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J&K High Court · body

2019 DIGILAW 456 (JK)

Arvinder Singh Amn v. State of J&K

2019-10-22

RAJESH BINDAL, RASHID ALI DAR

body2019
JUDGMENT : Rajesh Bindal, J. 1. Order dated 28.05.2019 passed by the learned Single Judge, dismissing the writ petition, has been impugned by filing the present intra-court appeal. 2. Issue pertains to selection and appointment to the post of Secretary, J&K Academy of Art, Culture and Languages (for short ‘the Academy’). 3. Learned counsel for the appellant submitted that the Academy was established way-back in the year 1963 with an object to promote art, culture and languages in the State of Jammu and Kashmir. There are many posts in different cadres in the Academy. These are governed by the Jammu and Kashmir Academy of Art, Culture and Languages Services Recruitment Rules, 2006 (for short ‘the Recruitment Rules of 2006’). One of the senior most post in the executive cadre is of the Secretary. Advertisement was issued on 01.03.2019 by the Deputy Secretary, Department of Culture inviting applications on behalf of Search Committee for appointment to the post of Secretary of the Academy. Last date fixed for submission of applications was 14.03.2019. 4. Going backward, it was submitted that the Government had constituted the Search Committee vide order dated 29.01.2019 consisting of a Chairman and five members. Later on, some issue having been raised regarding nomination of the Chairman, he was replaced by Prof. Rattan Lal Shant. As per order dated 29.01.2019, the Search Committee was to submit its recommendations to the President of the Academy within a period of one month. The petitioner who is working as Additional Secretary in the Academy had also applied for the post of Secretary. 5. After the issuance of advertisement, no steps were taken by the Search Committee to recommend the candidates. The petitioner filed writ petition in this court on 02.04.2019 praying that the advertisement dated 01.03.2019 calling for applications for appointment as Secretary of the Academy be quashed as the same does not lay down any qualification, experience, terms and conditions, etc. on the basis of which the candidates could be short-listed. Further direction was sought to prescribe proper procedure, lay down qualifications, conditions of service before calling for applications. 6. The Recruitment Rules of 2006 deal with recruitment to various posts in the Academy. There are seven different cadres and the top most herein is the executive cadre. Schedule ‘A1’ details out various posts in the executive cadre. The post of Secretary is the top most one in the executive cadre. 6. The Recruitment Rules of 2006 deal with recruitment to various posts in the Academy. There are seven different cadres and the top most herein is the executive cadre. Schedule ‘A1’ details out various posts in the executive cadre. The post of Secretary is the top most one in the executive cadre. He also referred to a table annexed with the paper book which provides for qualifications for recruitment to various posts in the executive cadre. The post of Secretary has been shown as the major head of the Department. He is to be appointed by the President of the Academy in accordance with the provisions of Clause 8(a) of the Constitution thereof. No qualification as such has been prescribed. 7. A perusal of the document at page 98 of the paper book suggested that it may be a draft prepared, however, on a pointed question to the learned counsels for the parties, it was not disputed that the qualifications and the procedures prescribed therein, was final. 8. Referring to Clause 8(a) of the Constitution of the Academy, it was submitted that the Secretary is to be appointed in consultation with the Government of Jammu and Kashmir. 9. Further reference was made to the Office Memorandum dated July 30, 2007 issued by the Ministry of Personnel, Public Grievance and Pensions regarding setting up of Search Committee/Search-cum-Selection Committee to submit that the procedure prescribed therein should be followed as guidance though it may not be strictly binding. 10. Reference was also made to the advertisement issued by the Northern Zone and Cultural Centre inviting applications for the post of Director thereof wherein complete details regarding eligibility criteria has been prescribed. 11. With the aforesaid factual matrix, learned counsel for the appellant vehemently argued that the Recruitment Rules of 2006 do not lay down any qualifications, experience for recruitment to the post of Secretary of the Academy. Even before the constitution of the Search Committee, the appointing authority had not laid down any such conditions and the criteria to be followed for the purpose of short-listing of the candidates. In the absence thereof, the process will not inspire confidence. The Search Committee could be assigned only the job in terms of the mandate given to it. It cannot of its own prescribe the qualifications also. Even in the advertisement issued, no details were mentioned. In the absence thereof, the process will not inspire confidence. The Search Committee could be assigned only the job in terms of the mandate given to it. It cannot of its own prescribe the qualifications also. Even in the advertisement issued, no details were mentioned. The conduct of the Committee is such that after its constitution on 29.01.2019, it was given a month’s time to submit its recommendations to the President of the Academy, however, advertisement itself was issued more than a month thereafter on 01.03.2019. First meeting of the Search Committee was held on 09.04.2019 after interim order was passed by the learned Single Judge on 05.04.2019. 12. It was further contended that even Clause 8(a) of the Constitution of the Academy is also totally vague, which confers entire powers on the President of the Academy. 13. Further the submission is that during the pendency of the writ petition before the learned Single Judge showing urgency in the matter, the State filed application for modification of the interim order. In that application it was disclosed that in the first meeting of the Search Committee held on 09.04.2019, certain norms were laid down for consideration of the candidature for the post of Secretary. It further disclosed that out of total 32 applicants, 5 candidates have been short listed. Commenting on the aforesaid norms, it was submitted that these still do not provide for any qualification or experience or the conditions of the service. 14. Referring to two issues framed by the learned Single Judge, it was submitted that the findings recorded thereon are erroneous. Even if the appellant was an applicant for the post, he could still challenge the advertisement as it is not a case where he had participated in the process of selection and having failed, raised issue on the process. Rather at the very first stage, the appellant had approached the court when even the norms and criteria had not been laid down either by the appointing authority or even by the Search Committee. 15. Even on the 2nd issue, the finding cannot stand in judicial scrutiny for the reason that the Search Committee cannot have power to frame the criteria as it is for the appointing authority to lay down the same and assign the job of short listing the candidates to the Search Committee. 16. 15. Even on the 2nd issue, the finding cannot stand in judicial scrutiny for the reason that the Search Committee cannot have power to frame the criteria as it is for the appointing authority to lay down the same and assign the job of short listing the candidates to the Search Committee. 16. Referring to judgment of Hon’ble the Supreme Court in Renu and others v. District And Sessions Judge, Tis Hazari Courts, Delhi and another, (2014) 14 SCC 50 , it was submitted that in the case of public employment, equality and fairness is the hallmark. Any action of the authority which is in violation of Articles 14 and 16 of the Constitution of India has to be struck down immediately. The law laid down in the aforesaid case applies on all fours in the present case. 17. On the other hand, learned counsel for the respondents submitted that the Academy is an institute of excellence in the State of Jammu and Kashmir. It was constituted to preserve and promote unique art and culture in the State. The post of Secretary was to fall vacant on 31.03.2019. To ensure that the same does not remain vacant even for a day, the Committee was constituted on 29.01.2019, so that the process of selection could be concluded well in advance. There is no dispute about the constitution/ re-constitution of the Committee. Undisputedly, last date for receipt of applications was 14.03.2019. The appellant is also one of the applicant. He filed the writ petition on 02.04.2019 after the last date for submission of applications had expired. On 05.04.2019, the learned Single while issuing notice in the writ petition directed that the respondents can proceed with the selection process but the same will not be finalized. Further the court was to be taken into confidence about the criteria adopted for selection. The appellant was not aggrieved against that order. Search Committee framed the criteria in its meeting held on 09.04.2019. On 15.04.2019, communications were sent to all the applicants to up-date their applications in terms of the criteria laid down. The appellant also complied with the same. 18. Writ petition was filed primarily with two prayers, namely the advertisement be set aside as it does not lay down any qualification or the criteria and secondly the respondents be directed to frame the criteria. The appellant also complied with the same. 18. Writ petition was filed primarily with two prayers, namely the advertisement be set aside as it does not lay down any qualification or the criteria and secondly the respondents be directed to frame the criteria. As the criteria has been framed by the Search Committee and the short listing process has been carried out in terms thereof, nothing survives and the prayer made by the petitioner had in fact been rendered infructuous. 19. It was further argued that no prejudice as such has been caused to the appellant. He is an applicant for the post. His candidature has been considered. Fundamental right is only for consideration and not for seeking appointment. Even the recommendations made by the Committee have to be placed before the President of the Academy for final approval. 20. Referring to judgment of Hon’ble the Supreme Court in Dhananjay Malik and others v. State of Uttaranchal and others, (2008) 4 SCC 171 , it was submitted that after participation in the process of selection, the appellant is debarred from questioning the same. 21. Heard learned counsels for the parties and perused the paper book. 22. Before the issues raised by the learned counsels for the parties are considered on merits, it would be appropriate to refer to the relevant clauses in the Constitution of the Academy. Constitution of Academy “Whereas, in accordance with the provisions of section 146 of the Jammu and Kashmir Constitution, it is considered expedient to establish an Academy to foster and coordinate activities in the spheres of letters and languages, visual and plastic arts, music, dance and drama, and of culture generally, in the State of Jammu and Kashmir, and to promote them all the cultural unity of the State, and of the State with the other States of the Country, it is hereby directed as follows:- 1. Name A State Academy of Art and Culture, Letters and Languages, Music, Dance and Drama, to be called ‘Jammu and Kashmir Academy of Arts, Culture and Languages’ shall be established. 2. xxx 3. Organisation and Aims and Objects: (a) The Academy shall be an autonomous corporate body; it shall have a perpetual seal; and it may sue and be sued in the name of the Secretary. 2. xxx 3. Organisation and Aims and Objects: (a) The Academy shall be an autonomous corporate body; it shall have a perpetual seal; and it may sue and be sued in the name of the Secretary. It shall have the following powers and functions, namely:— (i) to co-ordinate the activities of the district, regional and other organizations within the State in furtherance of its objects; (ii) to co-operate with similar Union and State Academies and other institutions and associations in the other parts of India for the furtherance of its objects and for the development and enrichment of Indian Culture as a whole; (iii) to encourage the exchange of ideas and enrichment of techniques between the different regions of the State, between the State and the other States of India, in the fields of activity relating to the objects of the Academy and for this purpose, to sponsor or organize cultural exchanges, mushairas, symposiums, seminars, lecturers, meets, camps, conferences, exhibitions, film shows, music, dance and drama performances, and cultural festivals etc. on regional, all-State or all-India basis; (iv) to promote cooperation among men of letters, artists, art, literary and cultural associations; and to encourage, whenever necessary, the establishment and development of such associations, and cultural centres, including theatre centres, studios, and clubs for the development of literature, art and culture in the State; (v) (a) to publish, and to promote and assist publication of literature. (i) in or about the languages mentioned in section 146 and the sixth schedule of the Jammu and Kashmir Constitution, including bibliographies, anthologies, dictionaries, etc., (ii) on art, including monographs, journals, art albums, etc. (i) in or about the languages mentioned in section 146 and the sixth schedule of the Jammu and Kashmir Constitution, including bibliographies, anthologies, dictionaries, etc., (ii) on art, including monographs, journals, art albums, etc. (iii) on music, dance and drama, particularly of the State, including reference works, hand books of technical terms, etc.; and (b) to edit and publish rare and old manuscripts in Sanskrit, Arabic and Persian, in consultation with an expert; provided that the emphasis in these manuscripts is on the art, culture or literatures of Jammu and Kashmir State; (vi) to encourage or to arrange and assist translations of literary works or works on art and culture from one of the Jammu and Kashmir State languages into another, from one of other Indian languages into another and also from non-Indian into any State or other Indian language, and vice versa; (vii) to award prizes, confer distinctions, grant stipends, allowances or other financial aid and to accord recognition to individual men of letters, artists etc. for high and significant achievements in the field of art, language, letters, music dance, drama and culture generally, or to award stipends, allowances or other financial aid to their dependents in recognition of such achievements; (viii) to encourage and promote study and research, particularly in the fields of language, literature, music, dance, painting, sculpture and architecture, and applied arts; and, for this purpose, to institute fellowships, stipends and scholarships, and to establish reference libraries, museums, galleries of art, including applied arts and crafts, etc.; (ix) to establish or to encourage the setting up of institutions providing training (i) in the art of theatre, stagecraft and production of plays; (ii) music, painting, sculpture, calligraphy etc., and (iii) to encourage the development of, amateur dramatic activity, children’s theatre, the open air theatre and the rural theatre; (x) to encourage and foster the revival of folk literature, art, music, dance, drama, including the organizing of regional surveys and collection of word-hoards, classical and folk songs and tunes etc., and to assist individuals or institutions engage’. In such revival or preservation; (xi) to give recognition and/or offer financial or technical assistance to approved literary, art, music, dance, drama or cultural institutions and associations; (xii) to take steps for construction of memorials and buildings and cultural centres in furtherance of the objects of the Academy. In such revival or preservation; (xi) to give recognition and/or offer financial or technical assistance to approved literary, art, music, dance, drama or cultural institutions and associations; (xii) to take steps for construction of memorials and buildings and cultural centres in furtherance of the objects of the Academy. (xiii) in furtherance of its objects and work, to secure grants, bequests and other donations; to purchase land, own property of all kinds; to mortgage, sell or otherwise dispose of the same; and to deal with any property belonging to or vested in the Academy in such manner as the Academy may deem fit for the advancement of its objects and functions; (xiv) to maintain a fund to which shall be credited (i) All moneys received from the State or Union Government, and (ii) All moneys received in any other manner or from any other sources, and (xv) to do all such other acts and things, whether incidental to the powers aforesaid or not, as may be required in order to further the objects of the Academy. 4. The Patron of the Academy: The Governor of Jammu and Kashmir shall be the Patron of the Academy. 5. Officers of the Academy: The following shall be the officers of the Academy:- 1. The President, 2. The Vice-President; 3. The Secretary, and 4. The Financial Adviser. 6. President: (a) The Chief Minister of the Jammu and Kashmir shall be the President of the Academy. He shall. 8. Secretary: (a) The Secretary shall be the principal executive officer of the Academy and shall be appointed by the President in consultation with the Government of Jammu and Kashmir. He shall hold office for such period and on such terms and conditions as the President may from time to time determine. (b) The Secretary shall, ex-officio, be the Secretary of the General council, Central Committee, and the Finance Committee; and, unless otherwise specified, he shall be the Chairman of the other committees or sub-committees which may be set up by the General council or the Central Committee. (b) The Secretary shall, ex-officio, be the Secretary of the General council, Central Committee, and the Finance Committee; and, unless otherwise specified, he shall be the Chairman of the other committees or sub-committees which may be set up by the General council or the Central Committee. (c) The Secretary shall (i) be the custodian of the records and such other property of the Academy as the Central Committee may commit to his charge; (ii) conduct the official correspondence on behalf of the authorities of the Academy; (iii) issue all notices convening meetings of the authorities of the Academy and of all Committee or Sub-Committee appointed by any of these authorities; (iv) keep the minutes of all meetings of the Authorities of the Academy and of all the Committees and Sub-Committees appointed by these authorities; (v) exercise all the powers, administrative and financial for the Academy as are vested in the Major Head of Department of the Jammu and Kashmir Governments; (vi) select a reviewer or reviewers from the panel recommended by an Advisory Committee under article 20 b(ii); (vii) maintain the accounts of the Academy, and operate upon the bank accounts of the Academy; (viii) execute all contracts approved by the Central Committee on behalf of the Academy; (ix) exercise such other powers as may be assigned to him by the President.” 23. The Academy had been established in exercise of powers conferred under Section 146 of the Jammu and Kashmir Constitution. It is controlled and financed primarily from the funds received from the State or the Union Government. Its patron-in-chief is the Governor of the State whereas its President is the Chief Minister. Recruitment Rules 24. The Recruitment Rules of 2006 govern various posts in the Academy. The aforesaid document had been placed on record by the respondents while filing objections before the learned Single Judge. The Rules are dated 07.04.2007 and as provided in Rule 1(b), these came into force w.e.f. 01.03.2007. Rule 4 provides for six different cadres which are indicated in Schedules ‘A1’ to ‘A6’ and ‘B1’ to ‘B6’ annexed with the Rules. Rule 6 provides for age of recruitment, i.e. as provided for by the Government for Jammu and Kashmir Civil Services from time to time. Rule 7 provides for general qualifications. Rule 4 provides for six different cadres which are indicated in Schedules ‘A1’ to ‘A6’ and ‘B1’ to ‘B6’ annexed with the Rules. Rule 6 provides for age of recruitment, i.e. as provided for by the Government for Jammu and Kashmir Civil Services from time to time. Rule 7 provides for general qualifications. In terms of this, no person is to be appointed to any post unless he possesses qualifications laid down for the post in the respective Schedule and he is otherwise fit and eligible to be appointed in terms of the provisions of J&K Civil Services (Classifications, Control and Appeal) Rules, 1956. 25. The post of Secretary is contained in Schedule ‘A1’ dealing with executive cadre. 26. In a table at page 98 of the paper book, the designation, qualifications and method of recruitment for the post of Secretary have been mentioned. The same are extracted below:- S. No. Category Designation with Grade Qualification Method of Recruitment Qualification Proposed Method of Recruitment Pre-proposed 1. Major Head Department Secretary Rs. 16400-450-20000 To be appointed by the President in accordance with the provision of Section 8(a) of the Constitution of the Academy No change is proposed 27. For all other posts mentioned in the table contained in Scheduled ‘A1’ in the executive cadre even up to the level of Sweeper, qualifications and the method of recruitment namely, by direct recruitment or promotion, have been prescribed. 28. A perusal of the Recruitment Rules of 2006 shows that for recruitment to the post of Secretary, no qualification, experience has been provided, though it is the senior most post in the executive cadre of the Academy. In the method of recruitment what has been provided is that the Secretary is to be appointed by the President in accordance with the provisions of Clause 8(a) of the Constitution of Academy. 29. A perusal of the aforesaid provision shows that Secretary is to be appointed by the President in consultation with the Government of Jammu and Kashmir. He shall hold office for such period and on such terms and conditions as the President may from time to time determine. 29. A perusal of the aforesaid provision shows that Secretary is to be appointed by the President in consultation with the Government of Jammu and Kashmir. He shall hold office for such period and on such terms and conditions as the President may from time to time determine. President has been defined in Clause 6 of the Constitution of the Academy to mean Chief Minister of the State of Jammu and Kashmir, whereas the Governor of the State of Jammu and Kashmir is the patron of the Academy, as per Clause 4 of the Constitution of the Academy. 30. From the aforesaid provisions in the Constitution of the Academy and the Recruitment Rules of 2006, it is evident that there are no qualifications, experience or conditions of service provided for the post in question as the entire matter has been left at the whims and fancies of the President of the Academy. Thereby primarily making it a political appointment and not keeping in view the object for which the Academy has been created. The aims and objects of the Academy, which is an autonomous body, have been enumerated in detail in Clause 3 of the Constitution of the Academy. It may not be possible to choose the most talented persons unless some guidelines are laid down for the appointment. Even the tenure is also not fixed. Meaning thereby that any Secretary may have to work on the dictates of the masters, which in some cases may not allow complete freedom to the Secretary to work, to achieve the objective for which the Academy has been created. 31. The power to determine the period of appointment, its terms and conditions vests with the President of the Academy. At least before the process for appointment to the post of Secretary started, the President or any other person who exercises that power was required to determine the terms and conditions and the period of appointment, which apparently makes this as a contractual appointment. The fact cannot be lost sight of that security of job is one of the important factor for any applicant to apply for the same. No one will leave his earlier job and be an applicant for another where even duration is not specified. Many of the meritorious candidates may not even be the applicants. 32. The fact cannot be lost sight of that security of job is one of the important factor for any applicant to apply for the same. No one will leave his earlier job and be an applicant for another where even duration is not specified. Many of the meritorious candidates may not even be the applicants. 32. No qualifications, conditions had been specified which is an important duty of the President of the Academy but the Search Committee was constituted to recommend a panel of not less than three persons to be appointed as Secretary. What is evident from the facts on record is that even the Search Committee in its wisdom did not lay down any qualifications, experience, terms and conditions of appointment and the criteria to be followed before issuance of the advertisement inviting applications. 33. While dealing with the arguments raised by the learned counsels for the parties, the learned Single Judge framed the following two issues: “(i) Whether the eligibility conditions for making selection for the post of Secretary of the Academy necessarily were required to be published along with the advertise notice, inviting interested persons to apply for the post vide advertisement notice dated 01.03.2019. (ii) Was the Search Committee within its powers to frame a criteria or could the Government alone have such a right?” Findings on both the issues were recorded against the appellant. Hence, the present appeal. 34. On the first issue finding recorded is that the applicant having responded to the advertisement, hence, after participating in the process of selection could not challenge the advertisement, even if no eligibility conditions were prescribed in the advertisement. It was further observed that though such conditions should have been prescribed. On the issue of power of the Search Committee to frame the criteria, the argument that the same had to be laid down before the Search Committee was constituted, was discarded opining that according to the Constitution of the Academy, there is no bar on the Search Committee to prescribe the criteria. There has to be enabling provision not negative. The constitution of the Academy does not even talk about any search committee. 35. It was further opined by the learned Single Judge that the Search Committee consisting of eminent persons could very well find out the most suitable candidate for the post. Such a power was rightly vested in it. 36. There has to be enabling provision not negative. The constitution of the Academy does not even talk about any search committee. 35. It was further opined by the learned Single Judge that the Search Committee consisting of eminent persons could very well find out the most suitable candidate for the post. Such a power was rightly vested in it. 36. As claimed by learned counsel for the State, the post of Secretary in the Academy was to fall vacant on 31.03.2019. As the premier institute in the State could not be left without a Secretary, the process for filling up the post started much in advance. The Search Committee was constituted on 29.01.2019, which consisted of eminent persons. A perusal of the aforesaid order shows that the Search Committee was to submit its recommendations to the President of the Academy within a period of one month. Apparently, there was some issue regarding the Chairman of the Academy. Hence, the Government vide order dated 27.02.2019 replaced the Chairman. It was only thereafter that some steps were taken for recruitment to the post of Secretary in the Academy. Advertisement was issued on 01.03.2019 by the Department of Culture, Government of Jammu and Kashmir. But the fact remains that before the issuance of the advertisement, there was no meeting of the Committee. The advertisement reads as under: Advertisement Notice “Pursuant to Government Order No. 137-GAD of 2019 dated 29.01.2019 and No. 296-GAD dated 27.02.2019 applications are invited on behalf of the Search Committee from the interested persons to draw and recommend the panel for appointment to the post of Secretary, Jammu and Kashmir Academy of Art, Culture and Languages. The applications may be submitted latest by 14th March, 2019 in the office of Administrative Secretary, Department of Culture, Civil Secretariat, Jammu (Room No. 1/32, Mini Block).” 37. The appellant who presently is working as Additional Secretary in the Academy is also one of the applicants for the post. He filed writ petition in this court on 02.04.2019 raising the issue regarding non-prescription of the criteria for appointment to the post of Secretary and setting aside of the advertisement issued. Prayer was also for laying down the criteria and thereafter issue the advertisement. He filed writ petition in this court on 02.04.2019 raising the issue regarding non-prescription of the criteria for appointment to the post of Secretary and setting aside of the advertisement issued. Prayer was also for laying down the criteria and thereafter issue the advertisement. On 05.04.2019, while issuing notice, following interim directions were given: “In the meantime, the respondents can proceed with the selection process but shall not finalize the same till further orders from this Court. It would be appropriate, if this Court is taken into confidence about the criteria to be adopted for making selection.” 38. The respondents filed application dated 25.05.2019 for modification of the aforesaid interim order, stating therein that 32 candidates applied for the post in pursuance to the advertisement issued. The Search Committee held its first meeting on 09.04.2019 and keeping in view the requirements, laid down norms for consideration of the candidature of various applicants. In the meeting held on 25.05.2019, five candidates were short listed. Norms fixed by the Committee are extracted below: “(i) Any candidate, who has crossed age limit of 63 years as on 01.01.2019, shall not be considered. (ii) Vigilance/CID status shall be obtained from Anti-Corruption Bureau/CID in respect of all other applicants, so that the committee can pick suitable candidates for incorporation in the panel for submission to President of J&K Academy of Art, Culture & Languages. (iii) The candidates shall have to be assessed with regard to proven credentials towards art, culture and languages, published work, awards and other recognitions, administrative experience in Government Departments/ Organizations or experience of having worked in cultural organizations. (iv) While considering the candidature of the candidates, the candidates with higher academic qualifications particularly relating to the fields of art, culture and languages shall be preferred. (v) The in-service candidates, who have applied for the post, should be of appropriate status with the contributions to art, culture and languages, befitting to hold the position of Secretary, J&K Academy of Art, Culture and Languages. (vi) The candidates, who are already working in different Government Department/ Organizations, shall be required to furnish integrity certificate from their HoD. (vii) The panel of persons shall be submitted to the higher authorities in alphabetic order and not in order of priority. (viii) It shall be recommended to the President that the appointment of selectees out of panel may be made for a period of 02 years, initially. (vii) The panel of persons shall be submitted to the higher authorities in alphabetic order and not in order of priority. (viii) It shall be recommended to the President that the appointment of selectees out of panel may be made for a period of 02 years, initially. (ix) That the Search Committee in its meeting held on 25.05.2019 considered the candidature of all the applicants including the petitioner, in light of above norms and has drawn a panel of 05 most suitable candidates, for being recommended to the President of J&K Academy of Art, Culture and Languages (Hon’ble Governor).” 39. The advertisement as reproduced in the preceding part of the judgment is completely silent about these aspects. Though the competence of the Committee to lay down the aforesaid factors is seriously contested. The advertisement is totally silent on the fact as to whether any in-service candidate especially an employee already working with the Academy could also apply and as to whether any candidate who is already serving elsewhere is required to either submit no objection certificate from his employer or has to route his application through the competent authority so as to ensure as to whether after his appointment, he will be available or not. Even the age or qualifications were not provided. 40. The Committee held its first meeting after the interim order was passed by the learned Single Judge on 05.04.2019. Meaning thereby that before issuance of advertisement, the Committee did not even hold its meeting to decide any procedure to be followed, steps to be taken and the manner thereof, what to talk of qualifications and experience required. In fact the process of issuance of advertisement itself was by some other authority. Hence, there was no meeting of minds of the members of the Committee before they started the process of short listing of candidates. 41. What has been specified in the norms for consideration of the candidates for the post, as decided in its first meeting held by the Search Committee on 09.04.2019, are also not clear. Lot of vagueness is there. These are quite general in nature. Even age is sought to be specified in the norms and not while inviting applications and so the fact that recommendation shall be made to the President of the Academy that appointment should be initially made for a period of two years. 42. Lot of vagueness is there. These are quite general in nature. Even age is sought to be specified in the norms and not while inviting applications and so the fact that recommendation shall be made to the President of the Academy that appointment should be initially made for a period of two years. 42. A perusal of the order dated 29.01.2019 constituting the Search Committee shows that the power to lay down the qualifications, conditions of the service and the criteria was not delegated to the Committee. There is no other document placed on record by the respondents to substantiate this plea. In fact what comes out from this process is that the criteria for short listing of candidates was framed in the first meeting of the Search Committee held on 09.04.2019 after the applications for the purpose had already been received, which many a times can be said to be tailor-made to suit any of the candidate. Though it cannot be specifically stated so in the case in hand as the details of the applicants, the names recommended are not part of the record and could not be at this stage as the same is confidential and the process of selection is still on. Not only this even subsequent information sought by the Committee from the in service candidates, is a process which is unknown to law. This exercise was done by the Committee, after the applications had been received and it had framed the so called criteria. It is like putting the cart before the house. 43. Issue regarding estoppel and waiver of fundamental rights had been subject matter of consideration before the Courts. The opinion expressed is that there cannot be estoppel against the constitution, which is not only the paramount law of land but is source of sustenance of all laws. There is no estoppel against statute. No individual can barter away the freedom conferred on him by the Constitution. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bonafides in day to day transactions. 44. The law on the issue as to whether person having participated in the process of selection and failing can or cannot challenge the same, is well settled. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bonafides in day to day transactions. 44. The law on the issue as to whether person having participated in the process of selection and failing can or cannot challenge the same, is well settled. The opinion is that if a person knowing well the complete process and the terms & conditions, participated in the process of selection and fails, he cannot turn around to challenge the same. He waives off the right to challenge. He is thus estopped from challenging the same but there are exceptions to this Rule. It has been so noticed by Hon’ble the Supreme Court in Sadananda Halo and others v. Momtaz Ali Sheikh and others, (2008) 4 SCC 619 , while referring to an earlier judgment in Union of India and others vs S. Vinod Kumar and others, (2007) 8 SCC 100 . In Rajesh Kumar Gupta and others vs State of U.P. and others, (2005) 5 SCC 172 , Hon’ble the Supreme Court upheld the judgment of High Court where despite participation in the process of selection, a candidate was permitted to challenge the same. Para 13 thereof is extracted below: “13. The Division Bench also found that at the time of making the application the scheme notified by the State Government was that the preparation of the merit list would be at the State level and not at the district level. The criterion for merit list was subsequently challenged only on 31.10.2001 i.e. after the applications had been made by the candidates. Consequently, no candidate had any occasion to protest, since the criterion was abruptly changed by the State Government. Thus, the Division Bench overruled the objection to the maintainability of the writ petitions by taking the view that there was no question of estoppel and the candidates, who had applied and were not selected could not be said to be estopped from challenging the process of selection. Nor could there be any plea of promissory estoppel invoked by the writ petitioners, as nothing was established to show that they had altered their position to their detriment by applying pursuant to the advertisement. In our view, the finding of the Division Bench on this point is justified.” In the case in hand criteria and qualifications were laid down after the challenge was made. 45. In our view, the finding of the Division Bench on this point is justified.” In the case in hand criteria and qualifications were laid down after the challenge was made. 45. In Dhananjay Malik and others vs State of Uttaranchal and others, (2008) 14 SCC 454 , Hon’ble the Supreme Court opined that if a candidate thinks that the advertisement and the selection process were not in accordance with Rules, he could challenge the same without participating in the process of selection. 46. In the case in hand, all what the appellant had done was that he filed his application for the post in question and before even any further steps were taken by the Committee constituted for short-listing the candidates, the appellant had challenged the same raising many issues which according to him could result in arbitrariness in the process of selection. It is not a case where he participated in the process of selection, failed and then challenged the same. In this situation the principle of estoppel or waiver may not be applicable. 47. It is further relevant to add here that even the so-called criteria was also devised by the Committee only after receipt of notice in the petition filed by the appellant. The advertisement has been issued on 01.03.2019 whereas it was admitted in the application filed by the respondents before the learned Single Judge, seeking modification of the interim order dated 05.04.2019, that first meeting of the Committee was held on 09.04.2019. Meaning thereby before that there was nothing decided. Hence, argument that the appellant challenged the advertisement after as he had submitted the application is rejected. 48. It is also settled law that public interest litigation is not maintainable in the service matters. Reference can be made to latest judgment of Hon’ble the Supreme Court reported in 2019 SCC online SC 886, titled as Vishal Ashok Thorat and others vs Rajesh Shrirambapu Fate and others. 49. The writ petition was filed immediately after the appellant had applied for the post. In the absence thereof, the argument raised against the writ petition could be that the appellant not being a candidate could not file the petition in public interest. 50. As to whether the Committee constituted for short-listing of the candidates, to be placed before the President of the Academy, could lay down the qualifications as well, in our opinion, there are two aspects. 50. As to whether the Committee constituted for short-listing of the candidates, to be placed before the President of the Academy, could lay down the qualifications as well, in our opinion, there are two aspects. One is substantive law and another is procedural law. The job which had been assigned to the Committee was the procedural part. Substantive part will always remain with the appointing authority. The appointing authority is the best judge to appreciate as to the requirements of the job and the qualifications or experience required for a candidate to be selected for the purpose. Normally all these factors are provided in the service rules governing the post. The idea is to inspire confidence, bring uniformity and consistency as the post in question was not an isolated one, required to be filled up for a short term, for specific need. Rather the Academy is in existence since 1963 and requirement of a Secretary is provided for in the Constitution of the Academy. The job profile and the importance thereof is also evident from the Constitution of the Academy. In case, the qualifications and the experience required for the post are not specified in the Rules, it may result in arbitrary exercise of power at different times and will depend on the whims and fancies of the persons at the helm of affairs. 51. The competence of the Committee is not in question. There are senior officers and persons who have achieved distinction in their career but still this important function of even defining the qualifications and the experience required, for the post for any candidate to be eligible, could not be left to the Committee. Even the Committee did not take the issue seriously. No meeting of the Committee was held before the advertisement was issued. Dispute was raised even on the constitution of the Committee. It was reconstituted. A perusal of the advertisement does not show that any qualifications or experience was mentioned therein while inviting applications. Not even age or tenure of post was mentioned. Only the post was mentioned. It has come on record that first meeting of the Committee was held only after the writ petition had been filed, inter alia, seeking a direction against the respondents to prescribe the eligibility conditions for the post. 52. Arbitrariness in any process knocks at Articles 14 and 16 of the Constitution of India. Only the post was mentioned. It has come on record that first meeting of the Committee was held only after the writ petition had been filed, inter alia, seeking a direction against the respondents to prescribe the eligibility conditions for the post. 52. Arbitrariness in any process knocks at Articles 14 and 16 of the Constitution of India. The norms which were laid down by the Committee in its meeting held on 09.04.2019 still did not provide for any qualification and how the candidates will be evaluated. The so-called criteria can possibly be tailor-made keeping in view the fact that by that time all the applications had already been received. 53. The appellant had also referred to advertisement issued for appointment as Director, North Zone Cultural Center, Patiala by the Ministry of Culture, Government of India on 27.01.2017, which clearly prescribes qualification, salary, tenure, age and other terms and conditions for the post. The job requirement in the case in hand is also similar. 54. Issue regarding transparency in public appointment was considered by Hon’ble the Supreme Court in Renu and others case (supra). It was a case relating to appointment of Class-IV category of employees in the Subordinate Courts. The concern of the Court was that the appointments must be made on the touchstone of equality of opportunity enshrined in Articles 14 and 16 of the Constitution of India. Any appointment made in violation of the mandate of Articles 14 and 16 of the Constitution of India is not only irregular but illegal. The same cannot be sustained. 55. One of the important requirements of public employment is that of transparency. The advertisement must specify the number of posts available for selection. The requirement, as qualifications and other eligibility criteria for such post, should be explicitly provided. The Rules under which the selection is to be made and in the absence thereof the procedure which is likely to be followed. It is necessary to prevent arbitrariness and to avoid change of criteria for selection after the process had already commenced. May be to unjustly benefit someone at the cost of others. Absence of arbitrariness has been consistently described as essence of Rule of law. The unquestionable authority is always subject to the authority of the Constitution. The higher the dignitary, the more objectivity is expected to be observed. 56. May be to unjustly benefit someone at the cost of others. Absence of arbitrariness has been consistently described as essence of Rule of law. The unquestionable authority is always subject to the authority of the Constitution. The higher the dignitary, the more objectivity is expected to be observed. 56. Issue regarding appointment of Law Officers in the office of Advocate General came up for consideration before Hon’ble the Supreme Court in State of Punjab and another vs Brijeshwar Singh Chahal and another, (2016) 6 SCC 1 where four questions were framed for determination by the Court. Out of which questions No. 2 and 3, which are relevant for the controversy in question are reproduced hereunder: “(2) Whether the States of Punjab and Haryana have formulated any scheme, policy, norms or standards for appointing Law Officers? (3) Whether appointments of Law Officers by the State Governments need to be made on a fair, reasonable, non-discriminatory and objective basis?” 57. While answering the question No. 2, Hon’ble the Supreme Court opined that the offices of law officers are heavily remunerated from the public exchequer. Hence, the procedure for appointment cannot remain unregulated, especially considering the fact that they are to discharge important public functions affecting not only the State interest but the quality of justice which the courts administer. It is the duty of the Government to ensure that the process by which the State government counsels are selected is transparent and credible. 58. As far as Question No. 3 is concerned, the findings were summed up in Para 41 of the judgment, which is extracted below: “41. To sum up, the following propositions are legally unexceptionable: 41.1 The Government and so also all public bodies are trustees of the power vested in them. 41.2 Discharge of the trust reposed in them in the best possible manner is their primary duty. 41.3 The power to engage, employ or recruit servants, agents, advisors and representatives must like any other power be exercised in a fair, reasonable, non-discriminatory and objective manner. 41.4 The duty to act in a fair, reasonable, nondiscriminatory and objective manner is a facet of the Rule of Law in a constitutional democracy like ours. 41.5 An action that is arbitrary has no place in a polity governed by Rule of Law apart from being offensive to the equality clause guaranteed by Article 14 of the Constitution of India. 41.5 An action that is arbitrary has no place in a polity governed by Rule of Law apart from being offensive to the equality clause guaranteed by Article 14 of the Constitution of India. 41.6 Appointment of Government counsel at the district level and equally so at the High Court level, is not just a professional engagement, but such appointments have a “public element” attached to them. 41.7 Appointment of Government Counsel must like the discharge of any other function by the Government and public bodies, be only in public interest unaffected by any political or other extraneous considerations. 41.8 The government and public bodies are under an obligation to engage the most competent of the lawyers to represent them in the Courts for it is only when those appointed are professionally competent that public interest can be protected in the Courts. 41.9 The Government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous considerations. 41.10 No lawyer has a right to be appointed as a State/Government counsel or as Public Prosecutor at any level, nor is there any vested right to claim an extension in the term for which he/she is initially appointed. But all such candidates can offer themselves for appointment, re-appointment or extension in which event their claims can and ought to be considered on their merit, uninfluenced by any political or other extraneous considerations. 41.11 Appointments made in an arbitrary fashion, without any transparent method of selection or for political considerations will be amenable to judicial review and liable to be quashed. 41.12 Judicial review of any such appointments will, however, be limited to examining whether the process is affected by any illegality, irregularity or perversity/irrationality. The Court exercising the power of judicial review will not sit in appeal to reassess the merit of the candidates, so long as the method of appointment adopted by the competent authority does not suffer from any infirmity.” 59. If the facts of the case are examined in the light of law laid down by Hon’ble the Supreme Court the only possible conclusion is that the process adopted does not inspire confidence. If the facts of the case are examined in the light of law laid down by Hon’ble the Supreme Court the only possible conclusion is that the process adopted does not inspire confidence. Issuing advertisement without even laying down eligibility conditions and then asking for further information after receipt of applications, is unknown to law and such a process cannot sustain in the eyes of law. 60. For the reasons mentioned above, we find merit in the present appeal. The same is accordingly accepted. The impugned judgment passed by the learned Single Judge is set aside. Consequently the writ petition filed by the appellant is accepted. The advertisement issued for selection to the post of Secretary, J&K Academy of Art, Culture and Languages is set aside with a direction that in case the process of selection is to be initiated, the qualifications, experience and other terms and conditions of service besides the process to be followed for the selection be prescribed before advertisement is issued.