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2015 DIGILAW 350 (JK)

Syed Shabir Ahmad v. State of Jammu and Kashmir

2015-07-22

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, C.J.:- 1. This appeal is filed against the order dated 27.11.2014 made in SWP No. 664/2014 wherein the appellants have challenged the notification issued by the J. & K. Service Selection Board bearing No. 03 of 2012 dated 28.12.2012 for appointment of teachers and other posts. The eligibility prescribed for the post was 10+2, however, preference was to be given to the candidates having higher qualification and those having B.Ed., M.Ed and Diploma in ETT/NIT. Before finalizing the selection one more advertisement notification bearing No. 05 of 2013 dated 02.03.2013 was issued. Again another notification was issued bearing No. 06 of 2013 dated 10.05.2013 for recruitment against certain posts. A common written examination was conducted for all the posts pursuant to the above notifications of fill up notified vacancies of Patwaries, Village Level Workers, Junior Assistants and Teachers. The said common written examination was meant for short listing of the candidates to call for viva voce test. 2. The appellants questioned the short listing of candidates pursuant to the notifications issued in SWP No. 332/2014 and 276/2014 and the said writ petitions were disposed of with a direction to allow the writ petitioners to participate in the interview/viva voice test for the posts against which they have applied pursuant to notification No. 03 of 2012, 05/2013 and 06 of 2013 at the own risk and responsibility. The result of the appellants was directed to be kept in sealed cover. 3. When the said writ petitions were pending, a revised list was issued and short listing was changed which was published in daily newspaper “Greater Kashmir” on 15.03.2014, which was also questioned by the appellants in SWP No. 664/2014 on the ground that the common written examination could not have been conducted for short listing for various kinds of the posts. The learned Single Judge dismissed the writ petition taking note of the fact that it is a procedure which is in vogue for conducting examination for one class of posts and only after short listing the candidates will be allowed to participate in the interview and at that time marks will be awarded based on the higher qualification possessed. Against this order this appeal is filed. 4. Mr. Against this order this appeal is filed. 4. Mr. Hilal Ahmad Wani, learned counsel appearing for the appellants has contended that the appellants were not informed about their rank obtained in the written examination and if that is disclosed, they will be in a position to know, if marks as per their additional qualifications are awarded they will get a chance of selection or not. 5. Pursuant to the said request this Court directed the Selection Board to disclose the marks of the appellants and an affidavit was filed on 01.06.2015 stating that out of 15 appellants, six appellants i.e. appellant Nos. 4, 8, 9, 11, 14 and 15 have failed to get the minimum qualifying marks and even if 20 marks for viva voce are awarded to them they will not be in a position to make it to the final selection list. Appellant No. 7 had been called for the viva voce but has not appeared. If he had appeared and obtained maximum 20 points only then he could have made it to the final selection list and he having failed to appear he cannot make any grievance. So far as appellant Nos. 1, 2, 3, 4, 6, 10, 12 and 13 are concerned, their merit position is far below the cut off mark fixed for short listing. The cut off in the Open Merit category for notification No. 03 of 2012, 05 of 2013 and 06 of 2013 has remained at 114.26, 102.13 and 95.05 respectively and none of said appellants have secured the said cut off marks, hence even assuming that 20 points are awarded along with the marks awarded along with marks secured by them, there is no chance to get them selected. It is also stated that none of the candidate was awarded full 20 marks in the viva voce test. 6. It is not in dispute that only 20 marks are to be awarded in the viva voce test and the Selection Board is entitled to short list the candidates at the ratio of 1:5. The said procedure cannot be challenged as the appellants have participated in the selection process by accepting the procedure and knowing it fully well. Hence the principle of estoppel will apply. The said issue in no longer res integra. Hon’ble the Supreme Court in the decision reported in 2013 (11) SCC 309 (Ramesh Chandra Shah and Ors. The said procedure cannot be challenged as the appellants have participated in the selection process by accepting the procedure and knowing it fully well. Hence the principle of estoppel will apply. The said issue in no longer res integra. Hon’ble the Supreme Court in the decision reported in 2013 (11) SCC 309 (Ramesh Chandra Shah and Ors. v. Anil Joshi and Ors.) held thus:- “24. ... ... ... it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection... ... ... ... ... ..” 7. In such circumstances the appellants have not made out a case to set aside the order of the learned Single Judge. The appeal is dismissed. No costs.