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2013 DIGILAW 193 (JK)

Renu Raina and Ors. v. State and Others

2013-04-09

MUZAFFAR HUSSAIN ATTAR

body2013
1. Since the questions of law involved in all these writ petitions, are almost identical, these are taken up together for final disposal. 2. The controversies raised in these cases owe its origin to the Advertisement Notification No. 07 of 2010 dated 12-11-2010, where under 295 posts of General Line Teachers were advertised in District Rajouri. The petitioners and private respondents in all these writ petitions sought consideration for being selected/appointed on the advertised posts. In one of the petitions (SWP 2274/2012), selection of all the selected candidates has been called in question whereas, in some of the petitions, selection of some of the candidates has been called in question and in another writ petition, appointment of all the appointed candidates has been called in question. In most of the cases, the selection/appointment of candidates belonging to general category (open merit), have been challenged and in some of the petitions, selection of reserved category candidates has been called in question. 3. The respondents have filed reply affidavits/objections. 4. What is not in dispute is that the J&K Civil Services Decentralization and Recruitment Act 2010 is applicable in these cases. It is also -not in dispute that the J&K Civil Services Decentralization and Recruitment Rules 2010 (for short Rules of 2010) are also applicable to the selection process which is subject matter of these writ petitions. 5. The petitioners in their respective writ petitions have raised host of grounds to challenge the selection process which, inter alia, include breach of Rules of 2010, unfair method adopted in making selections, close relatives of some members of the Selection Committee having been selected illegally and arbitrarily. All these allegations have been controverted by the respondents in their reply affidavits. 6. Learned counsel for the petitioners submitted that rule 6(6) of the Rules of 2010 provides for composition of District Level Selection Committee. Learned counsel submitted that the Selection Committee, which conducted the selection process, was not constituted in accordance with rule 6(6) of the Rules of 2010, in as much as, the District Head of the Intending Office Department was not member of Selection Committee, which conducted the selection process. Learned counsel further submitted that since the Selection Committee was not constituted in accordance with Rules of 2010, the entire selection process, thus, stands vitiated and consequently, selection of the selectees on the posts of General Line Teachers deserves to be quashed. 7. Learned counsel further submitted that since the Selection Committee was not constituted in accordance with Rules of 2010, the entire selection process, thus, stands vitiated and consequently, selection of the selectees on the posts of General Line Teachers deserves to be quashed. 7. Learned counsel for the respondents strenuously argued that the petitioners, after participating in the selection process, cannot be permitted to raise the issue about composition of Selection Committee. Learned counsel further submitted that at the time selection process was initiated, the office of the Chief Education Officer, Rajouri, was vacant and it is for this reasons that another academician was co-opted as member of the Selection Committee. Learned counsel further submitted that the petitioners should have raised objections about the constitution of the composition of the Selection Committee when they appeared before it. Learned counsel further submitted that the petitioners have not raised any objection about the composition of the Selection Committee at the time "they appeared before it and also the issue was not raised when the provisional selection list was published. Learned counsel submitted that there is complete acquiescence on the part of the petitioners and they are estopped from raising the issue at this point of time. Learned counsel also submitted that the petitioners have not pleaded that they have been prejudiced by the composition of the Selection Committee, which conducted the selection process. Learned counsel, in support of their contention, referred to and relied upon judgement of the Hon'ble Supreme Court in case titled Dhananjay Malik and others -- Appellants versus State of Uttaranchal and others Respondents, reported in (2008) 4 SCC, 171 and submitted that in view of law laid down by the apex Court in the said case, these writ petitions deserve to be dismissed. Learned counsel also referred to the judgement of this Court in case titled Haseena Akhter and others versus State of J&K and others, reported in 2009 (II) SLJ, 486. Learned counsel further submitted that even if there is breach of statutory rules in making the selection, objections about the same cannot be entertained at this point of time. Learned counsel, accordingly, prayed for dismissal of all these writ petitions. 8. Learned counsel further submitted that even if there is breach of statutory rules in making the selection, objections about the same cannot be entertained at this point of time. Learned counsel, accordingly, prayed for dismissal of all these writ petitions. 8. Though many issues have been raised in these cases, yet the Court is considering only one issue leaving the petitioners free to raise all issues at any subsequent point of time if cause arises for the same. 9. In order to appreciate the issue raised, it is deemed appropriate to take note of rule 6(6) of the Rules of 2010 : Rule6(6) — The district level selection committee shall consist of: 1. Chairman or Member of Board to be Nominated by Chairman Convener 2. District Head of Intending Department (Not more than one) Member 3. One Officer of or above rank of Dy. Secretary to Government in General Administrative Department Member Provided that a member of the Board may be nominated by the Chairman as Convener of more than one District Level Committee. Provided further that Chairman may if he feels necessary, to opt an expert/specialist in the concerned discipline with the committee. " 10. It is also deemed appropriate to take note of paragraphs 4, 7, 8, 11 & 13 of the Dhananjay Malik's case aforementioned : "4. An advertisement was issued on 26-06-2002 for Garlnval Region for the selection and appointment of the Physical Education Teachers (LT Grade). The requisite qualification indicated in the advertisement is BPE or graduate with diploma in Physical Education. The unsuccessful candidates in the interview challenged the selected candidates on various grounds. One of the grounds was that the advertisement and selection were not based in accordance with the rules called the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 (in short "the Rules"). We will examine (he Rules a little later. The unsuccessful writ petitions were dismissed by the Single Judge. On appeal by the unsuccessful candidates, the order of the Single Judge was reversed and the appeals were allowed. Hence, these appeals by special leave. 7. It is not disputed that (he respondent-writ petitioners herein participated in the process of selection knowing fully well that-the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Hence, these appeals by special leave. 7. It is not disputed that (he respondent-writ petitioners herein participated in the process of selection knowing fully well that-the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in (he process of selection without any demur (hey are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the rules. 8. In Madan Lal v. State of J&K this Court pointed out that when the petitioners appeared at the oral interview conducted by (he members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. 11. We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the learned Single Judge. 13. The 1983 Rules prescribe the requisite educational qualifications for the post of Assistant Teacher, Physical Education as under: "Graduation degree in Physical Education or diploma in the Physical Education from any recognized Institution." The. aforesaid Rule has been clarified by Government of India, Ministiy of Education, on 26-11-1965 to the effect that DPE degree-holders should be treated on a par with those who hold B.A/D.Sc. B.Com degree plus a diploma in Physical Education and should not be required to possess an additional B.A/D.Sc. B. Com degree for purposes of employment as Directors of Physical Education or on other similar posts. The aforesaid position has been further clarified by the Government in para 12 of its counter-affidavit that qualification of BPE includes the graduation as well as diploma of Physical Education." 11. B. Com degree for purposes of employment as Directors of Physical Education or on other similar posts. The aforesaid position has been further clarified by the Government in para 12 of its counter-affidavit that qualification of BPE includes the graduation as well as diploma of Physical Education." 11. Law is no more res Integra that every public post is a national property and the employer, when takes a decision to fill up the posts, has to accord consideration to all the eligible candidates, who seek such consideration for being selected/appointed on such posts. In our constitutional scheme, the Selection Authority has to act fairly and in unbiased manner. Selection after selection, allegations are being made in respect of improper and unfair manner, in which selections are being made. 12. Every Selection Committee is charged with the onerous duty of making selection to these public posts. The efforts are being made to ensure that Selection Committee acts in most fair, proper and unbiased manner in making selections of meritorious candidates. Since repeated allegations were being made in respect of the members of the Selection Committee, it appears that the State Government, in order to ensure that selections are made in fair and unbiased manner, has constituted a Statutory Selection Committee in terms of rule 6(6) of the Rules of 2010, which itself defines the composition of the Selection Committee. No power is given to any executive authority in terms of the Rules of 2010 to change the composition of the Statutory Committee. The selections are to be made, thus, by the Statutory Selection Committee. Article 14 of the Constitution of India guarantees equality before law and equal protection of laws. Any breach committed in respect of any statutory rule would, in turn, infringe the constitutional guarantee given under Article 14 of the Constitution of India, which is reproduced hereunder : "14. Equality before law - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 13. It is the settled principle of law that an act is to be done in the manner prescribed by the Statute or not at all. In these cases, it is admitted that the District Head of the Intending Officer Department was not a member of the Selection Committee. 13. It is the settled principle of law that an act is to be done in the manner prescribed by the Statute or not at all. In these cases, it is admitted that the District Head of the Intending Officer Department was not a member of the Selection Committee. The Selection Committee, which conducted the selection process was not, thus, a Committee in terms of rule 6(6) of the Rules of 2010. The selection process has been conducted by a non Statutory Selection Committee, which is not permissible in terms of Rules of 2010. The selection process in this case has been conducted by an illegal and unauthorized Selection Committee. Any selection made by such Committee will have no recognition in law and in fact will not constitute selection in law, 14. The whole hog reliance placed by learned counsel for the respondents on Dhananjay Malik's case supra, will not justify the illegal selection made by an illegal Selection Committee. In the said case at paragraph (4), the apex Court observed that the unsuccessful candidates in the interview challenged the selection of the selected candidates on various grounds and one of the ground was that the advertisement and selection was not made in accordance with the rules. The Hon'ble Supreme Court, in the same paragraph, further observed that the rules will be examined a little later. At paragraph (7) of the said judgement, the apex Court also observed that the unsuccessful candidates had participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement notice itself as BPE or graduate with diploma in Physical Education. It was further observed that having unsuccessfully participated in the selection process without any demur, they are estopped from challenging the selection criterion on the ground that same were contrary to the rules. The Hon'ble Supreme Court at paragraph (13) of the judgement, however, while examining the clarifications issued by the Government of India, stated that the educational qualification mentioned in the advertisement notice/rules were equivalent to other qualifications which were possessed by the selected candidates. 15. There is a clear distinguishing factor involved in the cases on hand and in the case of Dhananjay Malik, in which educational qualification was indicated in the advertisement notice itself and same was known to the candidates at the time of responding to the said notification. 15. There is a clear distinguishing factor involved in the cases on hand and in the case of Dhananjay Malik, in which educational qualification was indicated in the advertisement notice itself and same was known to the candidates at the time of responding to the said notification. Even at paragraph (13) of the judgement of the apex Court supra, this position has been clarified by holding that the notified educational qualification was equivalent to the qualification fixed by the Statutory Rules. In these cases it was not notified by the Service Selection Board at any point of time that the composition of the Selection Committee, as determined by rule 6(6) of the Rules of 2010, was not in accordance with the said rule as the District Head of the Intending Office Department was not one of its members. The candidates had no information about the same till such time they appeared before the Selection Committee. There is one more distinguishing feature between the decision of the apex Court and the facts of these cases. As already stated the Statutory Rules determined the composition of the Selection Committee. The Statutory Selection Committee was not in place. The purpose underlying for constituting the Statutory Selection Committee has been defeated in this case as the selection has been made by an illegal Committee. The J&K Service Selection Board is itself a creature of Statute, so it has to function within the delineated borders of the Statute. It has no power or authority to traverse beyond the statutory frontiers. It cannot lie in the mouth of the Service Selection Board or the selected candidates that the petitioners were not prejudiced or they are estopped from challenging the selection process as it was the duty of the Service Selection Board to act in accordance with the Act and Rules of 2010. The legal selection could be made by the Statutory .Selection Committee. The duty is cast by statute on the Service Selection Board to make selections in a particular manner and by a particular Committee. There cannot be acquiescence in the action of a legally non-existent Selection Committee. 16. The judgement of this Court, in Haseena Akhter's case aforementioned, has proceeded on its own facts. In that case the issue in respect of Selection Committee was not before the Court. There cannot be acquiescence in the action of a legally non-existent Selection Committee. 16. The judgement of this Court, in Haseena Akhter's case aforementioned, has proceeded on its own facts. In that case the issue in respect of Selection Committee was not before the Court. 177 For the above stated reasons, these writ petitions along with their respective CMAs are disposed of in the following manner : "By issuance of writ of Certiorari, selection as also appointment of the private respondents in all these writ petitions, is quashed. The official respondents are directed to initiate fresh selection process and take steps to conclude the same within a period of eight weeks from the date copy of this order is served on them. Respondent J&K Service Selection Board is directed to make fresh selections on the posts of teachers by getting the candidates, who were short listed, assessed by the Statutory Selection Committee. It is also provided that any short listed candidate, who has turned over age, shall be deemed to be within the upper age limit for this selection process. " 18. Disposed of along with all connected CMAs.