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J&K High Court · body

2017 DIGILAW 698 (JK)

Aijaz Ahmad Dar v. State of J&K

2017-08-21

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : 1. At the very outset it is pointed out by learned counsel for the parties that SWP No. 2315/2014 and SWP No. 2318/2014 do not survive for any further consideration as the petitioners in the said writ petitions have already been appointed. It being so, as prayed for these two petitions are dismissed as withdrawn. 2. Regarding remaining writ petitions, heard learned counsel for the parties and perused the records. 3. Vide Advertisement Notice Nos. 2 of 2013, 09 of 2013 and 10 of 2013, various posts including District Cadre posts of Horticulture Technician-IV were to be filled up. The petitioners of all these writ petitions had also applied. 4. The common grievance of the petitioners is that the J&K Service Selection Board (hereinafter referred to as the Board) has called only those candidates for interview, who, in the written test, secured 40% marks in case of OM category and 35% marks in case of Reserved Categories when the procedure prescribed under Rule 14 of the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010 (for short Rules of 2010) was to be followed. 5. Contention of the petitioners is that the Board has applied the procedure prescribed under Regulation 28 of the Jammu and Kashmir Services Selection Board (Business and Procedure) Regulations, 2013 (for short 2013 Regulations), when they had to follow Rule 14 of the Rules of 2010. 6. Regulation 28 of 2013 Regulations, for facility of reference, is quoted here-under: “28. The candidates securing minimum 40 percent and 35 percent in written test in open and reserved categories respectively or the cut off merit in the ratio of not less than three times and more than five times the number of vacancies to be filled up, whichever is higher, shall be eligible to be called for viva voce. Provided that in case sufficient number of candidates do not fall within the above cut off limit of 40 percent/35 percent of qualifying marks in open/reserved categories respectively, the requirement of calling the candidates in the ratio of 1:3 or 1:5, as the case may be, shall be dispensed with and the number of candidates to be called for interview shall be restricted to the limit of those who have secured the above minimum percentage of marks.” 7. The Board, of its own, has amended Regulation 28 vide notification No.08 of 2015 dated 22.12.2015 recording as under: “In pursuance of Rule 15 of J&K Civil Services (Decentralization and Recruitment) Rules, 2010, the Jammu & Kashmir Services Selection Board hereby direct that Regulation 28 of the J&K SSB (Business and Procedure) Rules, 2013 is substituted by the following:- “The Board/Selection Committee shall, based on merit obtained by the candidates, in the written test conducted in terms of Rule 14 of the J&K Civil Services (Decentralization and Recruitment) Rules, 2010, prepare a merit list of candidates and on the basis of merit obtained by the candidates in the written test, conduct an oral test. The number of the candidates to be called for interview shall be restricted to five times the number of the posts advertised.” 8. Rule 14 of the Rules of 2010 is also quoted here-under: “14(1). Procedure for preparation of select lists by the Board. (1)(a) The Board/Selection Committee shall conduct written test for all the posts advertised in terms of Rule 13 (b) The Board/Selection Committee shall, based on the merit obtained by the candidates in written test conducted in terms of clause (a), prepare a merit list of candidates and on the basis of merit obtained by the candidates in written test, conduct an oral test which may be restricted to five times the number of posts/vacancies advertised. (c) The Board/Selection Committee shall prepare a Select List equal to the number of posts/vacancies for which requisition was made by the requisitioning authority on the basis of aggregate merit obtained by candidates in the written test and the oral test conducted in terms of clause (a) and (b). Provided that where the number of candidates applying for the advertised posts is equal or less than the number of vacancies to be filled up, the select list shall be drawn up exclusively on the basis of performance of the candidates in the interview coupled with weightage given to higher qualification, if any. 9. In view of afore-stated position, an important question which arise for consideration is as to whether 2013 Regulations have any legal sanctity or not. Similar question arose for consideration in a bunch of writ petitions with lead case SWP No. 1600/2015 captioned “Puneet Sharma & ors Vs. State & ors” reported in 2016(II) S.L.J 822. 9. In view of afore-stated position, an important question which arise for consideration is as to whether 2013 Regulations have any legal sanctity or not. Similar question arose for consideration in a bunch of writ petitions with lead case SWP No. 1600/2015 captioned “Puneet Sharma & ors Vs. State & ors” reported in 2016(II) S.L.J 822. Para 8 of the judgment is advantageous to be quoted: “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 and 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. 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. In the case at hand, the advertisement notices have been issued on: (a) Advertisement Notice No.02 of 2013 on 16.02.2013, (b) Advertisement Notice No.09 of 2013 on 21.06.2013; and (c) Advertisement Notice No.10 of 2013 on 10.10.2013. 11. Admittedly, the Board has called only those candidates for viva who have secured 40% and 35% marks in written test in Open and Reserved categories respectively, as is mandate of Regulation 28, which Regulation, in view of the law laid down by this Court, as referred to hereinabove, is not applicable. The Board had to follow Rule 14 of the Rules of 2010. 12. The Board had to follow Rule 14 of the Rules of 2010. 12. Sub-rule (1) of Rule 14 provides that the Board shall restrict the number of applicants for oral, to at least five times the number of vacancies on the basis of written test merit whereas Proviso to sub-rule(1) provides that when number of candidates applying for the advertised posts is equal or less than the number of vacancies to be filled up, the select list shall be drawn up exclusively on the basis of performance of the candidates in the interview coupled with weightage given to higher qualification, if any. 13. It is the common submission of learned counsel for the petitioners in all the writ petitions that in-keeping with the break-up of the vacancies, for most of the posts, number of candidates was less than the advertised posts and in some cases, number of candidates as against available posts in certain districts was less than five times the number of vacancies. When it was so, the respondents were to call all the candidates for interview. Finally, it is submitted that the procedure adopted by the respondent Board is totally in contravention to Rule 14 of the Rules of 2010. 14. Secretary of the respondent Board, who is present in the Court, submits it is true that in certain districts number of applicants was less than the number of posts advertised whereas in certain districts number of candidates was more than the number of posts advertised. 15. The process of selection got stalled in view of pendency of these petitions. Now controversy got narrowed down which has to be resolved so that the deserving eligible and meritorious candidates, after proper selection, would get appointed. For resolving the controversy, all these petitions are disposed of as follows: (I) The respondent Board vis-à-vis district cadre posts, which are subject matter of these writ petitions, shall prepare a list of vacancies with break-up and also to prepare the list of candidate who have competed. For resolving the controversy, all these petitions are disposed of as follows: (I) The respondent Board vis-à-vis district cadre posts, which are subject matter of these writ petitions, shall prepare a list of vacancies with break-up and also to prepare the list of candidate who have competed. (II) On the basis of written test as conducted while adhering to Rule 14 of the Rules of 201, the respondent Board shall: (a) Consider all the candidates for selection in case number of candidates is less than the posts advertised, subject to satisfaction of other eligibilities; (b) Call all the candidates for interview where the number of candidates is more than the posts advertised district-wise but is not more than five times the number of vacancies and then to select the candidates on the basis of their merit subject to satisfaction of other eligibilities; (c) In case number of candidates is more than five times the number of vacancies, then in that eventuality the candidates shall be called as against the available posts in the ratio of 1:5 strictly in order of merit as obtained in the written test and thereafter to finalize the selection of the meritorious candidates subject to fulfilment of other eligibility criteria. (d) The aforesaid exercise shall be undertaken and selection process completed at an earliest, preferably within six weeks from today. (III) Regulation 28 of 2013 Regulations being not applicable shall be ignored. (IV) Disposed of as above.