Central Administrative Tribunal - Jammu
Dilbir Singh vs D/O Higher Education Ut Of J&K on 11 December, 2025
:: 1 :: TA 123/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
JAMMU BENCH, JAMMU (RESERVED)
Hearing through video conferencing
Transfer Application No. 123/2020
Reserved on: - 22.09.2025
Pronounced on: - 11.12.2025
HON'BLE MR. RAJINDER SINGH DOGRA, MEMBER (J)
HON'BLE MR. RAM MOHAN JOHRI, MEMBER (A)
1. Dilbir Singh Age 32 years
S/o Sh. Kapoor Singh
R/o Village Mundhar, Kashtigarh (Doda).
2. Aubid Hussain Parrey Age 30 years
S/o Mohd. Akbar Parrey
R/o At present C/O H. No. 42,
Village tangar Tehsil Rajgarh, District Ramban;
3. Irfan Ramzan Reshi Age 29 years
S/o Mohd. Ramzan Reshi
R/o At present C/O H. No. 42,
Village tangar Tehsil Rajgarh, District Ramban;
...Applicants
(Advocate: - Mr. Abhimanyu Sharma)
HARSHIT Digitally signed by
YADAV HARSHIT YADAV
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Versus
1. State of J&K
Through Commissioner/Secretary to J&K Govt.
Higher Education Department, Civil Secretariat, Jammu.
2. J&K Public Service Commission,
Through its Secretary, Resham Ghar Colony, Jammu.
3. Secretary, J&K Public Service Commission,
Resham Ghar Colony, Jammu.
....Respondents
(Advocate:- Mr. Rajesh Thapa, Ld. AAG, Mr. F.A Natnoo, Ld. Counsel for
JKPSC)
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YADAV HARSHIT YADAV
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ORDER
Per: - Rajinder Singh Dogra, Judicial Member
1. The SWP No. 262/2019 was transferred from the Hon'ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No. 123/2020 by the Registry of this Tribunal.
2. The present matter was filed before the Hon'ble High Court seeking following relief: -
a) allow the present writ petition;
b) quash Select List for the post of Physical Training Instructor, in
Higher Education Department issued vide Notice No. 36-PSC (DR-S) of 2018 dated 27.07.2018, pursuant to advertisement Notification No. 18 PSC(DR- P) of 2016 dated 13.12.2016, to the extent, only 12 posts out a total of 15 under RBA category have been filled and 03 posts left vacant and petitioner not selected, despite high merit of the petitioners at 42.95, 42.35 and 41.24 respectively;
c) command and direct the respondents to select the petitioners against the three posts left unfilled under RBA category, and recommend the names of the petitioners for appointment as HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 4 :: TA 123/2020 Physical Training instructor in Higher Education Department pursuant to advertisement No. 18 PSC(DR-P) of 2016 dated 13.12.2016;
d) restrain the respondents from subjecting the three remaining vacant posts of Physical Training Instructors in Higher Education Department, to fresh Advertisement or in the alternative three posts under RBA category, which have been left unfilled be kept reserved.
e) ANY other writ, order or direction which this Hon'ble Court may deem fit or proper in the facts and circumstances of the case."
3. The facts of the case as averred by the petitioners in their pleadings are as follows:-
a) The applicants are permanent residents of Jammu & Kashmir and possess the requisite qualification of M.P.Ed along with State Eligibility Test (SET). They applied for the post of Physical Training Instructor (PTI) in the Higher Education Department pursuant to Advertisement Notification No. 18-
PSC(DR-P) of 2016 dated 13.12.2016, which invited HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 5 :: TA 123/2020 applications for 74 posts, including 15 posts under RBA category.
b) The prescribed qualifications included Master's Degree in Physical Education/Sports Science with required percentage, participation in sports events, NET/SLET/SET qualification, and physical fitness test. The applicants fulfilled all these conditions and applied under the RBA category.
c) The PSC subsequently issued Notification No. 07-PSC(DR) of 2017 dated 19.07.2017, prescribing a 100-point assessment scheme exclusively through interview, covering academic merit, publications, sports participation, coaching, experience, gold medal, NCC, co-curricular activities, demonstration and viva voce. A total of 307 candidates applied, out of whom 140 were called for interview, and additional candidates were included as per court directions. Interviews were held between 26.06.2018 and 29.06.2018.
d) After the interview, the PSC published the merit list and the select list vide Notification No. 36-PSC(DR-S) of 2018 dated 27.07.2018. Under the RBA category, only 12 out of 15 posts were filled, and 3 posts were left vacant without assigning HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 6 :: TA 123/2020 reasons. The applicants stood next in order of merit after the last selected RBA candidate who had secured 46.75 points, whereas the applicants had 42.95, 42.35 and 41.24 points respectively.
e) The petitioners contend that the PSC wrongly applied the minimum benchmark of 45% for reserved categories under later notifications of 24.04.2017 and 01.06.2017. According to them, since the advertisement was issued on 13.12.2016, the applicable benchmark must be that contained in Notification No. PSC/EX/11/44 dated 30.03.2011, which prescribed a 40% minimum benchmark for reserved category candidates in selections conducted solely through interview. They assert that the post of PTI is equivalent to Assistant Professor for purposes of recruitment rules, and that the selection process was purely interview-based; thus the 2011 notification alone should apply.
f) They further rely on the select list of Assistant Professors (Environmental Science) published vide Notification No. 07- PSC(DR-S) of 2017 dated 16.02.2017, where RBA candidates with 43.74% and 43.14% marks were selected by applying the 40% benchmark. The petitioners therefore argue that they too HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 7 :: TA 123/2020 should have been considered against the three RBA vacancies, as each of them crossed 40%.
g) They also submitted a representation dated 20.10.2018, requesting application of the correct benchmark of 40%, but no decision favourable to them was taken. They therefore challenge the select list and seek a direction to fill the 3 unfilled RBA posts by selecting them on the basis of 40% minimum benchmark applicable to the selection initiated in 2016.
4. The respondents have filed their reply statement wherein they have averred as follows: -
a) The respondents submit that the application is not maintainable as the petitioners have not shown violation of any legal or fundamental right. It is stated that 74 posts of PTI were referred by the Higher Education Department and were duly advertised on 13.12.2016. Interviews were held from 26.06.2018 to 29.06.2018. The final selection list was issued on 27.07.2018, filling 43 OM, 12 RBA, 6 SC, 7 ST, 1 ALC, and 1 OSC posts.
The remaining 3 RBA posts and 1 ALC post remained vacant because the candidates could not cross the prescribed benchmark.
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b) The respondents assert that the applicable benchmark was 45%
for reserved category candidates, which was introduced through Notification dated 12.05.2016, i.e., prior to the advertisement. The petitioners admittedly failed to obtain the minimum 45% and therefore could not be selected.
c) The petitioners' representation was placed before the Grievance Redressal Committee on 01.02.2019, which rejected it, finding that the benchmark had already been notified in May 2016 and was valid for the selection initiated on 13.12.2016. This recommendation was also accepted by the Commission in its meeting on 05.04.2019.
d) Regarding the petitioners' reliance on the 2011 notification, the respondents submit that this notification prescribed a completely different assessment scheme (with viva voce 40, academic merit 45, etc.), which was not adopted for PTI selection. Since the 2017 criteria had already been notified and applied, the benchmark of 2011 could not be used. Applying the 2011 criteria now would require revising the entire selection, which is impossible because selected candidates have already joined.
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e) The respondents also state that the applicants cannot selectively
choose parts of different notifications to favour themselves. They participated in the process without objection and challenged it only after not being selected. It is reiterated that although the 19.07.2017 criteria were applied, that notification did not prescribe any benchmark; therefore, the benchmark applicable at the time of advertisement--45% for reserved categories--was legally applied.
f) The respondents contend that the Assistant Professor (Environmental Science) selection relied upon by the petitioners is irrelevant because that advertisement was issued in 2014, when the benchmark for reserved categories was still 40%. By the time PTI selection was advertised in 2016, the benchmark had already been raised to 45%.
g) Thus, the petitioners were not selected solely because they failed to score the minimum 45% benchmark, and the respondents pray for dismissal of the TA with costs.
5. Heard learned counsel for the parties and perused the material available on record.
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6. The present Transfer Application has been received from the Hon'ble High Court of Jammu & Kashmir at Jammu where it was filed as SWP No. 262/2019. The applicants, who belong to the Reserved Backward Area (RBA) category and possess M.P.Ed. with SET along with the requisite physical fitness, question the selection process for the post of Physical Training Instructor (PTI) in the Higher Education Department pursuant to Advertisement Notification No. 18-PSC (DR- P) of 2016 dated 13.12.2016 and assail Select List Notification No. 36-PSC (DR-S) of 2018 dated 27.07.2018 to the extent that out of 15 RBA posts only 12 have been filled leaving 03 posts vacant, thereby denying them appointment despite their higher merit among the remaining candidates. They seek quashing of the select list to that extent, a direction to fill the three unfilled RBA posts from amongst them on the basis of merit, and a restraint on re-advertising those posts.
7. The factual background is that 74 posts of PTI in the Higher Education Department were referred to the J&K Public Service Commission (PSC) vide communication dated 23.08.2016, which included 15 posts reserved for RBA category. The advertisement Notification No. 18-PSC (DR-P) of 2016 prescribed Master's Degree HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 11 :: TA 123/2020 in Physical Education with 55% marks (50% for reserved category), NET/SLET/SET/Ph.D. and physical fitness test as essential conditions. The method of selection was to be notified separately. The service conditions of PTIs are governed by J&K Education (Gazetted) College Service Recruitment Rules, 2008 where PTI is treated on the same pedestal as teaching faculty in the College Service with 60% by direct recruitment and 40% by promotion. The applicants, being fully eligible, applied under RBA category and cleared the physical fitness test.
8. Subsequently, PSC issued Notification No. 07-PSC (DR) of 2017 dated 19.07.2017 prescribing a 100-point interview-based assessment scheme for the posts of Librarian and PTI in the Higher Education Department. The entire selection was, thus, solely on the basis of interview and assessment of academic and other credentials with a total of 100 points and without any written test. Out of 307 applicants, 140 candidates were called for interview along with some additional candidates on the direction of the Court. On conclusion of the process, a general merit list and a category-wise select list were notified vide Notification No. 36-PSC (DR-S) of 2018 dated 27.07.2018.
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9. The general merit list shows that for RBA category, the last selected candidate secured 46.75 points while the applicants secured 42.95, 42.35 and 41.24 points respectively and were placed immediately below the last selected RBA candidate in the overall merit. The select list (Annexure-B to the notification) reveals that against 15 RBA posts only 12 were filled and 03 posts were left vacant without assigning any reason. Some high-merit RBA candidates were adjusted against Open Merit (OM) quota, yet even after such adjustment three substantive RBA posts remained unfilled. The grievance of the applicants is that instead of operating the merit list downwards in the same category and filling these three posts from amongst them, PSC applied a higher "bench-mark" of 45% fixed in later notifications and treated all candidates below 45 points as ineligible, which has resulted in an arbitrary denial of appointment.
10. The applicants further plead that at the time the advertisement was issued on 13.12.2016, Rule 51 of the J&K PSC (Business & Procedure) Rules, as modified by Notification No. PSC/EX/11/44 dated 30.03.2011, governed selections made solely by interview and required a minimum of 50% marks for OM and 40% for reserved category candidates for determining suitability. According to them, HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 13 :: TA 123/2020 the subsequent Notification dated 12.05.2016 and later notifications of 24.04.2017 and 01.06.2017 either did not apply to PTIs because of specific exclusions (note relating to faculty posts) or could not be pressed into service for a selection process which had already commenced with the publication of advertisement. They also rely on past PSC practice in the selection of Assistant Professors (Environmental Science) where reserved category candidates securing below 45% but above 40% were selected, to contend that a different and more onerous standard has been applied only in their case. Representation dated 20.10.2018 to the Chairman PSC seeking application of the 40% bench-mark was rejected.
11. On transfer of the writ petition, this Tribunal is also seized of the interim order passed by the Hon'ble High Court on 12.03.2019 whereby, noticing that only 12 out of 15 RBA vacancies were filled and three vacancies remained unfilled, the High Court directed that the said three posts in RBA category under Notification No. 18-PSC (DR-P) of 2016 "shall not be advertised till further orders" and granted time to the respondents to file objections. The protection granted by the High Court, thus, ensured that the very three vacancies HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 14 :: TA 123/2020 which are in dispute remained intact and were not diverted elsewhere or subjected to a fresh selection process.
12. The PSC in its reply does not dispute the factual narrative regarding advertisement, number of posts, conduct of interviews and preparation of the select list. It justifies the decision to leave three RBA posts and one ALC post vacant on the ground that all remaining candidates in those categories failed to secure the minimum bench-mark of 45% prescribed for reserved categories under Notification dated 12.05.2016, which, according to PSC, was in vogue on the date of advertisement. It is pleaded that the criteria of 2011 was not applied at all in the present selection; hence the bench-mark therein cannot be invoked. PSC also asserts that the applicants, having participated in the selection fully aware of the criteria notified on 19.07.2017, are estopped from challenging the same merely because they failed to make the grade. It is further pointed out that the grievance of the applicants was placed before the Grievance Redressal Committee which rejected it vide recommendation dated 01.02.2019, accepted by PSC in its meeting on 05.04.2019.
13. The State Government substantially adopts the stand of PSC and submits that the selection process has been completed; selected HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 15 :: TA 123/2020 candidates have already been appointed; revisiting the process now would disrupt the settled appointments and is neither legally permissible nor practically feasible.
14. We have heard learned counsel for both sides at length and carefully gone through the pleadings, relevant notifications and the record produced. The essential issues which arise for our consideration are:
(i) which version of Rule 51 and what bench-mark for reserved category candidates should govern the present selection; (ii) whether PSC was justified in leaving three RBA posts vacant despite the existence of eligible and meritorious candidates; and (iii) what relief, if any, can be granted to the applicants without unsettling appointments already made.
15. It is an admitted position that (a) the posts in question are in the College Service in the Higher Education Department; (b) the method of selection notified for these posts, as per Notification dated 19.07.2017, is wholly interview-based with a 100-point assessment and no written test; and (c) the applicants have all the prescribed qualifications and have cleared the physical fitness test. The controversy centres around the applicable bench-mark. The applicants rely upon Notification dated 30.03.2011 which specifically deals with HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 16 :: TA 123/2020 selections solely by interview and fixes a minimum of 40% for reserved categories, whereas PSC seeks to apply the higher bench- mark of 45% introduced in 2016 and later notifications.
16. The law is well settled that the "rules of the game" cannot be changed midway or after the selection process has commenced. The conditions that existed on the date of advertisement ordinarily govern the selection unless a contrary intention is clearly expressed and is consistent with the governing rules. It is also a settled principle that beneficial or curative clarifications explaining the existing rules may operate retrospectively, but new or more onerous eligibility conditions cannot be thrust upon candidates after they have applied and participated in the process. The Hon'ble Supreme Court has consistently applied these norms while examining selections under public employment.
17. In the present case, the advertisement for PTI posts was issued on 13.12.2016 clearly stating that the scheme of selection will be notified separately. When the advertisement was published, the rule position under Rule 51 with regard to interview-only selections and faculty posts in the Higher Education Department had already crystallised through Notification dated 30.03.2011, which fixed 50% and 40% as HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 17 :: TA 123/2020 the bench-marks for OM and reserved categories. The later Notification dated 12.05.2016, apart from introducing a different weightage pattern for posts where graduation was the minimum qualification and written test formed part of the process, contained a categorical note that it shall not apply to faculty posts of State Medical Colleges, Consultants in Health Services and Assistant Professors in Higher Education Department. PTI, being part of the College Service cadre and broadly akin to teaching faculty in terms of qualifications and recruitment rules, logically fell within the same zone of exclusion. The 2017 notifications, which raised the bench-mark, were issued after the advertisement and cannot be so interpreted as to retrospectively alter the standard to the prejudice of candidates who had already participated on the expectation of the then prevailing regime.
18. PSC's plea that it chose to apply the 2017 criteria of 100-point assessment and therefore could not apply the 2011 bench-mark is not convincing. The assessment pattern and the qualifying bench-mark are distinct aspects. Even if the Commission, in its wisdom, modified the method of awarding points, the minimum threshold for determining suitability of reserved category candidates could not be raised HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 18 :: TA 123/2020 contrary to the exclusionary note and to the detriment of candidates who had already entered the fray. That the Commission itself, in the selection for Assistant Professors (Environmental Science) in 2017, followed the 40% bench-mark for RBA candidates despite their securing less than 45% shows a consistent administrative understanding that the 40% threshold governed such faculty posts. A sudden departure only in the case of PTI posts, without any cogent reasoning, offends Article 14 of the Constitution.
19. The contention that the applicants participated in the process and are therefore estopped from challenging it, also deserves rejection. A candidate cannot, by mere participation, confer legality on an otherwise arbitrary or ultra vires prescription. The Hon'ble Supreme Court has repeatedly held that there can be no estoppel against statute or violation of constitutional guarantees. Here, the grievance is not to the selection method per se but to the arbitrary application of a bench- mark which is contrary to the governing rules and to the very notifications relied upon by PSC. The applicants approached the High Court promptly after declaration of the select list; and the Hon'ble High Court, on a prima facie satisfaction, protected the three unfilled HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 19 :: TA 123/2020 posts from being re-advertised. Their conduct, therefore, cannot be faulted.
20. Equally untenable is the argument that revisiting the process would disturb settled appointments. The applicants do not seek to oust any of the selected candidates. Their claim is confined only to the three RBA posts which were consciously kept unfilled. Those posts were never utilised for appointment of anyone else. On the contrary, the Hon'ble High Court's interim order ensured their preservation. Therefore, by directing consideration of the applicants against these very posts, no vested rights of the already appointed PTIs are affected.
21. Once it is held that the correct bench-mark for RBA candidates for the present selection is 40% and not 45%, the consequence follows. The applicants have admittedly secured 42.95, 42.35 and 41.24 points respectively; all three figures are above 40% of the total 100 marks prescribed under Notification dated 19.07.2017. There is no allegation of any adverse material against them. They were placed immediately below the last selected RBA candidate in the overall merit list. In such circumstances, the only lawful course open to the PSC was to recommend their names against the three unfilled RBA posts. Keeping those posts vacant in the face of available meritorious candidates HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 20 :: TA 123/2020 serves no rational purpose and defeats the very object of the reservation for RBA category, besides depriving the Department of trained PTIs. The rejection of their representation by the Grievance Redressal Committee, being founded on an erroneous assumption about the applicable bench-mark, cannot be sustained.
22. We are conscious that considerable time has elapsed since the selection and the applicants have remained out of service during this entire period despite a clear judicial protection of the posts in their favour. At the same time, the respondents may have framed subsequent recruitment plans and the financial implications of granting full back wages for all these years may be substantial. Balancing these considerations, and following the principle that appointments made belatedly due to protracted litigation should ordinarily be given notional effect for seniority and pension but monetary benefits can be reasonably restricted, we are of the opinion that the ends of justice would be met if the applicants are treated as having been appointed notionally from the date on which the last RBA candidate from the original select list was appointed, but they are paid actual salary only from the date they assume charge in pursuance of this order.
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23. In view of the above discussion, the Transfer Application is allowed in the following terms:
a) The action of the J&K Public Service Commission in applying the bench-mark of 45% for reserved category candidates to the selection for the post of Physical Training Instructor in Higher Education Department pursuant to Advertisement Notification No. 18-PSC (DR-P) of 2016 dated 13.12.2016 is held to be unsustainable in law, in so far as it resulted in keeping three RBA posts unfilled.
b) Notification No. 36-PSC (DR-S) of 2018 dated 27.07.2018, to the limited extent it leaves three RBA posts vacant, is quashed.
The select list and appointments already made against other posts shall, however, remain undisturbed.
c) The respondents are directed to treat the applicants as having satisfied the applicable bench-mark of 40% under Rule 51 of the J&K PSC (Business & Procedure) Rules as it stood applicable to interview-only selections for such posts, and to consider them for appointment against the three RBA posts which were kept vacant and protected by the interim order of the Hon'ble High Court dated 12.03.2019.
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d) Within a period of eight weeks from the date of receipt of a
copy of this order, the PSC shall recommend the names of the applicants to respondent No.1 for appointment as PTIs under the RBA category, strictly in the order of their merit as reflected in the general merit list. Respondent No.1 shall thereupon issue appointment orders within a further period of eight weeks.
e) On such appointment, the applicants shall be entitled to notional seniority and notional continuity of service with effect from the date on which the last RBA candidate from the original select list was appointed as PTI, for all purposes including fixation of pay, further promotion and retiral benefits, but they shall not be entitled to any arrears of salary for the period prior to their actual joining. They shall, however, be paid regular salary and allowances from the date of their joining the post pursuant to this order.
f) The interim direction of the Hon'ble High Court restraining re-
advertisement of the three RBA posts shall merge into this final order. The respondents shall not divert or utilise these three posts for any other purpose except to accommodate the present applicants as directed above.
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24. There shall be no order as to costs.
(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA)
Administrative Member Judicial Member
/harshit/
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