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2001 DIGILAW 293 (JK)

Ranjodh Singh v. State Of J. &K.

2001-11-23

T.S.DOABIA

body2001
1. The selection process which resulted ultimately in the selection of candidates for the post of Naib Tehsildar in the State of Jammu and Kashmir is the subject matter of challenge in number of writ petitions. 2. The facts as given in writ petition, SWP 131/2000 are being noticed. Petitioners claiming to be the State Subject and citizens of this Republic, have invoked extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir. It is pleaded that the Jammu and Kashmir Service Selection Recruitment Board, issued and advertisement notice on 21st June93. Applications were invited from the permanent residents of State Jammu and Kashmir for the post of Naib Tehsildar (State Cadre). This notification contained a stipulation to the effect that the candidates who have already applied in response to earlier advertisement need not apply afresh. The minimum qualification as prescribed in the advertisement notice was Graduation from a recognized University. It was also prescribed that a written competitive test would be held. These conditions were stipulated in the notification copy whereof is Annexure A with the petition. It is the case of the petitioners that their applications submitted in this regard were found to be in order; they were allotted Roll Numbers and the written competitive examination which was a condition precedent for taking part in the process of selection was held. It is submitted that the petitioners appeared in the written test held on 27th July95. This test has been described as the one which was of objective type. Each candidate was supposed to attempt all hundred questions. As per the petitioners, they had faired well and were expecting not less than 90 percent marks. The result of this examination was declared on 16th June97. Petitioners who had applied under Open category were declared successful in the written test as they had secured more than 70 marks. According to the petitioners before the interview process could commence as per programme indicated in notification dated 16th June97, another notification came to be issued in July"97. As per the petitioners, the minimum criteria was relaxed. By this relaxed criteria, the candidates who had obtained 64 percent marks were also called for interview. The petitioners were interviewed. When the results were declared, it was found that they were not among the successful candidates. As per the petitioners, the minimum criteria was relaxed. By this relaxed criteria, the candidates who had obtained 64 percent marks were also called for interview. The petitioners were interviewed. When the results were declared, it was found that they were not among the successful candidates. According to the petitioners, the selection process was not fair. There was large scale favourtism and nepotism in this process. Respondents 12 to 59 came to be selected as Naib Tehsildar. This is being challenged interalia on the following grounds:- (i) That in terms of Rule 13 of the Jammu and Kashmir Subordinate Services Recruitment Rules, 1992, a decision was taken to call the candidates for interview in the ratio of 1:5 i.e. for one post five candidates were to be called. This decision was taken interms of Rule 13 (ii) of the Rules. Under this criteria the candidates who had obtained 70 percent marks could be interviewed. As per the petitioners, the respondent authorities lateron took a decision to call the candidates in the ratio of 1:10 i,e. ten candidates for one post and therefore, by adopting this criteria, the candidates with 64 percent of marks were also called for interview. This according to the petitioners could not be done. What is sought to be urged is that once a decision was taken to call the candidates in the ratio of 1:5, then the later decision resulting in calling the candidates in the ratio of 1:10 cannot be sustained and in any case, this could not be altered after the earlier notification was issued on 16th June97; That even if it be presumed that such a power could be exercised, then this was to be done by indicating reasons; That the Committee consisted of three members namely Sh Ghulam Abbas Shah, Convenor, Sh BL Bhagat, Member and Deputy Commissioner Central, Financial Commissioners office, as departmental nominee. It is stated that it was this Committee which prepared the question paper. It is stated that two sons of Sh BL Bhagat i,e. respondent No 13 and 14 were the candidates who appeared in the selection process and they have been selected. They were placed at serial No. 2 and 4 of the merit list. It is submitted that participation of Sh BL Bhagat whose sons were to participate in the selection process has vitiated the selection process. They were placed at serial No. 2 and 4 of the merit list. It is submitted that participation of Sh BL Bhagat whose sons were to participate in the selection process has vitiated the selection process. It is submitted that the selection process would be vitiated not only qua two sons of the above named Sh BL Bhagat but it would vitiate the whole selection process; iv) That not only two sons of Sh. BL Bhagat have been selected but the near relatives of the then Administrative Officer of the Service Selection Board including his son have been selected. For this, one Rajeev Mangotras name has been mentioned. He is respondent No. 16 in this petition. It is further stated that one Sh. Anil Mangotra i.e. respondent No. 47 is the real nephew of Shri Brij Mohan Mangotra, the then Administrative Officer in the Board. Again the name of one Rakesh Sharma, respondent No. 59 has been mentioned. It is stated that he is the near relative of sister-in-law (brothers wife) of Sh Brij Mohan Mangotra. It is accordingly submitted that selection of Rajeev Mangotra, Anil Mangotra and Rakesh Sharma is not on merits but on account of the relationship referred to above; v) That some of the candidates were not eligible as per the eligibility criteria fixed and the results of these candidates were with held. This was because their applications were not accompanied with the requisite certificates which were required to be furnished in accordance with the advertisement notice. It is stated that respondent No. 2 had called upon the candidates bearing Roll Nos. 13370,7098 and 13326 to furnish their original qualification certificates and notification in this regard was published in a Daily newspaper (Daily Excelsior). This is annexure H with the petition. It is submitted that the requisite qualifications are supposed to be possessed on the last date meant for purposes and the leniency shown to these candidates, referred to above, is said to be not in accordance with the law. These Roll Nos. haves ultimately figured in the final select list and their names figure at Serial No 47,48 and 67 of the final select list. vi) That the Board lowered the selection criteria which could not be done. These Roll Nos. haves ultimately figured in the final select list and their names figure at Serial No 47,48 and 67 of the final select list. vi) That the Board lowered the selection criteria which could not be done. In addition to the above allegations, it is submitted that the irregularities pointed above were brought to the notice of the State Government and these were examined by the State Government. A report in this regard was furnished. An unsigned copy of this report has been placed on the record as Annexure G. It is submitted that in this report, it has been categorically concluded that doubt regarding fairness and secrecy in conducting the written test was voiced by certain candidates. These allegations were found in the local print media also. The format of the written test was designed under the supervision of one Aijaz Malik, who was the then Chairman of the Recruitment Board. In this report, it has been noticed that a local newspaper "Daily Excelsior" carried out a news item stating " A group of candidates approached Excelsior office today and handed over copy of question-cum-answer paper which was to be deposited with the Invigilator of the examination after the completion of the examination. In this report, it has also been mentioned that even though in the question paper, the time limit within which this was to be answered was fixed at one hour but the candidates were allowed one and a half hours time. The report also takes notice of the fact that some candidates had approached this Court also and directions were given by this Court to go ahead with the process of selection but this would be subject to the decision of writ petition. The report further makes a mention of the fact that paper was got evaluated internally by constituting a Committee. It further takes notice of the fact that earlier the candidates who were to be called for interview were in the ratio of 1:5 and now this has been done in the ration of 1:10. The report further makes a mention of the fact that paper was got evaluated internally by constituting a Committee. It further takes notice of the fact that earlier the candidates who were to be called for interview were in the ratio of 1:5 and now this has been done in the ration of 1:10. The observations made at page 51 of the paper book i.e. page 10 of the report are as under:- "There have been allegations that wards of Member of the Board namely Sh BL Bhagat are figuring in the final select list as also ward of Sh BM Sharma who was Administrative Officer of the Board also figures in the select list. Apart the allegations are also levelled that a close relative of the Convenor namely Sh Keshav Parkash figures in the select list alongwith a close relative of Sh BR Sharma Pvt. Secretary to the Chairman. The allegations in respect of the first two gets substantiated however, with respect to the remaining two identity of the selectees has not become clear." 4. From the above, it is sought to be contended that there has been a large scale malpractices in the matter of selection. In particular, it is submitted that the relations of members of Selection Committee or of the staff have been selected. A much more serious allegation, as noticed above is that the time which was fixed for answering the question paper was one hour but candidates were allowed one and a half hour for the purpose. 5. Respondent-State has filed objections. With regard to paragraph 12 wherein grounds have been mentioned for challenging the selection and one of the ground is that the respondent-State had gone into the fairness of the selection process and serious allegations were found and that the report annexure G was submitted in this regard, no specific reply has been given by the State. What is stated in para 12 of the objections filed by the State is being reproduced below:- "That the contents of 12 are emphatically denied, patently there is no valid or good ground to agitate the matter before the Honble Court. The vague pleadings made in the memo of the writ petition deserves outright rejection by the Honble Court. What is stated in para 12 of the objections filed by the State is being reproduced below:- "That the contents of 12 are emphatically denied, patently there is no valid or good ground to agitate the matter before the Honble Court. The vague pleadings made in the memo of the writ petition deserves outright rejection by the Honble Court. That in reply to the ground submitted from para (a) to (f), it is most humbly submitted that the selection was made purely on the basis of merit. It is also submitted here that the selection cannot be declared as bad if any relation of the member have been selected by the committee the selection process was completed by the competent authority strictly according to rules and the detail reply of the Recruitment Board shall be the complete answer-to the facts stated in the different paras of the grounds taken in the memo of writ petition...." The reply given by the Board be also examined. It has been admitted in para 2 of the counter affidavit filed by the Board that for the purpose of short listing a decision was taken to call the candidates in the ratio of 1:5 but later on this was fixed at 1:10. The reason given for this is that this ratio was uniformerly applied for the purposes of short listing of the candidates for other posts. It is also admitted that candidates securing 64 percent marks in open category, 54 marks in the Schedule Caste category, 45 marks in the Schedule Tribe category and 52 marks in the Handicapped category and all candidates under Ex-serviceman category were called for interview. It is not denied that only candidates having 70 percent marks were eligible to take part in the process of selection. It is further submitted by the Board that the Selection Committee for the purposes of conducting interviews comprised of Sh. Keshav Parkash-Convenor, Sh AG Shehbaz-Member, Sh Abdul Azim-Member, and Sh. Gulzar Ahmad-Member. In reply to the grounds taken in the petition, the stand taken to plea that candidates to be called for interview should be in the ratio of 1:5 but later on this was changed, this was done as per past practice. Keshav Parkash-Convenor, Sh AG Shehbaz-Member, Sh Abdul Azim-Member, and Sh. Gulzar Ahmad-Member. In reply to the grounds taken in the petition, the stand taken to plea that candidates to be called for interview should be in the ratio of 1:5 but later on this was changed, this was done as per past practice. The specific allegation made by the petitioners that five candidates who were selected were related to Sh BL Bhagat or to the Administrative Officer of the Service Selection Board has not been denied. The further allegation as contained in Annexure G that the time which was there to answer the paper was extended from one hour to one and a half hour has also not been denied. As a matter of fact, neither the State nor the Board has made any comment with regard to annexure G i.e. the report which is said to have been prepared with regard to the fairness of the selection process. It is also urged that so far as the illegality regarding allowing one and a half hours time instead of one hour is concerned, this was subject matter of decision in writ petition 989/97 decided on 29th July, 98. In the above case, a challenge was made to the holding of examination on the plea that in the Government Gandhi Memorial Science College, Jammu, the Superintendent conducted the examination in 60 minutes instead of 100 minutes. This argument was repelled on the plea that it was notified to all concern on 17th Aug., 95 that the written test will be held on 27th Aug., 95 at 11 A.M. to 12.40 P.M. at all the centres of Jammu province. It is accordingly submitted that this allegation having been examined and the further allegation that the paper was leaked to print media was taken note of in the above judgment and a finding was recorded in favour of the Board and therefore, this should put an end to the controversy. 6. It is also submitted that by the Board that Sh BL Bhagat has filed a further affidavit in which he has stated that he was never member of the Committee which designed the format of question paper. It is further submitted that one of his son has not joined, and therefore, the allegations made in this regard are of no consequence. It is further submitted that one of his son has not joined, and therefore, the allegations made in this regard are of no consequence. With regard in the selection of relations of the then Administrative Officer, it is stated that it is not possible to file an affidavit as the said officer has since died. With regard to calling of the candidates equal to ten times the number of vacancies, it is urged that this could be done as per the past practice. In any case, it is stated that no candidate in open category with less than 70 percent marks has been selected. It is accordingly submitted that the plea put for ward by the petitioners is of no consequence. With regard to the Status report, copy whereof is annexure G, all that is stated is that this is a matter on which comments are supposed to be offered by the State and not by the Board. It is submitted that the file as it was sent to the State and the State Government accepted the recommendations made by the Board, and therefore, this should put an end to the controversy. 7. The stand taken by the State has already been noticed above. As indicated above, no comment has been made vis-a-vis formation of committee or the fact that some status report was given at the asking of the State. From perusal of the facts as given in the writ petition, the pleas which are sought to be put across are as under:- i) That one Sh BL Bhagat was a member of the Committee when written examination was conducted. It is stated that this member had access to the test paper and was privy to all the proceedings which ultimately resulted in holding of the examination. It is stated that this member was aware of the paper and if this be the position, then his participation in the examination process in which his two sons have been selected would vitiate the selection process; ii) That not only Sh BL Bhagat was associated with the selection process but one Sh BM Mangotra, the then Administrative Officer of the Board was also associated with the whole process and his three relations have been selected. This according to the petitioners would render the whole selection process bad and on the same ground as has been pleaded visa-vis two sons of Sh BL Bhagat, the member of the committee; iii) That initially the cut out-off point was fixed at 70 marks and then it was brought down to 64 marks. It is submitted that this was done after the initial notification calling upon the candidates to appear in the interview was issued. This notification was issued on 16th June, 97 and the change in the criteria was effected in July, 97. This according to the petitioners could not be done. It is urged that, no doubt, such a power could be exercised under Rule 13 of the Rules of 1992 but once that power was exercised and the criteria was fixed, then, there could be no change and by change which was made should be deemed to be actuated by extraneous considerations. 8. In addition to this, the petitioners are placing reliance on report said to have become available with the Government, copy whereof, as indicated above, has been placed on record as Annexure G. In this report, following irregularities have been pointed out:- a) That the relations of Sh BL Bhagat have been selected; b) That the percentage of eligibility was lowered from 70 percent to 64 percent, thus enlarging zone of eligibility; c) That the time which was allowed for answering the paper was increased from one hour to one and a half hour. All the allegations noticed above including the preparation of the report have not been denied by the respondent authorities. If this be the position and if what is said in the report is taken into consideration then that single factor is good enough to come to the conclusion that the selection process was vitiated on account of irregularities pointed out by the Committee which furnished the report. No doubt, this report is not a complete report and is not signed but the fact remains that this has been prepared and placed on the record and regarding, this, as indicated above, there is no comment either by the State or even by the Board. Therefore, this assertion of the petitioners has necessarily to be accepted. No doubt, this report is not a complete report and is not signed but the fact remains that this has been prepared and placed on the record and regarding, this, as indicated above, there is no comment either by the State or even by the Board. Therefore, this assertion of the petitioners has necessarily to be accepted. The report makes mention of the fact that the paper was leaked, it was available to the print media and that the time for answering the questions was increased from one hour to one and a half hour. With regard to the plea that the question paper was supposed to be answered in one hour and the time was increased, the stand taken by the Board, as indicated above is that this question already stands decided in the writ petition referred to above, and therefore, this would be looked into again. 9. The question which was posed in the earlier writ petition referred to above was as to what time was actually granted, whether it was 60 minutes or 100 minutes. The question which has been posed in the present case and which stand noticed in the Status re port is that the paper was supposed to be answered in one hour and the respondent Board gave the time of one and a half hour for the purpose. As indicated above, this aspect of the matter was not the subject matter of challenge in the above writ petition. This time was increased in the centres of Jammu province and not for the entire State, therefore, in the matter of conducting examination, respondent Board has not acted in accordance with the decision already taken by them. 10. One fact which cannot be lost sight of is that the petitioners have placed reliance on the Status report, Annexure G. As per the petitioners, a Committee was constituted to examine vis-a-vis irregularities committed by the Board. The precise allegation made in ground "d" of the petition is that "The State Government also got the matter investigated from its own agency and a report in this regard was submitted to the State Government.." Some of the allegations on which positive finding has been recorded are as under:- "Doubts regarding fairness and secrecy in conducting the written tests were voiced by certain candidates as also allegations found way in the local print media. The format of the written test was designed under the supervision of Mr. Aijaz Malik who was then the Chairman of the Recruitment Board. A local newspaper namely Daily Excelsior carried a news item stating:- "A group of candidates approached Excelsior office today and handed over copy of question cum answer paper which was to be deposited with the Invigilator of the examination after the completion of the examination". ..... One of the public allegation has been the time duration for the written test which varied from Centre to Centre as also was at variance with what has been written on the face of the paper and actual time granted by the Invigilator. After scrutiny it came to be known that the time printed on the paper was only one hours duration, however, the Board had taken a view that the candidates need to be granted one and a half hours duration and this factum would be brought to the notice of the candidates at the time of opening the sealed cover containing the question papers. Accordingly the Invigilators etc. reportedly have been briefed.... It was learnt that papers were got evaluated internally by constituting Committee of the Members. Rule 13 of SRO 194 provides for short listing of the candidates in the ratio of 1:5. However, the Board had taken a view, which was applied across the Board that instead of adopting 1:5 ratio the candidates would be called in the ratio of 1:10 and it was felt that the same number needs to be made applicable in this category as well. ......There have (sic) allegations that wards of member of the Board namely Sh BL Bhagat are figuring in the final select list as also ward of Sh BM Sharma who was Administrative Officer of the Board also figures in the select list. Apart the allegations are also levelled that a close relative of the convenor namely Sh Keshav Parkash figures in the select list alongwith a close relatives of Sh BR Sharma, Pvt. Secretary to the Chairman. The allegations in respect of the first two gets substantiated, however, with respect of the remaining two identity of the selectees has not become clear." 11. The allegations in respect of the first two gets substantiated, however, with respect of the remaining two identity of the selectees has not become clear." 11. If the above Status report was available with the State and if the paper was to be answered in one hour and the time for the purpose was increased to one and a half hour and if the paper is said to have been leaked to the print media, then the very sanctity of the written test for which 100 marks were to be give loses significance. The fact that the papers were got evaluated internally by constituting a Committee of Members has also been commented upon. When there were allegations of wide spread malpractices, then adopting of this procedure, which has been adversely commented upon in the Status report, cannot be said to be a procedure which was in accordance with the law. No doubt, as indicated above, the Status Report regarding the recruitment of Naib Tehsildars is not a complete report and is not signed but this has been placed on record and, as indicates above, the State has not offered any comment vis-a-vis the report. The least which was required was to take a stand as to whether a Committee was constituted in this regard or not. As this factor is missing and as there is no denial, therefore, what is stated in the Status Report has necessarily to be taken as correct. The argument of the respondent/Board that this aspect of the matter has already been taken note of in the writ petition referred to above, and therefore, this should not be examined afresh, is an argument which cannot be accepted when the earlier matter was decided, there was no such report on the record. This has come to existence now and in any case, the question as to whether the time allowed in the question paper was one hour or more was not the subject matter of decision in the aforementioned writ petition. This has come to existence now and in any case, the question as to whether the time allowed in the question paper was one hour or more was not the subject matter of decision in the aforementioned writ petition. I am of the view that the written examination which was to form the basis of selection for the post of Naib Tehsildar stands vitiated on account of the irregularities regarding which allegations have been made in the writ petition and which stand substantiated from the Status Report, Annexure G. The allegation regarding secrecy being not maintained, the allegation that only one hour time was supposed to be given for answering the question paper but one and a half hour time was given and that the question papers were got evaluated internally are the matters which cause serious doubts. 12. I am accordingly of the view that the selection process in this case stands vitiated for more than one reasons. The specific allegation of the petitioners is that two sons of Sh BL Bhagat stand selected. It is stated that he was a member of the Committee who was to conduct the written test. The reply given by Sh Bhagat is that he was not the person who set the paper. The fact, however, is that he was a party to conducting of written test and therefore, the presumption would be that he had access to the test paper and if this be the position, then what was said by the Supreme Court in the case of AIR 1970.SC 150, A.K. Kraipak and others Vs. Union of India would be attracted to the facts of this case. What was said in paragraph 15 of the judgment in the above case is being reproduced below:- "...But then under the circumstances it was improper to have included Naqishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all cannons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference..." 13. The selection made in the case before the Supreme Court was set aside. No doubt, in the above case, the person who participated in the deliberations of the selection board was himself to be considered, but the position in this case would be no different. Sh BL Bhagat may not set the paper but he was privy to the whole exercise which led to the conducting of examination and further to the selection of his two sons and a close relative. It be further seen that the close relations of the then Administrative Officer of the Board have also found their names in the select list. As a member of fact, these irregularities have been noticed in the report, copy whereof, as indicated above, has been placed on the record. Therefore, the report which makes serious allegations should have been taken note of by the State Government at its own level and should have taken corrective measures but this has not happened in this case. The further stand taken by the respondent Board that as one son of Sh BL Bhagat has not joined the service, and therefore, the allegations made by the petitioners should not be taken as correct is also of no consequence.- The fact that two sons of Sh BL Bhagat were selected and later on if they got better avenues would not confer extra sanctity on the selection process. As a matter of fact, the status report casts serious doubts on the present selection process not only on account of association of Sh BL Bhagat, the Member of the Committee, Sh BM Mangotra, the then Administrative Officer, but also on account of association of one Keshav Parkash, who was the Convenor. The report does make mention of the fact that allegations in respect of first two names i.e. Sh BL Bhagat and Sh BM Mangotra stood substantiated. The report does make mention of the fact that allegations in respect of first two names i.e. Sh BL Bhagat and Sh BM Mangotra stood substantiated. If this be the position, then, on the basis of the pleas which have not been rebutted and also the findings recorded which stand mentioned in the Status report, the selection of private respondents cannot be sustained. This petition is accordingly allowed and the appointment of private respondents is quashed.