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J&K High Court · body

2004 DIGILAW 46 (JK)

Kanchan Rani v. State

2004-03-05

PERMOD KOHLI

body2004
Petitioners in these petitions are working as Anganwari Workers in different Centres. Respondents issued advertisement Notice No.1 of 1999 dated 9-3-1999 inviting applications for the post of Supervisor (Female) in the Social Welfare Department for Divisional Cadre and District Cadre posts from in-service Anganwari Workers. The qualification as prescribed in the advertisement notice is `Graduate with five years experience as Anganwari Worker and Matriculate with 10 years experience as such. Petitioners in some of the writ petitions applied for their consideration under both these categories of the Divisional and District Cadre posts respectively. They claim to be eligible as per the qualification and criterion prescribed in the advertisement notice. The grievance of the petitioners is in respect to Notification No. SSB/Div/J/2002/7787-98 dated 16-7-2002 issued by respondents No.1 & 2 whereby short listing criterion has been published for summoning the candidates for interview. According to the short-listing criterion so adopted the graduates with five years experience with 47.72% and above marks in the qualifying examination and Matriculates with 10 years experience with 51% and above marks for District Kathua, have been summoned for interview. It is this short-listing criterion which has been challenged. It is contended on behalf of the petitioners that short-listing criterion cannot be invoked in case of in-service candidates as it applies only for direct recruitment. It is further stated that the length of service and experience itself should be a determining factor and by adopting the short-listing criterion experience has been ignored. 2. It is argued on behalf of some of the petitioners that the post in question is a promotional post and the selection process should be resorted only if sufficient suitable persons are not available for promotion. The challenge is also on the ground that short-listing on the basis of percentage is not permissible and criterion is irrational. In respect to District Kathua, it is stated that the short-listing criterion has been adopted in District Kathua and not in other Districts which itself is discriminatory in nature. 3. In response to the averments and grounds raised in the writ petition the Service Selection Board has filed objections defending the adaptation of short-listing criterion. Reliance is placed on Rule 13 (ii) of Jammu and Kashmir Subordinate Services Rules, 1992. Same is reproduced here-under:- "13. 3. In response to the averments and grounds raised in the writ petition the Service Selection Board has filed objections defending the adaptation of short-listing criterion. Reliance is placed on Rule 13 (ii) of Jammu and Kashmir Subordinate Services Rules, 1992. Same is reproduced here-under:- "13. Procedure of selection by Recruitment Board:- (i) x x x x x x x (ii) Ordinarily, the Board shall restrict the number of applicants to be admitted to oral or written test to a maximum of five times the number of vacancies after doing the preliminary screening on the basis of marks obtained in the qualifying examination and such other criteria as the Board may deem fit." 4. This rule permits short-listing of the candidates and summoning upto five times the number of vacancies. It is stated that the method adopted for selection has the statutory backing and there has been no violation of any rule, law or any other right warranting interference in the writ jurisdiction. 5. No-doubt Rule 13 (ii) empowers the Selection Authority to adopt a short-listing method for consigning the zone of selection to limited number of candidates, though the eligibility zone may be much wider. The only question that needs a thoughtful consideration by this Court is high percentage of marks can be said to be a reasonable rationale and criterion for short-listing of the candidates for the selection to the post of Supervisor, when admittedly the experience of the candidates has been taken as a relevant consideration for the post. From the eligibility criterion as laid down emphasis is laid on the experience and length of service rather than the qualification, though the qualification is also one of the relevant factor. A Matriculate with 10 years experience is eligible, whereas a graduate with five years experience is eligible for the post. The experience prescribed is minimum. There may be candidates with long length of service and more experience. If the short-listing criterion as adopted by the respondents is applied then the persons with lesser length of service with higher percentage of marks will be preferred over the candidates with lesser percentage and more length of service. Admittedly, the qualification required for the post was acquired by the candidates 5 to 10 years back or may be more. It is primarily the work experience of the candidates which constitute a relevant factor for the promotion. Admittedly, the qualification required for the post was acquired by the candidates 5 to 10 years back or may be more. It is primarily the work experience of the candidates which constitute a relevant factor for the promotion. Even a person with lesser marks can perform better and improve upon over a period of time and a person with higher percentage of marks secured in Matriculation or Graduation might have not improved upon for a period of time. I do not find any rationale or logic in fixing the criterion of percentage of marks for the selection in question. One can understand if larger experience and length of service is made a criterion for selection for the post in question, but fixing the percentage of marks in respect to a examination qualified by a person having experience for 5 years, 10 years or may be more has absolutely no relevance. 6. In case Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar & Anr., AIR 1995 SC 77 the Apex Court up-holding the short-listing criterion of length of service held as under: -- "Where in a process of short-listing the candidates who had applied for the post of Presiding Officers of the Labour Courts, the M.P. Public Service Commission took a decision to call for interview only such candidates who had completed seven and half years of practice, instead of calling for interview all applicants who had put in five years of practice, which is the minimum requirement to make an applicant eligible to apply for the post, raising the period from five years to seven and half years practice for purpose of calling the candidate for interview did not amount to changing the statutory criteria by an administrative decision." 7. In another case T.R. Kothandaraman & Ors. v. Tamil Nadu Water Supply and Drainage BD & Ors., 1994 (6) SCC 282, the Apex Court held as under: "From what has been stated above, the following legal propositions emerge regarding educational qualification being a basis of classification relating to promotion in public service. (1) Higher educational qualification is a permissible basis of classification acceptability of which will depend on the facts and circumstances of each case. (2) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion. (1) Higher educational qualification is a permissible basis of classification acceptability of which will depend on the facts and circumstances of each case. (2) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion. (3) Restriction placed cannot however, go to the extent of seriously jeopardizing the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. Reasons for this are being indicated later." 8. Similarly in case Mohd Raizul Usman Gani & Ors. v. District & Sessions Judge, Nagpur, 2000 (1) Supreme 460 the Apex Court considered a similar question and held as under:- "20 A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having higher qualification, then prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SSC examination could also not be considered. We are saying this on the facts of the case in hand and should not be understood as laying down a rule of universal application. 21.We do not think, therefore, that the criterion four as laid by the Advisory Committee constituted under the Rules and upheld by the High Court is in any way reasonable or rational. By adopting such a course High Court has put its stamp of approval to another type of reservation for recruitment to the service which is not permissible. A poor person can certainly acquire qualification equivalent to SSC Examination and not that he cannot go beyond standard VII. Perhaps by restricting appointment to candidate having studied only upto Standard VII High Court may not be encouraging dropouts. 9. From the judgments of the Apex Court referred to above, in-evitable conclusion that can be drawn is that the State/ Selection authority is entitled to adopt a short-listing criterion to restrict the zone of selection. However, the criterion adopted should be reasonable and rationale. The criterion which has the effect of denying a candidate of his right of consideration for promotion for all times to come, cannot be said to be reasonable or rationale. However, the criterion adopted should be reasonable and rationale. The criterion which has the effect of denying a candidate of his right of consideration for promotion for all times to come, cannot be said to be reasonable or rationale. In the present case the short-listing criterion viz percentage of marks in the examination of in-service candidates who are already in service for the last 5, 10 or more years cannot be said to be rationale, logical and reasonable. 10. The argument of the petitioners that Zone-wise selection is impermissible. Reliance is placed upon case Radhey Shyam Singh v. Union of India, AIR 1997 SC 1610, wherein the Apex Court held as under: "It is needless to emphasis that the purpose and object behind holding a recruitment examination is to select suitable and best candidates out of the lot and such an object can only be achieved by making the common select list of the successful candidate belonging to all the zones. On the other hand if Zone-wise selection is made then various candidates who appeared in some of the zones and secured more marks than those who are selected from other zones would be deprived of their selection resulting into grate injustice and consequent discrimination. Thus, there can be said to exist no nexus between the afore-said process of zone-wise selection and the object to be achieved, that is, the selection of the best candidates. The said process of zone-wise selection would result in the devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who has secured more marks and consequently the rule of equal chance for equal marks would be violated. Such a process would not be again the principles enunciated in Articles 14 & 16 but it would also result in heart burning and frustration amongst the young men of the country. The rule of equality of opportunity for every individual in the country is an inalienable part of our constitutional guarantee and that being so a candidate who secures more marks than another is definitely entitled to get preference for the job as the merit must be the test when selecting a candidate for recruitment for the posts which are advertised." 11. Based upon the afore-said judgment, it is contended that the Zone-wise or District-wise selection of Supervisors is impermissible. Based upon the afore-said judgment, it is contended that the Zone-wise or District-wise selection of Supervisors is impermissible. I have carefully perused the judgment of the Apex Court. In the said case, the selection was to all India service. A common selection process was initiated that selection was confined to Zone-wise, that means separate merit lists were to be prepared in respect to All India Service. The Apex Court was of the opinion that a person with lesser merit in a particular Zone can make the grade as against the person with higher merit in other Zone. Such a procedure was held to be violative of constitutional mandate enshrined under Articles 14 & 16 of the Constitution of India. However, the position in the present cases is different. The vacancies are in different Centres/ Zones. The posts are District cadre posts. There is no common selection. The Jammu and Kashmir Civil Services (Decentralization of and Recruitment to Non-Gazetted Cadres) Rules, 1969 clearly defines the District cadre of service. The vacancies are meant for a particular District or Zone. In such a situation, it cannot be said that the selection is bad, as separate merit has to be determined for each zone. It is not the State cadre, Divisional Cadre posts. Therefore, the judgment of the Apex Court has no application to the facts of the present case. The Challenge to the same is declined. 12. I accordingly allow these petitions and quash the impugned notification and criterion fixed for short-listing of the in-service candidates for the selection to the post of Supervisors. However, the respondents are at liberty to adopt any other reasonable rationale and valid criterion for short-listing of the candidates. SWP No. 2196/2002 13. Petitioner in this petition was appointed as Anganwari worker in the year 1981 and has total length of service more than 20 years. The grievance of the petitioner is that she was called for interview on the basis of short-listing criterion as adopted by the respondent. However, the interview call letter dated 19-7-2002 for appearance before the Selection Board on 30-7-2002 was received by her on 31-7-2002 at village Kastigarh, Tehsil Doda. She has also placed on record Zerox copy of the envelope and stated that the interview letter was dispatched on 22-7-2002 as is evident from the Post office Stamp. However, the interview call letter dated 19-7-2002 for appearance before the Selection Board on 30-7-2002 was received by her on 31-7-2002 at village Kastigarh, Tehsil Doda. She has also placed on record Zerox copy of the envelope and stated that the interview letter was dispatched on 22-7-2002 as is evident from the Post office Stamp. Call letter was served upon the petitioner after a period of nine days though the distance was not more than 15 Kms by motor-road. It is only on account of late receipt of the call letter that petitioner could not participate in the interview process. Accordingly direction is sought for conducting the interview of the petitioner for the post in question. SWP No. 2217/2002 14. In this petition the grievance of the petitioner is that she passed her Matriculation examination in the year 1981 under Roll No. 224411 and secured 283 marks out of 850. However, she again appeared in the same examination in November, 1985 under Roll No. 6145 in English paper in which she had failed earlier and she was able to secure 92 marks out of 200. Accordingly she improved her percentage. After her re-appearance she secured total 375 marks out of 850 and her percentage comes to 44%. The revised mark-sheet though submitted has not been taken into consideration. Be that as it may, since the short-listing criterion adopted by the respondents has been quashed with a direction to re-frame the same, the writ petitioners in the afore-mentioned two cases shall also be entitled for consideration against the revised criterion that may be adopted by the respondents in terms of the direction issued herein. COA (S) 39/2002 15. This contempt petition arises out of interim order dated 29-7-2002 whereby direction was issued to interview the petitioner. No notice of this contempt petition has been issued till date. COA 29/2002 16. This contempt petition arises out of interim order dated 30-7-2002 wherein a direction was issued to interview the petitioner. Notice of this contempt petition was issued to the other-side and there-after no proceedings were initiated. 17. In view of the direction issued in the main writ petitions no further order/ direction is required to be issued in both these contempt petitions.