J&K Services Selection ... vs Naseer Ahmad Tarray & Ors
2021 Latest Caselaw 493 j&K/2

            HIGH COURT OF JAMMU AND KASHMIR
                      AT SRINAGAR


                                            Reserved On: 15th of April, 2021.
                                          Pronounced On: 27th of April, 2021.


(i) LPASW No.35/2019 [LPA No.62/2019]:

J&K Services Selection Recruitment Board & Anr.
                                                           ... Appellant(s)
                  Through:
                  M/s Mir Suhail, AAG & Sajjad Ashraf Mir, GA.

                                Versus
Naseer Ahmad Tarray & Ors.
                                                        ... Respondent(s)

Through:

Mr Z. A. Shah, Senior Advocate with Mr A. Hanan, Advocate; and Mr Shafqat Nazir, Advocate.

(ii) LPA No.117/2019:

J&K Services Selection Recruitment Board & Anr.

... Appellant(s) Through:

M/s Mir Suhail, AAG & Sajjad Ashraf Mir, GA.

Versus Danish Wazir & Ors.

... Respondent(s) Through:

Mr Z. A. Shah, Senior Advocate with Mr A. Hanan, Advocate.

(iii) LPA No.237/2019:

J&K Services Selection Recruitment Board & Anr.

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

... Appellant(s) Through:

M/s Mir Suhail, AAG & Sajjad Ashraf Mir, GA.

Versus Rayees Ahmad Allaie & Ors.

... Respondent(s) Through:

Ms Saima Mehboob, Advocate.

(iv) SWP No.414/2019:

Samiullah Manzoor.

... Petitioner(s) Through:

Mr Z. A. Shah, Senior Advocate with Mr A. Hanan, Advocate.

Versus J&K Services Selection Recruitment Board & Ors.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajjad Ashraf Mir, GA.

(v) SWP No.415/2019:

Shabir Ahmad Mir & Anr.

... Petitioner(s) Through:

Mr Z. A. Shah, Senior Advocate with Mr A. Hanan, Advocate.

Versus JK Services Selection Recruitment Board & Ors.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajad Ashraf Mir, GA; and Mr Shafqat Nazir, Advocate.

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

(vi) SWP No.831/2019:

Mehraj-ud-Din Sheikh & Anr.

... Petitioner(s) Through:

Mr Gulzar Ahmad Bhat Sopori, Advocate

Versus JK Services Selection Recruitment Board & Ors.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajjad Ashraf Mir, GA; and Mr Shafqat Nazir, Advocate.

(vii) SWP No.1463/2018:

Nuzhat Jan

... Petitioner(s) Through:

Ms Arifa Jan, Advocate

Versus JK Services Selection Recruitment Board & Ors.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajjad Ashraf Mir, GA.

(viii) SWP No.1477/2018:

Yasmina Rehman & Anr.

... Petitioner(s) Through:

Mr Z. A. Shah, Senior Advocate with Mr A. Hanan, Advocate.

Versus JK Services Selection Recruitment Board & Ors.

... Respondent(s)

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

Through:

M/s Mir Suhail, AAG & Sajad Ashraf Mir, GA; and Mr Hilal Ahmad Wani, Advocate.

(ix) SWP No.1495/2018:

Rabiya Ashraf & Anr.

... Petitioner(s) Through:

Mr Z. A. Shah, Senior Advocate with Mr A. Hanan, Advocate.

Versus JK Services Selection Recruitment Board & Ors.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajad Ashraf Mir, GA; and Mr Shafqat Nazir, Advocate.

(x) SWP No.1545/2018:

Shabir Ahmad Mir & Anr.

... Petitioner(s) Through:

Mr Z. A. Shah, Senior Advocate with Mr A. Hanan, Advocate.

Versus JK Services Selection Recruitment Board & Ors.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajad Ashraf Mir, GA.

(xi) SWP No.1907/2018:

Roohullah Sadiq & Ors.

... Petitioner(s)

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

Through:

None.

Versus JK Services Selection Recruitment Board & Ors.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajad Ashraf Mir, GA.

(xii) SWP No.2453/2018:

Aamir Mohi ud Din

... Petitioner(s) Through:

None.

Versus JK Services Selection Recruitment Board & Ors.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajad Ashraf Mir, GA.

(xiii) SWP No.466/2019:

Yasmeena Rehman & Ors.

... Petitioner(s) Through:

Mr Z. A. Shah, Senior Advocate with Mr A. Hanan, Advocate.

Versus JK Services Selection Recruitment Board & Ors.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajad Ashraf Mir, GA; and Mr Hilal Ahmad Wani, Advocate.

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

(xiv) SWP No.1442/2018:

Aamina Hassan

... Petitioner(s) Through:

None.

Versus JK Services Selection Recruitment Board & Ors.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajjad Ashraf Mir, GA.

(xv) CPSW No.624/2018:

Mohammad Yaqoob Mir

... Petitioner(s) Through:

Mr Z. A. Shah, Senior Advocate with Mr A. Hanan, Advocate.

Versus Mr Zubair Ahmad Teeli.

... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajjad Ashraf Mir, GA.

(xvi) CPSW No.695/2018:

Aamina Hassan ... Petitioner(s) Through:

None.

Versus Mr Zubair Ahmad ... Respondent(s) Through:

M/s Mir Suhail, AAG & Sajjad Ashraf Mir, GA.

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge Hon'ble Mr Justice Vinod Chatterji Koul, Judge

(JUDGMENT)

Per Magrey; J:

01. In the three appeals, being LPASW No. 35/2019; LPA

No.117/2019; and LPA No.237/2019, the decisions of the learned Single

Judge are under challenge, whereby the appellants/ respondents in the Writ

petitions have been directed to call the Writ petitioners/ respondents herein

for counselling, verify their documents and assess their grade by awarding

weightage of higher qualification denied to them on account of having omitted

to fill-up the requisite column in their online application forms. Besides,

certain Writ petitions were also noticed to be pending before the Writ Court

involving the same question of fact and the law qua denial of award of marks

to higher qualification(s) on the ground of same having been omitted in the

online application forms, which petitions, on the consensus of the learned

counsel for the parties, stand clubbed herewith these appeals for their decision

together. Moreover, in certain Writ petitions the consideration orders issued

by the respondents therein (Board) pursuant to the directions of the learned

Single Judge rejecting the claim of the petitioners have been assailed.

Accordingly, the upshot of this factual discourse is that the controversy in this

entire litigation before us revolves round the question as to whether the Jammu

and Kashmir Services Selection Recruitment Board was justified in denying

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

the award of weightage to higher qualification to the credit of the concerned

candidates/ Writ petitioners/ respondents in the appeals prior to the date of

issuance of the advertisement on the ground of same having not been

mentioned by them during the process of filling up their online application

forms. That being so, we propose to decide these appeals as well as the

clubbed Writ petitions by virtue of this common judgment.

02. Before appreciating the arguments of the learned counsel for the

parties, it shall be appropriate to have a glance at the brief material facts

wherein the genesis of the present litigation lies, infra.

03. The Jammu and Kashmir Services Selection Recruitment Board

(hereinafter referred to as the 'Board') invited applications from amongst the

eligible candidates for selection against the posts of Teacher vide notification

Nos. 06/2017/01 to 06/2017/14 dated 28th of December, 2017 (General Line);

06/2017/15 to 06/2017/28 dated 28th of December, 2017 (Science/ Maths);

and 06/2017/29 to 06/2017/42 dated 28th of December, 2017 for different

Districts of the erstwhile State of Jammu and Kashmir (now bifurcated into

two Union Territories, viz. (i) Union Territory of Jammu & Kashmir; and (ii)

Union Territory of Ladakh). Thereafter, the Board declared results/

provisional shortlists with respect to the aforesaid notifications on the basis of

the following criteria which was earmarked in the advertisement notifications:

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

i. Multiple Choice based Written Test 85 points ii. B. Ed 05 points iii. M. Ed 05 points iv. PG (2 years) or Integrated PG (5 years) 02 points v. M. Phil 01 points vi. Ph. D (after M. Phil) 02 points (03 points if direct Ph. D)

After issuance of the provisional shortlists with reference to the

selection process in question, a number of representations were filed by

certain competing candidates before the Board stating therein that they have

not been given the additional points for higher qualification on the ground of

same having been omitted in their online application forms, resulting in their

non-inclusion in the provisional shortlists and inclusion of less meritorious

candidates than them. When no decision on the said representations was taken

by the Board despite lapse of a considerable period of time, the said candidates

approached the Writ Court through the medium of Writ petitions seeking a

direction upon the respondent Board to award appropriate points to them for

possessing higher qualification; work out their merit accordingly; and call

them for counselling. The said Writ petitions were disposed of by the learned

Single Judge, thereby directing the Board to call the petitioners therein for

counselling, verify their documents and assess their grade in terms of the

documents so produced by them. Feeling aggrieved and dissatisfied with the

view of the learned Single Judge, the Board has assailed the validity of the

same through the medium of the three appeals challenging the decisions of

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

the learned Single Judge rendered in three separate Writ petitions. Whileas, in

the connected petitions, the grievance of the petitioners therein is that the

Board, while preparing the provisional shortlists for counselling and

document verification, have not awarded additional points to them for holding

higher qualification on the ground of same having not been mentioned in their

application forms and that, if they are awarded these points, their score will

swell up and they will be entitled to be included in the select list.

04. Mr Z. A. Shah, the learned Senior Counsel, who represents the

Writ petitioners/ candidates who were denied the award of marks for higher

qualification on the ground of same having not been mentioned in their online

application forms, submitted that the filling up of the application forms by

online mode is a newly introduced method of responding to advertisement

notices and that since the Writ petitioners are not well versed with the

Computer applications, the petitioners depended on the roadside shops where

Computer facility is available for this purpose. The petitioners, as stated,

provided the necessary details to the Computer operators in the Shops, who

operators created their profile, accordingly, and submitted the online

application form. It is contended that seemingly the Computer operators

concerned did not mention all the qualifications possessed by a candidate and/

or mentioned all the details of the qualifications, but the same has not been

saved by the Computer resulting in non-communication of the qualification to

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

the Board. It is pleaded by Mr Shah that since the points are awarded by the

System itself, therefore, the System, having noticed the absence of B. Ed/M.

Ed/Post Graduation qualification of the petitioners, has awarded the points,

accordingly, which has adversely affected the opportunity of the petitioners

to compete for the posts of Teacher in the requisite discipline. Mr Shah

vehemently argues that the case of the petitioners is not one where they have

obtained B. Ed, M. Ed or Post Graduation qualification after the cut-off date,

instead, the petitioners possessed these qualifications before the cut-off date.

The learned Senior Counsel has proceeded to state that merely because there

is a mistake or a failure in the System to generate points for higher

qualification, it will be unjust to reject the candidature of a candidate who is

otherwise eligible and meritorious for the post in question. It is further

submitted that if the points to which the Writ petitioners are entitled to, on the

basis of their higher qualification, are awarded to them subject to satisfaction

of the Board, no prejudice will be caused to any other competing candidate

inasmuch as the Writ petitioners will be claiming consideration on the basis

of their own merit and higher qualification. It is also submitted that it will be

totally unjust to deny the Writ petitioners the opportunity to compete for the

posts of Teacher on hyper-technical grounds, when the fact of the matter is

that all the Writ petitioners possessed higher qualification obtained by them

before the cut-off date.

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

05. M/s Mir Suhail, the learned Additional Advocate General and

Sajjad Ashraf Mir, learned Government Advocate, representing the Board/

appellants, contended that the Writ petitioners have failed to make any claim

with regard to their additional qualifications in the Online application forms

submitted by them and that, in such circumstances, they cannot be permitted

to produce proof of the same later in point of time for taking advantage/

benefit of the said claim. It is submitted that it is well settled legal position

that the terms and conditions stipulated in an advertisement notification are

sacrosanct having a binding force and, before submitting their application

forms, the candidates concerned are required to fill in the particulars with

complete application of mind and are also advised to go through the

instructions carefully before submitting any information as the information

submitted is taken as final and no changes are made in the application forms

afterwards. The writ petitioners, as stated, have failed to make mention of the

degrees/ additional qualifications on the basis of which they are seeking

additional weightage, as such, said qualifications cannot be taken into

consideration after finalization of the shortlists. It is contended that the learned

Single Judge, while passing the impugned judgments, has failed to appreciate

the aforesaid aspects of the matter and has directed the Board to call the Writ

petitioners for counselling, verify their documents and assess their grade in

terms of the documents so produced by them.

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

06. The rest of the counsels; some representing those of the

candidates who have been denied the award of additional points for higher

qualification and some appearing for such candidates who have been included

in the provisional select lists, have argued on the same lines as that of Mr

Shah, learned Senior Counsel and Mr Mir Suhail, learned Additional

Advocate General, respectively.

07. We heard learned counsel for the parties, perused the pleadings

on record and have considered the matter.

08. The question that arises for consideration herein this entire

litigation before us is whether the candidates who inadvertently omitted to

bubble the relevant field while submitting their application forms can be

denied the benefit thereof.

09. From the perusal of the pleadings on record and upon hearing the

learned counsel for the parties, we find that the origin of the controversy lies

in the format of the application form so prescribed by the Board for the

selection process in question. This is so because the column relating to

qualification, as appeared in the online application form, had shown B. Ed/

M. Ed and the candidates, by mentioning the higher qualification of M. Ed,

obviously and clearly meant that they had already obtained B. Ed qualification

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

without which they could not have acquired the higher M. Ed qualification. In

simple terms, the purpose of writing the qualification as B. Ed./ M. Ed was to

take care of a situation where a candidate having obtained only B. Ed

qualification, could not subsequently claim that he/she has obtained the degree

of M. Ed as well. However, on the other hand, where the candidate makes

mention of higher qualification of M. Ed, it is implicit in such qualification

itself that the said candidate has already obtained the lower qualification of B.

Ed without which it is not possible for the said candidate to acquire the

reflected higher qualification. In such circumstances, we do not feel that the

candidates/ writ petitioners, by mentioning the qualification as M. Ed, have

violated any of the terms/ conditions mentioned in the application format. It

is the case of the Board that only such candidates who have entered the

requisite qualification in their application forms will get preference, but this

claim does not match with the qualification column of B. Ed/ M. Ed so

prescribed by the Board in the application format, thereby misleading the

candidates/ Writ petitioners in filing up their application forms.

10. Apart from the above perspective, a similar question, identical to

the one in hand before us in these proceedings, also arose before a Single

Bench of this High Court (comprising one of us Magrey; J) in SWP

No.2029/2014, wherein, in terms of judgment dated 1st of June, 2015, at

paragraphs 10 to 12, it has been observed as under:

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

"10. The question that arises for consideration is as o whether petitioner be deprived of her legitimate right for her omission to bubble the relevant field while submitting her application form? The answer would obviously be an emphatic No. Error of whatever nature cannot be allowed to form a ground of marring somebody's future. As is said to err is human, the mistakes are inseparable part of the human species, therefore, what is to be seen is as to whether such mistakes can be rectified. The petitioner has fortunately filed two other application forms that reflects of her being qualified with a degree not taken into account by the respondent board while making selection of posts advertised in terms of notification no. 06 of 2013. Therefore, the interests of justice would demand that mistake of the petitioner be allowed to be rectified. More so, for the reason that respondent/ board has undertaken the selection process of all the advertisement notices viz. 03 of 2012, 05 of 2013 and 06 of 2013 simultaneously and the candidates were awarded marks equally in all the three notifications meaning thereby that the merit obtained by the petitioner, as is reflected in waiting list issued for notification no. 05 of 2013 wherein she figures at serial no. 3, would hold good for all the notifications including notification no. 06 of 2013. Having said so, petitioner has a merit of 62.3108.

The select list issued by the respondent board pursuant to notification no. 06 of 2013, admittedly, reflects candidates with lesser merit as having been selected.

11. This Court has earlier also while taking note of such instance as was brought to the notice in one of such cases, deprecated the practice of blind faith of recruitment agencies on machines. The mistake is grave when seen from the side of scanning agency's perspective, the scanning agency cannot take refuge in a technicality of it being a machine-based practice without any human intervention. The lackadaisical approach of the respondent/ board leaves one to wonder as to why the whole recruitment board is not taken over by Robots as that would leave it 100% without human intervention. True it is that machines have lessened the human labour, and in many developed countries the machines are often being used for advantage, but the supervision is always with a human being in the capacity of the architect and creator of such machines. This supervision is missing in the instant case making the plea raised by the respondent board that the application forms are scanned by the machine, in its defence as untenable.

12. In the circumstances, the writ petition is allowed. Respondents are directed to assign points to the B. Ed qualification of the petitioner and evaluate her merit accordingly. In the event the petitioner makes it to the selection list then her name shall be recommended to the

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

competent authority for her appointment on the post of teacher for district Pulwama. This exercise shall be undertaken and concluded within a period of not beyond four weeks. In case recommendation for her appointment is made to the appointing, the appointing authority shall issue orders within one week thereafter without disturbing the position of private respondent. It goes without saying that the seniority of the petitioner shall be determined on the basis of her merit secured in the selection process in case the petitioner is recommended for being appointed."

On an appreciation of the law laid down above, we feel that the

same covers the instant case in all the fours. The controversy, as is in issue

before us, stands settled by the aforesaid judgment, which judgment, as stated

by Mr Shah, learned Senior Counsel, has not, till date, been reversed/ modified

or set aside by any other higher forum. In that view of the matter, we are

unable to take a view other than the one taken in the judgment supra.

11. Accordingly, the appeals filed by the Board, being LPA Nos. (i)

35/2019; (ii) 117/2019; and (iii) 237/2019, are dismissed along with all

connected CMs therewith. Consequently, the connected Writ petitions bearing

SWP Nos. (i) 414/2019; (ii) 415/2019; (iii) 831/2019; (iv) 1463/2018; (v)

1477/2018; (vi) 1495/2018; (vii) 1545/2018; (viii) 1907/2018; (ix)

2453/2018; (x) 466/2019; and (xi) 1442/2018, along with Writ petitions

bearing SWP Nos. 1496/2018; 1965/2018 and 2125/2018-subject matter of

the three appeals, are allowed and the consideration orders passed by the

Board in regard to the claim of the Writ petitioners, as impugned in any of the

Writ petitions before us, shall stand quashed. The Board is directed to assign

LPASW No.35/2019 [LPA No.62/2019] Along with connected matters

appropriate points to all the relevant qualifications omitted by the Writ

petitioners in their online application forms, including the qualification of B.

Ed, to the credit of the Writ petitioners, of course, in case the same have been

acquired by these petitioners prior to the last cut-off date of the advertisement

notice concerned; evaluate their merit on the basis of such award of points;

and redraw the final selection list(s) for the posts in question, accordingly.

This exercise shall be undertaken and concluded by the Board expeditiously,

and, in any case, not later than eight weeks from the date of this order.

12. Insofar as the two connected Contempt petitions are concerned,

viz. CPSW Nos.695/2018; and 624/2018, same, in view of the aforesaid

directions, shall stand disposed of accordingly.

13. Registry to place a copy of this judgment on each file. It shall

also send a copy of this judgment to all the learned appearing counsel for the

parties through Virtual mode.

                                     (Vinod Chatterji Koul)            (Ali Mohammad Magrey)
                                             Judge                             Judge
           SRINAGAR
           April 27th, 2021
           "TAHIR"
                               i.      Whether the Judgment is reportable?           Yes/ No.
                               ii.     Whether the Judgment is speaking?             Yes/ No.




TAHIR MANZOOR BHAT
2021.04.27 13:54
I attest to the accuracy and
integrity of this document