Jammu & Kashmir High Court - Srinagar Bench
Mashkoora Hameed vs State (Now Union Territory) Of Jammu And ... on 23 May, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
h475
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
WP(c) no. 2294/2023
Reserved on : 05.05.2025
Pronounced on : 23 .05.2025
Mashkoora Hameed, About 30 years
W/o Nissar Ahmad Khan
R/o KawoosaKhalisa, Narbal, Budgam
...Petitioner(s)
Through:-Mr. R. A. Jan, Sr. Adv. with
Ms. HumairaSajad, Advocate
V/s
1. State (now Union Territory) of Jammu and Kashmir
Through Commissioner/Secretary to Government
Civil Secretariat, Jammu/Srinagar.
2. Director, Handicrafts
Jammu/Srinagar
3. Joint Director, Handicrafts
Srinagar
4. Assistant Director,
Handicrafts, Budgam
5. J&K Services Selection Board,
Through its Secretary,
ShekhariBhawan, Jammu/
ZamZam Complex, Srinagar
6. Selection Committee
District Budgam
through its Convener
...Respondent(s)
Through:- Mr.Mohd. Younus Hafiz, Assisting
counsel vice Mr. A.R.Malik, Sr.AAG.
Mr. Bilal Ahmad Malla, Advocate.
Coram:HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Sanjeev Kumar,J
1. This petition filed by the petitioner under Article 226 of the
constitution of India seeks to challenge an order and judgment dated
10thMarch, 2023 passed by the Central Administrative Tribunal, Srinagar
Bench [„the Tribunal‟] in TA No. 4871/2021 titled Mashkoora Hameed vs.
State of Jammu and Kashmir and ors. whereby the petition filed by the
petitioner seeking inter alia the quashment of the constitution of committee
for conducting the Practical Test by the respondent vide Order No. 145-SSB
of 2018 dated 08.03.2018 has been dismissed.
2. For better appreciation of the grounds of challenge urged by Mr. R.A.
Jan, learned Senior Council appearing for the petitioner, it would be
desirable to give brief resume of the relevant facts.
3. Vide Advertisement notification no. 03 of 2016 dated 30.06.2016, the
Jammu and Kashmir Service Selection Board [„the SSB‟] notified for
selection various posts including the posts of Junior Craft Instructor in the
trade of Leather, Silverware, wood Carving, Darning and PapierMachie.
These posts were available to be filled up in District cadre Budgam of the
department of Industries and Commerce. „Matriculation with 10 years
experience in the respective craft subject to practical test' was the
qualification prescribed for the post of Junior craft instructor, Silverware,
whereas the qualification prescribed for the post of Junior Craft Instructor,
Darning and PapierMachie, as indicated in the Advertisement Notification,
was 'matriculation and above with 10 years experience in the line and the
candidate should be a National awardee subject to the practical test'.
4. The petitioner applied in the prescribed form under open category
against three of the advertised posts viz., Junior Instructor Darning, Junior
Instructor PapierMachie andJunior InstructorSilverware. She participated in
the objective type written examination held by the SSB on 15.11.2017. On
08.03.2018, the SSB issued a public notice calling upon the candidates, who
were provisionally short listed for the practical test, to appear in the said test
to be conducted on 16.03.2018 and 17.3.2018 at the School of Designs at
Srinagar. Simultaneously, with the issuance of public notice for conduct of
the practical test, the SSB vide its Order No. 145-SSB dated 08.03.2018
constituted a Committee for conducting Practical Test of the short listed
candidates for the posts in question. The Committee consisted of a member
of the SSB, as convener with Chief Designer, School of Designs, Srinagar
and Assistant Director, Handicrafts, Budgam as other two members of the
Committee. The petitioner, being aware of the constitution of the
Committee, which was put in public domain, participated in Practical Test
for the post of Junior Craft Instructor Darning,Junior InstructorPapierMachie
and Junior Instructor Silverware. Having found that she had miserably failed
in the test conducted by the Committee and feeling dejected by her
performance and seeing clear writing on the wall, she chose to challenge the
constitution of the Committee by filing writ petition SWP No. 723/2018
before this Court. The writ petition was filed essentiallyto throw challenge to
the office Order No. 145-SSB dated 08.03.2018 whereby the Board had
constituted the Committee for holding the Practical Test. The writ petition,
on the commencement of the Jammu and Kashmir Re-organisation Act 2019
and constitution of a Bench of Central Administrative Tribunal at
Jammu/Srinagar was transferred to the Tribunal where it was registered as
TA No. 4781/2021.
5. The TA was contested by the respondents. In the counter affidavit
filed by respondent Nos. 1 to 4, a simple stand was taken that the Directorate
of Horticulture had referred the vacant posts to the SSB for making
selections in accordance with rules, and, therefore, the constitution of the
Committee for conducting the Practical Test was solely in the domain of the
Board. The respondents Nos.1 to 4 virtually washed off their hands from the
controversy raised in the TA. However, the constitution of the Committee
was defended before the Tribunal by the SSB by filing a reply affidavit. It
was submitted by the SSB that so far as the practical test for the post of
Junior Craft Instructor, Silverware, is concerned the petitioner remained
absent. She, however, participated in the Practical Test conducted for the
posts of Junior CraftInstructor, Darning and Junior Instructor PapierMachie
in which she was declared failed having not secured minimum 7 marks out
of 20 marks. It was further stand of the SSB that the Committee constituted
vide office Order dated 08.03.2018 was constituted in accordance with law
and that the constitution thereof cannot be challenged by the petitioner after
having participated in the practical test without any objection or demure.
6. Interestingly, when the writ petition was pending before the learned
Single Judge, there was an interim order passed on 10.04.2018 staying the
selection process against the posts of Junior Craft Instructor, Darning, Junior
Instructor PapierMachie and Junior Instructor Silverware advertised vide
notification No. 03/2016. During the pendency of the writ petition before the
High Court, and, on an application filed by one Javed Ahmed Khan, who
was shown in the list of shortlisted candidates for the post of Junior Craft
Instructor, Silverware and had claimed to havequalified the Practical Test,
he was impleaded as party respondent No.7. Upon his impleadment as party
respondent and having regard to the continuous absence of the petitioner and
her counsel, the order dated 10.04.2018 was modified to the extent of
allowing the SSB to finalise the selection process with the rider that the final
result thereof shall not be declared till further Orders.
7. It also deserve to be noticed that during the pendency of the writ
petition before this Court, another writ petition arising out of the same
advertisement notification i.e. SWP 724/2018 titled Kulsooma Akhter vs.
State of J&K and others came to be dismissed by a learned Single Bench of
this Court vide Order dated 09.12.2019.
8. The Tribunal, having heard the rival contentions and perusedthe
material on record, came to the conclusion that the petitioner, having
participated in the selection process and having appeared before the
Committee constituted vide Office order dated 08.03.2018, is estopped by
her conduct to challenge the same only after finding that she had failed to
qualify the Practical Test. Placing reliance upon the judgment of Hon‟ble the
Supreme Court in case of Ashok Kumar vs. State of Bihar, 2017 (4) SCC
357, the contention of the SSB was upheld and as the consequence thereof
the TA filed by the petitioner was dismissed. The petitioner is before us
invoking the jurisdiction vested in this court under Article 226 of the
Constitution of India and seeks to challenge to the impugned judgment
passed by the Tribunal on multiple grounds.
9. The judgment impugned is challenged by the petitioner primarily on
the ground that the legal position with regard to estoppel by participation in
the selection process has not been appreciated by the Tribunal in right
perspective. The rule of estoppel in such matters in not absolute rule but is
subject to well known exceptions. Reliance is placed by Mr. Jan, learned
senior counsel appearing for the petitioner, on the judgement of Hon‟ble the
Supreme Court in the case of Dr. MeetaSahai vs. State of Bihar and Ors.,
2019 (20) SCC 17. It is further argued that as per the mandate of Rule of 6
of the J&K Civil Services (Decentralization and recruitment) rules 2010,
[„the rules of 2010‟] the Chairman is permitted to co-opt an expert/specialist
in the concerned discipline. However, in the instant case none of the
members of the selection committee was expert in the relevant disciplines
and, therefore, the constitution of the Committee was illegal and contrary to
the provision of rule 6 of the rules of 2010.
10. Having heard learned counsel for the parties and perused the material
on record, we are of the considered opinion that the instant writ
petitionraises following two questions for determination:-
(i) Whether the constitution of the Committee by the SSB
vide Office Order No. 145-SSB of 2018 dated 08.03.2018 is
inconsonance and conformity with the applicable rules. This
would call for determination as to whether the constitution of
the Committee is governed by the rules of 2010 or the Jammu
and Kashmir special recruitment rules 2015 ['the rules of
2015'];
(ii) Whether the petitioner, having participated in the
selection process, including the Practical Test conducted by
the Committee, can be permitted to turn around and
challenge the constitution of the Committee on the ground
that in the Committee aforesaid no expert in the relevant
field/ discipline was associated.
11. Before we proceed to determine the questions (supra), we need to take
notice of the fact that so far as the post of Junior Craft Instructor, Darning
and the post of Junior Craft Instructor PapierMachie are concerned, the
qualification prescribed clearly lays down that apart from other eligibility
qualifications which a candidate must possess, he/she should be a National
Awardee. The petitioner has neither claimed nor placed on record any
document to show that she is recipient of any National award either in the
Art of Darning or in the Art of PapierMachie. We, therefore, seriously doubt
as to whether the petitioner was eligible to participate in the selection
process for the post of Junior Instructor Darning and Junior craft Instructor
PapierMachie. Be that is as it is, the matter is better left to be examined and
considered by the SSB.
12. The rules of 2010 are made by the Governor in the exercise of powers
conferred by Section 124 of the Constitution of Jammu and Kashmir read
with Section 15 of the Jammu and Kashmir Civil Services (Decentralization
and Recruitment)Rules 2010. These rules inter alia provide for Constitution
of the Selection Board and the Selection Committees to conduct the
selection for recruitment to the Subordinate Services/ Non-Gazetted Posts.
Section 6 of the rules of 2010 provides for establishing a three tier set up i.e.
State Level Committee for making selection to the State cadre posts,
Divisional level Selection Committee for making selection to the Divisional
cadre posts and the District Level Selection Committee for making selection
to the District Cadre posts. So far as the District Level Selection Committee
is concerned, it is provided to be constituted of the following:-
(i) Chairman or Member of the SSB, to be nominated by
the Chairman of the Board ..........(Convener of the
Selection Committee);
(ii) District Level Officer of the indenting Departmentto
be nominated by the Chairman of the
Board.........(Member)
(iii) One Officer of the concerned Department, to be
nominated by the Chairman of the
Board............(Member).
13. The proviso second to rule 6 also give discretion to the Chairman to
co-opt an expert/specialist in the concerned discipline with any of the above
Committees. For facility of reference proviso second is reproduced here
under:-
"Provided further that the Chairman, if it is felt necessary,
may co-opt an expert/specialist in the concerned discipline with
any of the above committees."
14. From reading of the proviso it is amply clear that co-opting of an
expert/specialist is in the discretion of the Chairman and is not mandatory.
15. In the instant case, as is evident from reading of office Order No. 145
dated 8.3.2018, the Chairman has not exercised its jurisdiction to co-opt any
expert/specialist in the selection of Junior Craft Instructor of various
disciplines. The Committee constituted by office Order of 2018 has already
been reproduced hereinabove. It comprisesof a Member of SSB nominated
by the Chairman to act as Convenor, Chief Designer, School of Designs,
Srinagar as an officer of the Department of Industries and Commerce and
the Assistant Director handicrafts, Budgam, who serves as a Member of the
Committee as District Level Officer of the indenting Department. The
Committee is thus validly constituted under rule 6 of the rules of 2010.
16. We now shift our attention to the rules of 2015 which are made by the
Governor under proviso to Section 124 of the Constitution of Jammu and
Kashmir, which was then applicable in the erstwhile State of Jammu and
Kashmir. Rule 5 of these rules is relevant for our purpose and is, therefore,
set out below:-
" 5. Appointment under these rules:
(1) Notwithstanding anything to the contrary contained in any rule or
order for the time being in force relating to the method of
recruitment and conditions of service for recruitment in any
service, or to any post, under the Government,
(i) The appointment to all non-gazetted posts borne on the
establishment of any Department or Service of the
Government shall be made by the Government on
temporary basis on the basis of the selection made by the
Selection Committee, consisting of:-
(a) Chairman or a member of the Services Selection
Board to be nominated by the Chairman....Convenor;
(b) District Head of the indenting office
Department...Member;
(c) One office of, or above, the rank of Deputy Secretary
to the Government from the concerned
Department......Member;
16. Rule 5, as is apparent from its plain reading, begins with a non-
abstanti clause and excludes the applicability of any contrary rule or order
for the time being in force relating to the method of recruitment and
conditions of service for recruitment in any service, or to any post under the
Government. It prescribes the constitution of a Committee for selection to
the non-gazetted posts of any Department or service of the Government,
consisting of the following:-
(a) Chairman or the Member of the SSB to be nominated by the
Chairman...........convenor
(b) District head of the indenting office/Department..........Member
(c) One officer of, or above the rank of deputy secretary to the
Government from the concerned Department.......Member
As is evident, the rules of 2015, in particular, rule 5, does not make
any provision for association of an expert/specialist.
17. Without going into the question of operation of two statutes in respect
of one subject, we would like to conclude that the Committee constituted by
the Board vide office Order No. 145-SSB dated 08.03.2018 was in
consonance with both the Statutes. Needless to say that the rules of 2010 are
issued not only under the proviso to Section 124 of the Constitution of
Jammu and Kashmir but also by the Government in exercise of its rule
making power conferred by Section 15 of the Jammu and Kashmir Civil
Services (decentralisation and recruitment) Act 2010. If that be the position,
the rules of 2015 having been issued under the proviso to Section 124 of the
Constitution of Jammu and Kashmir will give way to the rules of 2010
insofar as these are inconsistent with the rules of 2010. We are just making
an observation and not holding as such for the reason that answering such a
question is not required to dispose of the present writ petition and would,
therefore be rendered only an academic exercise.
18. In view of the clear stand taken by the SSB that the Committee was
constituted as per rules and that it was not mandatory for the Board to
necessarily co-opt an expert/specialist in the concerned discipline, we find
no merit in the submission of Mr. Jan that absent the expert/specialist in the
Committee, the constitution of the committee was dehors the rules of
2010/rules of 2015.
19. On facts, it is seen that the Board hadconstituted a three Member
Committee and had chosen not to co-opt any expert. Otherwise also, the
Chief Designer, School of Designs, Srinagar, who was serving as Member of
the Committee, was good enough to judge the performance of the candidates
in the Practical Test held for various disciplines. The Assistant Director,
Handicraft, Budgam, who was another member, also cannot be a stranger to
the nature of the test which was conducted by the Board.
20. Aside, we are also in sync with the view taken by the Tribunal that the
petitioner having participated in the selection process with her eyes wide
open, is estopped from challenging the constitution of the Committee only
because the result of the Practical Test is not palatable to her.
21. It is not in dispute that the constitution of the Committee was notified
beforehand and was well within the knowledge of the petitioner. She took a
calculated chance of appearing before the Committee without raising any
protest or objection. It is only after she failed to obtain the minimum marks
in the Practical Test and was declared unsuccessful, she turned around and
found fault with the constitution of the Committee, that too on a ground
which is not tenable in law. The reliance placed by the Tribunal on the
judgment of Ashok Kumar(Supra) is apt. The judgment relied upon by Mr.
Jan rendered by Hon‟ble the Supreme Court in MeetaSahai(supra) does not
advance the case of the petitioner in any manner.
22. It is not the case of petitioner that the selection process has been
conducted in violation of the rules or that the violation took place after she
had participated. It is also not the case of the petitioner that she has been
prejudiced on account of some misconstruction of statutory rules bringing
discriminatory consequences arising therefrom to the petitioner.
23. The off shoot of the discussion made above is that there is no merit in
the writ petition and as a consequence thereof, it is dismissed with all
connected CM(s).
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
Srinagar.
23.05.2025
Anil Raina, Addl. Registrar/Secy
Whether the order is speaking : Yes
Whether the order is reportable: Yes
