Jammu & Kashmir High Court
Naveen Kumar And Anr vs . on 1 February, 2010
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 2886 OF 2010 Naveen Kumar and anr vs. Petitioners High Court of Jammu and Kashmir Respondent !Mr. Sunil Sethi, Sr. Advocate with Ms. Veenu Gupta and Naveen Kumar, Advocates ^Mr. A. V. Gupta, Sr. Advocate with Mr. Aditya Gupta, Advocate Mr. Justice Sunil Hali, Judge Date: 01.02.2010 :J U D G M E N T :
With the consent of learned counsel for the parties, the matter is taken up for final disposal.
Vide advertisement notice issued vide notification No. 1 of 2009 dated 02.04.2009, applications were invited for the post of Readers in the High Court. 12 posts were advertised in this behalf. The qualification provided for the post was Law Graduate Professional. Out of 12 posts advertised, 6 were to be filled from Open Merit category, 3 from RBA category and one each from SC, ST and ALC categories respectively. The criteria for making selection was also indicated, which is reproduced as under:-
2Selection of the candidates shall be made on the basis of cumulative grade value obtained in the written test ( 80 marks) and viva-voce test (20 marks). The notification also provided that candidates who obtain 45% or more marks in the written examination will be called for the viva-voce test. The candidates belonging to SC/ST categories were required to obtain 40% or more marks for being called for the viva-voce examination.
The case set out by the petitioners is that they had qualified the written examination by securing 55 and 53.50 marks respectively. This information was disclosed to them only after they were compelled to file an application under the Right to Information Act, 2009. Their grievance is that despite having obtained more than 45% marks in the written examination, they were not called for the viva-voce test/interview. It is under these circumstances that present writ petition has been filed. The case of the petitioners is that in terms of the notification they were entitled to be called for the interview for having obtained more than 45% marks, as prescribed in the notification, but they were not called for the interview as the respondent adopted a short listing criteria for purposes of inviting candidates for the viva-voce test. This, according to the petitioners, could not be permitted as the norms of selection cannot be altered after the commencement of the selection 3 process. It is contended that the short listing criteria adopted, in calling the candidates for the interview, tentamounted to changing the criteria after the selection process was set in motion.
On the other hand, the stand of the respondent is that merit position of the petitioners is not in dispute, however, the Selection Committee constituted by the High Court, vide its decision dated 08.06.2010, decided that only those candidates who had secured 60 or more marks in the written examination from Open Merit category and 55 or more marks in reserved categories, shall be called for the viva-voce test. It is contended that it is permissible for the Selection Committee to short list the candidates from out of those who have qualified the written examination, for calling them for the interview/viva-voce test. It is further contended that the Selection Committee is competent, in absence of rules, to adopt any criteria which is fair for purposes of short listing, while making the selection. I have heard the learned counsel for the parties. It is important to note that at the time of filing of the writ petition selection list was not issued but from record it reveals that same was issued on the day the writ petition was taken up for consideration. Respondent has produced the select list and, according to the select list prepared, 12 candidates have been 4 selected. The names of the selected candidates along with the marks obtained by them in the written and viva-voce tests, are reproduced herein below:-
S. No. Name: Category Marks obtained:
1. Nazia Chauhan OM 87
2. Rukhsar Ahmed ALC 71.5
3. Mir Murtaza Hussain Sohil RBA 79
4. Jeewan Kumar OM 74.5
5. Hilal Yousif RBA 78
6. Suresh Kumar S.C 70
7. Mohd Shafiq S.T 69
8. Fida Ahmad RBA 70.5
9. Suhail Jan O.M 75.5
10. Bilquees O.M 77
11. Zulfi Javeed Ahmad P.H.C 79.5
12. Subaya Yasmeen O.M 76.5 Regarding the contention raised by learned counsel for the petitioners that selection criteria has been changed by the respondent after the process was set in motion, it is noticed that while scanning the terms and conditions of the notification, there are three stages to determine the eligibility or for making selection. One is qualification, other is selection procedure which provides for conduct of written examination on the basis of the syllabus provided, for which 80 marks have been reserved and the third is the criterion for calling the candidates for the interview/viva-voce.5
According to the petitioners all those candidates who had secured 45% or more marks were required to be called for the interview, more particularly when no short listing criteria was mentioned in the notification itself. Reliance in this behalf has been placed on two judgments of the Apex Court, Secretary A.P.Public Service Commission vs. B. Swapna and Ors, reported as (2005) 4 SCC, 154, and K. Manjushree vs. State of Andhra Pradesh, reported as (2008) 3 SSC, 512. In K. Manjushree, the Apex Court has held as under:-
The question in this case was whether correct criterion was adopted in making recruitment for posts of District & Sessions Judge (Grade II) which were governed by the Andhra Pradesh State Higher Judicial Service Rules, 1958. The Rules prescribed quota for direct recruitment, educational qualifications, etc. but did not prescribe any criterion for selection. There were however Resolutions dated 24.7.2001 and 21.02.2002 which prescribed criteria for selection of candidates. According to prescribed criterion, there were 75 marks for written examination and 25 for interview. It was decided vide Resolution dated 30.11.2004 that existing criterion would be followed but while holding written examination, 100 marks were prescribed instead of 75. The High Court ( on administrative side) made two changes after 6 written examination and interviews were over.
First, marks for written examination were proportionately scaled down so as to maintain ratio between written examination and interview as 3:1 (75:25) instead of 4:1 (100:25). This was done because original criterion prescribed 75:25 ratio. Secondly, it introduced minimum qualifying marks for interview also. This resulted in reshuffling of selection list.
The Supreme Court considered effect of these resolutions and concluded that the Resolutions dated 24.7.2001 and 21.2.2002 provided qualifying marks for written examination only but not for interview (para 20 of the judgment), and Held:
First list required an arithmetical correction, that is, scaling down of the written examination marks to three-forth of what was secured by the candidates with reference to a maximum of 100 marks, so that the ration of 3:1 could be maintained in respect of the marks for written examination and interviews. Scaling down is unexceptional as it is in consonance with the criteria decided by the Administrative Committee on 30.11.2004 before commencing the selection process. However, what could not have been done was the second change, by introduction of the criterion of minimum marks for the 7 interview. The minimum marks for interview had never been adopted by High Court earlier for selection of District and Sessions Judge, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure was to apply minimum mars only for written examination and not for the oral examination. Proper interpretation of the earlier Resolutions dated 24.7.2001 and 21.2.2002 as adopted on 30.11.2004 was that minimum marks are for written examination only and not for the interviews. Therefore, selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. The principle evolved in both the judgments supra relate to changing the existing criteria, as laid down in the notification.
It has been held by the Apex Court that requirement of minimum marks for interview, after the entire selection process was completed, would amount to changing the rules of the game, after the game was played, which is clearly impermissible. So what is emphasized by the aforementioned judgments is that criteria, which has been disclosed, after the selection process has been set in motion, cannot be changed.
8In the present case the criteria has not been changed. What, in fact, has been done is that, for calling the candidates for the interview, short listing procedure has been adopted. Learned counsel for the respondent has relied upon a judgment of the Division Bench of this Court in State of J&K vs. Rekha Sharma, reported as 2007 (3) JKJ 223 (HC), where it has been held as under:-
It needs to be borne in mind that there is clear cut distinction and vast difference between eligibility prescribed for a post under the relevant recruitment rules and the criteria prescribed by the selection authority for short listing/screening/interview or even, for that matter, making the final selection of candidates. Unless rules provides, it is for the selection authority or the Board to fix the criteria of its own for all these purposes in a given situation and in accordance with the demands of the situation. The condition of obtaining 45% or more marks in the written examination was a condition of eligibility but it did not cloth the candidates with a right that all those candidates who had obtained 45% marks would be called for the interview. The Selection Committee was well within its rights to evolve the process of short listing, depending upon the number of the candidates which were required to be interviewed. It is revealed 9 from the record submitted by the respondent that more than 882 candidates, both from Open and Reserved categories, have obtained marks which made them eligible for calling them for the interview in various categories. The Selection Committee, in its wisdom, decided to call only those candidates who had obtained 60 marks in Open Merit category and 55 in reserved categories, for the interview. This certainly did not envisage changing the rules of the game. The short listing of the candidates was intended to allow only those candidates who had obtained higher marks in the written examination to appear in the interview, with an ultimate object of permitting candidates with higher marks to enter the zone of consideration. I am supported in taking this view by a judgment of the Apex Court in Ashok Kumar Yadav and others vs. State of Haryana and others, reported as AIR 1987 SC 454, where it has been held as under:-
Where there is a composite test consisting of a written examination following by a viva voce test, the number of candidates to be called for interview in order of the marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled.
In the instant case the Haryana Public Service Commission called for interview all candidates numbering over 1300 who satisfied the minimum of 45% marks in the 10 written examination when the number of vacancies to be filled was merely 61. Held that calling such a large number of candidates for interview was not proper. I, therefore, do not find any force in the contention of the petitioners that the Selection Committee was bound to call all those candidates who had obtained 45% or more marks for the viva-voce test.
However, while scanning the selection record, it has been noted that out of 12 selected candidates, two candidates, namely, Mir Murtaza Hussain Sohil and Hillal Yousif, who have obtained 79 and 78 marks respectively, have been selected from RBA category. The cut off in the Open Merit category is 74.5, as such, the selection of these two candidates should have been from Open Merit category, as is provided under Rule 4 of the Jammu and Kashmir Reservation Act, 2004 and, resultant two vacancies were required to be offered to the candidates next in merit under RBA category. The last cut off in RBA category is 70.5 and the candidates next in merit is Sandeep Singh, who has secured 69 marks. It may be noted that in the RBA category, two candidates, namely, Munish Kumar Manhas and Saqib Saleem both have secured 68.5 marks. Munish Kumar Manhas has secured 63.5 marks in the written examination and 5 in the interview whereas Saqib 11 Saleem has secured 61.5 marks in the written examination and 7 marks in the interview.
The Apex Court in R. K. Sabharwal and ors vs. State of Punjab and others, reported as (1995) 2 Supreme Court Cases, 745, has held as under:-
When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. For making any provision for reservation of appointments or posts in favour of any Backward Class of citizens, it is incumbent on the State Government under Article 16(4) of the Constitution of India to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question 12 of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the backward classes are operative the same have to be followed. In view of what has been said above, regarding two candidates, namely, Mir Murtaza Hussain Sohil and Hillal Yousif who have obtained 79 and 78 marks respectively and have been selected from RBA category, they are required to be shifted to Open Merit category and consequently two posts under RBA category are required to be filled from the candidates next in merit in RBA category. This is required to be re-considered by the Selection Committee by re-casting the select list. Since there are two candidates in the RBA category who have obtained 68.5 marks each, the Selection Committee will take a decision in this respect as to who amongst the two is required to be selected as there are no guidelines provided nor anything has been brought to the notice of the Court as to whether the marks secured in the written examination or the interview or any other criteria has to be given the preference. This is left to be decided by the Selection Committee. Let the matter be referred back to the Selection Committee for making fresh recommendations, after shifting the two candidates from RBA category to Open Merit category and 13 recommending the other two candidates for their selection in RBA category, as stated above.
The Selection Committee is requested to complete this process within a period of ten days and make recommendations for appointment of the selected candidates accordingly.
Selection records, produced by Registrar General, be returned against proper receipt.
( Sunil Hali ) Judge JAMMU:
01.02.2011 Anil Raina, Secy.