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2018 DIGILAW 100 (JK)

Shahid Nazir v. State of J&K

2018-02-23

BADAR DURREZ AHMED, TASHI RABSTAN

body2018
JUDGMENT : BADAR DURREZ AHMED, J. 1. The present appeal is directed against the judgment dated 06.12.2016 delivered by a learned Single Judge of this Court in SWP No.728/2016. The appellant herein was respondent No.6 before the writ Court. The respondent No.6 before us was the writ petitioner who had by way of the said writ petition sought quashing of the select list whereby the appellant before us was selected to the post of Junior Engineer (Mechanical), State Cadre, which was advertised in Advertisement Notice No. 02 of 2014 dated 30.12.2014. The writ petitioner/respondent No.6 before us also sought a direction to the respondents to consider his case for selection/appointment on the said post. The writ petition was filed primarily on two grounds. The first ground being that since the respondent No.6/writ petitioner was more qualified than the appellant, he ought to be selected particularly, when there was a tie in respect of the aggregate marks obtained by both the candidates. It is an admitted position that the respondent No.6 had an M.Tech Degree and the appellant before us only had a B.Tech Degree. It is on this basis that the writ petitioner/respondent No.6 before us submitted that the superiority in merit entitled him to selection because there was a tie in the total marks obtained. Secondly, the point that was urged before the learned Single Judge by the writ petitioner/respondent No.6 before us was that since he was older in age to the appellant, he ought to be preferred as this was the practice which was in vogue in recommendations made by the Service Selection Board. 2. The merit position of the appellant and the respondent No.6 was as under: Candidate Written Exam Interview Pts. Addl. Pts. Total Pts. Petitioner 52.00 16.00 5(M.Tech.) 73.00 Respondent No. 6 59.00 14.00 --- 73.00 3. From the above, it is evident that the respondent No.6 secured 52.00 points in the written examination which was less than that of the appellant, who secured 59.00 points. However, in the interview, the respondent No.6 received 16.00 points and the appellant received 14.00 points. Five points were awarded to the respondent No.6 and none to the appellant. This was so because an additional five points were to be given for the M Tech qualification which only the respondent No.6 possessed. The appellant had only a B.Tech qualification. However, in the interview, the respondent No.6 received 16.00 points and the appellant received 14.00 points. Five points were awarded to the respondent No.6 and none to the appellant. This was so because an additional five points were to be given for the M Tech qualification which only the respondent No.6 possessed. The appellant had only a B.Tech qualification. Totaling the points, both the appellant and the respondent No.6 received 73.00 points. In other words there was a tie. The whole controversy in this case is as to how this tie is to be resolved. The same issue has arisen before the writ Court when, by the order dated 26.07.2016, it directed the Service Selection Board to provide information with regard to the criteria followed, rules applicable and the rules/practice in force at the relevant time in the eventuality of there being a tie. 4. In response to that, the Service Selection Board submitted a reply supported by an affidavit dated 26.10.2016. As per the Service Selection Board, in case of a tie the order of preference is to be determined in the following manner:- “(a) points obtained in the written examination; or (b) points obtained in viva voce; and (c) older in age.” 5. Thus, according to the Service Selection Board, a tie has to be resolved by first looking at the marks obtained in the written examination. If the marks obtained in the written examination are different and there is no tie in that, then the one who obtained higher marks in the written examination is given preference. On the other hand, if there is a tie even in the marks obtained in the written examination then the points in viva voce are to be seen. In that case, if the points in viva voce are different, the one who obtained higher marks would be given preference. On the other hand, if the marks obtained in viva voce are also identical, then a tie is to be resolved by the age of the candidate, the older being preferred to the younger. 6. As per the stand taken by the Service Selection Board, in the present case, this is the principle which has been followed. On the other hand, if the marks obtained in viva voce are also identical, then a tie is to be resolved by the age of the candidate, the older being preferred to the younger. 6. As per the stand taken by the Service Selection Board, in the present case, this is the principle which has been followed. Since there was a tie in the total marks obtained by the appellant and the respondent No.6, it was first to be seen as to who had obtained the higher marks in the written examination. It was evident that the appellant obtained 59.00 points in the written examination which was higher than what the respondent No.6 had obtained (52.00 points). Thus, the tie was resolved at the first stage itself and the appellant was preferred to the respondent No.6. 7. It is also submitted that this is the scheme which has been provided in the proviso to Regulation 47 of the Jammu and Kashmir Services Selection Board (Business and Procedure) Regulations of 2013 (hereinafter referred to as 2013 Regulations). The affidavit also states that whenever there was a tie between two candidates, the said principle indicated in the proviso to Regulation 47 was applicable. 8. An issue was raised before the learned Single Judge with regard to the validity of the said Regulations of 2013. The learned Single Judge placed reliance on an earlier decision of another single bench of this Court in the case of Puneet Sharma and others v. State and others and other connected matters being SWP No.1600/2015 and other connected petitioner decided on 30.12.2015. In that decision, an issue with regard to the validity of the Regulations had been raised. The learned single Judge, on this aspect of the matter, observed as under:- “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 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. 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.” 9. On going through the above extract, it is evident that the issue of sub delegation which was raised with regard to the said Regulations, and, in particular, Rules 15 of the Jammu and Kashmir Civil Service (Decentralization of Recruitment) Rules of 2010 was not examined by the learned Single Judge because it has been specifically recorded that the issue did not survive for consideration as the said Regulations had not been published in the Government Gazette and therefore, had not come into force and could not be applied. It is in this backdrop that we are of the view that the learned single Judge in the present case erred in holding that the Regulations of 2013 had no legal sanctity in the eye of law. The reliance placed on the case of Puneet Sharma (supra), was misplaced. 10. Be that as it may, although no challenge has been made either to Rule 15 of the said Rules or to Regulation 47 of the said Regulations to the effect that they were ultra vires the Act or ultra vires the rules, respectively, the learned Single Judge went into the issue and decided against the appellant. The point that was made by the learned Single Judge in the impugned judgment was that the procedure for resolving a tie as prescribed under the Regulations could not be followed because the Regulations were not in vogue. The fact of the matter is that whether the regulations were valid or invalid was an issue which was not raised at all. The fact of the matter is that whether the regulations were valid or invalid was an issue which was not raised at all. In any event, even if we assume that the regulations were invalid, the Service Selection Board in its response to the query raised by the Court has categorically stated that the principle embodied in Regulation 47 had been followed for resolving cases involving a tie. The learned Single Judge, however, on examining the select list of 2016 issued by the Board came to the conclusion that the alleged practice of appointing a candidate who was older in age, when two candidates secured equal marks, was in vogue. We have also seen the said select list of 2016. In the select list only the total marks obtained have been indicated and no breakup of the marks vis-à-vis written test, viva voce or any additional marks have been indicated. Therefore, just by looking at those lists, it cannot be said that the principle which the Services Selection Board has stated to have followed was not followed in this select list also. It is not clear from the select list that age was the only criteria for resolving a tie. Therefore, the finding of the learned Single Judge, in our view, does not immediately and logically follow only upon a perusal of the select list of 2016. 11. Since the issue of validity of the Regulations or of Rule 15 of the said Rules was not in question, the learned Single Judge ought not to have gone into it. Anyway, even if we assume that the Regulations are not valid for whatever reason, it is evident that the principle embodied in Regulation 47 has been followed by the Service Selection Board in resolving cases where the marks of the candidates end in a tie. That principle cannot be set aside unless it is arbitrary and whimsical. There has to be some method of resolving a tie. The method indicated is the method where, first, the marks obtained in the written examination are to be taken, secondly, the marks in viva voce are to be considered and, even if that does not resolve the tie, then only age would be the determinative factor. We do not find this principle to be arbitrary or discriminatory as the select list is to be prepared on the basis of merit. We do not find this principle to be arbitrary or discriminatory as the select list is to be prepared on the basis of merit. The first criteria in determining merit in the case of an overall tie ought to be the marks obtained in the written examination because that would be the first stage of objectively evaluating merit. We may point out that age alone is not a good criteria for evaluating merit. Because if that were to be the case then, in cases which did not involve a tie, why should younger persons having higher marks be selected at all. 12. A point had been made by the learned counsel appearing on behalf of the respondent No.6 that Rule 14 of the said Rules had not been followed. Rule 14 indicates that the Service Selection Board shall hold a written test and also the viva voce for the eligible candidates. It also prescribed that the number of candidates to be called for viva voce should not be less than three times and more than five times the number of vacancies to be filled up. It specifically provides that the final selection shall be made by the Board on the basis of marks/points obtained in viva-voce added to the marks/points obtained in the written test plus the weightage that may be provided for any higher/additional/special qualification (on pro-rata basis) 13. In the present case this is exactly what has happened. The marks in the written test and the marks obtained in viva-voce have been added and a further five marks have been given to respondent No.6 because of his higher qualification of M Tech. Therefore, the respondent No.6 can have no grievance on this aspect of the matter. 14. For all the above reasons, the appeal is allowed. The impugned judgment is set aside. The writ petition is dismissed.