Jammu & Kashmir High Court - Srinagar Bench
Nisha Musharraf & Ors vs State & on 28 September, 2021
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No.3156/2019 c/w WP(C) No. 3474/2019 & WP(C) No. 79/2020
Reserved on: 29.07.2021
Announced on: 28 .09.2021
WP(C) No.3156/2019
Nisha Musharraf & ors.
...Petitioners
Through: Mr. Z. A. Shah, Sr. Advocate, with
Ms Shiva Sharma, Advocate
v.
State of J&K & anr.
...Respondents
Through: Mr. B. A. Dar, Sr. AAG with
Mr. Bikramadeep Singh, GA.
WP(C) No.3474/2019
Imran Nazir Malik & anr.
...Petitioners
Through: Mr. M. S. Reshi, Advocate, with
Ms Shiva Sharma, Advocate
v.
UT of J&K & anr.
...Respondents
Through: Mr. B. A. Dar, Sr. AAG with
Mr. Bikramadeep Singh, GA.
WP(C) No.79/2020
Mahboob Ali Mir & ors.
...Petitioners
Through: Mr. M. Y. Bhat, Sr. Advocate, with
Mr. R. A. Bhat, Advocate.
v.
UT of J&K & anr.
...Respondents
Through: Mr. B. A. Dar, Sr. AAG with
Mr. Bikramadeep Singh, GA.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
2
Judgment
1. The grievance projected in two of these three clubbed writ petitions, viz. WP(C) nos.3156/2019 and 3474/2019, depicts a classic representation of the age old proverb of putting the cart before the horse, making suspect the genuineness of the show cause notice issued to the petitioners. So far as the third petition, WP(C) No. 79/2020, is concerned, it does not involve the question(s) of law as arise in the above two writ petitions for determination. It would, therefore, need to be de-linked to be heard separately. Consequently, whatever is mentioned or discussed in this judgment would be in relation only to the petitioners in the aforesaid two writ petitions, WP(C) nos.3156/2019 and 3474/2019.
2. The petitioners are aggrieved of and have challenged Government order no.127-IND of 2019 dated 28.06.2019 issued by the Principal Secretary to Government, Industries and Commerce Department, quashing/cancelling the selections made in the Khadi and Village Industries Board pursuant to advertisement notice no. KVIB/01 of 2016 dated 08.10.2016, about twenty months after they had been appointed on the basis of such select list. They have also challenged Order no.KVB/168 of 2019 dated 14.10.2019 issued by the J&K Khadi and Village Industries Board terminating their services.
3. The second of these impugned orders, viz. order dated 14.10.2019, vide its para 2, reveals that the petitioners were appointed on the posts mentioned thereunder, viz Executive Officer, Publicity Officer, Assistant Executive Officer and Junior Statistical Assistant, on the basis of the select list furnished by the Controller of Examination and duly approved by the competent authority. The copies of the orders of appointment appended with these writ petitions reveal that the petitioners were appointed on the respective posts on 20.02.2018.
4. Since the two petitions are clubbed together and are being dealt with by this common judgment, the relevant facts are picked and narrated from the lead case viz. WP(C) nos.3156/2019.
35. Respondent no.2, the Jammu and Kashmir Khadi and Village Industries Board (hereinafter, the Board), established and incorporated under Section 3 of the Jammu and Kashmir Khadi and Village Industries Board Act, 1965 (hereinafter, the Act), notified 06 posts of Executive Officer and 01 post of Law Officer vide advertisement notice no.KVIB/01 of 2013 dated 26.04.2013. Vide another notification no.KVIB/02 of 2013 of even date, respondent no.2 also notified 01 post of Field Publicity Officer, 13 posts of Accounts Assistant/Junior Auditor, 08 posts of Junior Statistical Assistant, 11 posts of Junior Assistant, 12 posts of Junior Supervisor, 14 posts of Orderlies and 01 post of Fieldman (Beekeeping). No further steps were taken by the Board pursuant to these advertisement notices thereafter till 2016.
6. In the year 2016, the Board, in supersession of the aforesaid two advertisement notifications, issued advertisement notice no.KVIB/01 of 2016 dated 08.10.2016 notifying 06 posts of Executive Officer, 01 post of Law Officer, 01 post of Publicity Officer, 02 posts of Assistant Executive Officer/Recovery Officer, 01 post of Field Publicity Officer, 23 posts of Accounts Assistant/Junior Auditor, 08 posts of Junior Statistical Assistant, 23 posts of Junior Assistant/Record Keerper, 23 posts of Junior Supervisor, 01 post of Orderly and 02 posts of Fieldmen (Beekeeping). In terms of Clause 17 of this advertisement notice, the candidates who had applied pursuant to the two superseded notifications did not need to apply afresh.
7. It appears that prior to issuance of the aforesaid notification, the Chairman of the Board on 04.10.2016 had accorded approval to the constitution of a selection committee, initiation of recruitment process afresh and to following the standing instructions of the Government with regard to the procedure for judging the merit of the candidates, and, had approved the criteria whereby the written Examination was allocated 60 points, viva voce 30 points and experience in the relevant field 10 points. The Chairman also approved appointment of the Secretary to Government, Law, Justice and Parliamentary Affairs, Government of J&K, as Controller of Examination to be responsible for conducting the written Examination.
48. The petitioners sought their consideration for the posts mentioned in the below table:
Petitioner WP(C) no. Post applied for Advertisement notice no. no.
1&2 WP(C) Assistant KVIB/01 of 2016 dated
No.3156/2019 Executive Officer 08.10.2016
-do
3&6 -do- Junior Statistical -do-
Assistant
5 -do- Executive Officer -do-
4 -do- Jr. Statistical KVIB/02 of 2013
Assistant
26.04.2013
1& 2 WP(C) No. Executive Officer KVIB/02 of 2013
3474/2019
26.04.2013
Thereafter, pursuant to notification no.CE/KVIB/01 dated 20.07.2017, issued by the Controller of Examinations, the petitioners appeared in the written Examination on different dates scheduled for the candidates for different posts. The list of candidates shortlisted was issued by the Controller of Examinations vide notification no.KVIB/05 dated 11.12.2017 and the petitioners in these petitions were also shortlisted. Thereafter, the petitioners were called for interview vide notice issued under endorsement no.KVIB/Adm/M-585/6779 dated 24.01.2018 by the Chairman, Interview Committee, and the petitioners appeared before the Interviewing Committee on the scheduled dates. In consequence of the selection process, the select list was publicised vide notification issued under endorsement no.KVIB/Adm/Misc-655/7252 dated 20.02.2018 whereby all the petitioners herein were shown to have been selected. On the recommendations of the Controller of Examination, the petitioners were finally appointed on their respective posts, detailed below:
Petitioner WP(C) no. Post on which Category Particulars of the no. Order appointed 1 WP(C) Assistant Executive Officer OM KVIB/444 of 2018 No.3156/2019 dated 20.02.2018 2 -do- Assistant Executive Officer OM KVIB/445 of 2018 5 dated 20.02.2018 3, 4 & 6 -do- Jr. Statistical Assistant OM KVIB/446 of 2018 dated 20.02.2018 5 -do- Executive Officer ST KVIB/441 of 2018 dated 20.02.2018 1 WP(C) No. Executive Officer OM KVIB/436 of 2018 3474/2019 dated 20.02.2018 2 WP(C) No. Executive Officer OM KVIB/438 of 2018 3474/2019 dated 20.02.2018
9. After the petitioners had joined their respective posts of appointment, the Government in the General Administration Department issued order no.462-GAD of 2018 dated 19.03.2018 constituting a three-member High Level Inquiry Committee (hereinafter, Enquiry Committee, ) under the Chairmanship of the Principal Secretary to Government, Home Department, with Principal Secretary to the Government, Health & Medical Education Department, and Secretary to the Government, School Education Department, as its two Members, to enquiry into the selection made by the Board against various posts. It is noteworthy that the Government order did not specify which selection it pertained to and which it was referring to. Nonetheless, the Enquiry Committee appears to have proceeded to enquiry into the selections made pursuant to advertisement notice no. KVIB/01 of 2016 dated 08.10.2016.
10. On receipt of the report of the Enquiry Committee, the Government issued order no.127-IND of 2018 dated 28.06.2019, whereby it ordered as under:
i) All the selections made in the KVIB pursuant to advertisement notice No.KVIB/01 of 2016 dated 08.10.2016 are quashed/cancelled.
ii) The KIVIB will provide opportunity of being heard to all the candidates appointed to different category of posts pursuant to the advertisement notice dated 08.10.2016 and fulfil all other formalities required under law before cancelling the appointments of these candidates."
11. In consequence of the above Government order dated 28.06.2019, the Secretary/CEO, KVIB, issued communications dated 24.07.2019, quoting therein 6 the above orders of the Government, to the petitioners. The communications, bearing the subject "cancellation of the selections made in Khadi and Village Industries Board (KVIB) pursuant to advertisement notice dated 08.10.2016", and reference to "Government order no.127-IND of 2019 dated 28.06.2019", contained the following operative part:
"In view of the above, you are, therefore, advised to explain your position as to why your services be not terminated as you have been appointed on the basis of a selection process which has been found suffering from various deficiencies/flaws by the committee constituted by the Government to inquire into the selections made in KVIB pursuant to advertisement notice dated 08.10.2016. Your reply must reach this office within fifteen days from the date of issuance of this notice failing which it will be presumed that you have nothing to say in your defence."
It be seen that the above operative portion of the show cause notice to the petitioners mentioned that the committee was constituted by the Government to inquire into the selections made in KVIB pursuant to advertisement notice dated 09.10.2016, whereas there is not even a whisper made in the Government order dated 28.06.2019 to that effect. Be that as it may, it appears that some of the appointees had approached this Court, and a Division Bench, by order dated 16.09.2019, passed in LPA no.196/2019, arising out of WP(C) 2381/2019, directed that the respondents shall ensure that the show cause notice dated 24.07.2019 was served afresh and appropriate opportunity was given to them to file their reply. Pursuant to the above Court order, fresh show cause notices dated 01.10.2019 were issued to the appointees. Thereafter, respondent no.2 issued order no.KVIB/168 of 2019 dated 14.10.2019 terminating the services of all the appointees.
12. The petitioners have challenged the aforesaid Government order no.127-IND of 2019 dated 28.06.2019 cancelling the selections made pursuant to the KVIB advertisement notice no.KVIB/01 of 2016 dated 08.10.2016 and order no.KVIB/168 of 2019 dated 14.10.2019 issued by respondent no.2 terminating the services of the petitioners on the grounds taken in the two writ petitions.
713. The Government in the Industries and Commerce Department, respondent no.1, of its behalf, has not chosen to file any response to the writ petition. However, the reply on behalf of respondents to the two writ petitions has been filed by Secretary/Chief Executive Officer of the Board. It is stated therein that the Industries and Commerce Department, vide Government order no.132-Ind of 2017 dated 12.06.2017, had designated the Secretary, Law, Justice and Parliamentary Affairs, as the Controller of Examination for conducting the examination for filling up of various vacancies advertised by the Board in a transparent manner, following the rules governing the subject. The interview date was notified vide notice dated 24.01.2018 to commence after two days, i.e., on 27.01.2018 which concluded on 19.02.2018. That by Court order dated 28.02.2018 passed by the High Court in writ petition, SWP no.378/2018 titled Bazil Khurshid Syed v. State of J&K, the entire selection list and appointments, if any, in regard to the post of Executive Officer pursuant to the advertisement notice dated 08.10.2016 were stayed, in compliance whereof no job was assigned to the petitioners. It is, however, averred that rest of the petitioners were working in the office of the Board until termination of their services. In para 10 of the reply filed on behalf of the respondents, it is averred that on receipt of certain complaints against the recruitment process, the Government vide order no.462-GAD of 2018 dated 19.03.2018 ordered a high level inquiry into the selections made by the Board. The enquiry committee conducted an indepth inquiry into these selections and recommended that the entire process be quashed. Accordingly, the enquiry report was accepted by the Government and after following due procedure under law, all the selections made in the Board pursuant to advertisement notice dated 08.10.2016 were quashed/cancelled by Government order dated 28.06.2019. It is further averred that sufficient time through three notices was provided to the petitioners to explain why their services be not terminated. The replies submitted by the petitioners were examined and found unsatisfactory and hence their services were terminated. It is stated that the Government did not cancel the advertisement notice. However, vide Government order dated 28.06.2019 the selections made were cancelled. Admitting the points of reference made to the enquiry committee constituted vide Government order no.462-GAD dated 19.03.2018, as referred to by the petitioners in the writ petition, it is stated that the committee was only to enquire into the complaints, procedure, methodology and deviations in selections which could be done from the 8 documents provided and that there was no need to call the appointees for the same. It is averred that as the Government challenged the legality of appointment of the appointees, Regulation 7 of the Regulations of 1998, relied upon by the petitioners, is not applicable to them. That the Board is a statutory Body enacted under the Board Act, 1965, but it is also under the administrative control of the Industries and Commerce Department and for schemes, salary, pension etc. receives funds from the Government; therefore the Government has jurisdiction to take any action which it deems fit in consonance with the rules and regulations. That the Government has power to rescind any Regulations; that the services of all the fresh appointees were terminated by the Board vide order dated 14.10.2019.
14. In para 19 of the reply, it is averred that candidates have been evaluated on the basis of written examination (60 marks) and viva voce (30 marks) on the recommendation of the Committee and that no marks were awarded to the candidates in respect of experience in the relevant field for which 10 marks had been earmarked as per approved criterion. It is stated that the Controller of Examination had asked the interview committee to allocate marks to the candidates for experience. However, the interview committee in this regard made recommendations that advertisement notification had not defined 'relevant experience' and the committee, after due deliberation, concluded that 'relevant experience' for various posts advertised by the Board could be working experience in the Board, and that none of the candidates, who had been shortlisted, had relevant experience from the Board. That candidates had approached the Court challenging therein that the term experience had been used vaguely as it was not prescribed what experience the candidates should have and which experience would be counted, and that the vagueness of the term had given arbitrary power to the selection committee and would lead to favouritism which would dislodge the meritorious candidates. The Committee had recommended that it was not in a position to assess the merit of the candidates on this count objectively and award marks to the candidates.
15. In para 20 of the reply it is stated that the Controller Examination forwarded the category-wise Merit-cum-select list to the then Commissioner Secretary to Government, Industries and Commerce Department, who, vide communication 9 dated 14.02.2018, forwarded the sealed envelope containing the category-wise merit-cum-select list for approval to the then Minister of Industries & Commerce (the Chairman of the Board) who, in turn, approved the selection list and forwarded the same through Administrative Department to the Board. It is averred that in terms of Regulation 6(ii)(b) the appointments to the service of the Board have to be made by direct recruitment/selection by a selection committee to be constituted by the Chairman from time to time and that selection criteria mentioned in the notification of 2016 was proposed by Vice Chairman and approved by the Chairman.
16. In para 23 it is averred that the shortlisting criteria notified in 2013 advertisement notice referred to 15 times the number of posts based on academic merit. The Committee had recommended shortlisting in the ratio of 1:15 as per the academic merit of the participating candidates. However, as per the notice issued in 2016, 15 times the ratio of the shortlisted candidates in written examination was based on the performance in written test. Finally, it has been averred that the Government/Administrative Department of the Board had the full authority to inquire into the appointments made by the Board and that none of the, legal, constitutional and fundamental rights of the petitioners have been violated by the respondents. It is prayed that the writ petitions may be dismissed.
17. Heard learned counsel for the parties, perused the record and considered the matter.
18. Learned counsels for the petitioners raised number of points as to the lack of power of the Government in ordering inquiry followed by cancellation of the selections and appointments made in the Board with specific reference to the relevant provisions of the Act, the Rules and the Regulations framed thereunder; non-adherence to the mandate of audi alteram partem by the Enquiry Committee constituted by the Government and by the Board; unfair and unreasonable approach adopted by the Enquiry Committee and by the Board; alleged farcicality and mechanical nature of the show cause notice issued to the petitioners by the Board in compliance to the Government order dated 28.06.2019 and consideration thereof; etc. Mr. Z. A. Shah, cited and relied upon the judgments of Supreme Court 10 in Rakesh Ranjan Verma v State of Bihar, Law Finder Doc ID # 26940 : 1992 Supp. (2) SCC 343; Patna High Court (Single Bench) in Nand Kishore Thakur v State of Bihar, Law Finder Doc ID # 854073; and of Orissa High Court (DB) in State of Orissa v Orisa Khadi, Law Finder Doc ID # 755343.
19. On the other hand, Mr. B. A. Dar, learned Sr. AAG, argued that since the Controller of Examination was appointed by the Government and the selections, as such, were made by the Government, not by the Board, the Government, therefore, had the power to cancel the selections; that no right accrues to a selectee for appointment; that the selectees were duly given notices and their replies were duly considered by the Board; and that the Government has the requisite power under Section 3 of the Act. Mr. B. A. Dar, also referred to the findings of the Enquiry Committee as reflected in the impugned order dated 28.06.2019. He also sought to derive support from the judgment of the High Court of Delhi in Pranab Baishya v UOI, MANU/DE/0176/2019.
20. It has long before been laid down by the Supreme Court in H. B. Gandhi v. Gopi Nath & Sons, 1992 Supp (2) SCC 312, that judicial review is confined to the decision-making process, and that it cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. Para 8 of the above judgment of the Supreme Court is extracted hereunder:
"8... Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."11
21. In light of the law laid down by the Supreme Court in the above said judgment, keeping in view the peculiar facts and circumstances attendant to the case in which the appointments of the petitioners have been cancelled, I think that, at first, it would be appropriate to examine whether due process and procedure has been adopted in terminating the services of the petitioners.
22. The peculiar facts and circumstances are axiomatic from the operative part of Government order no.127-IND of 2019 dated 28.06.2019 which reads as under:
"NOW, THEREFORE, it is hereby ordered that:-
i. All the selections made in the KVIB pursuant to advertisement notice No.KVIB/01 of 2016 dated 08.10.2016 are quashed/cancelled.
ii. The KIVIB will provide opportunity of being heard to all the candidates appointed to different category of posts pursuant to the advertisement notice dated 08.10.2016 and fulfil all other formalities required under law before cancelling the appointments of these candidates."
23. There is no denying the fact that the appointments in question made by the Board were founded on the selections made pursuant to advertisement notice No.KVIB/01/2016 dated 08.10.2016. The Government, rightly or wrongly, vide clause (i) of the operative part of the impugned order, quoted above, quashed and cancelled the selections. So, in fact, in effect and in essence, the Government removed the foundations of the appointments of the petitioners made by the Board on the recommendations of the Controller of Examination appointed by the Government itself. Then vide clause (ii) of the operative part of the order, the Government proceeded to direct the Board to provide an opportunity of being heard to all the candidates appointed to different category of posts before cancelling their appointments. The first thing that strikes the mind is that once the selection list was cancelled by the Government and the foundations of the appointments of the petitioners were removed, the direction to the Board to provide opportunity to the appointees of being heard before cancelling their appointments, obviously, has been nothing more than an empty formality, farcical and lip service to the celebrated principle of affording opportunity of being heard before coming to a conclusion. The fact of the matter is that insofar as, in terms of clause (i) of the operative part of the impugned order dated 28.06.2019, the Government quashed and cancelled the selections, the conclusion to terminate the 12 services of the petitioners had already been drawn and arrived at, therefore, the direction given in clause (ii) of the operative part of the order, that the Board will provide opportunity of being heard to all the appointees before cancelling their appointments, was inconsequential, immaterial and, as a matter of fact, a farce exercise. This procedure adopted by the Government is akin to hanging a person and then seeking to tell him to show cause why he be not hanged. Such a course has clearly violated the right to hearing of the petitioners, the right recognised by the Government itself in the very same order. The impugned order on this ground alone is rendered highly unfair, mechanical and arbitrary.
24. Furthermore, a bare perusal of the plain language used and contained in the operative part of the order makes it manifest that the Government did not only quash and cancel the selections made in the Board pursuant to advertisement notice in question, but in clause (ii) thereof, by use of the words 'before cancelling the appointments of these candidates', in unambiguous terms, ordered the Board to cancel the appointments of the candidates. Given the fact that the Government disclosed its mind and intention vide the clause (i) of the operative part of the order, and reading it conjointly with what was said in clause (ii) thereof, as quoted above, it becomes manifest that the Government conveyed its decision and direction to the Board to, in any case, cancel the appointments of the petitioners. Thereby also, the direction contained in clause (ii) of the operative part to provide opportunity of being heard to all the candidates is rendered false, farce and sham, violating the right to hearing of the petitioners, recognised by the Government/respondents themselves in the order. In consequence of the above, the show cause notices issued by the Board to the petitioners suffer from the same vices of unfairness and arbitrariness.
25. Mr. B. A. Dar, learned Sr. AAG, representing the respondents, sought to invoke the ratio of the judgments of the Supreme Court which lay down that a selectee does not get a right to appointment. Strictly speaking, the principle of law is not attracted to the facts of the present case. Here the petitioners stand already appointed and they are not mere selectees, but are appointees. He further argued that the petitioners, being on probation, could be removed from service anytime by the employer. Therefore, there was nothing legally wrong in the impugned orders. In this regard it would suffice to say that there are entirely different grounds and reasons envisaged and recognised by law on the basis of which a probationer can be 13 removed. None of those grounds and/or reasons, admittedly, is available in the instant case or is attributed to the petitioners. The judgment of the Supreme Court in Pranab Baishya v UOI (supra) does not help him. In fact, if this Court proceeds by the observations made in para 2.2 thereof, the judgment may go against him and may invite such observations against all those at the helm as may not be to his liking and as this Court certainly refrains from making. Nonetheless, let paras 2.2 and 2.3 of the judgment be quoted hereunder. It reads thus:
"2.2. In the present case, it is seen that the trigger for the letters cancelling the appointments of the Appellants was the report of the enquiry committee instituted to examine the irregularities in the process of appointment of Lecturers to the NCCT. The enquiry report has been examined earlier. In particular the enquiry report made a reference to the irregularities actually noticed. If one carefully peruses each of the instances of irregularities, some of them do not touch upon the honesty, integrity and conduct of the Appellants themselves. For instance, the failure to submit photographs along with the applications or the failure to devise a proper system for receiving applications or the failure to properly screen the documents submitted by the Appellants are all matters not involving the Appellants themselves. These were lapses on the part of the administration.
2.3 It was for this reason the learned Single Judge had correctly observed in the order dated 7th August 2013 that merely because some persons may be disqualified, lack requisite eligibility criteria or there are grave charges against them it could not mean that the candidature of other successful candidates against whom thee are no allegations will also stand cancelled. This was also the reason why by the said order the learned Single Judge had directed the Respondents to file an additional affidavit pointing out how each of the petitioners do not meet the qualifications/eligibility criteria'. If any of them was wrongly selected then such additional affidavit was required to satisfy the reasons in each of their cases."
26. In the instant case, the impugned Government order dated 28.06.2019 reveals and records that complaints of different nature regarding these selections/appointments were made by several candidates alleging therein that:
i) the admit cards could not be downloaded by some candidates with the result they were unable to participate/appear in the written test;
ii) the ratio of 1:15 for viva voce / interview was irrational and fixed to help the blue eyed candidates;
iii) fixation of 30 marks for viva voce / interviews was irrational;
iv) fixing of 10 marks for experience was unjust and unfair;
v) no weightage was given to the experience for which 10 marks were earmarked in the advertisement notice; and that
vi) merit position was not notified and higher weightage given to the interview marks has converted the merit into demerit and vice versa.14
It is the case of the respondents that in consequence of the above, the Government, vide order no.462-GAD of 2018 dated 19.03.2018, constituted a committee headed by Mr. R. K. Goel, IAS, Principal Secretary to Government, Home Department to enquire into these selections. The terms of reference to the committee were:
i) Enquire into the complaints relating to the alleged unfair selection made by the J&K Khadi and Village Industries Board against various posts;
ii) Determine as to whether proper procedure as laid down in the relevant rules have been followed, as has been done by the other recruiting agencies or not;
iii) Enquiry into the methodology in selecting the agency(ies) for setting the question, evaluation process etc; and
iv) Ascertain whether any deviation has been made in the selection process from advertising the posts to the release of selection lists.
According to the Government order, the committee after conducting detailed enquiry submitted its report to the Government observing therein that:
i) an agenda item was placed before the Board of Directors on 03.10.2017 regarding criteria for selection against the posts advertised vide advertisement notice dated 08.10.2016;
ii) it is not forthcoming from the records whether the decision of the Board of Directors meeting held on 03.10.2017 was suitably conveyed to the Controller examination for appropriate action;
iii) there was very little notice period provided to the candidates particularly appearing in the interview for the post of Jr. Supervisor, Accounts Assistant/Jr. Auditor, Executive Officer, Assistant Executive Officer and Publicity Officer from Jammu Division;
iv) no marks have been awarded to the candidates in respect of experience in the relevant field for which 10 marks had been earmarked as per the notified criterion for selection. The candidates have been evaluated on the basis of written examination (60 marks) and viva voce (30 marks).
In effect the weightage for interview marks stood at 33.33% of the total marks;
v) the rationale for not waiting for conclusion of the interviews for the posts of Jr. Assistant/Record keeper which were to conclude on 19th February 2018 at Srinagar and hurriedly proceeding with the finalization of selection list for 05 category of posts on `14.02.2018 is not understood;
vi) the selection criteria notified vide advertisement notice dated 08.10.2016 was not based on the recommendations of any expert committee but was in fact based on the recommendations of the Vice Chairman KVIB approved by the Chairman, KVIB (Minister Industries and Commerce);
15vii) whether the criteria adopted during the selection process in 2016 was in accordance with the committee' recommendations or as per the criteria being adopted by the various recruiting agencies was not replied to/answered;
viii) the shortlisting criteria notified in 2013 vide advertisement notice refers to 15 times the number of posts based on academic merit and not the performance in the written examination as adopted in the selection process of 2016.
As per the order dated 28.06.2019, the committee, while concluding the report, recommended as under:
"...The committee is of the considered view that the entire process suffers from various deficiencies/flaws as brought out in chapters III, IV and V. The committee, therefore, recommends that the entire process be quashed and initiated denovo, after following the due procedure."
27. The Government, professedly, on examination of the enquiry report, at pages 5 to 7 of its aforesaid order dated 28.06.2019, recorded its findings and conclusions as hereinafter quoted:
"Whereas, the enquiry report was examined and it was found that:-
i. The agenda regarding fixing of criteria for the 2016 selections placed before the Board of Directors on 03.10.2017 much after the conclusion of the written examination held in the month of August 2017 was only as to how the 10 marks earmarked for the experience can be awarded which should have been explained much earlier probably in the advertisement notice itself. ii. The procedure as adopted/being followed by other recruiting agencies viz PSC and SSB where the candidates are shortlisted for interview in the ratio of 1:5 in case the number of candidates is less than 10 and 1:3 in case the number exceeds 10 has not been followed in these selections.
iii. Short period of time was provided to the candidates particularly to the Jammu Division candidates with the result low participation of the candidates was witnessed in the interview process. iv. Deviation has been made in the selection process while making selections ignoring the criteria given in the advertisement notice whereby 10 marks were earmarked for experience in the relevant field and 30 marks for viva voce.
v. The selection committee declared the result in a hurry on 14.02.2018 for 5 categories without waiting for conclusion of the interviews for the posts of Jr. Assistant / Record keeper which were to conclude on 19th February, 2018, making the selection process fishy/doubtful.
vi. The selection criteria adopted in these selections was not recommended by any expert committee but was proposed by the Vice Chairman of the Board and approved by its Chairman (Minister U&C) Deptt.).
16vii. The criteria adopted in the selection process was not in accordance with the recommendations of the committee constituted in the year 2012 nor as per the criteria being adopted by other recruiting agencies.
viii. The criteria of shortlisting for interview / viva voce in the ratio of 1:15 adopted in these selections on the basis of written examination was not recommended by the committee constituted in the year 2012. In fact, the said committee had recommended shortlisting in the ration of 1:15 as per the academic merit of participating candidates, and Whereas, in addition to the complaints various writ petitions have also been filed on the subject by the aggrieved as well as the selected candidates which are pending adjudication before the Hon'ble High Court as per the following details except SWP No.1778/2016 which was dismissed by the Hon'ble High Court:
i. SWP No.2715/2017 titled Fayaz Ahmad Bhat V/S State & others.
ii. SWP No.161/2018 titled Bilal Maqbool Wani V/S State & others.
iii. SWP No.291/2018 titled Javid Ahmad Pandith V/S State & others.
iv. SWP No.293/2018 titled Javid Iqbal Bhat V/S State & others.
v. SWP No.366/2018 titled Amir A.li Dar V/S State & others. vi. SWP No.378/2018 titled Bazil Khurshid Syed V/S State & others.
vii. SWP No.423/2018 titled Tamseel Hussain V/S State & others.
viii. SWP No.718 titled Vishal Arif Beigh V/S State & others. Whereas, in view of the above, the Government has accepted the report of the enquiry Committee, NOW, THEREFORE, it is hereby ordered that:-
i. All the selections made in the KVIB pursuant to advertisement notice No.KVIB/01 of 2016 dated 08.10.2016 are quashed/cancelled.
ii. The KIVIB will provide opportunity of being heard to all the candidates appointed to different category of posts pursuant to the advertisement notice dated 08.10.2016 and fulfil. All other formalities required under law before cancelling the appointments of these candidates."
28. As regards the arguments advanced at the Bar concerning the power of the Government vis-à-vis the Board, the counter affidavit in this case has been filed under the signatures of Secretary/Chief Executive Officer of the Board; whereas the Government on its part has not filed any response. In effect and in essence, the 17 petitions on all counts are being contested by the Chief Executive Officer of the Board. In these circumstances, I am of the view that in the event the points raised by the learned counsel for the petitioners are determined in context of the provisions of the Act, the Rules and the Regulations framed thereunder, it may be disadvantageous for the Board in future. Since this Court has otherwise come to a definite conclusion about the impugned orders, I deem it appropriate to leave the points to be decided in future, if need arises. Resultantly, the judgments cited and relied upon during the course of arguments relating to the points raised are not and need not be discussed.
29. Coming back to the Supreme Court judgment in Pranab Baishya v UOI (supra), which was forcefully cited and relied upon at the Bar by Mr. B. A. Dar, Sr. AAG, representing the respondents, the Supreme Court therein, citing various of its earlier decisions from para 38 and quoting what had been laid down in those judgments and how those cases were dealt with, set aside the letters of cancellation of appointments of number of appellants therein. The Supreme Court also issued directions how to deal with other appellants therein. There is a scheme of things laid down in the judgment. In one of the judgments, Onkar Lal Bajaj v. Union of India, MANU/SC/1157/2002 : (2003) 2 SCC 67, referred to in para 40 of the judgment, as quoted therein, the Supreme Court has emphasised the importance of segregating the tainted candidates from the untainted ones and not en masse cancel the entire selection. In another of the judgments, Girjesh Shrivastava v. State of MP, MANU/SC/0888/2010 : (2010) 10 SCC 707, referred to in para 44 of that judgment, as quoted therein, it has been held that "even if there were some illegal beneficiaries from their selection process, they should have been weeded out instead of striking down the entire selection process". Obviously, the judgment of the Supreme Court in Pranab Baishya v UOI (supra) seems to have, somehow, been lost sight of by the respondents and the learned Sr. AAG.
30. I may hasten to add that the court does not in any manner or by any standards hold that the selection process has been fair or that the select list was fairly drawn; instead, the Court is only holding the manner adopted by the respondents in dealing with the matter as unfair.
31. For all what has been said above, it is left open to the respondents to conduct a denovo enquiry into the selection process, having recourse to due process of law 18 they have time and again talked of throughout, associating the petitioners therein, and proceed in the matter as the outcome of any such enquiry may result in withdrawal/continuation of orders of cancellation of selection and appointment of petitioners. Such enquiry, may be initiated within three months from the date of this judgment and completed within a period of six months thereafter.
32. No order as to costs.
WP(C) No. 79/2020:
33. For the reasons stated at the very outset of the judgment, this petition is de-
linked and directed to be listed separately. It appears that the respondents have not filed their responses in this writ petition. Mr. B. A. Dar, learned Sr. AAG, is given 20 days time for doing the needful.
34. Registry to place copy of this judgment on the segregated petition i.e WP(C) no. 79/2020.
(Ali Mohammad Magrey) Judge Srinagar 28 .09.2021 Syed Ayaz Hussain, Secy
i)Whether judgment is speaking Yes/No
ii)Whether approved for reporting: Yes SYED AYAZ HUSSAIN 2021.09.28 12:10 I attest to the accuracy and integrity of this document