Ali Mohammad Magrey, J.:-
1. The instant Letters Patent Appeal is directed against the final order/Judgment passed on 07.05.2013 by learned Singe Judge in SWP No. 1232/2005, whereby the writ petition filed by the appellant along with seven others (hereinafter to be referred to as "petitioner") against the selection/appointment of private respondents for the post of Dental Surgeon, in terms of notification. No. 5-PSC of 2003 dated 23.06.2003 has been dismissed. Facts which have arisen for disposal of this appeal are detailed out as under:-
2. In terms of notification dated 23rd June, 2003, respondent No. 2 (Jammu and Kashmir Public Service Commission) invited applications from the candidates fulfilling the eligibility criteria prescribed under the Recruitment Rules and reflected in the notification, for 33 posts of Dental Surgeon in the Pay Scale of Rs. 8000-13500 in Health and Family Welfare Department of the State Government. The petitioners, respondents 3 to 58 and other eligible candidates responded to the advertisement notice. The selection process was completed and list of selected candidates published on 23rd August, 2005. The selected candidates were appointed as Dental Surgeons vide Government order No. 459-HME of 2005 dated 29.08.2005. The petitioners did not find place in the select list and therefore were not appointed as Dental Surgeons.
3. Petitioners feeling aggrieved of their non selection filed writ petition and challenged the selection of private respondents 3 to 58 on the grounds set out in the writ petition and sought quashment of notification dated 23rd August, 2005 whereby the select list has been notified and the Government order No. 459-HME of 2005 dated 29.08.2005 appointing selected candidates as Dental Surgeons in the grade of Rs. 8000-13500. Petitioners also prayed for writ of certiorari, seeking quashment of Rule 51 of Jammu and Kashmir Public Service Commission Rules (Business and Procedure Rules) 1980, issued vide notification No. 164-PSC of 2004 dated 25.10.2004 and writ of mandamus commanding the respondent No. 2 to recast the merit list and declare petitioners selected as Dental Surgeons.
4. On adjudication of the matter, learned single Judge in terms of impugned final order/Judgment dismissed the writ petition, after recording reasons for the same. Petitioners' case is that in terms of Amended Rule-51 notified vide notification No. 164 of 2004 dated 25th October, 2004 weightage given to the academic merit is less than 30 marks though the Rule-51 on the first look gives an impression that 50 marks stand earmarked for academic merit. The impugned Rule, it is pleaded convents merit into demerit leaves room for arbitrary and capricious exercise of discretion in making the selection. The petitioners insist that their merit and experience has been ignored by the respondent Commission while making the selection and that the whole exercise taken by the respondent Commission is violative of Article 14 and 16 of Constitution of India.
5. Respondent Commission has resisted the claim on the grounds that the Commission while making selection has adhered to the Constitutional mandate inasmuch as a level play field, has been provided to all the candidates aspiring for the advertised posts and the selection made on the basis of performance of the candidates including the petitioners and respondents 3 to 58. It is pleaded that the screening test is conducted to short list the candidates in the ratio of 1:3 and the merit obtained in the screening test does not carry any weightage for the purposes of filial selection. It is insisted that merit in academics may not be decisive about suitability of a candidate and due weightage, while making selection, weightage is to be given to the performance of the candidate in interview wherein the merit is assessed by the Members of the Commission with the assistance of expert in the field. It is pointed out that interview in the present case conducted with the assistance of an expert was aimed at assessing the merit of each candidate including his knowledge on the subject, capacity to interact, general awareness, aptitude and suitability for the job. It is pleaded that merit of all the candidates was assessed on the touchstone of a uniform criteria and marks given on the basis of academic performance and higher qualification. It is denied that Rule-51 is violative of Articles 14 and 16 Constitution of India and gives wide and unbridled powers to the Commission or leaves scope for conversion of merit into demerit. The petitioners, according to the respondent Commission have only a right to be considered for the advertised posts and said right has been duly respected in their case and their merit and performance assessed on the same criteria as applied to the respondents 3 to 58.
6. Petitioner has challenged the Judgment on the grounds detailed out in the memo of appeal in the following manner:-
7. The impugned Judgment is liable to be set aside as the same is contrary to the facts on record and the settled law on the subject in hand.
8. Since the aforesaid Rule 51 (in its recast/amended form), Oil the fact of it, allocates 50 percent marks to the performance of a candidate in his viva voce test as against maximum permissible limit of 40 percent in respect thereof mandated by the Judgment of the full Bench of the Hon'ble High Court of J & K delivered in SWP No. 211/1994 titled as Dr. Inder Parkash v. State of J & K and Ors., which was subsequently upheld by the Constitution Bench of the Hon'ble Apex Court in Inder Parkash Gupta v. State of J & K and Ors. reported in AIR 2005 Supreme Court 2523 and reserves only 40 percent marks for the academic achievement and record of the candidate and keeps 10 percent marks also for the achievement of the candidate in extracurricular activities such as NCC which are absolutely irrelevant to the making of a good Surgeon, Rule 51, even in its recast/amended form, commits a flagrant violation of the aforesaid Judgments of the Hon'ble Apex Court and the Hon'ble High Court of J & K. Therefore, the selection and appointment of the Dental Surgeons under reference, which was made in terms of the procedure stipulated by the aforesaid Rule, is bad in law. That being so, since the impugned judgment has failed to take notice of the aforesaid violation, the same is liable to be set aside.
9. It becomes absolutely imperative to point out here that although the aforesaid Rule 51 (in its recast/amended form), on the fact of it, allocates 50 percent weightage to the performance of a candidate in his viva-voce test as against the maximum permissible limit of 40 percent in respect thereof mandated by the aforesaid Judgments on the subject in hand, the Jammu and Kashmir Public Service Commission, while implementing the aforesaid Rule 51 in the course of finalizing the selections under reference, did not group the percentages of marks obtained by the candidates in the BDS Course (which was the minimum requisite qualification for the eligibility of a candidate to apply in pursuance of the aforesaid notification dated 23.06.2003) into different brackets/grades for the purpose of allocating different marks to each of the aforesaid brackets/grades in order to evaluate each and every candidate in consonance with the percentage of marks obtained by him/her in the BDS Course so far as 30 percent marks allocated by the aforesaid Rule 51 to the percentage marks obtained by the candidate in BDS his Course, were concerned. Instead, what the J & K Public Service Commission did was that it allocated to each and every candidate, 30 out of 30 marks which were the maximum marks reserved by the aforesaid Rule 51 of the parentage marks obtained by a candidate in the BDS Course. The aforesaid method chosen by the Commission was in flagrant violation of the direction given in the Judgment delivered by the full Bench of the Hon'ble High Court of J & K in SWP No. 211/1994 titled Dr. Inder Parkash v. State of J & K and Ors., which was subsequently upheld by the Constitution Bench of the Hon'ble Apex Court in Inder Parkash Gupta v. State of J & K and Ors. reported in AIR 2005 SC 2523. This Hon'ble Court may very kindly appreciate that when the Commission has allocated, to each and every candidate 30 out of the aforesaid 30 marks irrespective of the percentage marks secured by him/her in the BDS Course, the Commission cannot be said to have given due weightage to the candidates so far as their performance in the BDS Course was concerned and instead, be straightway held not to have evaluated the candidates at all so far as the aforesaid 30 marks were concerned. To illustrate the afore-stated point, it is, hereby, explained that the percentage of marks secured by the candidates were not grouped into brackets/grades such as (40% to 50%), (50% to 60%), (60% to 70%), (70% to 80%), (80% to 90%) and (90% to 100%) so as to evaluate the candidates proportionately in consonance with the percentage marks secured by them in their respective BDS Course.
Instead, the Commission gave 30 marks (out of the maximum permissible 30 marks allocated by the aforesaid Rule 51) to each and every candidate irrespective of the percentage marks secured by him/her in the BDS Course. The direct consequence of the aforesaid method adopted by the Commission for evaluation of the candidates in respect of 30 marks allocated by Rule 51 for the achievement of the candidate in his BDS Course was that the total marks, in respect of which the candidates were evaluated for their selection stood reduced to 70 as against 100 which were indicated in the aforesaid Rule 51 and that out of the aforesaid 70 marks only 14.3 percent weightage stood allocated to the academic achievement and record a candidate whereas 71.4 percent weightage stood allocated to the performance of the candidate in his viva-voce test and 14.3 percent weightage stood allocated to extracurricular activities of the candidate such as NCC. This was the worst possible and the most flagrant violation that the Commission could have committed of the law laid down by the aforesaid judgments of the Hon'ble Apex Court and the Hon'ble High Court of J & K on the subject in hand. Since the selections under reference were finalized by implementing the Rule 51 in the aforesaid manner and the impugned Judgment failed to take notice of the aforesaid violation, the impugned Judgment is liable to be set aside and the appellant is entitled to be selected and appointed in view of her superior merit vis-à-vis that of the most of the candidates selected vide notification dated 23rd August, 2005 and appointed vide Government order No. 459-HME of 2005 dated 29.08.2005.
Since the impugned Judgment failed to take notice of the fact that the selections under reference were subject more to the arbitrary and capricious exercise of discretion by the interviewing authorities in consequence of the implementation of the aforesaid Rule 51 in the manner explained hereinabove than to the academic achievement and record of the candidates, the same is liable to be set aside on this ground also.
10. On consideration of the matter, notice to Public Service Commission only. Assisting counsel to Mr. Raina learned Sr. Advocate accepts notice on behalf of Public Service Commission. Rest of the respondents need not be served.
11. We have heard learned counsel for the parties at length and have gone through the pleadings.
12. It is vehemently argued by the learned counsel for the respondent-Commission and rightly so that the petitioner having participated in the selection process knowing fully that Rule-51 Jammu and Kashmir Public Service Commission (Business and Procedure Rules) 1980 was to govern the selection process cannot be permitted to turn around and assail the selection criteria and Rule-51 amended vide notification No. 164 of 2004 dated 25th October, 2004 after she fails to make the grade. The right course for the petitioner in the present case was to question Rule-51 in case she had reason to believe that Rule-51 was in conflict with mandate of Article 14 and 16 Constitution of India and get the selection process deferred till her claim was dealt with. However, once the petitioner decided to participate in the selection process and volunteered to be governed by the selection criteria notified by the respondent Commission, she cannot be heard complaining about the selection criteria only after she failed to make the grade. The appeal on the said ground alone is liable to be dismissed.
13. Rule-51 Jammu and Kashmir Public Service Commission (Business and Procedure Rules) 1980 as it stood before it's recast, tilted in favour of the performance in viva-voce, pushing the academic merit to the back seat. This left room for arbitrariness and was therefore, held to be violative of Articles 14 and 16 Constitution of India. The judicial pronouncement prompted the respondent Commission to recast the Rule vide notification No. 164-PSC of 2004 dated 25.10.2004 the recast Rule reads as under:-
51. The assessment at a selection which is solely by means of an interview shall be based on the following principles:-
A Performance of the candidate in viva-voce test- 50 marks
B Academic merit.
(i) Percentage of the marks obtained in 30 marks the degree (i.e. Minimum) qualification prescribed for the post.
(ii) Where bachelors degree is prescribed as minimum qualification:-
a. One year post-graduate Diploma/01 marks Equivalent in the concerned subject.
b. Two years post-graduate diploma in 02 marks the concerned subject.
c Post-graduate Degree in the concerned 03 marks subject e.g. MA/M.Sc./M.Tech/M.D./M.S./M.Phill/equivalent.
d. Ph.D/DM./Equivalent in the 05 marks concerned Subject.
Where a Masters degree is prescribed as the minimum qualification;
Note: Marks awarded shall be only for the highest degree obtained.
Where Ph. D degrees prescribed as Up to a minimum qualification:-Maximum
14. The writ petition of the petitioner has rightly been, dismissed besides on the other ground that the petitioner has participated in the selection process and the selection procedure was made known to her before selection, therefore, on becoming unsuccessful, she is not entitled to challenge it afterwards.
15. The Hon'ble Supreme Court in case titled Union of India v. N. Chandrasekharan reported in (1998) 3 SCC 695 while deciding the case involving the similar issue has observed in para. 13 as under:-
"We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report."
16. The Hon'ble Supreme Court in case titled Amlan Jyoti Borooah v. State of Assam reported in (2009) 3 SCC 227, while deciding a case pertaining to selection against the post of Sub Inspector by direct recruitment observed that a candidate who had subjected himself to a faulty selection process could not question it later on after being declared as unsuccessful on the prayer of Estoppel, acquiescence and waiver.
17. The Hon'ble Supreme Court in case titled Sadananda Halo v. Momtaz Ali Sheikh reported in (2008) 4 Supreme Court cases 619 and Chandra Prakash Tiwari v. Shakuntala Shukla reported in (2002) 6 SCC 127 has followed the following judgments on the same principle while considering the issue identical one involved in the present appeal and held that unsuccessful candidates cannot turn back the petitioner to the selection process after having subjected themselves to the selection criteria adopted by the selection Committee.
18. The Hon'ble Supreme Court in case titled Union of India, v. Vinodh Kumar reported in : (2007) 8 SCC 100 has observed that the candidates who had participated in the selection process knowing fully the procedure laid down were not entitled to question the same. In view of the proposition of law, applicable to the facts of the present case, the writ petition has rightly been dismissed.
19. A full Bench of this Court in case titled Dr. Inder Prakash v. State of J & K and Ors. (SWP No. 211/94, decided on 30.7.1999) while examining the validity of selection of Lecturers in the Medical Education Department of the State in the context of Recruitment Rules, particularly Rule 8 observed as under:-
"19. It bears out that approach of the Supreme Court so far has been that marks to the extent of 40 % to 50 % for viva voce where selection is made on the basis of record and viva voce, are proper marks. In the instant case the selection is allegedly based on record and viva voce. 40 marks have been assigned for record and 100 for viva voce which appear to be excessive and the Judgment delivered in Satpaul's case (1995 Suppl. (1) SCC 206) applies to the present case on all fours.
XXXXXXX
20. Mr. Raina, learned counsel appearing for the Commission has submitted that the validity of these Rules has already been examined in SWP No. 227/93-Abdul Wahid Zargar and Ors. V. State and Ors., decided on 2.2.1994, holding the same to be valid. Rule-51 though held good by the Division Bench vis-à-vis the selection of Engineers, there is stark difference in the Rules of both the services viz., J & K Engineering (Gazetted) Service and Medical Education (Gazetted) service. In Engineering Service there is no such rule providing statutory method of selection as is found in Rule 8 of Rules 1979.
21. The Judgment of the Supreme Court in Satpaul, Anzar Ahmad, C.P. Kalra are pointer to the fact that marks for interview should not be more than 40% to 50% in a selection where it has to be made on the basis of record and viva voce. Rule 51 providing 100 marks for viva voce against 40 for record, makes a departure and is apparently contrary to the law laid down by the Supreme Court and necessitates reconsideration of Rule 51 for the added reason that there is no consensus of judicial opinion rendered in Abdul Wahid Zargar's case vis-à-vis the judgments of the Supreme Court that marks for viva voce test could exceed the marks assigned for record/academic merit, where the selection is made on the basis of interview alone. There is another reason also that Rule-51 has not taken care of Rule 8 of Service Rules 1979, consequence whereof is that the statutory method of selection has not been comprehensively followed and adopted in the Rule. For these reasons Rule-51 is required to be recast."
20. Learned counsel for the petitioner submitted that the selection criteria in question set apart for 30 marks for academic performance in the degree qualification prescribed for the post without reference to weightage of the marks, which criteria is unreasonable because all the degree/qualification holders are irrespective of their percentage of marks awarded 30 marks for academic performance in the degree/qualification. A bare look at Rule- 51 in force as on date, would reveal that the selection criteria prescribed under the Rule gives equal weightage to performance, viva-voce test and academic record with other attributes like experience, sports etc. The selection criteria in question, sets apart 30 marks for academic performance, 11 marks for higher qualification, where the minimum qualification is bachelors degree and Post-Graduation/Masters Degree, where the minimum qualification prescribed in Ph. D. Degree weightage for Post Doctoral Degree is up to 5 marks. The Selection criteria earmarks 5 marks for experience acquired by a candidate in the concerned Specialty/Sub-Specialty/Discipline and one mark for every full year beyond eligibility requirement. Extinction in sports Games and National Cadet Corps (NCC) activities, in terms of selection criteria is to earn a candidate 2 and 3 mark respectively. The marks fixed for special attributes are to be added to the marks set apart for academic merit. The academic merit therefore, is to carry 35 marks. It is pertinent to point out that marks to be awarded for distinction in Sports/Games or National Cadet Corps (NCC) activities are to be awarded on the basis of certificate issued by the competent Authority in accordance with Rules and cannot be awarded on the whim of the Members of the Interview Board/Committee. There is thus no substance in the argument that Rule-51 earmarks more than 50 marks for interview/viva-voce and therefore, is arbitrary in character and violative of Article 14 and 16 Constitution of India.
21. For the reasons discussed above, the appeal being without any merit is, accordingly, dismissed. No order as to costs.
……………………………..
Comments