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2018 DIGILAW 609 (JK)

Rajinder Nath v. State of J&K

2018-08-06

SANJEEV KUMAR

body2018
JUDGMENT : 1. Impugned in this petition is the selection of respondent No. 4 for the post of Cultural Assistant (District Cadre) Poonch made by J&K Service Selection Board (hereinafter referred to as “respondent-Board”). 2. The petitioner claims that he was also amongst the candidates who participated in the selection but was ignored despite being more meritorious than respondent No. 4. 3. The selection process for the post of Cultural Assistant (District Cadre) Poonch was initiated by respondent-Board vide its advertisement notification No. 01 of 2011 dated 31.01.2011 which came to be published in the newspaper “Daily Excelsior” on 02.02.2011. The post of Cultural Assistant (Junior Scale) of District Cadre Poonch of the Information Department figures as Item Code No. 768. For facility of reference, the relevant extract of the advertisement notification pertaining to the post in question is reproduced hereunder:- Item Code No. Name of the Department Name of the post District Cadre No. of Posts with breakup Prescribed qualification 768 Information Department Cultural Assistant (Jr. Scale) Poonch OM 3 Matric with experience in any one of the following Musical Instruments: (a) Violin (b) Sitar (c) Tabla (d) Drum (e) Flute. Preference will be given who are proficient in the field having age as prescribed under rules. SC 1 ST 0 RBA 1 ALC 0 OSC 0 Total 5 As is evident from the notification, 05 posts of Cultural Assistant were notified which included one post earmarked for SC Category candidates. The petitioner and respondent No. 4 are the candidates who had applied for the post in question in the SC Category. The respondent-Board vide its notice bearing No. SSB/SEL/Secy/012/143-148 dated 23.01.2012 published the selection criteria for making selection to the various notified posts including the post of Cultural Assistant in question. For facility of reference, the selection criteria as indicated in the aforesaid notice for the post of Cultural Assistant is reproduced hereunder:- Name of the Department Name of the Post Adv. Notice Prescribed Qualification Criteria approved by the Board Information Department Cultural Assistant (Jr. Scale) Matric with experience in any one of the following Musical Instruments: a) Violin (b) Sitar (c) Tabla (d) Drum (e)Flute. Preference will be given who are proficient in the field having age as prescribed under rules. Matric 20 pts. (Pro-rata) 10+2 05 Pts. (Pro-rata) Graduation 05 Pts. (Pro-rata) Experience in Violin, Sitar, Harmonium, Tabla, Sarangi, Rabab, Drum and Flute 30 Pts. Preference will be given who are proficient in the field having age as prescribed under rules. Matric 20 pts. (Pro-rata) 10+2 05 Pts. (Pro-rata) Graduation 05 Pts. (Pro-rata) Experience in Violin, Sitar, Harmonium, Tabla, Sarangi, Rabab, Drum and Flute 30 Pts. (05 pts for each year a max. Of 05 years) with Practical test in the relevant line to examine the experience. PG/Certificate in Music from recog Institute 10 Pts. (Across the Board) PG/Certificate in Stage Acting from competent authority 10 Pts. (Across the Board) Viva-voice 20 Pts. Total 100 Pts. The selection process was conducted by respondent-Board and on the basis of criteria notified, the merit list of the candidates was prepared. The petitioner was awarded 54.56 points, whereas respondent No. 4 was awarded 60.76 points. Since, amongst the candidates belonging to SC Category, respondent No. 4 was the candidate with highest merit points, he came to be selected and his name was reflected in the Provisional Merit-cum-Select List. The petitioner objected to the Provisional selection of respondent No. 4 by way of written objections submitted to the Secretary of the respondent-Board. The respondent-Board ultimately finalized the provisional selection and selected respondent No. 4 under SC Category. 4. Feeling aggrieved, the petitioner has filed this petition to assail the selection of respondent No. 4. 5. Learned counsel for the petitioner while elaborating the grounds of challenge taken in the writ petition submits that the selection of respondent No. 4 is bad and liable to be quashed for the following reasons:- (i) There has been a change in the selection criteria affected by the respondent-Board midstream which is not permissible in law. (ii) The qualification of graduation, i.e, Sangeet Prabhakar acquired by the petitioner from the Prayag Sangeet Samiti Allahabad which is equivalent to Bachelor in Music was not taken into consideration by the respondent-Board while evaluating his merit in terms of the published selection criteria. (iii) A certificate issued by Shree Hanuman Vyayam Prasarak Mandal Amrawati (Maharashtra) for the petitioner’s successful completion of Summer Coaching Camp in Band was also not considered for awarding the points earmarked in the selection criteria for PG/Certificate in Stage Acting from competent authority. 6. (iii) A certificate issued by Shree Hanuman Vyayam Prasarak Mandal Amrawati (Maharashtra) for the petitioner’s successful completion of Summer Coaching Camp in Band was also not considered for awarding the points earmarked in the selection criteria for PG/Certificate in Stage Acting from competent authority. 6. Per contra, learned counsel appearing for the respondent-Board and respondent No. 5 submit that the petition filed by the petitioner is misconceived and deserves to be dismissed for the following reasons:- (i) The petitioner after having participated in the selection process with his eyes wide open cannot be permitted to challenge the selection only because the result of such selection is not palatable to him. (ii) The qualification of graduation in Music claimed by the petitioner is not recognized by the Government as qualification equivalent to B. Music, more so, when the same has been obtained by the petitioner through distant mode and from study centre of the University/Institutions situated outside the jurisdiction of such University/Institute. (iii) The petitioner was not entitled to any points for the certificate of having attended the Summer Coaching Camp in Band, for, same cannot be considered to be PG/Certificate in Acting, issued by the competent authority. (iv) The change in selection criteria was by way of inadvertence but the same has not in any manner prejudiced the petitioner. 7. Having heard learned counsel for the parties and perused the record, it is noticed that there has been change of selection criteria affected by the respondent-Board midstream. In the published selection criteria, 05 points (Pro-rata) were earmarked for 10+2 qualification but while evaluating the merit of the participant candidates, 15 points for the qualification of 10+2 were taken in account. This was essentially a change in the selection criteria and could not have been affected midstream. Learned counsel for the petitioner has relied upon the judgment of the Hon’ble Supreme Court rendered in the case of Bishnu Biswas and Ors. vs. Union of India and ors.; 2014 (5) SCC 774 and K. Manjusree Vs. State of A.P and Anr.; 2008 (3) SCC 512 to buttress his submissions raised with regard to the change of rules of game midstream. vs. Union of India and ors.; 2014 (5) SCC 774 and K. Manjusree Vs. State of A.P and Anr.; 2008 (3) SCC 512 to buttress his submissions raised with regard to the change of rules of game midstream. While there is no quarrel with the preposition of law propounded by the learned counsel for the petitioner and enunciated by the Supreme Court in number of judgments, yet in view of the fact that the change affected in the selection criteria has not in any manner prejudiced the petitioner, I am not inclined to quash the selection of respondent No. 4 on this score. 8. Learned counsel for the petitioner was pointedly asked as to whether if his merit viz-a-viz respondent No. 4 is evaluated as per the selection criteria published, would that make any different and will that bring the petitioner in selection zone, the answer of the learned counsel was very fair and specific that the petitioner would still not come in the merit. 9. That being so, the change in selection criteria midstream cannot be held to have vitiated the selection of respondent No. 4. 10. Regarding the qualification of the petitioner, i.e, Sangeet Prabhakar issued by Prayag Sangeet Samiti Allahabad, it may be noted that Prayag Samiti Allahabad is a society registered under Society Registration Act and has been conferring different qualifications including the qualification of Sangeet Prabharak but the said society is neither a University nor deemed to be the University under the University Grants Commission Act and, therefore, is not empowered to issue degrees of graduation and Post Graduation. It is not the case of the petitioner that Prayag Samiti Allahabad is created by a statute which also confers upon it the power to issue degrees. Otherwise also, admittedly, the petitioner has obtained this degree through a distant mode from a study centre not located within the jurisdiction of the institute in question. 11. For all these reasons, this Court does not find any illegality having been committed by the respondent-Board in not considering the qualification of the petitioner. So is with the decision with regard to a certificate issued by some organization known by Shree Hanuman Vyayam Prasarak Mandal Amrawati (Maharashtra) with regard to the petitioner’s successfully completing Summer Coaching Camp in Band. For all these reasons, this Court does not find any illegality having been committed by the respondent-Board in not considering the qualification of the petitioner. So is with the decision with regard to a certificate issued by some organization known by Shree Hanuman Vyayam Prasarak Mandal Amrawati (Maharashtra) with regard to the petitioner’s successfully completing Summer Coaching Camp in Band. The aforesaid qualification, by no stretch of reasoning, can be held to be a PG/Certificate Course in Acting issued by a competent authority. The respondent-Board, therefore, committed no illegality in not taking into consideration the aforesaid certificate for the purpose of awarding points in the selection process. 12. In view of the foregoing discussion, I do not find any merit in this petition and the same is, accordingly, dismissed.