JUDGMENT Vide Advertisement Notice No. 03/2006 dated 28.12.2006, amongst other posts, posts of Assistant Information Officer Grade -II, two each posts for Jammu Division and Kashmir Divi­sion, were advertised. The eligibility qualification was prescribed as under: - "Graduate with diploma in Jour­nalism with aptitude of writing features & translating English into Urdu/Hindi & vice versa. Can­didates with History, as a subject in Graduation shall be given pref­erence." 2. The criteria fixed by the J&K Ser­vice Selection Board for selection was notified on 18th July, 2007 to the follow­ing effect: i. Graduation = 30 points (Prorata) ii. Graduation in Journalism = 20 points (Prorata) iii. Diploma in Journalism = 10 points (Prorata) iv. Weightage to history as one of the subjects in Graduation = 10 points (Prorata) v. Aptitude test/Writing features and translation = 10 points (Prorata) vi. Masters in Journalism & Mass communication = 10 points (Prorata) vii. Viva voce = 10 points Total = 100 points. Note: The aptitude test shall be con­ducted before short listing. 3. The process of selection was not initiated. In the meantime one more advertisement notice bearing No. 03 of 2008 dated 05.05.2008 was issued, in terms whereof for filling up 09 posts of Assistant Information Officer Grade - I (State cadre) with following break - up were advertised: OM = 07 RBA = 01 SC = 01 The education qualification was prescribed as under: - "Graduation with certificate course in Journalism from a rec­ognized University and aptitude of writing features, translating English into Urdu/Hindi & vice versa. Preference will be given to Diploma holders in journalism and candidates with History as a sub­ject in Graduation." 4. Again the process of selection was not initiated. In the meantime, vide Govt. order No. 29 - ID of 2008 dated 25.09.2008, post of Assistant Informa­tion Grade - I was re-designated as As­sistant Information Officer. 38 such pots were created against correspond­ing reduction of equal number of posts of Assistant Information Officer Grade - II. 5. Again the process of selection was not initiated. In the meantime, vide Govt. order No. 29 - ID of 2008 dated 25.09.2008, post of Assistant Informa­tion Grade - I was re-designated as As­sistant Information Officer. 38 such pots were created against correspond­ing reduction of equal number of posts of Assistant Information Officer Grade - II. 5. One more advertisement notice bearing No. 8 of 2010 dated 24.12.2010 was issued, in terms whereof, in addi­tion to other posts, 13 posts of Assis­tant Information Officers (State cadre) were notified to be filled up with the following break-up OM = 7 SC = 1 ST = 1 RBA = 3 ALC = 1 The eligibility qualification has been prescribed as under: - "Graduate with Diploma in Jour­nalism with aptitude of writing features and translating English into Urdu/Hindi and vice versa. Candidates with History as a sub­ject in Graduation shall be given preference." 6. The Services Selection Board no­ticing the conflict in the eligibility qualification i.e. in Advertisement No­tice No. 3 of 2008 qualification pre­scribed was Graduation with certifi­cate course in Journalism instead of Graduation with Diploma in Journal­ism, had taken up the matter with the intending department i.e. Information Department. The intending depart­ment vide its communication dated 16.9.2011, addressed to Chairman, J&K Services Selection Board, has clarified the position by stating that in the Ad­vertisement Notice No. 3 of 2008, the words "Graduate with Certificate course" have appeared in requisition letter due to oversight when in accor­dance with J&K Information (Subordi­nate) Services Recruitment rules, 1993 notified vide SRO 69 dated 02.04.1993, the required qualification for the post of Assistant Information Officer Grade - I is as under:- "Graduate with Diploma in Jour­nalism with aptitude for writing features, translating English into Urdu/Hindi & vice versa. Candi­dates with History as a subject in Graduation will be given prefer­ence." 7. Subsequently, J&K Services Se­lection Board in its extraordinary Board meeting held on 08.10.2011 decided that a speaking notice vis-a-vis quali­fications and amendments made from time to time by the Information Depart­ment and regarding re-designation and amalgamation of the posts of Assistant Information Officers Grade-I and Grade-II as Assistant Information Officers, shall be issued. Subsequently, J&K Services Se­lection Board in its extraordinary Board meeting held on 08.10.2011 decided that a speaking notice vis-a-vis quali­fications and amendments made from time to time by the Information Depart­ment and regarding re-designation and amalgamation of the posts of Assistant Information Officers Grade-I and Grade-II as Assistant Information Officers, shall be issued. Further keeping in view the different standard of marking of various Universities, it was unani­mously decided to devise a mechanism to bring them at par by giving weightage across the Board for the qualifications relevant to the said post as per pre­scribed qualification in the Recruit­ment Rules/Indents. As a result thereof, the following criteria, which was thereafter notified on 13.10.2011, was approved: - (i) Graduate with Diploma in Journalism/Graduate in Journalism 'OR'55 Pts (Across the Board) Graduate (History as major) with Diploma in Journalism ‘OR’60 Pts (Across the Board) Graduate with PG in Journalism 'OR'60Pts (Across the Board) Graduate (History) with PG in Journ­alism 60 pts60Pts (Across the Board) (ii) Aptitude test20 pts (prorata) (iii) Viva - voce20 pts Total100 pts NB: - (a) 20 points earmarked to writing and translating features where 10 have been earmarked for writing features and 10 have been earmarked for translating features. (b) Only such candidates shall be considered for selection who secure at least 35% marks in the Aptitude test. (c) Aptitude Test shall be con­ducted on the same day of the interview. (d) In Aptitude Test the candi­dates shall be given a topic on History/Current Affairs to ac­cess the candidate's aptitude of writing and translating the topic written in English to Urdu/ Hindi and vice - versa (150 words) (e) The duration of aptitude test shall be 60 minutes. 8. Later on a corrigendum was is­sued on 19.10.2011 where - under it was provided that instead of Part "e" of the notification dated 13.10.2011 showing 60 minutes for Aptitude test, following shall be read: 1. Writing feature =15 minutes 2. Translation =15 minutes Total =30 minutes 9. Vide notification dated 13.10.2011 issued by the Board, the provisional interview/aptitude test for the post of Information Officer (Information De­partment) was notified to commence with effect from 19.10.2011 and accord­ingly the aspirant candidates partici­pated in the selection process. Mohammad Amin Masoodi and Irfan Ahmad Qureshi noticing to have failed to make the grade field SWP No. 349/ 2012. Vide notification dated 13.10.2011 issued by the Board, the provisional interview/aptitude test for the post of Information Officer (Information De­partment) was notified to commence with effect from 19.10.2011 and accord­ingly the aspirant candidates partici­pated in the selection process. Mohammad Amin Masoodi and Irfan Ahmad Qureshi noticing to have failed to make the grade field SWP No. 349/ 2012. They had responded to the Adver­tisement Notice No. 3 of 2008 and 8 of 2010 respectively for State cadre posts. Ishfaq Ahmad Tantray & Ashiq Hussain Bhat who had responded to all the three Advertisement Notices, failing to make the grade filed SWP No. 186/2012. In both the two writ petitions, the provi­sional select list of the candidates has been sought to be quashed on various grounds. Both the two writ petitions have been disposed of by the learned Single Judge by a common judgment impugned dated 20.09.2012. As against the said judgment above titled LPA's have been filed which are clubbed to­gether for final disposal. 10. Learned Single Judge after dis­cussing various aspects of the case and the position of the notification, change of criteria, has concluded: (i) that the Board has changed the selection crite­ria in the middle of the selection pro­cess, (ii) the Board changed the selec­tion methodology on the date the Apti­tude test and interview i.e. on 19.10.2011, (iii) the change in selec­tion process and selection methodology was to the prejudice of the writ peti­tioners, (iv) the Board has sidelined the merit in the qualifying examination and no credit has been given to higher qualification, in effect 50% marks have been earmarked for interview/viva-voce leaving scope for arbitrariness and favouritism, (v) the Board has avoided to shortlist the candidates on the ba­sis of merit in qualifying examination as provided under Rule 14 of the Jammu & Kashmir Decentralization Rules/Rule 3 of Jammu and Kashmir(Subordinate) Services Re­cruitment Rules, 1992, finally has quashed notification No. SSB/Secy/Sel/2764-69/11 dated 13.10.2011 and corrigendum dated 19.10.2011 to Part 'e' to the notification and also the se­lection list dated 21.1.2012 whereby private respondents (therein) were se­lected as Assistant Information Offic­ers, Board has been directed to proceed with and complete the selection pro­cess afresh strictly in accordance with the Rules. 11. Contention of the learned coun­sel for the appellants that the criteria has been changed in the middle of the selection, as observed in the judgment impugned, is factually incorrect. 11. Contention of the learned coun­sel for the appellants that the criteria has been changed in the middle of the selection, as observed in the judgment impugned, is factually incorrect. The criteria was notified on 13.10.2011 whereas interview and aptitude test commenced from 19.10.2011 and then corrigendum to Part 'e' of the said noti­fication was notified on 19.10.2011. All the aspirants conscious of the said cri­teria participated without any protest, therefore, they cannot be permitted to turn around to say that they had no time to challenge the criteria so noti­fied. The aptitude test and viva process was concluded and after a reasonable gap provisional select list was issued, it is only when the writ petitioners did not find their name in the provisional select list, they filed writ petitions. Contention is attractive but process of selection being in violation to the statu­tory rules, will not debar the challenge thereto, which otherwise would. 12. The finding that when on 19th October, 2011 corrigendum to Part 'e' was notified, by then one batch of the candidates was admitted to aptitude test, so that batch got 60 minutes for writing features and translation, is not correct. The respondents in their reply before the Writ Court have in specific terms pleaded that none of the candi­date was given 60 minutes. In fact all the candidates right from 19th October, 2011 were given 30 minutes for apti­tude test which fact is supported by the records. 13. The finding recorded in the im­pugned judgment that the candidates should have been admitted to aptitude test and then only such candidates who would secure 35% marks could be called for interview but instead inter­view has been conducted first, subse­quent to that aptitude test has been held. The finding is incorrect because the requirement as per criteria noti­fied was that only such candidates shall be considered for selection who se­cured 35% marks in the aptitude test. It is nowhere prescribed that only such candidates will be called for interview who have secured 35% marks. What the respondents have done, they have conducted aptitude test first and then interview and they have specifically pleaded that only such candidates were considered for selection who have se­cured 35% marks in aptitude test. It is nowhere prescribed that only such candidates will be called for interview who have secured 35% marks. What the respondents have done, they have conducted aptitude test first and then interview and they have specifically pleaded that only such candidates were considered for selection who have se­cured 35% marks in aptitude test. Both aptitude test and interview have been held in a transparent manner i.e. at the time of interview nobody knew what was the percentage of marks obtained by the candidates in the aptitude test. In short there was no requirement of calling only such candidates who se cured 35% marks but condition was that such candidates overall will be con­sidered for selection who have secured 35% marks in the aptitude test. 14. There is no foundation laid for inferring that change of criteria or hold­ing of two tests i.e. aptitude test and interview of the candidates on the same day was with some design. No mala fide intention is discernible from the records. It appears that all this has been done in view of peculiar circum­stances, i.e, three advertisement no­tices were issued for filling up the posts, one in year 2006, second in 2008 and third in the year 2010. The depart­ment was suffering as posts were not being filled up. It is for filling up the posts and supplying the post, method of selection aforesaid has been adopted. So in any case it does not appear to have been done with any design nor it appears that the process was tainted with any mala fide. 15. The important issue which has been dealt with by the learned Single Judge is that the process of selection with effect 21.10.2010 was to be gov­erned and continued in accordance with the provisions of the Jammu & Kashmir (Civil Services Decentraliza­tion) Recruitment Rules, 2010(for short Rules of 2010) notified vide SRO 375 dated 21st October, 2010. The stand of the respondent - State was that the pro­cess of selection was finalized strictly in accordance with J&K (Subordinate) Service Recruitment Rules, 1992(for short Rules of 1992), when the said Rules of 1992 were repealed by Rules of 2010. Rule 26 of the Rules of 2010 is relevant to be quoted: "26.Repeal and saving. The stand of the respondent - State was that the pro­cess of selection was finalized strictly in accordance with J&K (Subordinate) Service Recruitment Rules, 1992(for short Rules of 1992), when the said Rules of 1992 were repealed by Rules of 2010. Rule 26 of the Rules of 2010 is relevant to be quoted: "26.Repeal and saving. - (1) From the date of commencement of these rules, the Jammu and Kash­mir Civil Services (Decentraliza­tion of and Recruitment to Non - Gazetted Cadres) Rules, 1969 and the Jammu and Kashmir Subordi­nate Services Recruitment Rules, 1992 shall stand repealed (2) Notwithstanding such repeal, anything done, any action taken, any notification issued or any or­der made before such repeal shall be deemed to have been done, taken, issued or made, as the case may be, under the corresponding provisions of these rules." 16. Plain reading would suggest that anything done or notified shall be deemed to have been done, as the case may be under the corresponding provi­sions of these rules. So the position of issuance of Advertisement notification is saved. Since the process of selection had not begun, therefore, Rules of 2010 were to be followed. The posts, both State, Divisional cadre and District Cadre, were to be filled for which Rule 6 of the Rules 2010 is attracted which provide for three tier set up i.e.(i) State Level Selection Committee, (ii) Divisional Level Selection Commit­tee, (iii) District Level Selection Com­mittee. The composition of three com­mittees is envisaged by sub - rule(4) of Rule 6 of the Rules of 2010 which is quoted here-under: "(4) The State Level Selection Committee shall consist of:- (i) Chairman or a member of the Board to be nominated by the Chairman.Convener (ii) a member of Board.Member (iii) One officer of member or above, the rank of Additional Secretary to Government in the General Administration Department. Member “(5) The Divisional Level Selection Committee shall consist of:- (i) Chairman or a member of the Board to be nominated by the Chairman.Convener (ii) a member of the Board.Member (iii) A divisional level officer of the intending department.Member (iv) One officer of, or above, the rank of additional Secretary to Government in the General Administration Department.Member “(6) The District Level Selection Committee shall consist of:- (i) Chairman or a member of the Board to be nominated by the Chairman.Convener (ii) District head of the intending office/Department (Not more than one.)Member (iii) A divisional level officer of the intending Department.Member (iv) One officer of, Member or, above, the rank of deputy Secretary to Government in the General Administration Department. Member 17. The records as produced would reveal that the only Selection Commit­tee constituted consisted of following members: 1. Mr. Basharat Saleem, KAS (Member SSB) Convener 2. Dr. F. A. Peer (Member SSB) Member 3. Mr. Gh. Hassan Sheikh (Dy. Director Information, Srinagar) Member (for candidates of Kashmir Division) 4. Mr. Soujanya Kumar Joint Director Information Jammu Member (for candidates of Jammu Division) 18. This Committee was constituted, admittedly, after the Rules of 2010 had come into force. The Constitution of the Committee is not in conformity with the requirement of sub - rule (4) of Rule 6 of the Rules 2010. 19. Another important aspect is that Rule 14 of the Rules of 2010 has been observed in breach, as rightly observed by the learned Single Judge in the judg­ment impugned which provide that number of applicants shall be restricted for oral and/or written test, as the case may be, to at least five times the num­ber of vacancies on the basis of aca­demic merit in the qualifying exami­nation converted into points on pro rata basis out of the total points allocated for the basic eligibility/qualification and grant of weightage for the higher qualification in the discipline con­cerned to be allowed in the manner and to the extent as the Board may deem appropriate. 20. Rule 13(iii) of the Rules of 1992 is in pari materia with Rule 14(1) of the Rules of 2010. 20. Rule 13(iii) of the Rules of 1992 is in pari materia with Rule 14(1) of the Rules of 2010. The criteria has been fixed and notified on 13.10.2011 when the Rules of 2010 had come into force on 21st October, 2010, therefore, said criteria was required to be in tune with the requirements of Rule 14 of the Rules of 2010, which it is not, nor the same is in tune with Rule 13(iii) of the Rules of 1992. The criteria so fixed is totally de hors the rules. As per crite­ria fixed, as rightly observed by the learned Single Judge, the academic merit in the qualifying examination has been treated alike for all the as­pirants when same was required to be converted into points on pro rata basis and then weightage was also to be given to the relevant higher qualification. As rightly observed by the learned Single Judge, the whole focus has shifted for determination of merit on the basis of points obtained in aptitude test and viva-voce. The criteria fixed vide noti­fication dated 13.10.2011 being not in tune with Rule 14 of the Rules of 2010, therefore, selection process based on such criteria has to be held to be against the rules, as such, illegal. 21. Learned counsel for the appel­lants highlighted that no prejudice is caused to the writ petitioners as they too have been awarded highest marks in viva-voce but question is that when law provides for doing a particular thing in a particular manner, same cannot be permitted to be violated. The Com­mittee constituted for the selection is not in conformity with the Rules of 2010. When constitution of the Com­mittee and the criteria fixed violates the rules, any selection based on such criteria has to collapse. 22. Though the select list is provi­sional, against said provisional selec­tion list writ petition could not be en­tertained but when the provisional se­lection list offends the rules, then to continue with the process shall not be permissible because process initiated is a base for follow up, when base is shaken, follow up shall be in -conse­quential. When the provisional selec­tion list is based on a foundation which is violative of the statutory rules, then petition against such list cannot be said to be premature. When the provisional selec­tion list is based on a foundation which is violative of the statutory rules, then petition against such list cannot be said to be premature. In support of this, we are fortified by the judgment rendered by the Hon'ble Apex Court in the case M.V. Thimmaiah & anr v. Union Public Service Commission and others, (2008) 2 SCC 119 . 23. In three appeals, one filed by Anjum Tabasum (LPA No. 38/2013) and two filed by Jatinder Singh and anr (LPA Nos. 192/2012 and 193/2012), in addi­tion to the above points, it is high­lighted that they were condemned un­heard, they were not parties before the Writ Court, judgment impugned has a direct effect on their rights as they too figure in the provisional select list but now in view of the aforesaid settled le­gal position, their interests are also taken care of by hearing them the re­sult cannot be different. 24. For the reasons stated hereinabove, the impugned judgment is up­held. The respondent Board is directed to proceed with the selection process afresh i.e. first to constitute the com­mittees as required in terms of Rule 6(4) of the Rules of 2010 and to fix the criteria in tune with Rule 14 of the Rules of 2010 and finalize the process of selection with promptitude of the eli­gible candidates who have applied in response to the three aforesaid adver­tisement notices. 25. All the appeals shall stand ac­cordingly disposed of as above. Srinagar.