Jammu & Kashmir High Court - Srinagar Bench
Basharat Bashir Teeli vs State And Ors on 22 October, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
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HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Case no: Date of decision: 22.10.2018
SWP no.2209/2017
with IA no.01/2017
Basharat Bashir Teeli v State of J&K & ors.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearance:
For Petitioner: Mr. Rizwan Ul Zaman, Advocate.
For Respondent(s):Mir Suhail, AAG vice Mr. N.H. Shah, AAG for 1 & 2;
Mr. Azhar-ul-Amin, Advocate, for 3&4.
___________________________________________________________
i) Whether approved for reporting in law journal : YES
ii) Whether approved for reporting in press/media: YES
1. This petition calls in question notification no.PSC/Exam/2016/48 dated 12.05.2016 issued by the Jammu and Kashmir Public Service Commission notifying the amendments made by it to Rule 51 of the Jammu and Kashmir Public Service Commission (Business & Procedure) Rules, 1980 to the extent thereby, for determination of the suitability of the candidates for appointment, the candidates belonging to the reserved categories have been required to obtain a minimum of 45% out of the total weightage points earmarked for assessment in the said Rule. Prior to the amendment, such candidates were required to obtain 40% out of the total weightage points. The relevant facts are noted hereunder.
2. The Jammu and Kashmir Public Service Commission (the Commission, for short) issued notification no.09-PSC(DR-P) of 2016 dated 19.03.2016 inviting applications for the posts of Lecturers 10+2 in
2|Page different disciplines of the School Education Department, including two posts under RBA category in the discipline of Biotechnology. The last date for submission of the online applications was 25.04.2016. The petitioner is stated to have offered his candidature under the reserved category of RBA.
3. On 12.05.2016, the Commission issued notification no.PSC/Exam/2016/48 dated 12.05.2016 whereby it notified for the information of the general public the amendments made by it in Rule 51 of the Jammu and Kashmir Public Service Commission (Business & Procedure) Rules, 1980 (hereinafter, for short, the Business &^Procedure Rules) to the extent mentioned therein, made effective from 01.01.2016. The amended sub-clause (iv) after Clause F of Rule 51, as it exists now, reads as under:
"(iv) For determination of the suitability of candidates for appointment, the candidates from open category shall be required to score a minimum of 55% 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."
It is pertinent to mention here that the score of minimum of 55% vis-à-vis open category candidates as contained in the above quoted sub-clause has been inserted pursuant to amendment made in consequence of Extra Ordinary meeting of the Commission held on 07.03.2017. That, however, is not the subject of controversy herein.
4. The written test of the candidates was conducted on 26.06.2016 and the result thereof was declared by the Commission vide notification no.PSC/Exam/2017/51 dated 29.09.2017. In all 47 candidates are stated to
3|Page have qualified the written test and were called for interview. The interview of the shortlisted candidates was held on 10.10.2017 and 11.10.2017. The Commission issued the Select List of candidates in terms of notification no.47-PSC (DR-S) of 2017 dated 13.10.2017 whereby 7 candidates were shown to have been selected under Open Merit Category and 2 candidates in RBA Category. In the Select List of the Open Merit Category, the candidates figuring from serial no.4 to 7 were shown to have secured less marks (between 58.75 to 56.88) than the first candidate selected in the RBA category who had secured 61.00 marks. However, the error in the Select List was rectified by notification no.49-PSC(DR-S) of 2017 dated 16.10.2017 wherein it was, inter alia, stated and ordered as under:
"Whereas, the error has been pointed out by the Commission on 16.10.2017 and it was found that candidate falling at S. No.1 namely Mr. Irshad Ahmad Rather under RBA category has secured 61.00 marks and he should have figured at S. No.4 after Mr. Mudasir Ahmad Beigh and before Ms. Amrina Shafi under Open Merit. Mr. Nishant Gupta will find his position in waiting list in place of Mr. Mudasir Ahmad Mir. The next candidate in order of merit under RBA category is Basharat Bashir Teli who has secured 44.50 marks. Thus he does not fall within the bench mark criteria of 45 marks."
5. As mentioned above, there were two vacancies notified under RBA category and since only one candidate in the said category made the grade and was selected, one post was thus left unfilled. The petitioner states to have made a representation dated 20.10.2017, a photocopy of which has been placed on record of the writ petition as Annexure 'N', wherein he had prayed as under:
"It is evident that there is a short fall of 0.50 marks for me to qualify for the vacant post Since besides my MSc in Biotechnology I have qualified the M. Phil, JRF, ICMR, GATE,
4|Page J&K SET & NET, hence it is requested that the short fall of 0.50 marks may be condoned in my favour."
6. It is after filing of the aforesaid representation, the petitioner appears to have awakened and approached the Court in the present writ petition filed on 01.11.2017, that too, challenging only the notification no.PSC/Exam/2016/48 dated 12.05.2016, not the Select List, and has prayed for a mandamus to command the respondents 3 and 4 to select him as Lecturer, and further to command the respondents 1 and 2 to appoint him accordingly against the second vacant post under RBA category.
7. The respondents in their objections/reply have resisted the petition on, inter alia, the ground that the petitioner having participated in the selection process without any demur; he cannot be allowed to turn around and challenge the notification in question after the result of the selection process was declared by way of the Select List. It is also their case that the amendment in Rule 51 was made effective from a date exterior to the date of issue of the advertisement notice; therefore, the petitioner is factually wrong and mischievous in saying that the rules were changed during the selection process.
8. I heard learned counsel for the parities and considered the matter.
9. At the hearing, learned counsel for the petitioner principally put forward only one argument against the impugned notification, which is that, after issuance of the advertisement notification, the Commission could not change the rules in the midst of the selection process, and that since it had done so by changing the percentage of weightage from 40% to 45% vis-à-vis the reserved category candidates, the notification was rendered illegal. To buttress his argument, the learned counsel cited and
5|Page relied upon the Supreme Court decision in Hemani Malhotrra v High Court of Delhi, (2008) 7 SCC 11, and a judgment of a Coordinate Bench of this Court in Akash Kumar v State, 2018(1) SLJ 264 (HC).
10. At the outset, it is important to note that undoubtedly the amendment raising the percentage of total weightage points earmarked for assessment under Rule 51 vis-à-vis the reserved category candidates was made by notification dated 12.05.2016 - a date which obviously falls after the date of notification of the vacancies and closing date of submission of the online applications viz. 19.03.2016 and 25.04.2016 - but such amendment was made effective from 01.01.2016, i.e., a date much prior to the date of notification of the vacancies. The fact that the amendment was retrospective in effect, is clearly mentioned in Note (i) in the impugned notification dated 12.05.2016, a photocopy of which the petitioner has appended with the writ petitioner as annexure 'M'. The Note appended to the said notification is quoted hereunder:
"Note:
(i) This shall be deemed to have come into force with effect from 01.01.2016 but shall not apply to the selections for which process has been initiated by the Commission before 01.01.2016. Such selections shall be regulated in terms of conditions prescribed in the relevant advertisement / notification / notice for the post."
11. Obviously, therefore, it cannot be said that the rules of the game were changed by the Commission when the game was being played or that the game had been played. The law laid down by the Supreme Court in Hemani Malhotrra v High Court of Delhi, cited at the Bar and heavily relied upon by the learned counsel for the petitioner in support of his case and argument, thus, is not at all attracted to the facts of the case, being
6|Page wholly distinguishable. On the other hand, the judgment of the Coordinate Bench of this Court in Akash Kumar v State, relying on various judgments of the Supreme Court mentioned therein, in its paragraph 18, holds that the general rule is that the vacancies, which exist on the date of amendment of Rules have to be filled up in accordance with the Rules, as they stood prior to amendment; provided the amendment is not retrospective. This judgment clearly fits the bill herein, inasmuch as the amendment in Rule 51 in the instant case was, admittedly, made operative retrospectively from a date exterior to the notification of the vacancies. This fact wholly demolishes the case of the petitioner and the argument put forward on his behalf.
12. The other glaring aspect of the matter is that having been in know of the amendment made in Rule 51 well before the conduct of the written examination, the petitioner has chosen not to challenge the same and, in fact, has participated in the selection process governed by such amended Rules, inasmuch as he appeared in the written test and the interview without raising a demur. He woke up to challenge the amendment in question only when the Commission had concluded the selection process, and vide its notification no.49-PSC(DR-S) of 2017 dated 16.10.2017, while rectifying the error that had crept in its earlier notification no.47- PSC (DR-S) of 2017 dated 13.10.2017, said that the next candidate in order of merit under RBA category, namely, Basharat Bashir Teli, i.e., the petitioner herein, who had secured 44.50 marks, did not fall within the bench mark criteria of 45 marks. The writ petition challenging the amendments made in Rule 51 of the Business & Procedure Rules, therefore, is wholly an afterthought on the part of the petitioner. If the petitioner was aggrieved of the amendments so made in Rule 51 of the
7|Page Business and Procedure Rules, and if he had a genuine cause against the said amendment, he ought to have approached the Court and challenged the same well in time and ought not to have participated in the selection process governed by such Rules. He having participated in the selection process governed by the said amended Rule 51, waited for the outcome of the results, cannot now turn around and be heard to say that the amendment in the said Rule 51 was illegal or that the same could not have been applied to the selection process.
13. Furthermore, it is within the powers of the Commission to lay down its procedure to be followed in the conduct of the examinations in fulfillment of its constitutional duty in a manner as has a uniform application to a class or category of participants. The amended Rule having been uniformly applied to all the participants, the petitioner cannot claim infringement of any of his rights, whatsoever.
14. It is curious to note that the petitioner has not challenged the Select List prepared and issued by the Commission pursuant to the selection process conducted by it applying the impugned notification/rule which, according to the petitioner, was flawed. He instead wants to be selected and appointed pursuant to the very same selection process. In fact, he has made a representation to the Commission to grant him relaxation of .50 marks to meet the requirement of the amended Rule of 45% bench mark. This speaks volumes about the ingenuity of the grievance raised by the petitioner in this writ petition against the impugned notification.
15. In light of the above, this petition deserves to be dismissed and is, accordingly, hereby dismissed together with the connected miscellaneous petition. Interim direction, if any, subsisting shall stand vacated.
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16. Given the facts of the case, as narrated above, this is a fit case where the petitioner deserves to be burdened with costs, but taking a lenient view against him, no order as to costs is made.
(Ali Mohammad Magrey) Judge Srinagar, 22.10.2018 Syed Ayaz, Secretary.