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2015 DIGILAW 707 (JK)

PUNEET SHARMA v. STATE

2015-12-30

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. Respondent-J&K Services Selection Board, vide advertisement notice nos. 03/2012, 04/2013 and 09/2013 had invited applications as against the State cadre posts of Draftsman. Vide advertisement notice no. 03/2012, nine(09) posts of Draftsman (Electric) and 11 posts of Draftsman (Mechanical) were advertised as were to be supplied to the Power Development Department and PWD respectively; vide advertisement notice no. 04/2013, 46 posts of Draftsman (Electric) were advertised as were to be supplied to the Power Development Department and vide advertisement notice no. 09/2013, 04 posts of Draftsman (Mechanical) were advertisement as were to be supplied to the PWD. The qualification prescribed for the post is:- "two years certificate in draftsmanship in Elect./Mech. Engineering from recognised Institution." 2. The candidates who had applied were informed to appear in the written test in the process the candidates who did not possess the requisite prescribed qualification also appeared in the written test. On conclusion of the written test while having recourse to Regulation 28 of the J&K Services Selection Board (Business and Procedure) Regulations 2013, the list of only those candidates for interview was prepared who had secured minimum 40% in case of Open Merit and 35% in case of Reserved category in the written test. 3. Instant petition has been filed challenging the methodology adopted by the respondent-Board in the process of selection. 4. The first contention is that the Board had adopted the procedure as prescribed under Regulation 28 of the J&K Services Selection Board(Business and Procedure) Regulations 2013, the said Regulation is not enforceable on two counts: Firstly the Act does not provide for framing of Regulations by the Board; Second, the Rule Making authority had no power to incorporate Rule providing for framing of regulation by the Board, which in effect, according to learned counsel for the petitioners, would amount to sub-delegation, which is impermissible. 5. The regulation so framed as per Regulation 1(b) had to come into force from the date of its publication in the Government Gazette but till date the regulations have not been published in the Government Gazette; in support of this position Mr. Shukla, learned counsel for the petitioners, has produced the information as has been furnished to the applicant Mr. The regulation so framed as per Regulation 1(b) had to come into force from the date of its publication in the Government Gazette but till date the regulations have not been published in the Government Gazette; in support of this position Mr. Shukla, learned counsel for the petitioners, has produced the information as has been furnished to the applicant Mr. B.R. Manhas under RTI Act, wherein it is clearly mentioned t hat both Srinagar wing and Jammu wing of Government Press have informed the PIO that nothing is forthcoming from the records, therefore, prima facie it seems that the J&K Services Selection Board (Business and Procedure) Regulations 2013 have not been published in the Government Gazette. 6. Learned AAGs Mr. Moza, as well as Mrs. Shekhar, stated that they had also tried to collect the information from the concerned authorities but nothing affirmative has come forth about the publication of the regulation in the Government Gazette. 7. The regulation is shown to have been issued on 15.10.2013 when the advertisement notice no. 03/2012 dated 28.12.2012 and advertisement notice no. 04/2013 dated 23.02.2013 were already issued. Even if for any reason regulation is enforceable still these are prospective so would not apply to the process of selection initiated in terms of aforementioned notifications. Supporting this contention has placed reliance on the judgment rendered in case of State of Bihar and Ors. v. Mithilesh Kumar (2010) 13 SCC 467 and in case Secretary, A.P. Public Service Commission v. Swapna and Ors. AIR (2005) 4 SCC 154 . 8. The first question is as to whether regulations could be permitted to be formulated by the Board as it does not find source in the Act like we have in the Accountability Commission Act or Legal Services Authority Act and other Acts, where specific provisions provides for formulation of regulations. The J&K Civil Services (Decentralization and Recruitment) Act, 2010 provides for framing of rules as owe its origin to Section 13 but it does not anywhere provide for formulation of the regulations by the Board. The power delegated to the Government is to frame rules not to frame regulations. The Rule making authority while framing rules in terms of Section 15 of the Act has incorporated Rule-15 providing for vesting the Board with power of formulating the regulations which amount to sub-delegation, which is impermissible. 9. The power delegated to the Government is to frame rules not to frame regulations. The Rule making authority while framing rules in terms of Section 15 of the Act has incorporated Rule-15 providing for vesting the Board with power of formulating the regulations which amount to sub-delegation, which is impermissible. 9. This issue may not survive for consideration as till date such regulations have not been published in the Government Gazette, therefore, have not come into force, as such, could not be applied. 10. The next position as was projected is that the candidates who did not possess the requisite qualification i.e. "two years certificate in draftsmanship in Elect./Mech. Engineering from recognised Institution", have been admitted to the written test. 11. Confronted with this position learned AAG, Mr. Moza appearing for the Board was fair enough to state that the candidates who may have been admitted to written test having not possessed the requisite qualification will be excluded from the zone of consideration. 12. Now the question which would emerge for consideration is as to how the Board had to proceed for calling the candidates for interview. For addressing the issue Rule 14 (1) of the J&K Civil Services (Decentralization and Recruitment) Rules, 2010, is quoted hereunder:- "(1)The respective Selection Committee of the Board shall ordinarily restrict the number of applicants 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 basis eligibility/qualification and grant of weightage for the higher qualification in the discipline concerned to be allowed in the manner and to extent as the Board may deem appropriate for according due consideration to the merit and proficiency in higher qualification: Provided that the committee may, for reasons to be recorded in writing, conduct a written test for short listing the candidates for admission to the oral test and for purpose of selection of candidates". 13. The Board appears to have resorted to proviso to Rule 14(1) as they have held the written test of the candidates who had applied and appeared in the test. 13. The Board appears to have resorted to proviso to Rule 14(1) as they have held the written test of the candidates who had applied and appeared in the test. After holding the written test, what the Board had to do for calling the candidates for interview was that they should have called at-least five times the number of the vacancies, that would be the position available after reading Rule 14 (1) and proviso harmoniously, otherwise there is no other method prescribed except the regulations which cannot be applied as those have not come into force. The list of the candidates published for interview appears to have been prepared on the basis of the regulations, so the said list is unsustainable. 14. Learned Sr. Advocate, Mrs. Surinder Kour appearing for the interveners, submits that in-fact to her information as against the 55 posts advertised only 115 candidates had appeared in the written test which include those candidates who did not possess the requisite prescribed qualification and on exclusion of those candidates the number will fall down, therefore, there was no requirement of short listing the candidates for interview. 15. According to learned AAG, Mr. Moza in case the submission of the learned counsel, Mrs. Kour, is accepted then the candidates who may have secured zero marks in the written test have to be called for interview. 16. This preposition cannot be accepted because all shall have to go according to norms. When number of the candidates is less, then the object for short-listing for interview pales into insignificance. Short-listing has the only object to avoid the hectic time consuming process for holding interview of large number of candidates. 17. In conformity with the Rule 14 (1) and its proviso, when the number of candidates is not large then all eligible candidates who possess requisite prescribed qualification were to be called for interview. All are not expected to make the grade, only meritorious will succeed, therefore, the question that some candidates may have obtained less marks has no relevance, they will automatically get excluded. 18. Now Rule 14 of the J&K Civil Services (Decentralization and Recruitment) Rules, 2010 has been substituted and the amendment has been notified vide SRO 342 of 2013, dated 22.07.2013 which provides that the SSRB shall hold the written test for all eligible candidates who applied for the advertised post. 18. Now Rule 14 of the J&K Civil Services (Decentralization and Recruitment) Rules, 2010 has been substituted and the amendment has been notified vide SRO 342 of 2013, dated 22.07.2013 which provides that the SSRB shall hold the written test for all eligible candidates who applied for the advertised post. The number of candidates to be called for viva shall not be less than three times and not more than five times the number of the vacancies to be filled up, which in turn would suggest that earlier existing Rule 14 was not clear in its terms, some sort of ambiguity was there which ambiguity has now been removed by its amendment in the year 2013. The operation of this amendment is only quoted for the purpose of giving real meaning to the earlier Rule 14 and its proviso. 19. While summing up it is now clear that number of candidates who had appeared in the written test is not that large which would warrant calling the candidates in the ratio of 1:3 or 1:5, therefore, the writ petition is disposed of with the following directions:- (a) The Board will ascertain from the records as from amongst the candidates who had appeared in the written test, how many possess the requisite qualification. (b) After complying with the direction (a), the candidates who may have been admitted to written test but did not possess prescribed qualification, shall be excluded. (c) The candidates who have appeared in the written test whose number is not large possessing requisite prescribed qualification shall be called for interview and thereafter process of selection shall be finalized. The exercise shall be undertaken and completed within a period of six weeks from the date copy of this order is served upon the respondents. (d) After completing the exercise of interview, the Board shall complete the process of selection and recommend appointment in accordance with norms as shall be in vogue and in accordance with applicable rules. 20. SWP No. 1600/2015, SWP No. 118/2015 and SWP No. 2888/2014 are disposed of as above along-with connected MPs. COA(S) No. 557/2014 does not now survive for any further consideration, its proceedings are closed, as such, disposed of. 21. SWP No. 2975/2014 titled Abdul Qayoom and Ors. 20. SWP No. 1600/2015, SWP No. 118/2015 and SWP No. 2888/2014 are disposed of as above along-with connected MPs. COA(S) No. 557/2014 does not now survive for any further consideration, its proceedings are closed, as such, disposed of. 21. SWP No. 2975/2014 titled Abdul Qayoom and Ors. v. State and Ors., not being a connected matter be delinked and be listed separately in the month of February 2016 in the regular cause list.