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2006 DIGILAW 51 (JK)

SSRB, J&K v. Ali Asghar

2006-03-22

B.A.KHAN, J.P.SINGH

body2006
1. This appeal is directed against the Writ Court judgment dated 6.7.2001 allowing first respondents writ petition, SWP no. 992/1998 directing the appellant-Board to recommend writ petitioners name for selection/appointment to the post of Patwari. The facts leading to this appeal may be summarized thus:- 2. The Jammu and Kashmir State Service Selection Board issued advertisement notice No. 3 of 1997 dated 29.4.1997 inviting applications from the eligible candidates for selection to the post of Patwari in District Poonch. Qualification prescribed for the post was Matric and the candidates were required to know Urdu. The first respondent sought selection under RBA category but was not selected as he had-obtained 47.62 points in RBA category as against the last selected candidate who had secured 48.62 points in this category. 3. Aggrieved by his non-selection, he filed a writ petition, SWP no. 992/1998 seeking quashing of selection of respondents 4 to 17 in the writ petition and his consideration afresh, inter alia, on the ground that the selection made by the appellant-Board was unfair, arbitrary and against rules. The criteria fixed by the Board and allotment of 20 points for viva voce was also questioned as bad and irrational. 4. The appellant-Board contested the writ petition submitting that the criteria laid down for selection, was as follows:- (i) Basic qualification 70 points (ii) Passage writing in Urdu 10 points (iii) Viva voce 20 points. and that the criteria so fixed, was neither unfair nor arbitrary or against rules as projected by the first respondent. 5. It appears that the first respondent took altogether a new plea in his rejoinder saying that a different criteria for selection had been adopted by the Board while making selection for the post of Patwari in Poonch and Rajouri Districts. 6. The Writ Court, appears to have been impressed by this plea taken by the first respondent in his rejoinder. It accordingly proceeded on the premise that the entire State, in the matter of appointments was to be taken as one Unit and relying on Nidamarti Mahesh Kumar v. State of Maharashtra, proceeded to hold as follows:- "If above be the situation then adopting a different criteria for the District Rajouri and Poonch cannot be sustained. Even otherwise the criteria which has been adopted in the district of Rajouri and district of Poonch is entirely different. Even otherwise the criteria which has been adopted in the district of Rajouri and district of Poonch is entirely different. In one of districts weightage has been given to marks obtained in matriculation, 10 marks have been given to passage writing in Urdu. Such was not the criteria adopted in the direct of Rajouri. As such procedure which has been adopted by the respondent-Board suffers from voice of discrimination. State should have been consistent in its approach in fixing criteria. Therefore it can be said that selection process stands vitiated......" 7. After holding the selection to be hit by-Articles 14 and 16 of the Constitution of India, the learned Single Judge, relying on H. C. Puttaswamys case did not proceed to upset the selection but directed consideration of first respondent for selection and appointment to the post of Patwari with consequential benefits. 8. Shri S. K. Shukla, learned counsel for the Appellant-Board, submits that the finding recorded and the reasoning advanced by the learned Single Judge are unsustainable. He further submits that the selection made for the Districts of Rajouri and Poonch, against vacancies notified in that year 1995 could not be made the basis for up-setting the selection held at a different point of time and pursuant to different notification. 9. The learned counsel submits that the reasoning adopted by the learned Single Judge that same criteria had to be adopted by the State in all selections regardless of the requirements of each Selection Committees is unjustified. He further submits that criteria adopted, by one selection committee cannot be followed for all times to come. The criteria, according to the learned counsel, cannot be static and is required to be suitably amended or altered according to the requirements of the selection committee and ground situation. Shri Shukla adds that the new plea taken by the first respondent in his rejoinder could not be made basis for allowing the writ petition and that too without providing opportunity to the appellant to rebut the stand taken by the writ petitioner in the rejoinder. 10. We find substance in the submissions of Shri Shukla. The learned Single Judge, in our opinion, has erred in proceeding in an undesired direction and. that too on the basis of case projected for the first time in the rejoinder and without providing opportunity to the appellant to rebut the stand reflected in the rejoinder. 11. 10. We find substance in the submissions of Shri Shukla. The learned Single Judge, in our opinion, has erred in proceeding in an undesired direction and. that too on the basis of case projected for the first time in the rejoinder and without providing opportunity to the appellant to rebut the stand reflected in the rejoinder. 11. We find that no case had been set up by the writ petitioner in his petition that District-wise selection was bad in law and against the judgment of Honble Supreme Court of India reported as Ram Vijay Kumars case. We are of the opinion that the post of Patwari being a district cadre post, judgment in Ram Vijay Kumars case was not attracted in the facts and circumstances of the case. The finding of the learned Single Judge that State has to be considered as one Unit and the similar criteria, as adopted by one Selection committee, is required to be adopted by the other selection committees holding selection later in time, is wholly misconceived and unsustainable. Each selection committee is requited to adopt .such criteria, which a particular selection committee may require in order to judge the suitability, merit or otherwise of the candidates appearing before such selection committee. The uniform selection criteria, cannot be contemplated for each selection committee in view of change in the circumstances. Host of considerations may weigh with the selection committee in formulating the selection criteria such as the number of candidates, the nature of qualification, experience, aptitude and so on. No hard and fast rule can thus be laid down for determining the criteria for a particular selection committee. 12. It appears to us that the Writ Court had gene wrong in bracketing two selections i.e., one made in the year 1995 and the other in 1997 together and invoking Articles 14 and 16 of the Constitution in holding the selection of the private respondents bad in law. We are of the opinion that Articles 14 and 16 were not attracted in the facts and circumstances of the case particularly when two selections had been held at different point of time and against different notifications. 13. We have been informed that the first respondent stands already selected and appointed on the post of Patwari in the subsequent selection. The judgment of the Writ Court, is accordingly, set aside and selection of private respondents up-held. 14. 13. We have been informed that the first respondent stands already selected and appointed on the post of Patwari in the subsequent selection. The judgment of the Writ Court, is accordingly, set aside and selection of private respondents up-held. 14. We are informed by the Interveners that relying on the finding of the Writ court in the subject writ petition, several other writ petitions too have been allowed by the Writ Court. Suffice, it would be to observe that these judgments are not under challenge before us. We therefore, do not comment on those judgments except observing that the impugned Judgment of learned Single Judge is erroneous. 15. All told, we find that the Writ Court judgment had proceeded on a wrong premise in holding that the selection was vitiated on two different criterias adopted by the Appellant-Board for selection/appointment to the post of Patwari in Rajouri and Poonch Districts. This appeal is, accordingly, allowed.