Jammu & Kashmir High Court
Manoj Kumar vs Manoj Kumar V. State Of J&K And Others on 26 April, 2019
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 2467/2017, IA No. 01/2017
c/w
SWP No. 1572/2017, IA No. 02/2017, IA No. 01/2017
SWP No. 3012/2017, IA No.01/2017, IA No. 01/2018
SWP No. 703/2016, IA No. 01/2016.
Reserved on : 05.04.2019
Date of order: : 26.04.2019
1. Manoj Kumar V. State of J&K and others
2. Manoj Kumar V. State of J&K and others
3. Amar Maqbool V. State of J&K and others
4. Manoj Kumar V. State of J&K and others
Coram:
Hon'ble Mr. Justice Sanjeev Kumar-Judge
Appearance:
For the petitioner(s) : Mrs. Surinder Kour, Sr. Advocate with Ms. Manpreet
Kour, Advocate and Mr. Naveen Dutt, Advocate in
SWP No. 3012/2017.
For the respondent(s) : Mr. F.A.Natnoo, AAG, Mr. Amit Gupta, Dy. AG,
Mr.Vikas Magotra, Advocate and Mr. Naveen Dutt, Advocate in SWP No.2467/2017 i/ Whether to be reported in Yes/No Press/Media?
ii/ Whether to be reported in Yes.
Digest/Journal?
1. All these four petitions arise out of selection made by respondent No.2 for the posts of Assistant Tourist Officers pursuant to Advertisement Notification No.03 of 2012 dated 28.12.2012.
2. SWP No. 703/2016 is the first writ petition filed by the petitioner-Manoj Kumar challenging the selection criteria SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 1 of 13 framed by the J&K Service Selection Board for making selection to the post in question on the ground that the respondent-Board had not given any weightage to the higher/additional qualification. This petition was filed at the time when the respondent-Board after receiving the application forms, published selection criteria vide its Notification published in the „Daily Excelsior" newspaper in its issue dated 09th of September, 2015. While the aforesaid petition was pending, and the respondent-board framed the shortlist of all the eligible candidates to be invited for interview, the petitioner filed another writ petition, i.e., SWP No. 1572/2017 in which the petitioner assailed the eligibility of four candidates arrayed as respondents 6 to 9 in the petition, to participate in the further process of selection. This Court while entertaining the aforesaid writ petition vide its order dated 28.06.2017 provided that the respondent-board would consider only such candidates for the post of Assistant Tourist Officer, who fulfill the eligibility conditions as laid down in the Advertisement Notification. The process proceeded and ultimately culminated into the issuance of the select list. This made the petitioner Manoj Kumar to file third writ petition, in which the petitioner specifically challenged the selection of respondent No.6-Basharat Hussain and respondent No.7 Amar Maqbool as Assistant Tourist Officers on the ground that both the aforesaid candidates lacked the eligibility prescribed in the Advertisement Notification. Similarly, another petition, which is clubbed with this batch is SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 2 of 13 SWP No. 3012/2017 filed by one Amar Maqbool in which the selection of Basharat Hussain has been called in question.
3. From the above, it is clear that the reliefs claimed by the petitioner-Manoj Kumar in SWP No. 703/2016 and SWP No. 1572/2017 have merged with the reliefs claimed in SWP No. 2467/2017. That being so, the decision in SWP No.2467/2017 and SWP No. 3012/2017 would dispose of all the petitions and the controversy raised therein. It is because of this reason, all the petitions, which are clubbed together are being decided by this common judgment.
4. The facts in brief are that vide Advertisement Notification No.03 of 2012 dated 28.12.2012, J&K Service Selection Board (hereinafter referred to as respondent-board for brevity) invited applications for different posts including the six posts of Assistant Tourist Officers in the State Cadre of the Tourism Department. The breakup of the posts advertised was in the following manners:-
Open Merit 03 RBA 02 SC 0 ST 0 ALC 1 OSC 0 Total 6SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 3 of 13
5. The qualification for the post prescribed was as under :
Graduation from any recognized University having adequate knowledge of History and Geography of the State with knowledge of one foreign language or have undergone training in any line of the Tourism/Travel from a recognized Institute.
6. The petitioners herein, namely, Manoj Kumar and Amar Maqbool both being eligible applied under ALC category. The shortlisting criteria was published by the respondent-board in the "Daily Excelsior" newspaper in its issue dated 9th of September, 2015. For the post of Assistant Tourist Officer, the respondents-Board laid down the following shortlisting criteria:-
i. Marks obtained in the written test out of the maximum marks to be proportionately converted into points : 80 points ii. Viva voce : 20 points Total : 100 points.
7. As noted above, the petitioner-Manoj Kumar has separately challenged the selection criteria in SWP No.703/2016. It is noticed that the petitioner-Manoj Kumar on the basis of his merit in the written test also came to be shortlisted for interview. The petitioner participated in the process but could not make it to the select list, which was published by the respondent-Board and posted in its official website dated 12.08.2017. The respondent No.6 Basharat Hussain was selected as Assistant Tourist Officer against the solitary post notified under the ALC category. The respondent No.7 Amar Maqbool, who is SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 4 of 13 petitioner in SWP No.3012/2017 was placed in the waiting list under ALC category.
8. Aggrieved, the petitioner-Manoj Kumar has filed the writ petition SWP No. 2467/2017. The selection of respondent No.6- Basharat Hussain and placement of respondent No.7 Amar Maqbool in the waiting list has been assailed primarily on two counts:-
i. That the selection criteria adopted by the respondent-
Board in so far as it does not provide for any weightage to the higher/additional qualification and experience is illegal, arbitrary and violates Articles 14 and 16 of the Constitution of India;
ii. That both the respondent No.6 and respondent No.7 do not possess the basic eligibility to be appointed as Assistant Tourist Officers in the Tourism Department.
9. Mrs. Surinder Kour, learned Senior counsel leading the attack on behalf of the petitioners submits that respondent-board could not have ignored to provide weightage to the additional/higher qualification in the relevant field nor could it have brushed aside the experience possessed by the petitioner. She, therefore, submits that the respondent-Board by omitting to frame the selection criteria giving adequate weightage to the additional/higher qualification and experience has acted arbitrarily thereby violating fundamental right of equality granted to the petitioner by the Constitution under Articles 14 SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 5 of 13 and 16 of the Constitution of India. She submits that the petitioner-Manoj Kumar besides being a graduate, is also a postgraduate and M.Phil in Tourism Management. He is also possessed of the requisite experience gained by him while working in the Umaid Bhawan Palace (5 Star KC Residency) for fifteen months and therefore, was fittest candidate to be appointed as Assistant Tourist Officer. She, therefore, urges that the selection criteria framed by the respondent-board, by not taking into consideration the relevant qualification and experience, is not sustainable and deserves to be struck down by this Court. She also finds fault with the eligibility of the respondents Nos. 6 and 7. With regard to respondent No.6, it is submitted that the respondent No.6 has pursued his three years diploma course from NITS Polytechnic, Jammu, simultaneously, with his degree in Tourism, which he has obtained from the IGNOU- North Delhi. She submits that such course is not permissible in law. The UGC Regulations do not permit a candidate to pursue two courses simultaneously from the same University or from two different Universities. The attention of this Court is also drawn to the public notice issued by the UGC vide F.No.1-6/2007(CPP-11) dated 15th of January, 2016. To assail the selection of respondent No.7, it is submitted by the learned Senior counsel that though the respondent No.7 is a graduate having done his B.A. in the subjects General English, Political Science, Education and Urdu, yet the aforesaid qualification does not match with the qualification required for SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 6 of 13 the post of Assistant Tourist Officer. She submits that the respondent No.7 was not possessed of any knowledge of foreign language nor had he undergone any training in Tourism/Travel from the recognized Institute. Learned counsel Mr. Navin Dutt appearing in SWP No.3012/2017 who has assailed the selection of Basharat Hussain argues in support of his plea on the similar lines. To buttress his submissions, learned counsel relies upon the Notification of UGC issued on 15.01.2016 to emphasize on the point that the UGC does not permit a candidate to pursue two degrees simultaneously and therefore, the qualification of graduation acquired by the respondent Basharat Hussain from IGNOU while doing his diploma course from NITS is not a valid qualification. A specific reference is invited to the UGC (Minimum Standards of Instruction for the Grant of First Degree through Formal Education) Regulations 2003. Additionally, learned counsel for the petitioners also place reliance upon June 2012 Notification issued by the IGNOU, New Delhi whereby the Distance Education Council‟s decision taken in its 40th meeting held on 08th of June, 2012 has been notified. It is claimed that IGNOU permitted the students to pursue some programmes simultaneously through distance mode or combination of distance and regular mode from the same or different Universities only w.e.f. 08.06.2012 and therefore, the decree obtained by the respondent No.6 Basharat Hussain simultaneously pursuing his diploma in Polytechnic from NITS, SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 7 of 13 Jammu, much prior to 2012 was, therefore, not permissible in law.
10. Having heard learned counsel for the parties and perused the record, I am of the view that all these petitions lack merit and therefore, deserve to be dismissed. So far as challenge of the petitioner to the selection criteria is concerned, the same is without any substance. Indisputably, the qualification indicated in the Advertisement Notification is the same as has been provided under the J&K (Tourism Subordinate Service Recruitment) Rules, 1990. The qualification prescribed is Graduation from the recognized University. It does not, however, provide that the graduation to be possessed by a candidate should be in a particular subject or subjects. It, however, provides that the candidate must have adequate knowledge of history and geography of the State with knowledge of one foreign language or alternatively a candidate must have undergone training of any line of Tourism,/Travel from a recognized institute. Admittedly, the selection criteria framed by the petitioner does not give any weightage to the academic qualification. Instead 80 points have been earmarked for written objective test. It is not the case of the petitioner that the objective written test conducted by the respondents did not contain any question aimed at testing the knowledge of History, Geography and foreign language etc. as provided in the Advertisement Notification. In absence of any specific plea SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 8 of 13 taken, it is to be presumed that the written test designed by the respondents was aimed at testing the overall knowledge of the candidates including their knowledge of History, Geography, Foreign Lnguage and Tourism/Travel.
11. Viewed from any angle, the selection criteria adopted by the respondent-board, which is taken note hereinabove, cannot be said to be a illegal or arbitrary as alleged by the petitioners. The petitioners participated in the selection process and on the basis of written test conducted, were also shortlisted for viva- voce. It is different matter that because of their overall low merit they could not make the place in the select list. It is true that estoppel may not come in the way of the petitioner-Manoj Kumar in challenging the selection criteria because of the reasons that he had assailed the selection criteria even before participating in the written test. That apart, this Court does not find any merit in the contention of the petitioners that the selection criteria framed without taking care of additional qualification and experience in the field is bad in the eyes of law. Needless to say, and which is otherwise well settled that in absence of any statutory prescription, the selection criteria to be adopted for a particular selection is best left to the wisdom of selection body and the Court may not substitute its opinion in the matter even if it feels that a better criteria could have been formulated. So long as the selection criteria does not violate any statute or is not found to have been tailor-made to suit a SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 9 of 13 particular candidate or class of candidate, it cannot be interfered with.
12. Viewed thus, the selection criteria wherein 20 points are earmarked for viva voce and 80 points for the written test cannot be said to be either arbitrary or tailor-made to suit a particular candidate or class of candidates. All the candidates irrespective of their academic backgrounds have been put to uniform objective type written test and have been, accordingly, evaluated. The petitioners, too, were beneficiaries of such evaluation as they too were found eligible for participating in the process of viva-voce. In this background, this Court is of the considered view that the selection criteria adopted is fully in consonance with law. There was no obligation, statutory or otherwise, on the respondent-board to necessarily give additional weightage to the higher qualification and experience, moreso, when the statutory rules do not provide such additional weightage/advantage to the candidates possessing higher qualification and the experience in the relevant field.
13. This brings us to the question of eligibility of two candidates Basharat Hussain, who was selected under ALC category and Amar Maqbool who being next in order of merit is placed in the wait list. The petitioner-Manoj Kumar is aggrieved of the selection of Basharat Hussain and placement of Amar Maqbool in the wait list whereas Amar Maqbool assails the selection of respondent Basharat Hussain under ALC category so that he being next in the order of merit gets birth in the select SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 10 of 13 list. It is not in dispute and is, otherwise, clearly borne out from the record that Basharat Hussain is a graduate and therefore, fulfills the basic eligibility of qualification. Whether he had the adequate knowledge of history, geography of the State and foreign language or not, is a question which cannot be determined by this Court. There was objective type written test conducted by the respondents which contained a wide range of questions good enough to test the knowledge of the candidate in the field of history, geography, foreign language and tourism and travel etc etc. The shortlisted candidates were also subjected to viva vice, where also there was ample opportunity for the Interview Committee to test such knowledge of the candidates. The grievance of the petitioners that respondent-board could not have considered the BA qualification of respondent No.6 Basharat Hussain acquired from the IGNOU through distance mode is not substantiated by any material brought on record or through persuasion supported by logic. The UGC Notifications relied upon by the petitioners do not prohibit a candidate from simultaneously pursuing two courses; one from the State Board of School Education or other from the IGNOU. The UGC Notifications and the Regulations framed by the UGC, however, do not permit a candidate to simultaneously pursue two degrees from the same University or from different Universities. Admittedly, in the instant case, respondent No.6 Basharat Hussain while he was nearing completion of his diploma course of State Board of Technical Education, J&K, he took admission SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 11 of 13 in the degree course in Tourism from IGNOU, New Delhi. In these circumstances, it cannot be said that the respondent No.6 Basharat Hussain pursued two degree courses simultaneously either from the same University or from two different Universities. The diploma course, which Basharat Hussain was pursuing was from the State Board of Technical Education and not from any University, therefore, he was not prohibited by law, rules or regulations to pursue his degree course through distance mode from the IGNOU, New Delhi. I do not find any illegality committed by the respondent- board in considering his candidature. Admittedly, Basharat Hussain obtained more points in the selection process then the petitioners Manoj Kumar and Amar Maqbool and therefore, placed in the select list under ALC category. The grievance of Amar Maqbool against respondent No.6 Basharat Hussain on the similar lines, is also not tenable in law. The reliance of the learned counsel for the petitioners under Notification of IGNOU issued in June, 2012 is equally not tenable. What is permitted by the IGNOU in case of certain programmes/combinations is to pursue such two programmes/combinations of distance and regular modes simultaneously from the same or different Universities. Whether it is a Notification issued by the IGNOU or by the UGC it pertains only to the pursuing of two programmes simultaneously from the same University or from different Universities. There was, thus, no prohibition of any kind put on pursuing the two courses simultaneously one from the Board and another from SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 12 of 13 the University. For all these reasons I am not persuaded to agree with the submissions urged by the petitioners in this behalf.
14. Viewed from any angle I do not find any illegality or infirmity in the selection of respondent No.6 Basharat Hussain and even placement of petitioner Amar Maqbool in the wait list under ALC category. For the foregoing reasons and discussion made hereinabove all these petitions are found to be without any merit and are, accordingly, dismissed along with connected IA(s).
(Sanjeev Kumar) Judge Jammu 26.04.2019 „Madan-PS‟ MADAN LAL VERMA 2019.04.29 13:09 I attest to the accuracy and integrity of this document SWP No. 2467/2017c/w SWP No. 1572/2017, SWP No. 3012/2017, SWP No. 703/2016, Page 13 of 13