOGRA, MEMBER (J)
HON'BLE MR. RAM MOHAN JOHRI, MEMBER (A)
1. Tahir Maqbool, Age: 32 years,
S/o Sh. Maqbool Hussain,
R/o Village Narol,
Tehsil Mendhar District Poonch.
2. Azher Nawaz Khan, Age: 33 years,
S/o Late Raja Mohd. Khan,
R/o Village Manyal,
Tehsil Thanamandi District Rajouri.
...Applicants
(Advocate: - Mr. Sheikh Najeeb)
HARSHIT Digitally signed by
YADAV HARSHIT YADAV
:: 2 :: TA 247/2022
Versus
1. The State of Jammu and Kashmir
through its Commissioner/Secretary,
Health and Medical Education Department,
Civil Secretariat, Jammu.
2. The J&K Public Service Commission
through its Secretary,
Resham Ghar, Jammu.
3. The Director General, Indian System of Medicines,
J&K Government, Jammu.
....Respondents
(Advocate:- Mr. Sudesh Magotra, ld. AAG, Mr. F.A. Natnoo, ld. counsel
for JKPSC)
HARSHIT Digitally signed by
YADAV HARSHIT YADAV
:: 3 :: TA 247/2022
ORDER
Per: - Rajinder Singh Dogra, Judicial Member
1. The SWP No. 2487/2016 was transferred from the Hon'ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No/247/2022 by the Registry of this Tribunal.
2. The present matter was filed before the Hon'ble High Court seeking following relief: -
a) Quashing Notification No.PSC/Exam/2016/48 dated 12-05-
2016 whereby amendment in Rule 51 of J&K Public Service Commission (Business & Procedure) Rules, 1980 has been effected to Rule 51 of the said Rules for determination of suitability of candidates for appointment the candidates from open category shall be required to score a minimum of 50% and those belonging to Reserved Categories and Physically Challenged Persons shall have to obtain a minimum of 45% out of the total weightage points earmarked for assessment in the aforesaid Rule to the extent that the said amendment was made applicable retrospectively w.e.f. 01-01-2016.
b) Commanding the respondents to select/ appoint the petitioners to the post of Medical Officers (Ayurvedic) the selection process for which was initiated pursuant to Notification HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 4 :: TA 247/2022 No.PSC/DR/2016/02 dated 04-02-2016 by taking into consideration Notification No.PSC/EX/11/44 dated 30-03-2011 whereby while effecting amendment in Rule 51 for determination of the suitability of candidates for appointment, the candidates from open category shall be required to score minimum 50% and candidates from other reserved categories were required to obtain a minimum of 40% out of total weightage points.
c) Commanding the respondents not to apply the aforesaid amendment in Rule 51 made pursuant to Notification dated 12- 05-2016 in the cases of the petitioners for their selection as Medical Officers (Ayurvedic) as the selection for the said posts was initiated pursuant to Notification No.PSC/DR/2016/02 dated 04-02-2016 much before the issuance of the aforesaid amendment.
d) Prayer for the grant of any other interim or final relief as may be deemed appropriate in the circumstances of the case."
3. The facts of the case as pleaded by the petitioners in their pleading are as follows: -
a) The applicants are permanent residents of the erstwhile State of Jammu and Kashmir and citizens of India. They possess the requisite qualifications for appointment to the post of Medical Officer (Ayurvedic) and claim entitlement to consideration in accordance with the rules governing the selection process.
HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 5 :: TA 247/2022 Applicant No.1 belongs to the ALC category, whereas Applicant No.2 belongs to the RBA category.
b) The Jammu and Kashmir Public Service Commission (JKPSC), respondent No.2 herein, issued Advertisement Notification No. PSC/DR/2016/02 dated 04.02.2016, inviting applications for filling up 45 posts of Medical Officer (Ayurvedic) in the Health and Medical Education Department. Out of these, 9 posts were earmarked for the RBA category and 2 posts for the ALC category. The applicants, being fully eligible, applied under their respective reserved categories.
c) The selection process consisted of a written examination followed by viva voce. The written test was conducted on 29.08.2016, in which the applicants qualified. Thereafter, the interview was held between 09.11.2016 and 12.11.2016. The applicants assert that they performed satisfactorily in both components of the selection process and had a legitimate expectation of being selected against the available reserved category vacancies.
HARSHIT Digitally signed by
YADAV HARSHIT YADAV
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d) The JKPSC issued the final select list vide Notification No. 30-
PSC(DR-P) of 2016 dated 14.11.2016. To the shock and dismay of the applicants, their names did not figure in the select list. It was, however, recorded in the said notification that four posts in the RBA category and two posts in the ALC category remained unfilled on the ground that candidates did not attain the prescribed minimum benchmark for determination of suitability.
e) The applicants contend that at the time of issuance of the advertisement dated 04.02.2016, the applicable benchmark for determining suitability under Rule 51 of the J&K Public Service Commission (Business and Procedure) Rules, 1980 was governed by Notification No. PSC/EX/11/44 dated 30.03.2011, which prescribed 40% minimum weightage for candidates belonging to reserved categories.
f) During the pendency of the selection process, JKPSC issued Notification No. PSC/Exam/2016/48 dated 12.05.2016, amending Rule 51 and enhancing the minimum benchmark for reserved category candidates from 40% to 45%. The said HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 7 :: TA 247/2022 amendment was declared to be effective retrospectively from 01.01.2016. As a result, Applicant No.1, who secured 42.25 points, and Applicant No.2, who secured 44.50 points, were declared unsuitable, though they would have been eligible under the earlier benchmark.
g) The applicants assail the retrospective application of the amended Rule, contending that the selection process had already commenced with the issuance of the advertisement in February 2016 and, therefore, the rules prevailing on the date of advertisement alone could govern the selection. According to them, the retrospective enhancement of the benchmark amounts to changing the rules of the game midstream, which is impermissible in law.
h) It is further pleaded that the impugned amendment resulted in reserved category vacancies remaining unfilled, despite the availability of eligible candidates like the applicants. The applicants rely upon settled legal principles that vacancies must be filled in accordance with the rules in force on the date of HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 8 :: TA 247/2022 initiation of the selection process and not by subsequent amendments having retrospective effect.
i) On these premises, the applicants seek quashment of the Notification dated 12.05.2016 to the extent of its retrospective operation and a direction to the respondents to consider and appoint them against the vacant posts in their respective reserved categories.
4. The respondents have filed their reply statement wherein they have averred as follows: -
a) The respondents, particularly JKPSC, have filed a detailed reply raising preliminary objections to the maintainability of the application. It is contended that the applicants have not demonstrated violation of any statutory or fundamental right and that participation in a selection process does not confer any vested right to appointment, except a right of fair consideration, which was duly afforded to them.
b) It is asserted that the applicants failed to secure the minimum benchmark of 45% prescribed for reserved category candidates under the amended Rule 51 of the J&K PSC (Business and HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 9 :: TA 247/2022 Procedure) Rules, 1980. Applicant No.1 secured 42.25 points in the ALC category and Applicant No.2 secured 44.50 points in the RBA category, which fell short of the prescribed benchmark. Hence, their non-selection is purely merit-based and lawful.
c) The respondents justify the amendment of Rule 51 by placing reliance on SRO 438 of 2015 dated 11.12.2015, issued by the General Administration Department, which mandated the conduct of written examinations for all advertised posts and proportional allocation of marks. In view of this policy decision, JKPSC recast the selection criteria under Rules 40 and 51 and made the same applicable to all selections initiated with effect from 01.01.2016.
d) It is further stated that the advertisement dated 04.02.2016 itself specifically provided that the scheme of selection would be notified separately, thereby putting all candidates, including the applicants, to notice that the final selection criteria was yet to be finalized. Consequently, upon issuance of Notification dated HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 10 :: TA 247/2022 12.05.2016, the amended criteria became applicable to the ongoing selection.
e) The respondents emphasize that the amended selection criteria was duly published prior to the conduct of interviews and was uniformly applied to all candidates. The applicants participated in the selection process with full knowledge of the revised benchmark and, having taken a chance under the amended rules, are now estopped from challenging the same after being declared unsuccessful.
f) It is also averred that the selection process was conducted in a transparent and rule-bound manner. A total of 848 applications were received, the written examination was conducted on 29.06.2016, results were declared on 21.10.2016, and interviews were held from 09.11.2016 to 12.11.2016. Final recommendations were issued on 14.11.2016 strictly in accordance with merit and the applicable rules.
g) The respondents deny any arbitrariness or illegality in applying the amended Rule 51 retrospectively and submit that the amendment was part of a larger policy reform applicable HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 11 :: TA 247/2022 uniformly across selections initiated from 01.01.2016. The fact that certain reserved category posts remained unfilled does not confer any automatic right of appointment upon the applicants.
h) On these grounds, the respondents pray for dismissal of the Transfer Application as being devoid of merit and substance, contending that no interference is warranted with a selection process conducted strictly in accordance with the governing rules and procedure.
5. The applicants have filed rejoinder to the reply filed by the respondents wherein they has averred has follows:
a) The applicants respectfully submit this rejoinder in response to the objections filed by the respondent-Commission. At the outset, it is reiterated that the applicants are seeking appointment to the posts of Medical Officer (Ayurvedic) pursuant to Advertisement Notification No. PSC/DR/2016/02 dated 04.02.2016, whereby 45 posts were advertised, including 09 posts for the RBA category and 02 posts for the ALC category. Despite availability of vacancies in their respective reserved categories, the applicants were excluded solely due to HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 12 :: TA 247/2022 the retrospective enhancement of the minimum benchmark prescribed under Rule 51.
b) It is an admitted position that the select list issued on 14.11.2016 records that four posts under the RBA category and two posts under the ALC category remained unfilled on the ground that candidates did not cross the minimum benchmark. The applicants submit that this situation arose not because of lack of merit or availability of candidates, but solely due to the arbitrary enhancement of the benchmark from 40% to 45% by Notification dated 12.05.2016, which was applied retrospectively to an already initiated selection process.
c) The applicants reiterate that at the time of issuance of the advertisement dated 04.02.2016, the governing rule was Notification dated 30.03.2011, which prescribed 40% minimum weightage for candidates belonging to reserved categories. Under the said rule position, Applicant No.1, who secured 42.25 points, and Applicant No.2, who secured 44.50 points, were fully eligible and within the zone of selection. The subsequent enhancement of the benchmark during the pendency HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 13 :: TA 247/2022 of the selection process has rendered them ineligible by altering the eligibility conditions midstream, which is impermissible in law.
d) The contention of the respondent-Commission that its action is based upon SRO 438 of 2015 dated 11.12.2015 is wholly misconceived and untenable. A bare perusal of SRO 438 would demonstrate that it merely mandates the conduct of a written examination and proportional apportionment of marks against the weightage earmarked for written test. Nowhere does the said SRO authorize enhancement of the minimum benchmark for determination of suitability, nor does it empower the Commission to alter eligibility criteria retrospectively.
e) The applicants submit that the respondent-Commission has misread and misapplied SRO 438 of 2015. While the Commission was required to conduct a written test and apportion marks accordingly, it exceeded its authority by increasing the minimum benchmark from 40% to 45% for reserved category candidates, without any statutory backing or rational justification. This unilateral action has resulted in HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 14 :: TA 247/2022 denial of selection to otherwise eligible candidates and has led to wastage of reserved category vacancies.
f) The plea of estoppel raised by the respondent-Commission is equally unsustainable. Participation in a selection process does not bar a candidate from challenging an illegal or arbitrary condition, particularly when such condition affects eligibility itself and is introduced after commencement of the selection process. The applicants cannot be non-suited on the ground of estoppel when their grievance strikes at the root of fairness and legality of the selection criteria.
g) It is further significant that the respondent-Commission itself, vide Notification No. 01-PSC (DR) of 2019 dated 05.04.2019, again reduced the minimum benchmark for reserved category candidates from 45% back to 40%, thereby implicitly admitting that the earlier enhancement lacked sound justification. This subsequent revision clearly establishes that the fixation of 45% benchmark was neither immutable nor based on any compelling statutory mandate.
HARSHIT Digitally signed by
YADAV HARSHIT YADAV
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h) The applicants further submit that the Hon'ble High Court,
while the matter was pending prior to transfer, had protected the interests of the applicants by restraining the respondents from advertising the vacant ALC and RBA category posts arising out of Advertisement Notification dated 04.02.2016. The said interim protection itself reflects the prima facie illegality noticed by the Court in the retrospective application of the amended rule.
i) The action of the respondent-Commission in retrospectively applying the amended Rule 51 has resulted in grave prejudice to the applicants, defeated the very object of reservation, and left reserved category posts vacant despite availability of meritorious candidates. Such an approach is arbitrary, discriminatory, and violative of Articles 14 and 16 of the Constitution of India.
j) In view of the above submissions, the applicants respectfully submit that the objections raised by the respondents deserve to be rejected. The retrospective application of the amended benchmark is illegal and unsustainable, and the applicants are HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 16 :: TA 247/2022 entitled to be considered for appointment against the vacant posts under their respective reserved categories in accordance with the rules prevailing on the date of issuance of the advertisement.
6. Heard learned counsel for the parties and perused the material available on record.
7. The present Transfer Application has its genesis in SWP No. 2487/2016, which stood transferred and registered before this Tribunal as T.A. No. 247/2022. The applicants challenge the action of respondent No.2-J&K Public Service Commission (JKPSC) in applying an amended benchmark for "suitability" under Rule 51 of the J&K PSC (Business & Procedure) Rules, 1980, in the selection initiated pursuant to Advertisement Notification No. PSC/DR/2016/02 dated 04.02.2016 for the posts of Medical Officers (Ayurvedic).
8. The applicants are graduates in Ayurvedic Medicine and Surgery.
Applicant No.1 belongs to ALC category and Applicant No.2 belongs to RBA category. Under the said Advertisement Notification HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 17 :: TA 247/2022 dated 04.02.2016, 45 posts were advertised, out of which 02 posts were earmarked for ALC and 09 posts for RBA. The applicants applied and were permitted to participate in the selection process.
9. The written test was conducted and thereafter interview/viva voce was held from 09.11.2016 to 12.11.2016. The select list was issued vide Notification No. 30-PSC(DR-P) of 2016 dated 14.11.2016. The applicants were not included. It is, however, specifically recorded in the select list that 02 posts in ALC category and 04 posts in RBA category remained unfilled as candidates did not cross the minimum benchmark prescribed for determination of suitability.
10. The applicants plead that at the time when the advertisement was issued on 04.02.2016, the field was occupied by the earlier JKPSC Notification dated 30.03.2011, under which the minimum suitability benchmark for reserved category candidates was 40% out of total weightage points. During the pendency of the selection, JKPSC issued Notification No. PSC/Exam/2016/48 dated 12.05.2016 amending Rule 51 and enhancing the reserved category benchmark to 45%, while giving it retrospective effect from 01.01.2016. The applicants secured 42.25 points (ALC) and 44.50 points (RBA) and contend that they HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 18 :: TA 247/2022 would have been selected under the earlier benchmark but stood excluded due to the retrospective enhancement.
11. The respondents, mainly JKPSC, oppose the claim contending that: (i) no vested right to appointment accrues, at best a right of consideration, which was granted; (ii) the revised criteria was notified and applied uniformly; (iii) the advertisement indicated that "scheme of selection shall be notified separately"; (iv) in view of SRO 438 of 2015 and related reforms, JKPSC recast Rule 51 and made it effective from 01.01.2016; and (v) having participated, the applicants are estopped from challenging the criteria after failing to achieve the 45% benchmark.
12. A further significant circumstance, as specifically pointed out by the applicants and not seriously disputed, is that unfilled posts (ALC and RBA) have been kept reserved by the Hon'ble High Court (in the writ proceedings) so that the subject vacancies are not disturbed pending adjudication and are not re-advertised/filled to defeat the lis. The Tribunal is, therefore, required to mould relief in a manner that
(a) cures illegality, (b) respects merit and reservation, and (c) gives effect to the protective reservation of posts by the High Court.
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13. The controversy lies in a narrow compass:
Whether JKPSC could apply the amended suitability benchmark (45% for reserved categories) retrospectively to a selection initiated by Advertisement dated 04.02.2016; and Whether the applicants are entitled to consideration/selection against the reserved category vacancies, particularly when posts were left unfilled and two posts have been kept reserved by the Hon'ble High Court.
14. It is a settled service jurisprudence principle that the rules/criteria governing a selection ordinarily must be those which were in force when the selection process was initiated, and that the "rules of the game" cannot be altered to the prejudice of candidates midstream. While an employer/selection body may refine procedure to ensure transparency, the introduction of a new eligibility/suitability threshold affecting the very zone of selection, with retrospective force, stands on a far more rigorous footing and must withstand strict scrutiny on constitutional touchstone of fairness, non-arbitrariness, and equality.
15. In the present case, the advertisement for the posts was issued on 04.02.2016. The JKPSC amendment enhancing the minimum HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 20 :: TA 247/2022 suitability benchmark for reserved categories to 45% was issued on 12.05.2016 but was purportedly applied with retrospective effect from 01.01.2016. The applicants' grievance is not a mere quarrel with assessment, but a challenge to the retrospective elevation of the minimum benchmark from 40% to 45% after initiation of selection, which has the direct effect of rendering them "unsuitable" though they otherwise crossed 40%.
16. The respondents' argument that the advertisement mentioned that the "scheme of selection shall be notified separately" does not, by itself, authorise introduction of a substantive disqualification/benchmark retrospectively. A clause indicating that scheme shall be notified separately cannot be read as a carte blanche to change eligibility/suitability in a manner that defeats legitimate expectation flowing from the prevailing rule position. The discretion to notify scheme must be exercised fairly, non-arbitrarily, and within the confines of law.
17. The further plea founded upon SRO 438 of 2015 also does not carry the respondents to the desired conclusion, for the core mandate under the said regime is introduction of written test and proportional HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 21 :: TA 247/2022 allocation of marks. Even if reforms required recasting of assessment, such policy cannot automatically validate retrospective raising of suitability threshold to the detriment of candidates already in the field pursuant to an issued advertisement, unless the enabling framework clearly permits such retrospective exclusion and the same meets constitutional tests of reasonableness.
18. The respondents also urge estoppel: that the applicants participated and, therefore, cannot challenge the criteria. This plea is not absolute. Participation may bar a candidate from challenging a process merely because the outcome is unfavourable; however, participation does not sanctify an illegality or an unconstitutional condition which goes to the root of fairness of selection, particularly where the challenge is to retrospective application of a higher benchmark which alters the zone of selection.
19. Another factor of considerable relevance is that the selection itself acknowledges that 02 ALC posts and 04 RBA posts remained unfilled for want of candidates meeting the 45% benchmark. The Tribunal cannot be oblivious to the object of reservation and the public interest in filling sanctioned posts. If vacancies were left HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 22 :: TA 247/2022 unfilled despite availability of eligible candidates under the earlier benchmark, and if the only impediment is a retrospectively enhanced threshold introduced mid-process, judicial review is not only permissible but necessary to restore fairness.
20. Most importantly, in the present matter, it has been stated that unfilled posts relating to ALC and RBA have been kept reserved by the Hon'ble High Court. The clear implication is that the lis is alive and vacancies were protected so that the applicants are not rendered remediless by fait accompli. Once posts are protected by a judicial order, the Tribunal's duty is to ensure that relief, if found due, remains meaningful and executable rather than academic.
21. For all the aforesaid reasons, this Tribunal is of the considered view that the retrospective application of the JKPSC amendment dated 12.05.2016, insofar as it enhances the reserved category suitability benchmark from 40% to 45% for this selection initiated by Advertisement dated 04.02.2016, cannot be sustained. The selection, for the purpose of determining suitability for reserved category candidates under this very advertisement, must be regulated by the HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 23 :: TA 247/2022 benchmark prevailing at initiation, i.e., the earlier benchmark of 40% as pleaded and relied upon by the applicants.
22. Resultantly, the Transfer Application is allowed in the following terms, as the best possible workable outcome while balancing equity, legality, and administrative feasibility:
a) The JKPSC Notification dated 12.05.2016 enhancing the reserved category benchmark to 45%, to the extent it is applied retrospectively to the selection initiated under Advertisement Notification No. PSC/DR/2016/02 dated 04.02.2016, is held unsustainable and shall not govern the applicants' selection under the said advertisement.
b) Respondent No.2-JKPSC is directed to re-assess/recompute the suitability and merit for the relevant reserved categories ALC and RBA, for this very selection, by applying the benchmark of 40% for reserved categories (as applicable at the time of issuance of advertisement), and to prepare a supplementary/select list against the vacancies which were left unfilled under ALC and RBA category in the selection notified on 14.11.2016.
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c) In view of the specific submission that unfilled posts (ALC
and RBA) have been kept reserved by the Hon'ble High Court, the said protected vacancies shall be utilised to give effect to this judgment. Accordingly, if on recomputation the applicants fall within the zone of selection under their respective categories, JKPSC shall recommend their names and the Administrative Department shall issue appointment orders accordingly.
d) The above exercise shall be completed within a period of 12 weeks from the date of receipt of a copy of this order.
e) Consequential benefits: on appointment, the applicants shall be entitled to notional seniority and notional benefits from the date the candidates similarly situated in the same selection were appointed, however, actual monetary benefits shall accrue from the date the applicants actually join pursuant to appointment orders. This moulding is adopted to balance equities and avoid undue financial burden while ensuring meaningful relief.
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f) It is clarified that this order is confined to the selection initiated
under Advertisement Notification No. PSC/DR/2016/02 dated 04.02.2016 and the grievance of the applicants arising therefrom; it shall not be read as a general declaration for other selections not before this Tribunal.
No order as to costs.
(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA)
Administrative Member Judicial Member
/harshit/
HARSHIT Digitally signed by
YADAV HARSHIT YADAV