Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 220 (JK)

Sabba Mushtaq v. State of J&K

2017-04-29

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : 1. Vide notification No.12-PSC(DR-P) of 2014 dated 29.05.2014, applications, on prescribed form, were invited from the permanent residents of Jammu and Kashmir State for the posts of Assistant Professor in various disciplines in Government Degree Colleges of the State (category wise) which include six posts in the discipline of Functional English with the following break-up : Name of the category No. of posts OM 3 RBA 1 SC 1 ST 1 Total 6 2. Amongst others, petitioner and respondent No.3, admittedly, had competed under category ‘OM’. The merit list was prepared wherein respondent No.3, figuring at serial No.3, is shown to have secured 62.29 marks whereas petitioner, figuring at serial No.4, is shown to have secured 62.01 marks. The select list of three candidates in ‘OM’ category has been notified as under : S. No. B.D. No. Name Parentage Address Cat. Marks 1. 7 Sheeba Hassan Farooq Ahmad Sofi Sebdan Budgam Kashmir OM 70.04 2. 6 Shabina Mohammad Yousuf Allaqband 5-A Malikpora Street, Zaina Kadal Srinagar OM 65.38 3 14 Jehan Ara Tufail Qayoom Shah 88-Alfarooq Colony, Rawalpora Bypass Srinagar. OM 62.29 3. Case projected by the petitioner is that she has not been awarded points for publications. She possess publication of book titled “A Sociolinguistic Study of Burushakshi Speakers of Kashmir Valley” therefore, under Rule 51 (f), she was entitled to one point for such publication and in case that one point is added to her total, she will rank superior to respondent No.3. 4. The merit position of the petitioner and respondent No.3 is clear i.e. respondent No.3 has 62.29 marks whereas petitioner has 62.01 marks. The sole point for consideration is as to whether petitioner in terms of Rule 51 of the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules, 1980 (hereinafter for short Rules of 1980, is entitled to any point for publication. If for publication she is found entitled to one mark, then automatically her merit position would be superior to respondent No.3. 5. If for publication she is found entitled to one mark, then automatically her merit position would be superior to respondent No.3. 5. In the reply filed by the respondent Commission, it has been clearly mentioned that the petitioner had not submitted any publication at the time of verification of her original documents by the Interview Board which fact is evident from the perusal of the check list where-under petitioner herself has certified that she had not submitted any publication nor any such type of document had been enclosed with her application form. Rule 51 of the Rules of 1980 govern the interview process which was strictly followed. Due weightage was given to all aspects. Clarifying the position, it has been quoted as to how marks have been awarded to the petitioner. Same is quoted here-under : Basic qualification 30.51 M.Phil 03 Special Attributes (Gold Medal) 01 Viva voce 27.50 Total points obtained 62.01 Copy of the check list has also been placed on record. 6. The respondent No.3, in the reply, has stated that the publication of book titled “A Sociolinguistic Study of Burushaski Speakers of Kashmir Valley” is nothing but dissertation of the petitioner submitted in M. Phil degree. Under Rule 51 of the Rules of 1980, as amended, it is clear that the publication comprising of research material of M. Phil and Ph.D. shall not count for any weightage and weightage on account of special attributes shall be available for gold medals. In addition thereto, book was never produced for assessment. 7. During the course of arguments, learned counsel for the petitioner would submit that the petitioner had also published a book under the style “Language Attitudes among Burushos of Kashmir Valley, An Analysis”. 8. At the first instance, it shall be quite relevant to quote Rule 51 (vii) of the Rules of 1980 : “(vii) The weightage on account of special attributes shall be available for the Gold medals for securing the first position in the minimum prescribed qualification and the publication of research material in the academic journals. The case reports, abstracts and popular articles shall not count for weightage. The publications in indexed academic journals with a positive impact factor and regular publication alone will count for consideration. The case reports, abstracts and popular articles shall not count for weightage. The publications in indexed academic journals with a positive impact factor and regular publication alone will count for consideration. The manuscripts accepted unconditionally for publication before the last date for receipt of applications fixed by the Commission shall be granted weightage, if otherwise, fit for such consideration. The assessment of the publications shall be made by the subject matter Expert dependent upon the quality impact and the extent of contribution of the candidate as an independent, first, second or third author. The publications comprising research material of M. Phil (dissertation) and Ph. D (thesis) shall not count for grant of weightage. 9. The plain reading of the aforesaid Rule suggests that the assessment of publication has to be made in-keeping with the advice of the expert dependent upon quality, impact and contribution of the candidate as an independent, first, second or third author. 10. The Public Service Commission seems to have evolved a procedure which include preparation of check list at the time of interview which is required to be signed by the candidate also. The object appears to avoid any un-necessary misquoting of fact. Copy of the check list, as annexed with the objections of the respondent Commission, reveals at two places, the petitioner has signed the check list. So far as certification regarding item 1 to 14 of the check list is concerned, same is not disputed. What is disputed is the submission of publication. The relevant column is advantageous to be quoted : FOR INTERVIEW BOARD ONLY NO OF PUBLICATIONS SUBMITTED NO OF PUBs. ACCEPTED BY THE EXPERT FOR ASSESSMENT GOLD MEDALS Nil Nil One(01) The marks awarded under “publication/Gold Medal” shall be “upto 03” and the assessment made by the Expert shall be final. Seen (Member) Sd/- Seen (Member) Sd/- Signature of the candidate Sd/- 11. Petitioner possessed gold medal for which one mark has been awarded whereas regarding publication, it is shown “nil”. In case publication would have been submitted, that could be accepted by expert after assessment and then dependent on the assessment in-keeping with the rule position as quoted above, same could be considered for award of marks. When petitioner is the signatory to the position as reflected and quoted above showing that no publication was submitted, how could she now turn round to say that she had submitted the publication. When petitioner is the signatory to the position as reflected and quoted above showing that no publication was submitted, how could she now turn round to say that she had submitted the publication. 12. For a while argument of the counsel for the petitioner appeared to be attractive to the effect that when petitioner possessed the publication, what could be the reason for her in not submitting the same but it pales into insignificance on two counts : First, when the interview board was conducting interview, expert body was available, publication was not produced, process is over. Now it cannot be considered nor Court can award any point for it It was for the expert to assess the publication on the touchstone of the norms as envisaged by para (vii) of Rule 51 as quoted hereinabove. Second, it is nowhere pleaded that there was any mala fide on the part of official respondents so as to shower any benefit upon respondent No.3, which otherwise could be stated to be a cause for official respondents in not accepting publication of the petitioner. Even during the course of arguments, counsel for the petitioner has not attributed any sort of mala fide, therefore, under such circumstances, it is inferable that the petitioner herself was conscious that the publication which she possesses would not qualify for award of any marks. 13. Lastly, learned counsel for the petitioner submitted that the candidate No.1, in order of merit, Dr. Sheeba Hassan, has now been appointed as Assistant Professor, petitioner being at serial No.4, will now be at serial No.3. Three vacancies are to be filled up, therefore, petitioner may be directed to be considered against 3rd vacancy. 14. The submission made is unacceptable on the count that Dr. Sheeba Hassan, pursuant to selection and appointment had joined the service and thereafter she has resigned which fact is not denied. Therefore, such a vacancy cannot be offered to the petitioner. The legal position in this behalf has already been settled in the judgments rendered by the Hon’ble Apex Court in the case of State of Punjab Vs. Raghbir Chand Sharma and another, reported in (2002) 1 SCC 113 and Raj Rishi Mehra and others Vs. State of Punjab and another, reported in (2013) 12 SCC 244 and also by this High Court in the judgment rendered in the case titled Mohammad Lateef Mattoo Vs. Raghbir Chand Sharma and another, reported in (2002) 1 SCC 113 and Raj Rishi Mehra and others Vs. State of Punjab and another, reported in (2013) 12 SCC 244 and also by this High Court in the judgment rendered in the case titled Mohammad Lateef Mattoo Vs. State of J&K & others, reported in 2011(4) JKJ 355 (HC). 15. Viewed thus, petition has no merit, as such, dismissed. It is made clear that the observations made regarding publication hereinabove shall not be prejudicial to the interests of the petitioner in the course of any fresh selection.