Jammu & Kashmir High Court - Srinagar Bench
Reserved On: 13.10.202 vs Hilal Ahmad Bhat And Others on 29 October, 2021
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
LPASW no.277/2015
c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
LPASW no.279/2016, & LPASW no.105/2017
Reserved on: 13.10.2021
Pronounced on: 29 .10.2021
Humaira Yousuf Shawl and others
.......Petitioner(s)
Through: Mr R.A.Jan, Senior Advocate
with Mr Taha Khalil, Advocate
Versus
Hilal Ahmad Bhat and others
......Respondent(s)
Through: Mr A. Haqani, Sr. Advocate
with Mr Shakir Haqani &
Mr Asif Wani, Advocates
Mr Z.A.Qureshi, Senior Advocate with
Ms Razia Amin, Advocate
Mr Sunil Sethi, Senior Advocate with
Mr Parimoksh Seth, Advocate
Mr M. Y. Bhat, Senior Advocate with
Mr Hamza Prince, Advocate
Mr Sajad Ashraf, GA
Ms Saima Mehboob, Advocate
CORAM:
HO'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
Per Vinod Chatterji Koul, Judge
1. These Appeals are directed against judgement dated 18 th December
2015, passed by the learned Writ Court in a writ petition, being SWP
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LPASW no.277/2015
c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
no.1846/2009 titled as Hilal Ahmad Bhat v. State of J&K and others,
and for setting aside the same on the grounds made mention of therein.
2. We have heard learned counsel for parties and considered the matter.
We have gone through the writ record as also impugned judgement.
3. As is discernible from perusal of the file, Advertisement Notice no.03
of 2008 dated 5th May 2008 was issued by J&K Services Selection
Board, inviting applications, amongst others, for selection to the 72
posts of Drug Inspectors. In terms thereof cut-off date was 26th May
2008. Select List published on 8th September 2009, recommending 64
candidates for appointment as Drug Inspectors, came to be challenged
in a number of writ petitions, diarized and registered as SWP
nos.1356/2009, 1535/2009 and 1846/2009. The Learned Writ Court
decided those writ petitions vide impugned judgement, with the
following orders/directions:
i) The private respondents selected and appointed in the year 2008, have
been serving the respondent Department as Drug Inspectors for last
seven years and there is no dispute as regards their eligibility to the
advertized post. The official respondents therefore may retain private
respondents and their other selected/appointed colleagues and shall
accord consideration to appointment of petitioners in three writ petitions
admittedly satisfying the eligibility criteria, against available clear
vacancies of Drug Inspectors in the grade of 9300-34800, in the
respondent Department and complete such exercise within four weeks
from the date of receipt of copy of this Judgment.
ii) In case, the consideration to appointment of petitioners as directed is
not possible, because of non-availability of the posts, the select list
published by respondent Board on 8th September 2009, and
appointment made pursuant thereto shall stand quashed and set aside.
The respondent Board shall constitute Selection Committee to conduct
fresh interview of all the candidates who earlier appeared before it. The
members of the Selection Committee as per prescribed procedure shall
individually assess and evaluate the candidates, prepare individual
award rolls reflecting such assessment and hand over individual award
rolls under sealed cover to the Convenor of the Selection Committee.
The Convenor of the Selection Committee, shall compute total marks
awarded in viva-voice test and adding the marks so obtained to the
marks awarded to the candidates on the basis of merit in eligibility
qualification and higher qualification, if any, on pro date basis, prepare
final merit list duly signed by all the members of the Selection
Committee. Respondent Board on the basis of the final merit list shall
make recommendation to the respondents 1 and 2 i.e. indenting
department and respondents 1 and 2, shall act on the recommendation
so made, and issue appointment order in favour of the selected
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LPASW no.277/2015
c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
candidates, of course after verification of the certificates and completion
of other procedural formalities. This exercise shall be completed within
six months from the date of receipt of copy of this judgment.
iii) In the event, the respondents decide to carry out direction No. II
(supra), it may allow the selected/appointed candidates including
private respondents to continue till the exercise undertaken in
compliance of direction No. II, is completed and appointment orders
issued, as their en bloc exit/ouster may result in administrative
problems, risk to public health and lead to collapse of the entire
machinery set up to achieve the objective of Drugs and Cosmetics Act.
4. The grounds of challenge in LPA no.277/2015 are: that learned Writ
Court erred in law in not appreciating that selection and appointment of
appellants against advertised posts of Drug Inspectors is well deserved
having been earned by them on the basis of their superior academic
merit and qualification, besides other achievements possessed by them,
answering all imperative of special attributes of vital importance and
bearings on the spheres of the duties being performed by a Drug
Inspector, assessed and evaluated by respondent-Board; that the learned
Writ Court has not appreciated the fact that writ petitioner/contesting
respondent having participated in selection process and on taking
calculated chance having failed to make grade, is estopped and
precluded in law to question selection process and/or voicing any
grievance against non-selection; that it was demonstrably shown before
the learned Writ Court that the assertions and allegations levelled by
writ petitioner in his writ petition was all bogus and contrary to the
position obtaining under relevant records resorted to with a malevolent
intent to prejudice the mind of the Court;
5. We have a bunch of appeals, bearing LPASW nos.12/2016, 134/2016,
135/2016, 278/2016, & 279/2016, preferred by selected candidates
and/or persons aggrieved of impugned judgement, who are being
represented by Mr R. A. Jan, learned Senior Advocate and the facts and
grounds of challenge in all these appeals, are similar and, therefore,
need not be reiterated.
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LPASW no.277/2015
c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
6. Insofar as the Appeals, being LPA nos.97/2016, 98/2016 & 105/2017,
are concerned, these have been filed by J&K Services Selection Board.
The grounds of challenge therein are: that writ petitioners in their writ
petitions challenged only selection of selected candidates and not their
appointment orders; that writ petitioners participated in selection
process and were interviewed by same selection committee which
interviewed selected candidates and once taking chance before the
selection committee, they cannot take U-turn and all the certificates of
the candidates were scrutinized by appellant-Board; even otherwise
also after appointment of candidates, the indenting department checked
all testimonials/certificates of selected candidates and the whole
process was carried out by appellant-Board in accordance with rules
and that writ petitioners failed to make a grade; that selection was made
as per reservation rules and their selection/appointment was not
challenged by any candidate inasmuch as only open merit candidates
filed writ petition; however, the whole selection/appointment orders
have been set-aside by the learned Writ Court; that no mala fide has
been levelled by writ petitioners against appellant-Board; that merit of
writ petitioners is inferior to selected candidates;
7. As is discernible from perusal of the file, the learned Writ Court
arranged grievances of writ petitioners in four points, which are:
a) That Assistant Professor, Pharmacology associated with the
selection process as an expert was not a subject expert and
therefore not competent to assess and evaluate performance of the
aspirants for the advertized post.
b) That the selection Committee exercised discretion in arbitrary
manner while awarding 100% marks (20 out of 20) to some of the
candidates and thereby facilitated their selection, notwithstanding
lower merit in their eligibility qualification and higher
qualification considered expected for extra weightage.
c) That some of the candidates though lacking eligibility were
considered and appointed and some of the candidates not having
Post Graduate Degree in Pharmacy/Medicine/Pharmaceutical
Chemistry to their credit were given extra weightage and selected
on the basis of such weightage.
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c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
d) That a few candidates notwithstanding their failure to append date
of birth certificates with their application were not only considered
but selected for the advertized posts.
8. As regards point no.1, viz. Assistant Professor Pharmacology
associated with the selection process as an expert, the learned Writ
Court has rightly said and held that Dr. Samina Farhat, Assistant
Professor, Department of Pharmacology, Government Medical
College, Srinagar, is expected to have fairly good knowledge about the
Pharmacy.
9. Insofar as point no.2, viz. discretion exercised by selection committee
in arbitrary manner is concerned, the learned Writ Court, as can be seen
from impugned judgement, has categorically said that it cannot step into
shoes of selection committee or assume an appellate role to examine
whether marks awarded by selection committee in viva-voce test were
excessive and that only one thing it can, is to see as to whether members
of respondent-Board have adhered to procedure, assessed the
candidates and prepared award rolls in accordance with prescribed
procedure. While saying this, the learned Writ Court reproduced paras
7&8 of recommendation of Selection List. The learned Writ Court
found that final award roll as to performance of candidates in viva-voce
and points secured on the basis of merit in eligibility qualification and
the qualification warranting extra weight, was not signed by members
of the Selection Committee. It was also found by learned Writ Court
that there was nothing on record to indicate the assessment of
candidates individually made by members of Selection Committee and
their overall merit including the marks awarded in interview. These
important facts of the matter cannot be disputed and have, therefore,
been rightly observed by the learned Writ Court.
10.The learned Writ Court has also rightly found that extra weightage has
been given to some of candidates notwithstanding the fact that such
candidates did not have Post Graduate Degree in Pharmacy/Medicine
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c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
to their credit and resultantly they did not deserve to be given extra
weightage for such Degree. In this regard, the learned Writ Court has
given self-explanatory reasons in paragraphs 16, 17 and 18 of the
judgement, which cannot be interfered in the instant Appeals. For ready
reference, paragraphs 16, 17 and 18 are reproduced hereunder:
"16. From perusal of the selection record, it transpires that respondent
Board while making selection has given extra weightage to some of
the candidates, when such candidates did not have Post Graduate
Degree in Pharmacy/Medicine to their credit and therefore did not
deserve to be given extra weightage for such Degree. The Selection
Committee as evident from the record laid down following selection
criteria to make selection against the advertized post.
i) Degree in Pharmacy (B. Pharmacy) = 65 points
OR
ii) Degree In pharmaceutical Chemistry = 65 points
OR
iii) P.G in Chemistry with Pharmaceutical as a special Subject = 65 points
OR
iv) Associate Ship diploma of the Institution of Chemists (India) by passing the
Examination with analyst of drugs And Pharmaceutical as one of the subject.
= 65 points
OR
v) Graduate in Medicines or Science of a University recognised for this purpose
by appointing authority and has at least one year post Graduate training in a
Laboratory under (i) Govt. Analyst Appointed under Act. (ii) Govt. Analyst
Appointed under Act. (iii) Chemical examiner of (iv) the Head of an institution
specially Approved for the purpose by the appointing Authority.
= 65 points
vi) P.G. Pharmacy/ Medicine / Pharmaceutical
Chemistry = 10 points
vii) Ph.D. = 05 points(Across the Board)
vii) Viva-voice = 20 points
Total = 100 points
17. The Post Graduate Degree in Pharmacy/ Medicine/
Pharmaceutical Chemistry, in terms of selection criteria would earn a
candidate 10 extra points as compared to a candidate with only a
Degree in Pharmacy (B. Pharmacy or an equivalent qualification).
The unsigned merit list of candidates styled as "list of the candidates
for the post of Drug Inspector" reflecting marks obtained by the
candidates at Graduation/ Post Graduate level, conversion of the
percentage of marks into points on pro data basis as also the marks
awarded in viva-voce test reveals that some of the candidates have
been awarded points for Post Graduate Degree in Pharmacy stated to
be to their credit. To illustrate, Shri Pankaj Malhotra-respondent No.
6 in SWP No.1846/2009, did not append M-Pharmacy Certificate to
his application. There was nothing before the Selection Committee to
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LPASW no.277/2015
c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
conclude that Shri Pankaj Malhotra had Post Graduate Degree in
Pharmacy to his credit and that such Degree was earned by him before
the cut of date. The Selection Committee still went ahead to consider
him as a candidate with Post Graduate Degree in Pharmacy and
awarded 7.7 marks for M-Pharmacy Degree. The record of Shri
Ashish Gupta-respondent No. 18 in the petition also awarded 6.81
marks for M-Pharmacy Degree has been withheld by the Board.
Pertinent to point out that petitioner in SWP No.1846/2009, questions
his selection on the ground that weightage on account of Post
Graduate Degree in Pharmacy was erroneously given to Ashish
Gupta-respondent No. 18 to facilitate his selection. On the other hand,
Ms. Rumasa Mohammad-respondent No. 21, in writ petition being
SWP No. 1846/2009, has not been given any credit for Post Graduate
Degree in Pharmacy, though she has such degree to her credit. The
record therefore extends support to the petitioner's case in SWP
No.1846/2009, that extra weightage has been given where it was not
warranted.
18. It appears that the Selection Committee without verifying whether
Post Graduate Degree in Pharmacy claimed by a candidate was to the
credit of candidate and if so, whether the degree was obtained from a
recognised University and before the cut of date awarded extra point,
presuming the candidates to have Post Graduate Degree eligible for
extra weightage. This further casts a cloud on the selection process.
The record however does not support petitioner's case in SWP No.
1846/2009, that respondents 36 and 39 were not eligible inasmuch as
they did not enclose B-Pharmacy Certificate with their application or
produce Certificate at the time of interview. The selection record
made available by the respondent Board reveals that both respondents
indicated in their application that they had B-Pharmacy Degree to
their credit and even enclosed attested copies of Certificates with their
application. The grievance that respondents 16, 25 and 34 had not
appended Date of Birth Certificate (Matriculation) with their
application has substance. However the respondents indicated their
age in the application. Though their failure to enclose copies of the
Matriculation Certificate indicating their date of birth is surprising, as
the first and foremost academic Certificate annexed by a candidate
with his/her application for Government service usually is
Matriculation Certificate recording date of birth and a candidate
would rarely avoid and forget to place such Certificate on record, yet
failure to place Matriculation Certificate/Date of Birth Certificate
with the application is not to cast any doubt on the selection of such
candidate or the entire selection process."
11.It is important to mention here that we have given our thoughtful
consideration to the relief(s)/directions granted/passed by the learned
Writ Court in the context of the case made out by writ petitioners. All
that has been observed and said in the impugned judgement is that writ
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c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
petitioners have been able to establish a case for indulgence and grant
of the relief(s) as prayed for by them including quashing the select list
as also the subsequently-passed appointment orders in favour of writ-
respondents/selected candidates, so the relief(s)/directions passed by
learned Writ Court in terms of impugned judgement ought to have been
without any ifs and buts.
12.Direction (i) [viz. The private respondents selected and appointed in the year
2008, have been serving the respondent Department as Drug Inspectors for last
seven years and there is no dispute as regards their eligibility to the advertized post.
The official respondents therefore may retain private respondents and their other
selected/appointed colleagues and shall accord consideration to appointment of
petitioners in three writ petitions admittedly satisfying the eligibility criteria,
against available clear vacancies of Drug Inspectors in the grade of 9300-34800, in
the respondent Department and complete such exercise within four weeks from the
date of receipt of copy of this Judgment], in impugned judgement is contrary
to and in conflict with Direction (ii). If the learned Writ Court has
found the marks awarded in interview/viva-voce not up-to the mark and
contradictory to selection criteria, then the Direction (i) ought not to
have been passed by the learned Writ Court as it would have also impact
on prospective candidates and would become a wide of the mark
precedent. Thus, the order contained in Direction (ii) could have been
passed that too only to the extent as indicated below and to that extent
impugned judgement is hereby modified:
"ii) The select list published by respondent Board on 8 th
September 2009 and appointments made pursuant thereto
shall stand quashed and set-aside. The respondent Board shall
constitute Selection Committee to conduct fresh interview of
all the candidates who earlier appeared before it. The
members of the Selection Committee as per prescribed
procedure shall individually assess and evaluate the
candidates, prepare individual award rolls reflecting such
assessment and hand over individual award rolls under sealed
cover to the Convenor of the Selection Committee. The
Convenor of the Selection Committee, shall compute total
marks awarded in viva-voice test and adding the marks so
obtained to the marks awarded to the candidates on the basis
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LPASW no.277/2015
c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
of merit in eligibility qualification and higher qualification, if
any, on pro date basis, prepare final merit list duly signed by
all the members of the Selection Committee. Respondent
Board on the basis of the final merit list shall make
recommendation to the respondents 1 and 2, i.e., indenting
department and respondents 1 and 2 shall act on the
recommendation so made and issue appointment order in
favour of the selected candidates, of course, after verification
of the certificates and completion of other procedural
formalities. This exercise shall be completed within six
months from the date of receipt of copy of this judgment."
13.Insofar as Direction (iii) contained in impugned judgement is
concerned, the same shall also remain intact and be implemented by the
writ official-respondents in letter and spirit.
Per Pankaj Mithal, CJ
14.Agreeing with the opinion expressed by my learned brother, I would
like to add that despite the fact that the writ court has opined that the
select list was not properly drawn as there was nothing on record to
indicate that the members of the selection committee had made the
assessment of the candidates individually. The final award roll
reflecting the performance of the candidates in viva voce and points
secured on the basis of the merit in eligibility qualification as well as
extra weightage granted for additional qualification is also not in
accordance with the norms. Therefore, the selection process does not
conform to the prescribed procedure. Having noted the above finding
and that some of the candidates have been arbitrarily awarded extra
weightage without there being on record any material to show that they
possessed post graduate degree for grant of such extra marks, the writ
court could not have saved the selection of the candidates merely for
the reason that they have now been serving in the department for last
seven years and they are qualified to hold the post. The writ court at the
same time was not even justified in directing the official respondents to
retain them in service and to accord consideration to the appointment
of the writ petitioners if they satisfy the eligibility criteria and to
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c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
consider them for appointment against the available clear vacancies of
the Drug Inspectors.
15.The selection process pursuant to the Advertisement Notice No. 03 of
2008 dated 5th May 2008 was completed with the publication of the
select list and the joining of the selected candidates. Thus, no further
appointments could be given on the basis of the said selection against
the clear vacancies that may have occurred subsequently. All
subsequent vacancies are to be filled up from open market afresh and
in case they are allowed to be filled up by the candidates of the earlier
selection, it would certainly infringe upon the rights of the candidates
who would have applied against the said vacancies if they were
advertised afresh. In view of the above, once the selection was not
found to be a valid one, the writ court could not have issued any
direction as contained in direction (i) of the impugned judgment.
16.As far as the direction (ii) and (iii) are concerned, the same have been
adequately dealt with by my learned brother.
17.In addition, it would be pertinent to mention here that though the
petitioners have participated in the selection process and, as such, were
not entitled to challenge it nonetheless as one of the grounds for
challenge of the selection is arbitrariness in the award of marks in viva
voce during the selection process, the petitioners could not have been
debarred from filing the writ petition. The candidates appearing in the
selection process can always bring to the notice of the court the
illegalities committed during the selection though they may not have
any locus to challenge the constitution of the Selection Committee or
the eligibility of the members of the selection committee having
participated in the selection process with open eyes.
18.In view of the aforesaid facts and circumstances, the select list
published by the Board on 8th September 2009 stands quashed. The
respondent-Board is at liberty to constitute a Selection Committee to
conduct a fresh interview of all the candidates who have appeared
before it in accordance with law for selection against the posts
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LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
advertised. It is made clear that no post or vacancy which had not been
advertised by the aforesaid advertisement will be filled up by the said
selection process. The said exercise if undertaken shall be completed
within a period of six months as directed and till such time, the selected
candidates appointed may be permitted to continue to avoid any
administrative problem.
19.The appeals accordingly stand disposed of with the modification in the
direction as pointed above.
(Vinod Chatterji Koul) (Pankaj Mithal)
Judge Chief Justice
Srinagar
29.10.2021
Qazi Amjad, Secy
Altaf.
Whether the order is reportable: Yes
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LPASW no.277/2015
c/w LPASW no.12/2016, LPASW no.97/2016
LPASW no.98/2016, LPASW no.134/2016
LPASW no.135/2016, LPASW no.278/2016
MOHAMMAD ALTAF NIMA
2021.10.29 14:47 LPASW no.279/2016, & LPASW no.105/2017
I attest to the accuracy and
integrity of this document
