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2003 DIGILAW 317 (JK)

Jagdev Singh Samyal (Dr. ) v. State Of J. &K.

2003-10-10

PERMOD KOHLI

body2003
Petitioner after passing his MBBS and completing internship was selected as Surgeon Lt in Indian Navy on 26-8-1994 and secured voluntary discharge in the year 1999. Pursuant to advertisement notice No. 10-PSC of 1999 dated 14-11-1999 issued by the J&K Public Service commission for selection of Assistant Surgeons in the Department of Health and Family Welfare, J&K Government. Petitioner applied for his selection to the post. This Notification provided reservation for reserved categories of Scheduled Caste/Scheduled Tribe and Socially Backward Class as defined under SRO 126 dated 28-6-1994. In addition to this, it was also provided that if a person possesses an additional qualification like experience/ improvement in the qualification/ marks, additional qualification, distinction in sports/NCC, if any, the certificates be annexed alongwith the application. Notice also stipulated different age for different classes of the persons. Petitioner claimed to be an ex-serviceman for which category the maximum age was prescribed as 40 years. Petitioner participated in the selection process. On completion of the selection process, the Public Service Commission recommended the names to the Government for appointment. Vide Government order No. 702 H&ME of 2001 dated 4-10-2001, the selected candidates were appointed against Open and reserved categories. Petitioner did not find berth in the list of appointees. However, supplementary waiting list was issued, where the petitioners name figured at S.No. 140 in the open merit category. Before the petitioner participated in the selection process he was engaged as Assistant Surgeon on adhoc basis vide Govt. order No. 646-HME of 1999 dated 13-12-1999 for a period of 89 days and was continuing under the same arrangement till the appointments were made. After his non-selection, he filed the present writ petition, which was subsequently amended claiming following reliefs:- "(a) issue writ of mandamus directing the respondent No. 1 to consider and induct the name of the petitioner in the list of appointees as temporary Asstt. After his non-selection, he filed the present writ petition, which was subsequently amended claiming following reliefs:- "(a) issue writ of mandamus directing the respondent No. 1 to consider and induct the name of the petitioner in the list of appointees as temporary Asstt. Surgeon with effect from the same date thereby deleting the name of the petitioner from the waiting list shown at S.No. 140 ; (b) Issue writ of mandamus to respondent No. 3 to produce the record of selection to enable the Honble Court to ascertain the merit of the petitioner; (c) To issue any other writ, order or direction which the Honble Court may deem fit in the facts and circumstances of the case." Respondents No. 1 & 2 filed the reply wherein it is stated that though the petitioner was engaged on adhoc basis vide Govt Order No. 646- HME of 1999 dated 13-12-1999 and posted in District Hospital, Kathua, however, the said post being a Gazetted post was required to be filled up by selection through Public Service Commission. Petitioner participated in the selection process and his name figured at S.No. 140 of the waiting list. Petitioner has no right for appointment as he has not been selected by the Public Service Commission. Learned counsel for the petitioner submitted at the bar that the petitioner being an ex-serviceman had a preferential right for appointment. The right of the petitioner for appointment is contested on two counts:- (i) that he is an ex-serviceman ; (ii) that he has vast experience to his credit as he has served in the Indian Navy and on adhoc basis. It is further contended that there is a reservation of 68% under SRO No. 126 of 1994 for the ex-servicemen. I have examined SRO 126 and reservations for different categories as provided therein. There is absolutely no reservation for the ex-servicemen. However, Rule 11 of the said SRO provided that ex-servicemen and children of Defence Personnel shall get preferential treatment to the extent of 5% for selection in each service class, category and grade. I have examined SRO 126 and reservations for different categories as provided therein. There is absolutely no reservation for the ex-servicemen. However, Rule 11 of the said SRO provided that ex-servicemen and children of Defence Personnel shall get preferential treatment to the extent of 5% for selection in each service class, category and grade. Rule 10 and 11 of SRO 126 are re-produced: "10.Except as otherwise provided in these rules, available vacancies shall be reserved for the direct recruitment in each service, class, category and grade in favour of permanent residents of the State belonging to any of the below mentioned categories which shall, as nearly as possible constitute the percentage of available vacancies shown against each ;- @Z_TBL_BEG = COLUMNS(3), DIMENSION(IN), COLWIDTHS(.5000,E1,1.0000), ABOVE(.1000), BELOW(.1000), HGUTTER(.0555), VGUTTER(.0555), BOX(Z_DOUBLE), VGRID(Z_SINGLE), KEEP(OFF) @Z_TBL_BODY = TBLCN, TABLE TEXT, TBLCN (a), Scheduled Castes, ..8% (b), Scheduled Tribes, ..10% (c), Socially and educationally backawrd classes (Other than Scheduled Castes & Scheduled Tribes)., @Z_TBL_BODY = TABLE TEXT, TABLE TEXT, TBLCN , (i) Weak and under privileged Classes (Social Castes)., ..2% , (ii) Residents of areas adjoining Line of Actual Control., ..3% , (iii) Residents of Backward areas, ..20% @Z_TBL_END = 11. Concessions (1) Notwithstanding anything contained in rule 10 and subject to the provisions of sub-rule (2) of this rule, out of the total number of available vacancies (reserved as well as unreserved), handicapped persons to the extent of 2% and ex-servicemen and children of Defence Personnel to the extent of 5% shall get preferential treatment for selection in each service class, category, and grade." Scope and purposes of rule of preference in a selection came up for consideration before the Apex Court in case of Secretary (Health) Deptt. of Health & F.W & anr v. Dr. Anita Puri and others, (1996) 6 SCC 282, wherein the Honble Supreme Court observed : "7. Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B.D.S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M.D.S is a higher qualification than the minimum qualification required for the post and respondent No. 1 was having the degree. There is also no dispute that M.D.S is a higher qualification than the minimum qualification required for the post and respondent No. 1 was having the degree. The question than arises is whether a person holding a MDS qualification is entitled to be selected and appointed and of right by virtue of the aforesaid advertisement conferring preference for higher qualification ? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in Course of interview, the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidates for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S qualified person like Respondent 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed." Under the rule of preference where two candidates secure equal marks/grading the one with preference is to be appointed. However, rule of preference cannot mean any reservation in favour of such category/person. Therefore, no benefit can be allowed to the petitioner under SRO 126, particularly when he was not amongst the first list of selectees. However, rule of preference cannot mean any reservation in favour of such category/person. Therefore, no benefit can be allowed to the petitioner under SRO 126, particularly when he was not amongst the first list of selectees. He is in the waiting list at S.No. 140 and is admittedly beyond the cut of points secured by the last selected candidate. Not only this the advertisement notice relied upon by the petitioner does not specify any reservation. It only stipulates the maximum age in respect to ex-servicemen, meaning thereby that only relaxation in respect to age was given to ex-servicemen, without providing quota/reservation in the appointment. Regarding the claim of the petitioner that he is entitled to selection on the basis of his vast experience, the selection body namely, Public Service Commission did not select the petitioner and in the ranking/merit he was below the last selected candidate. High Court in exercise of writ jurisdiction cannot sit as a Court of appeal over the decision of the selection body and re-examine the entire issue. Merely, because the petitioner has served in Indian Navy and on adhoc basis, does not mean that he is more meritorious than the selectees. The selection is a process of competition and the post is to be filled by selection. No other point has been urged to challenge the selection. In any case there is no challenge to the selection. The prayer made in the writ petition that the name of the petitioner should be deleted from the waiting list and he be directed to be appointed as temporary Assistant Surgeon cannot be accepted, for the reasons mentioned hereinabove. Petitioner having not been found suitable by the Public Service Commission cannot be appointed by the Court. Under these circumstances, this petition is dismissed being devoid of any merit.