Jammu & Kashmir High Court - Srinagar Bench
J&K Public Service Commission vs Shakti Raj And Ors And Air 1987 Sc 2267 on 29 October, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 101 of 2011 CMP No. 164 of 2011 LPA No. 98 of 2011 CMP No. 159 of 2011 LPA No. 109 of 2011 CMP No. 178 of 2011 LPA No. 118 of 2011 CMP No. 189 of 2011 J&K Public Service Commission Peerzada Suhail Ahmad Shiekh Mohd Yasin and Others Sharik Rashid and Others Petitioners State of J&K and others Pervaiz Ahmad Dar & Ors Respondents !Mr. Azar-Ul-Amin, Advocate Mr. Z. A. Shah, Advocate Mr. G. A. Lone, Advocate Mr. F. S. Butt, Advocate ^Mr. A. H. Naik, Advocate Honble Mr. Justice F. M. Ibrahim Kalifulla, Chief Justice Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 29/10/2011 :J U D G M E N T:
1. In all these appeals the common challenge is to the order of the learned Single Judge dated 29.04.2011 passed in SWP no. 310/2011. LPA no. 101/2011 has been filed by the Jammu and Kashmir Public Service Commission (hereinafter referred to as the Commission) while as other appeals have been preferred by the selected candidates for the post of Veterinary Assistant Surgeon in the Animal Husbandry Department and Sheep Husbandry Department. By the impugned order the learned Single Judge set aside the select list dated 17/21.02.2011 for the post of Veterinary Assistant Surgeon in Animal/Sheep Husbandry Departments.
2. The brief facts which are required to be stated are that, by a requisition dated 24.05.2010 the Animal Husbandry Department approached the Commission for filling up the post of 28 Veterinary Assistant Surgeons. Based on the said requisition the Commission issued a notification dated 28.05.2010 calling for applications from the eligible candidates for filling up 28 posts of Veterinary Assistant Surgeons in the Animal Husbandry Department. The reserved categories for which the said 28 posts were to be allocated were also specified in the said notification. There was a requisition to the Commission from the Sheep Husbandry Department in its communication dated 25.05.2010 for filling up the posts of very same Veterinary Assistant Surgeons numbering 27. The Commission issued a notice dated 04.06.2010 wherein the 28 posts in the Animal Husbandry Department and 27 posts in the Sheep Husbandry Department were disclosed with respective posts earmarked for the reserved categories and also stating that the said notice was in continuation of the notification dated 28.05.2010, that the candidates who had applied for the said post in pursuance of the notification dated 28.05.2010 or who may apply in pursuance of the said notice should exercise an option at the time of interview to indicate their preference for selection in the Departments, namely, Animal Husbandry or Sheep Husbandry. By way of Note I, II and III it was also specifically mentioned that the qualification for the post were as mentioned in the notification dated 28.05.2010, that other terms and conditions in the notification dated 28.05.2010 would remain and that the last date for receipt of applications was also as mentioned in the said notification, namely, 28.05.2010. Mr. A. H. Naik, learned senior counsel appearing for the writ petitioners stated that the writ petitioners applied pursuant to the notification dated 28.05.2010 even before the notice dated 04.06.2010 came to be issued. The Commission went ahead with the selection process and forwarded its select list dated 21.02.2011 to the Commissioner-Secretary to the Government, Animal and Sheep Husbandry Department.
3. The present writ petition came to be filed on 20.02.2011 with a prayer that the select list dated 17.02.2011 for the post of Veterinary Assistant Surgeon in the Animal/Sheep Husbandry Departments should be set aside. The sole contention of the writ petitioners was that under the Rules of the Commission formulated pursuant to Section 133 of the Jammu and Kashmir Constitution, clubbing of two different services was not permissible, that in the absence of a separate notification for filling up the 27 posts of Veterinary Assistant Surgeons in the Sheep Husbandry Department and a separate process of selection adopted for that, the present manner in which the selection was made by the Commission by clubbing 28 posts in the Animal Husbandry and 27 posts in the Sheep Husbandry departments was not in accordance with law. It was, therefore, contended that the select list was required to be set aside.
4. The said contention of the petitioners having found favour with the learned Single Judge and the select list having been set aside, the appellants have came forward with these appeals.
5. We heard Mr. Azar-ul-Amin, standing counsel for the Commission, Mr. Z.A.Shah, learned senior counsel, Mr. G. A. Lone and Mr. F. S. Butt for the other appellants, and Mr. A. H. Naik, learned senior counsel for the contesting private respondents.
6. Mr. Azar-ul-Amin, standing counsel for the Commission, in his submissions contended that the Animal Husbandry and Sheep Husbandry are controlled by one single department, namely, the Animal and Sheep Husbandry Department of the State, that the post which the Animal Husbandry and Sheep Husbandry department wanted to fill up was Veterinary Assistant Surgeon, the qualification required for which was the same and that the job requirement was also the same, though the post was not inter- transferable between Animal Husbandry and Sheep Husbandry. According to the learned counsel, though there are two separate service rules for Animal Husbandry and Sheep Husbandry, the qualification and nomenclature of the job being the same, the test for selection was also the same, it was unnecessary for the Commission to issue separate notification for the 27 posts of Veterinary Assistant Surgeons, filling up of which was requisitioned by the Sheep Husbandry Department in its requisition dated 25.05.2010. According to the learned counsel, after the notification dated 28.05.2010 was issued for filling up 28 posts of Veterinary Assistant Surgeons in the Animal Husbandry Department, the requisition of the Sheep Husbandry Department dated 25.05.20120 was considered and having regard to the fact that the post was the same, by issuance of notice dated 04.06.2010 the availability of posts in both the services was duly published with due intimation about the application of the terms and conditions contained in the notification dated 28.05.2010 with an added requirement to exercise the option by the candidates at the time of the interview to indicate their first and second preference either for Animal Husbandry or Sheep Husbandry. The learned standing counsel would further contend that the candidates understood the implication of the notice dated 04.06.2010 with all the terms set out therein, participated in the selection without any demur and, therefore, now after the selection was over and the select list was also finalized, in the absence of any specific allegation of mala fide or violation of any substantive rule or regulation, they cannot be allowed to challenge the final select list which will not be in the interest of public at large.
7. Mr. Z.A. Shah, learned senior counsel appearing for the appellants in LPA no. 98/2011, while supporting the stand of Mr. Amin, also contended that by notice dated 04.06.2010 what was indicated was the availability of the number of the posts of Veterinary Assistant Surgeons and the said notice did not, in any way, altered the other stipulations contained in the notification dated 28.05.2010. The learned senior counsel would submit that by issuance of the said notice dated 04.06.2010, no prejudice was caused to any of the candidates who applied pursuant to notification dated 28.05.2010 or after the notice dated 04.06.2010 and, therefore, the learned Single Judge was not justified in interfering with the select list. The learned senior counsel relied upon a decision of the Honble Supreme Court reported in (2010) 4 SCC 192, Jasbir Singh Chhabra and ors v. State of Punjab and others, in support of his submissions.
8. Mr. G. A. Lone, learned counsel appearing for the appellants in LPA no. 109/2011 also endorsed the submissions of Mr. Amin, standing counsel for the Commission as well as Mr. Z. A. Shah and contended that in the absence of any challenge to the notification dated 28.05.2010 or notice dated 04.06.2010 the writ petitioners had no locus to challenge the ultimate select list. The learned counsel further contended that as the appellants were not arrayed as party to the writ petition who were some of the selected candidates in the select list dated 21.02.2011, on that ground itself the writ petition was liable to be rejected. In support of his submissions learned counsel placed reliance on the decisions of the Honble Supreme Court reported in (2008)4 SCC 171, Dhananjay Malik and Ors v. State of Uttaranchal and ors and (2006)6 SCC, 395, K.H.Siraj v. High Court of Kerala and ors. The other counsel for the appellant also adopted the arguments of the above learned counsel.
9. Mr. A. H. Naik, learned senior counsel appearing for the writ petitioners, after referring to Rule 2(f) and 19 of the Public Service Commission Rules contended that there was a clear violation of the rules in not issuing two independent notifications while calling for applications for the post of Veterinary Assistant Surgeons in the Animal Husbandry Service and Sheep Husbandry Service. Learned senior counsel contended that by resorting to the combined selection process adopted by the Commission serious prejudice was caused to the writ petitioners, inasmuch as, they were forced to compete with more number of candidates which affected their valuable rights. Learned counsel contended that since violation of rule was staring at the face, the writ petitioners could not have been thrown out on the ground that they did not challenge the notification dated 28.05.2010 or the notice dated 04.06.2010. The learned senior counsel placed heavy reliance upon the decisions reported in (1997) 9 SCC 527 Raj Kumar and ors vs. Shakti Raj and ors and AIR 1987 SC 2267, Shri Durgacharan Misra v. State of Orrisa and ors. The learned counsel also contended that the service of Animal Husbandry and Sheep Husbandry were governed by separate rules, that the qualifications prescribed were different and, therefore, clubbing of the posts for the purpose of recruitment was not in consonance with law.
10. Having heard the learned counsel for the respective parties and having considered the various materials placed before us we bestowed our serious consideration to the submissions as well as the materials and find that the submissions of learned counsel for the appellants merit acceptance.
11. At the very out set we wish to consider the submissions of Mr. A. H. Naik, learned senior counsel, on the qualifications prescribed under the Animal Husbandry Rules and the Sheep Husbandry Rules before examining the validity of the selection made by the Commission.
12. Under the Jammu and Kashmir Animal Husbandry (Gazetted) Service Recruitment Rules, 1988, in the 2nd Schedule for the post of Veterinary Assistant Surgeon the qualification prescribed under column 5 is B.V.Sc and Animal Husbandry from a recognized University. In the Jammu and Kashmir Sheep Husbandry (Gazetted) Service Recruitment Rules, 1987, the qualification prescribed for the very same post of Veterinary Assistant Surgeon under Schedule II is B.V.Sc. The expression A.H only signifies Animal Husbandry. In the notification dated 28.05.2010, while prescribing the essential qualification for the post of Veterinary Assistant Surgeon in the Animal Husbandry Department, B.V.Sc. Animal Husbandry was mentioned. As stated earlier in the notice dated 04.06.2010, under Note I it was mentioned that the qualification for the post as mentioned in the notification dated 28.05.2010, namely, Bachelors Degree in Veterinary Science and Animal Husbandry from recognized University remained unchanged.
13. It is not the case of the contesting private respondents that on the ground of lack of qualification any of the candidates were disqualified from participating in the selection. In fact, no candidate with mere B.V.Sc. qualification is stated to have been aggrieved on that ground. According to the learned counsel for the Commission the expression Animal Husbandry signified nothing and that the Veterinary Council of India, which is the apex body which certifies recognition for any institution for conducting the course of B.V.Sc. has not specified the qualification B.V.Sc. by suffixing Animal Husbandry. The learned counsel for the Commission, therefore, contended that the prescription of B.V.Sc. as prescribed qualification for the post of Veterinary Assistant Surgeon in second Schedule to the Sheep Husbandry Rules does not materially affect the right of any one candidate while seeking to apply for the post of Veterinary Assistant Surgeon in the Animal Husbandry Department as well as the Sheep Husbandry Department, inasmuch as, the Commission never disqualified any of the candidate on that ground.
14. When the submission of the respective counsel for the parties was considered on this issue, we find that none of the contesting private respondents were deprived of their opportunity to participate in the selection on the ground of lack of qualification. It would have been a different matter if the Commission had rejected the candidature of any of the contesting respondents from contesting his claim for the post of Veterinary Assistant Surgeon in the Animal Husbandry Department on the ground that he did not possess the qualification of B.V.Sc. Animal Husbandry. Therefore, in the case on hand, since the said contention being purely academic, nothing turns on the said contention and, therefore, we do not find any scope to interfere with the selection on that score. As a matter of fact, all the contesting private respondents were allowed to participate in the selection and they expressed their option as stipulated in the notice dated 04.06.2010 by setting out their preferences for the post of Animal Husbandry or the Sheep Husbandry by specifying their first choice and the second choice. Therefore, based on the said contention raised on behalf of the contesting private respondents, we do not find any scope to interfere with the selection.
15. The next contention of the contesting private respondents was that in the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules, 1980, there was no provision to combine or club the posts in two different services and, therefore, on that ground the selection was liable to be set aside.
16. In this respect, the submission of Mr. Z.A.Shah, learned senior counsel appearing for the appellants in LPA no. 98/2011 merits acceptance. As rightly contended by the learned senior counsel the prescription of the post in the notification dated 28.05.2010 and the notice dated 04.06.2010 cannot be said to be a step taken by the Commission for selection by combining the posts of two different services. In fact, in the first notification dated 28.05.2010 the availability of posts in the Animal Husbandry Department with specific allocation of posts for different categories, such as, Open Merit, RBA, SC, ST and ALC were set out. In the notice dated 04.06.2010 the availability of 27 posts in the category of Veterinary Assistant Surgeons in Sheep Husbandry Department, again showing the allocation of such posts for different categories, namely, Open Merit, RBA, SC, ST and ALC has been made. Therefore, from the notification dated 28.05.2010 and notice dated 04.06.2010 it cannot be held that the Commission combined the two services or clubbed the posts in the two services while notifying for selection. In our considered opinion the clubbing of the posts can be stated to have occurred if there was an advertisement for 55 posts (28+27) by allocating the posts for various reserved categories based on such combination of 55 posts without specifying as to which of the service either Animal Husbandry or Sheep Husbandry being set out. Such is not the case on hand. Every candidate who applied for the post of Veterinary Assistant Surgeon was made aware of the availability of the posts in Open Merit category in each of the department while competing for the selection. More over, in the notice dated 04.06.2010 the candidates were specifically informed that they have to exercise their option of preference to either of the services by expressing their choice, namely, first preference and the second preference, depending upon their choice in the two different services.
17. The statement placed before us by the learned counsel for the Commission disclose that all the short listed candidates including the contesting private respondents expressed their first and second preference after duly understanding the implication of notice dated 04.06.2010. All the above factors goes to show that by keeping the identity of each of the service, namely, Animal Husbandry and Sheep Husbandry , intact and the respective availability of posts in those services, the Commission carried out the exercise of making the selection without in any way causing prejudice to any of the candidates. In that process there was no scope for any one candidate, much less the contesting private respondents, to contend that they were deprived of staking their claim, for a preferred service either Animal Husbandry or Sheep Husbandry and thereby any prejudice was caused to any of the candidates. In fact from the statement, which disclose the preferences expressed by the selected candidates as well as the short listed candidates, it transpires that while some of the candidates preferred the Animal Husbandry as first preference some preferred Sheep Husbandry as their first preference. Of the selected 55 candidates, we find that up to the extent the respective posts were available the preferences made by the concerned candidates was accepted and only after the posts were exhausted, the Commission could not consider the first choice expressed by the candidate concerned. Therefore, the argument that there was a clubbing of two services or combination of two services in the matter of selection, was not substantiated. On the other hand, as stated earlier, the posts in the two services were independently notified and the selection was made. The allotment of the candidates to the different services were made based on the choice expressed by the candidates. The submission of learned counsel for the contesting private respondents, therefore, does not merit acceptance.
18. In the light of the above position, the contention that there is no provision under the Business Rules of the Commission for combination of the posts does not, in any way, affect the selection. The contention that the definition of service under Rule 2(f) of the Jammu and Kashmir (Business and Procedure) Rules mean any service of the State for which the Commissions service is required to fill up the post in such service, has no application to the issue at hand. Similarly the contention based on Rule 19 of the said Rules cannot also be said to have been violated. As stated earlier the availability of posts in each of the services was kept intact and specified clearly in the notification dated 28.0.5.2010 as well as notice dated 04.06.2010. It will be worthwhile to note that while notification dated 28.05.2010 prescribed the manner in which the Commission announced the selection to be made, by notice dated 04.06.2010 it only announced availability of the posts of Veterinary Assistant Surgeons to the extent of 28 in Animal Husbandry Department and 27 posts in the Sheep Husbandry Department. The notice dated 04.06.2010 cannot, therefore, be tested in the anvil of satisfying the prescription of various procedures set out for the purpose of making the selection to fill up the post. To put it differently, the notice dated 04.06.2010 only published the availability of the number of the posts in the Animal Husbandry Department and the Sheep Husbandry Department in the discipline of Veterinary Assistant Surgeons and nothing more. If at all anything can be said, it might have been possible for any one candidate to contend whether by following such a procedure of issuing the notice dated 04.06.2010 the Commission could have resorted to selection for the post of Veterinary Assistant Surgeon in the Sheep Husbandry Department without setting out in detail various procedures which have been set out in the notification dated 28.05.2010. If that were the grievance of any one of the candidate who applied for the post of Veterinary Assistant Surgeons in the Sheep Husbandry Department, to what extent such a candidate was put to any prejudice in that process would be the pressing question.
19. In the first place no candidate raised any grievance as against the notice dated 04.06.2010 when the same was published widely. At least none of the contesting private respondents raised any protest to the said notice or to the prescriptions set out in the said notice where it sought to simply adopt/apply the prescriptions set out in the notification dated 28.05.2010 for filling up the 27 posts of the Veterinary Assistant Surgeons in the Sheep Husbandry Department, as was sought to be made in respect of 28 posts of the Veterinary Assistant Surgeons in the Animal Husbandry Department. Therefore, it is too late in the day for the contesting private respondents to raise any grievance as to the manner in which the Commission acted for making the selection of the respective posts in the Animal Husbandry Department and Sheep Husbandry Department.
20. One other contention raised on behalf of the contesting private respondents was that all those candidates fell under the Open Merit category, that 15 posts were earmarked in both the services, that if a separate selection had been made by issuance of separate notifications for the two different services, the zone of consideration would have been limited, based on 1:8, whereas by clubbing of the posts the zone of consideration went beyond 200 and thereby serious prejudice was caused to the contesting private respondents. Reliance was placed upon the reply affidavit of the Commission filed in the writ petition no. 310/2011 wherein, while submitting the parawise reply and in relation to paragraph no. 10 the Commission reported that for the total of 30 posts earmarked for the Open Merit Category the number of candidates short listed were 210 and if the number of posts were only 15, the total number of the short listed candidates in each of the service would have been only 120 which would have provided better chances for the contesting private respondents in staking their claim for selection.
21. The contesting private respondents cannot be permitted to make such a contention after having subjected themselves to the selection process as advertised in the notification dated 28.05.2010 and by the notice dated 04.06.2010. Having failed to challenge either the notification or the notice the contesting private respondents cannot now be permitted to raise such a contention after the selection process was over and the select list was finalized by the Commission. The contesting private respondents stand in that respect has to fail on application of the principle that one cannot approbate and reprobate. In Whartons Law Lexicon the expression approbate and reprobate has been explained as a person is stated to approbate and reprobate when he takes advantage of one part of the document and rejects the rest. It further expresses that one who approbates cannot reprobate.
22. In the case on hand, the contesting private respondents having chosen to avail the benefit of preferring their applications for the post of Veterinary Assistant Surgeons in the Animal Husbandry Department based on the notification dated 28.05.2010 and also stake their claim for the very same posts in the Sheep Husbandry Department, based on the notice dated 04.06.2010 based on which they went ahead and also expressed their preferences, cannot be now heard to state that other prescriptions contained in the notice dated 04.06.2010 should seize to operate and there should not be a selection for the posts in the two different services by the procedure adopted by the Commission simply because they were found to be un-successful in getting selected to either of the services. Therefore, the contesting private respondents challenge to the ultimate selection cannot be accepted.
23. So far as reliance placed by Mr. A. H.Naik, learned senior counsel appearing for the contesting private respondents on the decision reported in AIR 1987 SC 2267, Shri Durgacharan Misra vs. State of Orrisa, is concerned, the Honble Supreme Court while dealing with a case of selection made for the post of probationary Munsiff in the State Judicial Services, the question for consideration was whether the minimum marks prescribed by the Commission for Viva Voce test was justified and whether the select list prepared by the Commission was in accordance with the rules. In that case, as per the rules, the written examination carried maximum marks of 950 and for the Viva Voce test 200. While making the ultimate selection the Commission adopted a procedure by which it excluded the candidates who attended the interview but did not secure minimum of 35 marks in the Viva Voce, irrespective of those candidates who secured higher marks in the written examination than the selected candidates. While dealing with the said situation the Honble Supreme Court held as under in paragraph 16:-
The Rules in question have been made after consultation with the Commission and the State High Court. The Commission which has been constituted under the Rules must, therefore faithfully follow the Rules. It must select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibility or as to suitability. The decision of the Commission to prescribe the minimum marks to be secured at the viva voce test would, therefore, be illegal and without authority.
24. The said decision cannot be applied to the facts of this case for more than one reason. In the first place we have held earlier that the Business Rules of the Jammu and Kashmir Public Service Commission did not create any prohibition as to the manner in which the Commission made the selection for filling up the posts of Veterinary Assistant Surgeons in the Animal Husbandry Department and the Sheep Husbandry Department. Therefore, there can be no violation of any of the Business Rules. Secondly, we have held that by the methodology followed by the Commission in filling up the posts of Veterinary Assistant Surgeons in both the services no violation of any rule has taken place. In any event we have found that on the alleged ground of violation of any rule, the contesting private respondents never sought to challenge either the notification dated 28.05.2010 or the notice dated 04.06.2010. In the absence of violation of any such specific rule viz-a-viz the action of the Commission in having resorted to filling up of the vacant posts of Veterinary Assistant Surgeons in the Animal Husbandry Department or the Sheep Husbandry Department, the judgment relied upon by the learned senior counsel for the contesting private respondents cannot be applied.
25. In the decision relied upon by the learned senior counsel appearing for the contesting private respondents, as the facts disclose that a process of elimination was resorted to by prescribing a minimum of 30% marks for the Viva Voce test even in respect of the candidates who secured higher marks in the written examination. Such a prescription of 30% marks of Viva Voce test as a bench mark was never notified while calling for applications for filling up the posts. Therefore, since the rules of the game were materially altered by prescribing the minimum of 30% marks for the Viva Voce test, the Honble Supreme Court held that the selection was vitiated.
26. Reliance was paced upon the decision reported in (1997) 9 SCC 527, Raj Kumar and Ors vs. Shakti Raj and ors in support of the submission that violation of rule would vitiate the selection and the principle laid down in Madan Lal vs. State of J&K and Ors, (1995) 3 SCC 486 on estoppel by conduct or acquiescence will not apply. In the said decision, after making the selection when they found that the mandatory requirement of calling for names from the employment exchange before conducting the selection was not done, after the selection the names of the selected candidates were made to be sponsored by the employment exchange. Since such a procedure adopted by the selection body was clearly illegal, the Honble Supreme Court held that the principle of estoppel by conduct or acquiescence can have no application to the facts of that case. Since the said case is clearly distinguishable to the facts of the case on hand, the same is not applicable to the present case.
27. In the decision reported in (1995) 3 SCC 486, Madan Lal vs. State of J&K and Ors, the Honble Supreme Court held as under in paragraph nos. 9 and 10:-
9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared in the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned.
Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged as successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. (Emphasis added)
28. The above said principle squarely applies to the facts of this case. The contesting private respondents having participated in the written test as well as Viva Voce and having accepted the prescription of exercising their option of preference to either the Animal Husbandry or Sheep Husbandry, cannot now turn around and state that whole procedure adopted by the Commission was not acceptable to them simply because they were un-successful in the ultimate selection. In this respect the subsequent decision of the Honble Supreme Court reported in (2006) 6 SCC 395, K. H. Siraj v. High Court of Kerala and ors, also supports the stand of the Commission that when there was no prohibition in the Business Rules of the Commission, when it adopted the course of applying the prescription contained in the notification dated 28.05.2010 for filling up the very same post of Veterinary Assistant Surgeon in the Sheep Husbandry Department by issuing notice dated 04.06.2010, the Commission was well justified in following the said procedure. In paragraph no. 62 the Honble Supreme Court has held as under:-
Thus it is seen that apart from the amplitude of the power under Rule 7 it is clearly open for the High Court to prescribe benchmarks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the Rules which may not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the rule with a view to implement them by prescribing relevant standards in the advertisement for selection. Reference may be made to the decision of this Court in State of Gujarat v. Akhilesh C. Bhargav. (Emphasis added)
29. In yet another decision of the Honble Supreme Court reported in (2008) 4 SCC 171, Dhananjay Malik and ors. Vs. State of Uttaranchal and ors, the Honble Supreme Court held as under in paragraph no. 14:-
A Constitution Bench of this Court in Sant Ram Sharma v. State of Rajasthan, has pointed out at AIR p.1914 that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
30. Even applying the said principle, when the Business Rules are silent as to the manner in which the Commission resorted to filling up the posts of Veterinary Assistant Surgeons in the Sheep Husbandry Department by adopting the very same procedure prescribed in the notification dated 28.05.2010 through the notice dated 04.06.2010, no fault can be found with such a procedure adopted by the Commission and the same would not vitiate the selection.
31. Last but not the least, the contention of Mr. G. A. Lone, was that the appellants in his appeal, namely, LPA no. 109/2011 were selected candidates but they were not impleaded as party respondents in the writ petition. The Honble Supreme Court in the decision reported in (2006) 6 SCC 395, K.H. Siraj v. High Court of Kerala & Ors, specifically dealt with the said issue and held as under in Paragraph no. 75:-
The writ petitions have also to fall on the ground of absence of necessary parties in the party array. Though the appellant-petitioners contend that they are only challenging the list to a limited extent, acceptance of their contention will result in a total rearrangement of the select list. The candidates will be displaced from their present ranks, besides some of them may also be out of the select list of 70. It was, therefore, imperative that all the candidates in the select list should have been impleaded as parties to the writ petitions as otherwise they will be affected without being heard. Publication in the newspaper does not cure this defect. There are only a specified definite number of candidates who had to be impleaded, namely, 70. It is not as if there are a large unspecified number of people to be affected. In such cases, resort cannot be made to Rule 148 of the Kerala High Court Rules. That rule can be applied only when very large number of candidates are involved and it may not be able to pinpoint those candidates with details. In our view, the writ petitions have to fail for non-joinder of necessary parties also.
32. Therefore, even on this ground the writ petition preferred by the contesting private respondents was bound to fail.
33. For all the above stated reasons we hold that the conclusion of the leaned Single Judge, that in the absence of any provision in the Rules permitting Combining of the posts from different services for making appointment to the posts, cannot be affirmed, inasmuch as we have held that there was no clubbing of the posts from different services. The said reasoning of the learned Single Judge can not also be accepted for interfering with the selection.
34. As we have found that there was no violation of any particular rule the selection was not vitiated.
35. For all the above stated reasons the order of the learned Single Judge is set aside. The selection made by the Commission being in accordance with the rules, we do not find any vitiating circumstances to interfere with the same. The select list of the Commission dated 17/21.02.2011 is up held. These Letter Patent Appeals stands allowed. Consequently the writ petition, SWP no. 310/2011, is dismissed.
36. No costs.
(Muzaffar Hussain Attar) (F. M. Ibrahim Kalifulla)
Judge Chief Justice
Srinagar
29.10.2011