Jammu & Kashmir High Court

Rohit Chib And Others vs Ut Of J&K And Others on 4 October, 2021

                                                                 Sr. No. 4
     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
CJ Court

Case: WP(C) No.1993 of 2021




Rohit Chib and others                        ...Petitioner(s)/Appellant(s)


                                 Through: Sh.Sunil Sethi, Senior Advocate
                                          with    Sh.    Parimoksh  Seth,
                                          Advocate.

             v/s
UT of J&K and others.                                 .... Respondent(s)
                                 Through: Sh. D C Raina, Advocate General
                                          with Sh. Ayjaz Lone, Dy. AG.

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                      ORDER

1. In all, 348 persons have invoked the extraordinary jurisdiction of this

Court to challenge the order dated 06.08.2021 passed by the Central

Administrative Tribunal, Jammu Bench, Jammu (for short „the Tribunal‟) in

Original Application no. 1107 of 2021 titled Rohit Chib and others v. Service

Selection Board, J&K UT.

2. The aforesaid order of the Tribunal is an interlocutory order by which

the Original Application of the petitioners has been entertained but they have

been denied interim order as prayed for on the ground that the grant of the

same would amount to granting the final relief which is not permissible in law.

3. It appears that some other candidates had filed a similar writ petition

WP(C) no. 1886/2021, Irshid Ahmed Dar and others v. Govt. of Jammu and

similar order of the Tribunal entertaining their Original Application no.

1102/2021 but refusing to grant the interim order.

4. In one another Original Application No.1011/2021 of a similar nature,

some interim protection was granted to the candidates therein.

5. In view of the above, WP(C) No.1886/2021 was disposed of on

27.09.2021 with the direction to club the Original Application No.1102/2021

with Original Application No.1011/2021 for decision together with liberty to

the petitioners therein to apply for interim order afresh.

6. The above facts reveal that the controversy involved in the Original

Application giving rise to this writ petition is also involved in some other

original applications and the interlocutory orders passed in those original

applications have become the subject matter of consideration of various writ

petitions filed before this Court. In the facts and circumstances, we considered

it appropriate to end the controversy fully and finally and, as such, allowed the

parties to address us not only on the merits of the stay but even on the merits of

the controversy involved in the original applications.

7. The short controversy which actually arises in the original application or

as a matter of fact in the writ petition is as to whether petitioners are entitled to

grant of interim protection pending the original application which is dependent

upon the eligibility of the petitioners to participate in the selection for the post

of Class-IV employees in the various departments of the Union Territory of

Jammu and Kashmir. If the petitioners are not qualified and eligible to

participate in the selection process, obviously, they are not entitled to any

interim protection.

8. The Advertisement No.1 of 2020 dated 26.06.2020 invited applications

conditions that the minimum and maximum qualification for appointment to

Class-IV posts under direct recruitment shall be "minimum matric and

maximum 10+2"with thefurther conditionthat any candidate having

qualification other than prescribed shall not be eligible for Class-IV post.

9. The petitioners are candidates who are graduates or possessing even

higher qualification and, as such, have been denied participation in the

selection process.

10. The submission of Sh. Sunil Sethi, senior counsel is that the higher

qualification such as graduation possessed by the petitioners presupposes the

possession of minimum matric and maximum 10+2 qualification and, as such,

they are all eligible and cannot be denied participation in the selection process.

11. Learned Advocate General, on the other hand, contends that the

selection has to be made strictly in accordance with the terms and conditions

advertised. The persons with higher qualifications, which may presupposes

possession of lower qualification, would not be eligible as the eligibility

conditions prescribe the maximum qualification to be 10+2. Any person

possessing a higher qualification of graduation, etc. would not be suitable for

the job of Class-IV post.

12. It is well settled and recognized that appointments on public posts have

to be made strictly in accordance with the Rules of service or the terms and

conditions of the advertisement. In Yogesh Kumar v. Government of NCT of

Delhi, (2013) 3 SCC 548, it has been clearly held by the Supreme Court that

recruitment to public service should be held strictly in accordance with the

terms and conditions of the advertisement and the recruitment Rules, if any.

allowing ineligible persons and depriving right of consideration of many

deserving eligible candidates.

13. The appointment to Class-IV posts in Jammu and Kashmir Public

Service has to be in accordance with the Jammu and Kashmir Appointment to

Class-IV (Special Recruitment) Rules, 2020 as promulgated vide S.O. 184

dated 04.06.2020 issued in exercise of powers under Article 309 of the

Constitution of India. These Rules specifically provide that the Board

i.e.Jammu and Kashmir Services Selection Board shall invite applications from

the persons who are domiciled in the Union Territory of Jammu and Kashmir

and who possess minimum and maximum educational qualification as

prescribed in notification SRO 99 of 2008 dated 07.04.2008.

14. The SRO 99 of 2008 categorically lays down that for the purposes of

recruitment of Class-IV posts, the minimum and maximum qualification shall

be matric and 10+2, respectively.

15. The advertisement also specifically provides that in accordance with the

above Rules and the SRO 99 of 2008, the maximum and minimum

qualification for appointment to Class-IV posts through direct recruitment shall

be "minimum matric and maximum 10+2" with the further rider that any

candidate having qualification other than prescribed shall not be eligible for

Class-IV post.

16. It may be noted as the appointment to such posts has to be on the basis

of the suitability vis-à-vis the qualification held by the person and the nature of

the job, for which purpose the decision of the employer is final provided it is

not arbitrary in nature. In other words, the suitability and the qualifications for

any post have to be laid down by the employer and the same are not liable to be

found to be irrational or arbitrary. In the case of appointments to Class-IV

posts, higher qualification than 10+2 may not be a suitable for many reasons;

the first being that a highly qualified person may not be in a position to

discharge the menial work which is required to be done by Class-IV employee;

secondly, if such highly qualified candidates are allowed to compete with

candidates with lower qualification as prescribed, it is but obvious that they

will score above them and would get selected to the detriment of the candidates

possessing the requisite eligibility; and thirdly, such candidates of higher

qualification, if selected, would always be looking for a better job and, as soon

as they are selected in some other better discipline, they would leave the Class-

IV post rendering the entire selection as useless forcing the employer to get

those posts re-advertised and re-filled.

17. Thus, in the above circumstances, the laying down of the criteria of the

minimum and the maximum qualification for the Class-IV post as matric and

10+2 respectively is neither irrational, unreasonable nor arbitrary.

18. Learned senior counsel for the petitioners relied upon the judgment of

the Supreme Court in the case Jyoti K.K. v. Kerala Public Service

Commission, (2010) 15 SCC 596 to contend that the holders of higher

qualifications cannot be disqualified for applying on a post which prescribes

some lower qualification. In the said case, the appointment was to the post of

Sub Engineers Electricity and the relevant service rule i.e. Rule 10(A)(ii)

provided as under:

"Notwithstanding anything contained in these rules or in the special rules, the qualifications recognized by executive orders or standing orders of government as equivalent to a qualification specified for a post in the special rules and such of those higher qualifications which presuppose the acquisition of the lower 6 WP(C) 1993 of 2021

qualification prescribed for the post shall also be sufficient for the post."

19. The aforesaid Rule clearly provides that "such of those higher

qualifications which presuppose the acquisition of lower qualification

prescribed for the post shall also be sufficient for the post." It was in the light

of the aforesaid Rule that the Court held that the relevant rules do not mean to

disqualify the holders of higher qualification in the same faculty.

20. The aforesaid decision was considered by another Bench of the Supreme

Court in Zahoor Ahmed Rather and others v. Sheikh Imitiaz Ahmed, (2019) 2

SCC 404wherein agreeing with the proposition of law laid down therein, it

appropriately distinguished by saying that it was rendered in the facts and

circumstances of that particular case wherein therewas a specific Rule which

provided that higher qualifications, which presuppose the acquisition of lower

qualification prescribed for the post, shall also be sufficient. But in the absence

of such a rule, it would not be permissible to draw inference that higher

qualification necessarily presupposes the acquisition of lower qualification.

The State as an employer legitimately bear in mind several features including

the nature of the job, the aptitudes requisite for the efficient discharge of duties,

the functionality of a qualification in laying down the eligibility and the

suitability criteria for appointment to the public post. The State as a public

employer may also have to take into account social perspectives that require

the creation of job opportunities depending upon the social structure prevailing

in the country. All these matters are essentially matters of policy where judicial

review is hardly permissible.

21. In Mohd. Riazul Usman Gani and others v. District and Session Judge,

from the side of the petitioners, it has been held that higher qualifications

cannot put a candidate into a disadvantageous position. Any criterion which

has the effect of denying a candidate his right to be considered for a post on the

ground that he is having a higher qualification than the prescribed cannot be a

rational criterion.

22. The aforesaid decision is also of no help to the petitioners, inasmuch as,

it has been considered by a three-judges Bench of the Supreme Court in the

case of Chief Manager, Punjab National Bank and another v. Anit Kumar

Das, Civil Appeal No.3602 of 2020 decided on 03.11.2020. In the said case

also, the controversy was with regard to the appointment on the post of peons

in a Bank. The advertisement specifically mentioned that the candidate should

have passed 12th class or its equivalent and should not have qualification of

graduationwhich was excluded and the candidates possessing the same were

not eligible. Thus, the court was approached with the same controversy as in

the case in hand as to whether candidates possessing higher qualification than

the prescribed would be eligible for the post or not.

23. The Supreme Court discussing the entire case law on the subject

including Mohd. Riazul Usman Gani (supra), Jyoti K. K. (supra), and Zahoor

Ahmed Rather (supra), held that the recruitment on public post has to be in

accordance with the eligibility criteria laid down in the Rules or the

advertisement; it is for the employer to determine the relevancy and suitability

of the qualification for the post keeping in view the interest of the institution

and that the courts are not fit to assess the expediency or advisability or utility

of such prescriptions of qualifications. The qualification of 12 th pass for the

Bank and no candidate with superior qualification can be recognized as eligible

for the post.

24. In view of the aforesaid facts and circumstances, the law is well settled

that any higher qualification than prescribed for a particular post may not be a

suitable qualification and that the employer in its wisdom is justified in

excluding candidates with higher qualification from the ambit of selection.

25. It may not be out of context to refer to one more decision of the Supreme

Court in the case of P M Lathav. State of Kerala, (2003) 3 SCC 541 wherein

the issue was whether the B.Ed. qualification which is a higher qualification

than the Trained Teacher‟s Certificate (TTC) should be recognized as an

eligible qualification for the post of primary school teacher. The Supreme

Court has held as under:

"We find absolutely no force in the argument advanced by the respondents that BEd qualification is a higher qualification than TTC and therefore, the BEd candidates should be held to be eligible to compete for the post. On behalf of the appellants, it is pointed out before us that Trained Teacher's Certificate is given to teachers specially trained to teach small children in Primary classes whereas for BEd degree, the training imparted is to teach students of classes above primary.BEd degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in Primary Schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or BEd qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for the post of Primary Teachers as only TTC and not BEd. Whether BEd qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot considered BEd candidates, for the present vacancies advertised, as eligible."

9 WP(C) 1993 of 2021

26. In short, what we mean to express is that higher qualification may not be

suitable qualification for every post and,if candidates with higher qualifications

are excluded, the action on the part of the employer in this regard cannot be

faulted with and said to be unfair or arbitrary.

27. In view of the law as discussed above, we are of the opinion that the

Tribunal is justified in refusing interim protection to the petitioners at the

interim stage of the original application, and the controversy arising in the

original applications stands to rest in view of ratio decidendi of the three

judges decision in the case of PNB (supra) and P M. Latha (supra) detailed

above.

28. Accordingly, the writ petition is dismissed with the request to the

Tribunal to dispose of all original applications on the subject in the light of the

observations and the law as discussed above.

                    (RAJNESH OSWAL)                      (PANKAJ MITHAL)
                        JUDGE                              CHIEF JUSTICE
Jammu
04.10.2021
Raj Kumar



                        Whether the order is reportable: Yes.