Jammu & Kashmir High Court - Srinagar Bench
Mohd. Amin Massodi & Anr vs State Of J&K & Ors on 20 September, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SWP No. 349 of 2012
SWP No.186 of 2012
Mohd. Amin Massodi & anr
Ishfaq Ahmad Tantray & anr
Petitioners
State of J&K & Ors
Respondents
!Ms. Vasundhara Masoodi, Advocate
Mr. M. Ashraf Wani, Advocate
^Mr. R.A.Jan, Advocate,
Mr. Shabir Ahmad Khan, Advocate
Honble Mr. Justice Hasnain Massodi, Judge
Date: 20/09/2012
: J U D G E M E N T :
1. The Jammu and Kashmir Service Selection Board (Board for short) - Respondent No.1 in the petition, issued two Advertisement-Notices No.03 of 2006 dated 28.12.2006 and 03 of 2008 dated 30.1.2008 inviting applications from eligible candidates for the posts of Assistant Information Officers, Grad-1 and Assistant Information Officer Grade-II in the State and Divisional cadre. The Advertisement Notices prescribed following eligibility criteria for the advertised posts.
Advertisement Notice Eligibility Criteria Advertisement Notice No.3 of 2006 dated 28.12.2006 Assistant Information Officer Grade-II Graduate with diploma in journalism with aptitude of writing features and translating English into Urdu/Hindi & vice versa. Candidates with History as a subject in Graduation shall be given preference. Advertisement Notice No.3 of 2008 dated 5.5.2008 Assistant Information Officer Grade-I Graduate with certificate course in journalism from a recognized University and aptitude of writing features; translating English into Urdu/Hindi & vice- versa. Preference will be given to Diploma holders in journalism and candidates with History as a subject in Graduation.
However, before the selection process could be taken to its logical end, the State Government vide order No. 29-ID of 2008 dated 25.9.2008 converted/re-designated Assistant Information Officer Grade-I as Assistant Information Officer in the pay scale of Rs.6500-10500. The Government order also accorded sanction to the creation of 38 posts of Assistant Information Officers in the pay scale of Rs.6500-10500 against corresponding reduction of equal number of posts of Assistant Information Officer Grade II in the pay scale of Rs.5700-10100.
2. The selection process initiated vide Advertisement Notices 3 of 2005 and 3 of 2008 left inconclusive, the Board issued yet another notification No.8 of 2010 dated 20.7.2010 inviting applications for 13 posts of Assistant Information Officers in the pay scale of Rs.6500-10500 in State cadre. The aforesaid notification prescribed the eligibility criteria as under:
Advertisement Notice No.8 of 2010 dated 20.7.2010:
Assistant Information Officer Graduate with Diploma in Journalism with aptitude for writing features and translating English into Urdu/Hindi and vice versa.
Candidate with history as a subject in Graduation will be given preference.
3. The change in designation of Assistant Information Officer Grade-I and creation of 38 posts of Assistant Information Officers against reduction of equal number of corresponding posts of Assistant Information Officers Grade-II, saw change in the selection criteria as well. The selection criteria for the posts advertised vide Advertisement Notice No.3 of 2005 and Advertisement Notice No. 8 of 2010 was notified vide notice dated July 17, 2007 and notice dated October 13, 2011, may be extracted hereunder:
Selection Criteria of 2007 S. No. Name of the post Cadre of post Eligibility qualification Item No. Criteria fixed by the Board 03 Assistant Information Officer, Grade-II Division Jammu/ Kashmir Graduate, with diploma in journalism with aptitude of writing features and translating English into Urdu/Hindi and vice versa.
Candidates with History as a subject in Graduation shall be given preference
04 & 05 3 of 2006
i) Graduation = 30 points (prorata)
ii) Graduation in journalism = 20 points (prorata)
iii) Dip in journalism = 10 points (prorata) 1v) weightage to History as one of the subjects in Graduation = 10 points (prorata)
v) Aptitude test = 10 points (prorata) / writing features and translation.
vi) Masters in journalism
and mass
communication = 10
points (prorata)
vii) viva voce = 10
points
Total = 100
points
Selection Criteria of 2011
i)
Graduate with Diploma in Journalism /Graduate in Journalism. OR 55 pts (Across the Board) Graduate (History as major) with Diploma in Journalism. OR 60 pts (Across the Board) Graduate with PG in Journalism. OR 60 pts (Across the Board) Graduate (History) with PG in Journalism.
60 pts (Across the Board)
ii) Aptitude test 20 pts (pro-rata)
iii) Viva-voce 20 pts Total 100 pts NB:-
a) 20 points have been earmarked to writing and translating features where 10 have been earmarked for writing features and 10 points have been earmarked for translating features.
b) Only such candidates shall be considered for selection who secures at least 35 % marks in the Aptitude Test.
c) Aptitude Test shall be conducted on the same day of interview.
d) In Aptitude Test the candidates shall be given a topic on History/ Current Affairs to access the candidates aptitude of writing features and translating the topic written in English to Urdu/Hindi and vice versa (150 words).
e) The duration of aptitude test shall be 60 minutes.
4. The selection criteria notified vide J&K Service Selection Board vide No. SSB/Secy/sel/2764-69/11 dated 13.10.2011 was made applicable to all the Advertisement Notices. The Notification further provided that the posts advertised in the three Advertisement Notices were to have common nomenclature and to be designated as Assistant Information Officer instead of Assistant Information Officer Grade-I and Grade-II.
5. The Board through the aforesaid notification i.e. Notification No. SSB/Secy/sel/2764-69/11 dated 13.10.2011 called the candidates who had responded to the three Advertisement Notices for interview and aptitude test on the basis of revised criteria as per the schedule appended to the notices.
6. S/Shri Mohammad Amin Massodi and Irfan Ahmad Qureshi petitioners in SWP No.349/2012 having responded to the Advertisement Notices No.3 of 2008 and 8 of 2010 respectively, for the posts under State cadre appeared in the interview and aptitude test on the scheduled dates and so did Shri Ishfaq Ahmad Tantray petitioner in SWP No.186/2012 who had responded to all the Advertisement Notices. Shri Ishfaq Hussain Bhat his co-petitioner who had only responded to Advertisement notice No.8 of 2010 also appeared for interview and aptitude test on the notified date. However, petitioners in both the petitions did not find place in the selection list notified on 31.1.2012.
7. The petitioners question the selection of private respondents on the grounds set out in two petitions. The common ground urged in both the petitions is that the Board without any authority changed selection criteria in the middle of selection process vitiating the process and rendering the selection of private respondents liable to be quashed.
8. It is pleaded that in terms of selection criteria notified vide notice dated July 17, 2007, the emphasis was on assessment of academic performance of the candidates on pro-rata basis and in the revised selection criteria notified on 13.10.2011t, the focus shifted to across the board weightage to the academic qualification of the candidates. The petitioners insist that change in the selection criteria was a major shift and paved way for a bigger role to the marks set apart for interview, leaving room for conversion of merit into demerit. The Board is further said to have made one more change in the selection criteria after some of the candidates had already appeared in the interview and aptitude test by reducing the time fixed for aptitude test vide corrigendum No.SSB/Sel/Secy/4262-67/2011 dated 19.10.2011.from 60 minutes to 30 minutes. The candidates appearing in aptitude test after the corrigendum, are said to have been put to a disadvantage, in as much as they had to write the feature and translate it within 30 minutes while as the candidates who had already appeared had 30 minutes to write the feature and further 30 minutes to translate it from English to Urdu/Hindi and vice versa.
9. It is pleaded that 16 % of the selected candidates are from group that was allowed one hour for aptitude test making it amply clear the group given more time for aptitude test were in effect given a clear advantage over the candidates allowed only 30 minutes for the test. The selections process is said to be in conflict with the mandate of Rule 14 of Jammu and Kashmir Civil Service Decentralisation Rules 2010, for the reason that it did not give due weightage to the academic merit in the qualifying examination and extra weightage to the higher qualification in the concerned discipline. The Board according to the petitioners, having regard to the response to the Advertisement notices ought to have short listed the candidates for aptitude test and interview as allowing all the candidates to appear in the aptitude test and the interview, left scope for arbitrariness in the selection process. The Board is also said to have while changing the selection criteria, given undue and unwarranted weightage to interview and made it possible for the Board to indulge in favouritism.
10. The respondents resist the writ petitions on the grounds that the petitioners after participating in the selection process are not competent to turn around and question the process on the grounds set out in the petition. It is pleaded that the petitioners have no right of appointment against the advertised posts and all that is guaranteed under Article 14 & 16 Constitution of India is a right of consideration a right given to the petitioners by the Board. The petitioners, according to the respondents, are barred in law on the principle of legal estoppels from questioning the selection criteria, once they participated in the process and invoke writ jurisdiction of the Court only after they did not find place in the selection list. The respondents while insisting that the selection process was governed by the Jammu and Kashmir Subordinate Service Recruitment Rules 1992, deny that Jammu & Kashmir (Civil Service Decentralisation) Recruitment Rules 2010 had any role to play in the selection process in question.
11. The selection, according to the respondents, is in strict compliance with the Jammu & Kashmir Civil Subordinate Service Recruitment Rules, 1992 and satisfies the requirements of Article 14 and 16 Constitution of India. The respondents emphasising the nature of jurisdiction under Article 226 Constitution of India read with section 103 Constitution of Jammu & Kashmir, insist that the jurisdiction is essentially supervisory and not appellate in nature and that the court can not sit in appeal over the judgment of experts in the field.
12. The respondents plead that their decision to reduce the duration of aptitude test from 60 to 30 minutes, was a policy decision and uniformly applied right from the date the first batch of candidates at Srinagar appeared for aptitude test on 19.10.2011 till the last batch appeared on 24.10.2011 .
12. I have gone through the pleadings and have heard Ld. Counsel for the parties.
13. It is well settled law that Selection Committee or Board cannot change selection criteria in the middle of the selection process. The law on the subject is so clear that reference to a particular reported judgment is not required/called for. In the present case the Board changed the selection criteria in the middle of the selection process. The change made in the selection criteria was not peripheral in nature. The selection criteria notified on 13.10.2011 made substantial changes in the earlier notified selection criteria, that changed very basis of selection. Under the selection criteria notified on July 17, 2007, the candidates were to get credit on the merit secured by them in qualifying examination on prorata basis. It is pertinent to point out that weightage to merit in qualifying examination was provided not for short-listing the candidates, but for making the selection. This would mean that merit obtained by a candidate would be converted into points and such points to the credit of a candidate, on account of his performance in qualifying examination, would be added to his over all merit in the selection process. To illustrate, a candidate having passed graduation examination with say 80% marks in the qualifying examination would have an edge over the candidate securing 60% or less marks in such examination. Because of conversion of the marks secured into points a candidate with 80% marks would get higher points as against the candidate with 60% or less marks in the qualifying examination.
14. The Board in the circumstances made significant changes in the selection criteria notified vide notification dated 13.10.2011, by deciding to award points on account of qualifying examination across the Board. Resultantly, a candidate passing the qualifying examination with 40% marks and a candidate passing said examination with 80% would get similar points irrespective of their merit in the qualifying examination. The change in the selection criteria pushed the merit to the back seat and left scope for equal treatment for the more meritorious and less meritorious candidate. It amounted to treating un-equals like equals.
15. It is positive case of the respondents that selection for the posts in question was to be made in accordance with Jammu and Kashmir Sub- ordinate Service Recruitment Rules, 1992. The respondents stand is reflected in Notification of the Board dated 13th October, 2011, whereby selection criteria was modified and the interview schedule published. The said stand also finds expression in the reply filed by the respondents. It is disputed that Jammu and Kashmir Civil Service Decentralization and Recruitment Rules, 2010 notified vide SRO 375 of 2Ist October, 2010 have any role to play in the selection in question. Resultantly according to the respondents compliance with Rule 14 of the Rules of 2010 was not called for. The stand taken by the respondents is factually incorrect. The Jammu and Kashmir Sub-ordinate Service Recruitment Rules, 1992 stand repealed by Rule 26 of Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010. Therefore Rule 14 was required to be complied with by the Board, while making the selection for the advertised posts. It would be appropriate to extract Rule 14 hereunder:-
14. Procedure for preparation of select lists by the Board.__ (1) The respective Selection committee of the Board shall ordinarily restrict the number of applicants for oral and/or written test, as the case may be, to at least five times the number of vacancies on the basis of academic merit in the qualifying examination converted into points on pro-rata basis out of the total points allocated for the basic eligibility /qualification and grant of weightage for the higher qualification in the discipline concerned to be allowed in the manner and to extent as the Board may deem appropriate for according due consideration to the merit and proficiency in higher qualification:
Provided that the committee may, for reasons to be recorded in writing, conduct a written test for short listing the candidates for admission to the oral test and for purpose of selection of candidates.
16. A bare look at Rule 14 reveals that the Board is to restrict the number of candidates applying for a vacancy and short list the candidates on the basis of merit in the qualifying examination, convert into points on pro- data basis out of the total points allocated for the basic eligibility/ examination and also grant weight-age for the higher qualification in discipline to the extent Board may deem appropriate. In the present case respondents have not short listed the candidates, given no weight-age to the merit in qualifying examination on pro-rata basis and also given no weight-age to the higher qualification. The Board has instead allowed all the candidates irrespective of their merit and the number of available vacancies to appear in aptitude test and interview. Perusal of record would reveal that a total of 662 candidates applied for the 30 advertised posts. The Board, having regard to the huge response to the Advertisement Notices ought to have, shortlisted the candidates on the basis of merit in qualifying examination. The selection in question obviously has not been made in accordance with the Rule 14 of the Rule 2010 (supra). Even if it is accepted for a while that the selection was to be made in accordance with Recruitment Rules of 1992, the result would be no different. Relevant rule of Recruitment Rules, of 1992 reads as under:-
II. Ordinarily, the Board shall restrict the number of applicants to be admitted to oral or written test to a maximum of five times the number of vacancies after doing the preliminary screening on the basis of marks obtained in the qualifying examination and such other criteria as the Board may deem fit.
It is clear that under the Recruitment Rules, of 1992 also weight- age was required to be given to the merit in qualifying examination for short listing the candidates.
17. In the present case the Board unmindful of Rule 14 of the of the Recruitment Rules, of 2010 / Rules of 1992 allowed all the candidates to appear in aptitude test and the interview, conducted on the same day and thereafter made the selection on the basis of performance in aptitude test and interview prescribing 35% marks in aptitude test as the minim for selection.
18. The merit and performance in the qualifying examination, notwithstanding the earlier selection criteria notified on July 17, 2007 was down played and allowed no role in the selection. It sounds intriguing that the Board while prescribing 35 minimum marks in the aptitude test for selection, allowed all the candidates to appear in interview. The Board ought to have evaluated the answer scripts of the Aptitude Test and thereafter called such of the candidates for interview who obtained 35% or more marks in the aptitude test, as there was no point in calling the candidates who had secured less than 35 marks in the aptitude test, for interview. Such candidates irrespective of their performance in the interview were not to be selected for the advertised posts. The Board on the other hand evaluated the answer sheets to find out the candidates securing 35% or more marks so as to allow them to appear in interview and thereafter to be considered for selection, after the interview was conducted. The mode and method adopted by the Board, left big gaps in the selection process, to allow the arbitrariness to sneak in and make selection on the grounds other than merit. It needs no emphasis that the vacancies in Government service are notified and the selection made in transparent manner so as to pick up the most meritorious candidate(s) from the market place. This object of the selection process is as important as providing fair opportunity to all eligible candidates to compete for the advertised posts.
19. Net result of change in the eligibility criteria was that total focus was shifted to the aptitude test and interview. Since out of 40 marks set apart for aptitude test, 20 marks were earmarked for interview, the criteria for selection of Assistant Information Officers tilted in favour of the performance in interview. The petitioners who had more merit in the qualifying examination were resultantly prejudiced rather adversely affected by the mid stream change in the selection criteria.
20. There is no scope for any disagreement with the Ld. Counsel for the respondents that a candidate after participating in the selection process governed by a selection criteria, cannot turn around and question the selection criteria or the process. The logic behind the legal proposition is that the candidate aggrieved with the selection criteria is to assail it with proper dispatch, before actual process commences; and after his participation in such process waiting for the selection process to conclude, he cannot raise an objection against the selection criteria only because he fails to make the grade. However, the principle is not of universal application. It would be unjust to apply the principle to each and every such case, irrespective of attending circumstances. Cases can be visualised where the events take place in such a quick succession that a candidate has no real opportunity to question the selection criteria. Having regard to the extent of unemployment and under-employment in our country, a candidate out of two options available - to question the selection criteria or appear in interview/examination, may very well decide not to miss the chance to appear in interview/written test and question it thereafter. One such situation would be, where selection criteria is not notified at the time of Advertisement notice not even a reasonable time thereafter, or some time before actual test/interview commences, but made on the day or a few days before the test/interview commences. Since the methodology of aptitude test/interview was changed on 19.10.2011 i.e the date aptitude test and interview commenced and 60 candidates had to appear in aptitude test and interview on said date, it sounds convincing that the methodology was changed after one of two batch appeared in the aptitude test and interview.
21. In the present case though the Board did not feel any hurry in keeping selection process pending for six long years, it made a significant change in selection criteria just a few days before the Aptitude test and the Interview commenced, without any evidence that it was duly notified/ published and conveyed to the candidates. The change in selection criteria was made on 13.10.2011, a further change on 19.10.2011 and the aptitude /interview commenced on 19.10.2011. The change in selection criteria therefore was made not only in the middle of the selection process but almost in the middle of the Aptitude / Interview. The Board for the reasons not difficult to infer, decided to make significant changes in the selection criteria immediately before the Aptitude test/Interview, commenced so as to leave no opportunity for the candidates having objections to the change in selection criteria, to question it in appropriate proceedings. The petitioners therefore cannot be said to have slept over the matter and to be barred by principle of acquiescence and estoppel from questioning the selection criteria after the selection process was over. It is pertinent to note that the petitioners in view of their higher merit in the qualifying examination, have been prejudiced by the midstream change in Selection Criteria
22. The interview or viva voce, it has been emphasised, in cases without number, cannot be given extra weightage as it has potential to leave scope for arbitrariness and conversion of merit into demerit. It has been held that the marks set apart for interview / viva voce should not be more than 12 = to 15% of the total marks. In the present case in view of the shift from prorata credit to across the Board, credit, qualifying examination was pushed to the backseat and the marks earmarked for interview/viva voce held the key for selection. The marks set apart for interview though only 20% were in effect 50% of the total marks leaving room for arbitrariness. Since a candidate with 80% marks in qualifying examination and a candidate with 40% marks in qualifying examination would get 60 points irrespective of their merit in qualifying examination, the fate of the candidate was to be decided by marks awarded in interview. To illustrate a candidate with 80% marks in qualifying examination getting 8 marks in aptitude test and 10 marks in interview would be excluded by a candidate having 40% marks in qualifying examination, 7 marks in Aptitude test and 12 marks in interview. The weightage and role given to the interview because of change in the selection criteria, gave a much larger role to the interview Committee to make the selection irrespective of merit of the candidates, ignoring the merit in the qualifying examination and even in Aptitude test.
23. The selection criteria prescribed under notification dated 13.10.2011, in the circumstances, offends Article 14 and 16 Constitution of India. The selection criteria notified on 13.10.2011 therefore did not only reflect the mid stream change in selection criteria, but because of the inherent arbitrariness in it, is voilative of right to equality before the law, equal protection of laws and the right to equal opportunity in matter of public employment guaranteed under Articles 14 and 16 of the Constitution.
24. It needs no emphasis that employment under Government is a public largesse and the State is required to distribute it in a fair, just and transparent manner. The right to equality before law, equal protection of laws and equal opportunity in the matter of employment is an integral part of the principle of rule of law which in turn is a core constitutional value. Whatever offends equality before the law, hurts rule of law. The right to equal opportunity in the matters of public employment is one of the facets or dimensions of right to equality before law. Any scope for arbitrariness in the selection process vitiates the selection process even where a candidate questioning the selection process is found napping at the appropriate stage for the reasons not attributable to him alone and wakes up a little latter to seek adherence to the rule of law.
25. The only irresistible conclusion to be drawn from the above discussion, is that the selection process in the present case is vitiated and liable to be quashed for the reasons i) that The Board has changed the selection criteria in the middle of the selection process a few days before the Aptitude test and interview commenced, without giving the petitioners and all those aggrieved with the change in the selection criteria, a reasonable opportunity to question it in appropriate proceedings; ii) that the Board changed the selection methodology on the day the Aptitude test and interview commenced i.e 19.10.2011. iii) that the change in selection process and selection methodology was to the prejudice of the petitioners and resulted in disadvantage to the petitioners. iv) that the Board having sidelined the merit in the qualifying examination and giving no credit to the higher qualification, in effect earmarked 50% marks for interview / viva-voce leaving scope for arbitrariness and favouritism. v) that the Board oblivious to the huge response to the Advertisement Notice, avoided to shortlist the candidates on the basis of merit in qualifying examination as provided under Rule 14 of Jammu and Kashmir Decentralisation Rules / Rule 3 of Jammu and Kashmir (Subordinate) Services Recruitment Rules, 1992, leaving room for arbitrariness and unhealthy competition.
26. For the reasons discussed, the writ petitions are allowed and a writ of certiorari is granted in favour of the petitioners and against the respondents, quashing the Notification No. SSB/ Secy/ Sel / 2764-69/11 dated 13.10.2011 and corrigendum dated 19.10.2011 to Part e to the Notification, as also the selection list dated 21.1.2012 whereby private respondents have been selected as Assistant Information Officers. The respondent- Board by a writ of mandamus is commanded to proceed with and complete the selection process afresh strictly in accordance with the Rules.
No order as to costs.
Allowed.
(Hasnain Massodi) Judge Srinagar 20/09/2012 G. Nabi P/S