TAJVIR SINGH SODHI & ORS. VS. THE STATE OF JAMMU AND KASHMIR & ORS.
TAJVIR SINGH SODHI & ORS. VS. THE STATE OF JAMMU AND KASHMIR & ORS.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2164-2172 OF 2023
(@Special Leave Petition (C) Nos.20781-20789 of 2021)
TAJVIR SINGH SODHI & ORS. APPELLANT(S)
VS.
THE STATE OF JAMMU AND KASHMIR & ORS. RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 2182-2190/2023
(@SLP (C) NOS.20790-20798 OF 2021)
CIVIL APPEAL NOS. 2191-2199/2023
(@SLP (C) NOS.20799-20807 OF 2021)
CIVIL APPEAL NOS.2200/2023
(@SLP (C) NO.976 OF 2022)
CIVIL APPEAL NOS. 2173-2181/2023
(@SLP (C) NOS.967-975 OF 2022)
CIVIL APPEAL NOS. 2201-2203/2023
(@SLP (C) NOS. 6337-6339 OF 2023)
(@ DIARY NO.1194 OF 2022)
CIVIL APPEAL NOS. 2204-2212/2023
(@SLP (C) NOS.2642-2650 OF 2022)
CIVIL APPEAL NOS. 2213-2215/2023
(@SLP (C) NOS.3930-3932 OF 2022)
2
CIVIL APPEAL NOS. /2023
(@SLP (C) NOS.4359-4364 OF 2022)
J U D G M E N T
NAGARATHNA, J.
Leave granted.
2. I.A. No. 21153/2022 for substitution of the legal representatives
of the deceased petitioner therein and I.A. No. 21154/2022 for
condonation of delay in filing I.A. No. 21153/2022 are allowed. The
delay in filing I.A. No. 21154/2022 is condoned and the legal
representatives are brought on record.
3. I.A. No. 3739/2022 for impleadment is also allowed.
4. The present batch of appeals concern the selection process
conducted on 8th September, 2009, for appointment of drug inspectors
in the then State of Jammu and Kashmir, and the appointments
published on 12th November, 2009, whereby sixty-four persons
including the appellants in SLP (C) Nos.20781-20789 of 2021; SLP (C)
Nos. 20790-20798 of 2021; SLP (C) Nos. 20799-20807 of 2021; SLP
(C) No. 976/2022; SLP (C) Nos. 967-975 of 2022 and Diary No.
1194/2022, were selected and appointed as drug inspectors and are
3
serving on the said posts since 12th November, 2009. The selection and
appointments were challenged before the High Court of Jammu and
Kashmir and were quashed by the learned Single Judge of the High
Court of Jammu and Kashmir at Srinagar, by judgment and order
dated 18th December 2015, in SWP No. 1356 of 2009 and connected
matters. The said judgment was affirmed by the Division Bench of the
High Court by the impugned judgment dated 29th October, 2021,
passed in Letters Patent Appeal No. 277 of 2015 and connected
matters. The appellants in SLP (C) No.976 of 2022 have challenged the
judgment and order dated 6th July, 2017 passed by the learned Single
Judge of the High Court of Jammu and Kashmir at Jammu, whereby,
relying on the judgment and order of the learned Single Judge of the
High Court of Jammu and Kashmir at Srinagar dated 18th December,
2015, the writ petition filed by some of the appellants herein was
dismissed. Hence, these appeals.
5. Succinctly stated, the facts leading to the present appeals are as
follows:
5.1. On 05th May, 2008, the Jammu and Kashmir Subordinate
Services Selection and Recruitment Board (hereinafter referred to as
“the Board”) in exercise of the powers enshrined under the Jammu
and Kashmir Subordinate Services Recruitment Rules, 1992,
4
(hereinafter referred to as ‘1992 Rules’) issued Advertisement Notice
No. 3 of 2008, inviting applications for filling up vacancies in twenty
services. The Advertisement Notice provided the breakup of available
vacancies as also the eligibility criteria prescribed under the relevant
Recruitment Rules. The total number of posts advertised were 549.
The said Advertisement invited applications for 72 posts of drug
inspectors out of which 42 posts were to be filled from the open merit
category; 14 posts were to be filled by Residents of Backward Areas
(hereinafter referred to as “RBA”) and 16 posts were to be filled by
various other reserved categories including Other Social Categories
(hereinafter referred to as “OSC”).
The requisite qualifications prescribed in the advertisement, to
apply for the post of drug inspector, was as under:
(a) The candidate must have a degree in Pharmacy or Pharmaceutical
Chemistry or a Post-Graduate Degree in Chemistry with
Pharmaceuticals as a special subject of a University established in
India by law or must have an equivalent qualification recognized
and notified by the Central Government for such purpose by the
appointing authority or the Associateship Diploma of the
Institution of Chemists (India) by passing the examination with
analyst of drugs and pharmaceuticals as one of the subjects; or
5
(b) The candidate must be a graduate in Medicine or Science from a
University recognized for this purpose by the appointing authority
and must have at least one-year post-graduate training in a
laboratory under:
i) Government Analyst appointed under the Act;
ii) Chemical examiner of the Head of the institution specially
approved for the purpose by the appointing authority.
5.2. The Board notified the approved criteria to regulate the selection
and appointment to the posts of drug inspectors. The same are as
under:
i. Degree in Pharmacy (B. Pharmacy)
Or
55 Points
ii. Degree in Pharmaceutical Chemistry
Or
55 Points
iii. P.G. in Chemistry with
Pharmaceutical as a special subject
Or
55 Points
iv. Associateship diploma of the
Institution of Chemists (India) by
passing the examination with analyst
of drugs and Pharmaceutical as one
of the subjects
55 Points
6
Or
v. Graduate in Medicines or Science of
a University recognised for this
purpose by appointing authority and
has at least one year Post Graduate
training in a Laboratory under (i)
Government Analyst appointed under
the Act. (ii) Chemical Examiner (iii)
the Head of an Institution specially
approved for the purpose by the
appointing authority
55 Points
vi. P.G. Pharmacy/Medicine 25 Points
vii. Viva-Voce 20 Points
Total 100 Points
5.3. After receipt of application forms for the post of drug inspector in
pursuance of the advertisement, the authorities issued a notification
in a local daily on 31st May, 2009, notifying the short-listed
candidates. Another notification dated 12th June, 2009 was issued by
the Board captioned “Discrepancy noticed in criteria of drug inspector
(Health).” By virtue of the said notification, the respondents recast the
criteria of selection as under:
1. Degree in Pharmacy (B. Pharmacy) 65 points
7
2.
3.
4.
5.
Or
Degree in Pharmaceutical Chemistry
Or
P.G. in Chemistry with Pharmaceutical as
a special subject
Or
Associateship diploma of the Institution of
Chemists (India) by passing the
examination with analyst of drugs and
Pharmaceutical as one of the subjects
Or
Graduate in Medicines or Science of a
University recognised for this purpose by
appointing authority and has at least one
year Post Graduate training in a
Laboratory under (i) Government Analyst
appointed under the Act. (ii) Chemical
Examiner (iii) the Head of an Institution
specially approved for the purpose by the
appointing authority
65 Points
65 Points
65 Points
65 Points
6. P.G. Pharmacy/ Medicine/
Pharmaceutical Chemistry
10 Points
7. Ph.D. 05 Points
8. Viva-Voce 20 Points
Total 100
points
8
5.4. On 8th September, 2009, the Board published the Select List and
recommended sixty-four candidates for appointment as drug
inspectors in the Drug and Food Control Organisation of Jammu and
Kashmir. The Select List comprised of 42 candidates selected from the
open merit category and a total of 22 candidates were selected
amongst the other reserved categories out of which 14 names were
selected under the RBA category. The Board, on 15th October, 2009,
placed the Select List before the Health and Medical Education
Department being the concerned department, for the issuance of
appointment orders after verifying all original documents.
5.5. On 12th November, 2009, the Office of the Controller, Drug and
Food Control Organisation of Jammu and Kashmir, issued
Appointment Orders, appointing the selected candidates as drug
inspectors in the Pay Scale of Rs.9300-34800 and Pay Band of
Rs.4,200/-.
5.6. Some candidates who remained unsuccessful in the selection
process filed Writ Petition (Service) No. 1685 of 2009 before the
Jammu and Kashmir High Court at Jammu, with a prayer to quash
the selection of 56 out of the total number selected candidates and to
issue a writ in the nature of mandamus commanding the authorities
to instead select and appoint the writ petitioners as drug inspectors.
9
The salient grounds on which the selection process was challenged are
as under:
a) That the candidates appointed as drug inspectors had acquired
the prescribed qualifications for the post of drug inspector, from
universities which were not affiliated with the Pharmacy Council
of India. That the eligibility criteria enshrined in the
Advertisement Notice dated 5
th May, 2008 was recast vide
Notification dated 12th June 2009 and the criterion as regards the
obtainment of qualifications from a University recognized and
notified by the Central Government, was omitted. The petitioners
in the Writ Petition contended that the reason why the
qualification was omitted was neither gatherable nor
understandable.
b) That the selection carried out by the Selection Committee was not
legally sustainable as the quorum of the Selection Committee was
not complete as the Chairman of the Board being one of the
members of the interview committee which conducted the
interview process did not participate in the interview process.
Further, the expert member of the Interview Committee was not
from the field of pharmacy. Instead of making a person member of
the Interview Committee who had expertise in the concerned field,
the authorities brought a member who had MBBS qualification.
10
c) That the candidates who had a post-graduation degree had been
awarded 10 marks and in the viva-voce, such PG candidates had
been granted either 18 marks or 20 marks out of 20. That
although the writ petitioners had performed exceptionally well in
the interview, the authorities had acted in an arbitrary manner
while carrying out the selection process.
5.7. On identical grounds as those raised in SWP No. 1685 of 2009,
three more Writ Petitions were filed by unsuccessful candidates
challenging the selection process. These petitions were filed before the
Srinagar Bench of the High Court of Jammu and Kashmir. Details of
the said writ petitions have been set out hereinunder:
i) Writ Petition SWP No. 1356 of 2009 was filed before the High
Court seeking a writ in the nature of certiorari quashing the
criteria to the extent of allocating 20 marks for viva-voce and a
direction to the authorities to formulate a fresh selection list of
the candidates on the basis of their merit obtained after excluding
the marks allocated to the candidates by the Committee while
conducting the viva-voce. The writ petitioners further sought a
writ in the nature of a mandamus directing that interviews be
conducted afresh with an expert in the Selection Committee who
possesses the requisite qualification.
11
ii) Writ Petition SWP No. 1535 of 2009 was filed by the Petitioner
therein before the High Court at Srinagar, seeking a writ of
certiorari quashing the Select List as published to the extent of
the selection of drug inspectors; a direction to the authorities to
produce the record pertaining to the interview for the post of drug
inspector and a writ of mandamus directing the concerned
authorities to select and appoint the writ petitioner therein
against the post of drug inspector on the basis of his academic
merit and the marks secured in the interview.
iii) Writ Petition SWP No. 1846 of 2009 was filed seeking a writ in the
nature of certiorari quashing the selection list and a writ of
mandamus commanding the concerned authorities to select and
appoint the writ petitioner therein to the post of drug inspector
with retrospective effect w.e.f. the date the successful candidates
were selected.
5.8. The learned Single Judge of the High Court, Srinagar Bench
allowed the Writ Petitions i.e., SWP Nos. 1356 of 2009, 1846 of 2009
and 1535 of 2009 by way of common judgement and order dated 18th
December 2015. The pertinent findings in the judgement dated 18th
December 2015 have been culled out hereinunder:
12
i) The learned Single Judge dismissed the challenge thrown by the
writ petitioners to the competence of the expert in the Selection
Board, Dr. Samina Farhat, Assistant Professor, Department of
Pharmacology. It was observed that the expert was a doctor by
profession with a Post Graduate degree (MD) and Ph.D. in
Pharmacology to her credit. Pharmacology is an important
component in the study of Pharmacy and is included among the
major areas of instruction in the curriculum of a degree in
pharmacy at the Bachelor's and Master’s levels. All those who
study and undergo the training in pharmacy are necessarily to
study Pharmacology. A pharmacist has to learn the effects of the
medicine as well as the ways in which medicine can be introduced
into the body. Pharmacists are medication experts and their
responsibilities include dispensing medication to patients,
monitoring patient health and progress and optimising the
patient's response to medication therapies. That pharmacology
and pharmacy, therefore, are not like chalk and cheese, too
different from each other. One who has studied medicine, and is
an expert in pharmacology is expected to have fairly good
knowledge of pharmacy.
ii) The learned Single Judge was of the view that the Court while
exercising the power of judicial review cannot step into the shoes
13
of the Selection Committee or assume an appellate role to
examine whether the marks awarded by the Selection Committee
in the viva-voce are excessive and not corresponding to their
performance in such test. The assessment and evaluation of the
performance of candidates appearing before the Selection
Committee/Interview Board should be best left to the members of
the Committee. Thus, there was no reason to find fault with the
marks awarded by the Selection Committee/Interview Board only
because 100% marks had been awarded or that the marks
awarded were on a higher side. That once the writ petitioners had
participated in the Selection Process, they were not to feel
aggrieved with the process for the reason that the marks awarded
to them in the viva-voce were not up to their expectations or on
the lower side. The learned Single Judge of the High Court,
however, held that the Court may not look into the decision but it
was within its domain to examine whether the procedure and
guidelines were followed. The Court thus examined the decisionmaking process.
iii) The learned Single Judge observed that in the case in hand, the
award rolls prepared by the members of the Selection Board
individually were not on the selection record. Even the final award
roll reflecting the performance of the candidates in the viva-voice
14
and the data of points secured on the basis of merit in the
eligibility qualification and the qualification warranting extra
weightage was not signed by the Members of the Selection
Committee and there was nothing on record to indicate the
assessment of candidates individually made by the members of
the Selection Committee and their overall merit including the
marks awarded in the interview. That the absence of the award
rolls prepared individually by the Members of the Selection
Committee, vitiated the entire selection process and the selection
process did not conform to the prescribed procedure.
iv) Upon perusal of the selection record, the learned Single Judge
observed that it transpired that the Selection Board while making
the selection had given extra weightage to some of the candidates
when such candidates did not have postgraduate degrees in
Pharmacy/Medicine to their credit and therefore, they did not
deserve to be given extra weightage. That the Selection Committee
without verifying whether Post Graduate Degree in Pharmacy
claimed by a candidate was to the credit of the candidate and if
so, whether the degree was obtained from a recognized University
or not before the cut-off date, awarded extra points, presuming
the candidates to have Post Graduate Degree and therefore,
15
eligible for extra weightage. That this cast a cloud on the selection
process.
5.9. For the reasons set out above, the learned Single Judge allowed
the said Writ Petitions and issued the following directions:
i) That successful candidates who were the respondents in the writ
petitions, had been serving as drug inspectors for seven years (at
the time) and there was no dispute as regards the eligibility of the
said candidates to the advertised posts. Thus, the respondent
authorities were given the discretion to retain the successful
candidates and were also directed to accord consideration to the
appointment of the writ petitioners in the three writ petitions
against available clear vacancies of drug inspectors in the pay
scale of Rs.9300-34800, in the respondent department and to
complete such exercise within four weeks.
ii) That if the appointment of the writ petitioners as directed by the
Court was not possible due to the non-availability of posts, the
Select List published by the Respondent Board on 8th September,
2009 and the appointment made pursuant thereto shall stand
quashed and set aside. The Board would then be required
constitute a Selection Committee to conduct fresh interviews of all
candidates who earlier appeared before it and the members of the
Selection Committee shall follow the prescribed procedure and
16
shall individually assess and evaluate the candidates, prepare
individual award rolls reflecting such assessment and handover
the individual award rolls under sealed cover to the Convenor of
the Selection Committee. That the Convenor of the Selection
Committee shall compute the total marks awarded in the vivavoce and add the marks so obtained to the marks awarded to the
candidates on the basis of merit in the eligibility qualification and
higher qualification, if any, on pro rata basis, and prepare a final
merit list duly signed by all the members of the Selection
Committee. The Board on the basis of the final merit list was
required to make recommendations to the intending department
and the intending department was to act on the recommendations
so made and issue appointment orders in favour of the selected
candidates. The learned Single Judge directed the authorities to
conduct such exercise within six months.
iii) The learned Single Judge further observed that in case the
respondent authorities decide to carry out direction No. (ii) above,
the Board may allow the selected/appointed candidates to
continue till the exercise undertaken in compliance with direction
No. (ii) was completed and appointment orders were issued, as
their ouster may result in administrative problems, risk to public
17
health and would lead to the collapse of the entire machinery set
up to achieve the objective of the Drugs and Cosmetics Act.
5.10. Thereafter, nine Letters Patent Appeals were filed before the High
Court challenging the Order dated 18.12.2015 passed by the learned
Single Judge. Out of the nine appeals, three LPAs (LPA Nos 277/2015,
278/2015 and 12/2016) were filed by persons who were selected in
the open merit category and made party respondents in at least one of
the writ petitions; three LPAs (LPA Nos. 279/2015, 134/2016 and
135/2016) were filed by the appellants herein, i.e., persons who were
selected in the reserved category and were not made a party to any of
the three writ petitions and three LPAs (LPA Nos. 97/2016, 98/2016
and 105/2016) were filed by the Board.
5.11. By the impugned judgment dated 29th October, 2021, the
Division Bench of the High Court upheld the findings of the learned
Single Judge on merits and disposed of the appeals after modifying the
directions issued by the learned Single Judge. The relevant
observations in the impugned judgment dated 29th October, 2021 are
as under:
i) The Division Bench of the High Court upheld the finding of the
Single Judge viz the inclusion of Dr. Samina Farhat, Assistant
Professor, Department of Pharmacology, Government Medical
18
College, Srinagar, as an expert in the Selection Committee and
held that it was expected that she had a fairly good knowledge of
Pharmacy.
ii) The Division Bench also held that the final award roll as to the
performance of the candidates in viva-voce and the points secured
on the basis of merit in the eligibility qualification and the
qualification warranting extra weight was not signed by members
of the Selection Committee. Further, there was nothing on record
to indicate the assessment of candidates individually made by
members of the Selection Committee and their overall merit
including the marks awarded in the interview.
iii) One of the Judges of the Division Bench, Justice Vinod Chatterji
Koul observed that direction No.(i) issued by the learned Single
Judge was contrary to and in conflict with direction No. (ii). That
if the learned Single Judge had found the marks awarded in the
interview/viva-voce to be not up to the mark and contradictory to
the selection criteria, then direction No.(i) ought not to have been
issued by the learned Single Judge as it would also have an
impact on prospective candidates and would be contrary to
judicial precedent.
Direction No.(ii) was modified by the Division Bench to the
extent that “appointment of petitioners as directed is to be made”
19
was omitted by the Division Bench. The subsequent part of
direction (ii) i.e., “The select list published by respondent Board on
8
th September, 2009 and appointments made pursuant thereto shall
stand quashed and set aside.” and the consequential directions
were upheld by the Division Bench.
Justice Vinod Chatterji Koul upheld direction No.(iii) issued
by the learned Single Judge and held that the same shall remain
intact and be implemented by the officials in letter and spirit.
iv) The learned Chief Justice (as he then was) in a separate opinion,
concurred with the observations of Justice Vinod Chatterji Koul
and the observations of the learned Single Judge to the effect that
the Select List was not properly drawn. That there was nothing on
record to indicate that the members of the Selection Committee
had made the assessment of the candidates individually and the
final award roll reflecting the performance of the candidates in the
viva-voce and points secured on the basis of the merit in the
eligibility qualification as well as extra weightage granted for
additional qualification was also not in accordance with the
norms. Therefore, the selection process did not conform to the
prescribed procedure. However, he further held that the learned
Single Judge, having made the above finding to the effect that
some of the candidates had been arbitrarily awarded extra
20
weightage without there being on record any material to show that
they possessed the post-graduate degrees for grant of such extra
marks, the learned Single Judge could not have saved the
selection of the candidates merely for the reason that they had
been serving in the department for the last seven years and they
were qualified to hold the post.
Further, it was held that the learned Single Judge was not
justified in directing the authorities to retain the successful
candidates in service and to accord consideration to the
appointment of the writ petitioners-unsuccessful candidates if
they satisfy the eligibility criteria and to consider them for
appointment against the available clear vacancies of the drug
inspectors. The learned Chief Justice opined that the selection
process pursuant to Advertisement Notice No. 3 of 2008 dated 5th
May 2008 was completed with the publication of the Select List
and the joining of the selected candidates. Therefore, no further
appointments could be made on the basis of the said selection
against the clear vacancies that may have occurred subsequently.
The Division Bench held that all subsequent vacancies are to be
filled up from the open market afresh and in case they are allowed
to be filled up by the candidates of the earlier selection, it would
certainly infringe upon the rights of the candidates who would
21
have applied against the said vacancies if they were advertised
afresh. The Division Bench thus held that once the selection was
not found to be a valid one and therefore, the learned Single
Judge could not have issued any direction such as direction No.
(i).
v) With respect to the argument that the unsuccessful candidates
had participated in the selection process and thus, were not
entitled to challenge it, learned Chief Justice observed that the
writ petitioners or the unsuccessful candidates could not have
been debarred from filing the writ petition as the candidates
appearing in the selection process can always bring to the notice
of the court the illegalities committed during the selection,
though, they may not have any locus to challenge the constitution
of the Selection Committee or the eligibility of the members of the
Selection Committee, having participated in the selection process
with open eyes.
vi) The Division Bench thus quashed the selection list published by
the Board on 8th September 2009 and gave the liberty to the
Respondent-Board to constitute a Selection Committee to conduct
fresh interviews of all the candidates who had appeared before it
in accordance with the law, for selection against the posts
advertised. The Division Bench further clarified that no post or
22
vacancy which had not been advertised by the advertisement
dated 5th May 2008 will be filled by the said selection process. The
Division Bench directed that the exercise if undertaken, should be
completed within six months and till such time the selected
candidates appointed may be permitted to continue in the said
posts to avoid administrative problems.
5.12. Aggrieved by the common impugned judgment passed by the
Division Bench of the High Court of Jammu and Kashmir and Ladakh
at Srinagar dated 29th October, 2021, the present appeals have been
filed by various stakeholders. Further, SLP (C) No. 976/2022 has been
filed assailing the judgment and order dated 6th July, 2017, passed by
the High Court in SWP No. 1685/2009, by way of which, the High
Court quashed the selection and the list published by the Board on 8th
September 2009.
Details of the various appeals filed before this Court, which were
heard and are being disposed of by way of this judgment, have been
presented for easy reference in a tabular form hereinunder:
SI.
No.
Special
Leave
Petition
No.
Impugned
Judgmen
t and the
Court
which
passed
the same
Details of
proceeding
s in which
the
Impugned
Judgment
came to be
passed
Category of the parties
aggrieved by the
Impugned Judgment
1. SLP (C) No. Impugned LPA Nos. The appeals have been
23
SI.
No.
Special
Leave
Petition
No.
Impugned
Judgmen
t and the
Court
which
passed
the same
Details of
proceeding
s in which
the
Impugned
Judgment
came to be
passed
Category of the parties
aggrieved by the
Impugned Judgment
20781-
20789 of
2021
Judgment
and Final
Order
dated 29th
October,
2021
passed by
the High
Court of
Jammu &
Kashmir
and
Ladakh at
Srinagar
277/2015,
12/2016,
97/2016,
98/2016,
134/2016,
135/2016,
278/2015,
279/2015
and
105/2016.
filed by candidates who
were selected in the
Residents of Backward
Areas (RBA) category
vide the Select List
dated 08.09.2009.
2. SLP (C) No.
20790-
20798 of
2021
Impugned
Judgment
and Final
Order
dated 29th
October,
2021
passed by
the High
Court of
Jammu &
Kashmir
and
Ladakh at
Srinagar
LPA Nos.
277/2015,
12/2016,
97/2016,
98/2016,
134/2016,
135/2016,
278/2015,
279/2015
and
105/2016.
The appeals have been
filed by Mr. Ashish
Gupta, Ms. Rumessa
Mohammad and Mr.
Pankaj Malhotra who
were selected in the
Open Merit Category
vide the Select List
dated 08.09.2009.
3. SLP (C) No.
20799-
20807 of
2021
Impugned
Judgment
and Order
dated 29th
October,
2021
passed by
LPA Nos.
277 of 2015,
12 of 2016,
97 of 2016,
98 of 2016,
134 of 2016,
The appeals have been
filed by candidates who
were selected in the
Open Merit Category
vide the Select List
dated 08.09.2009.
24
SI.
No.
Special
Leave
Petition
No.
Impugned
Judgmen
t and the
Court
which
passed
the same
Details of
proceeding
s in which
the
Impugned
Judgment
came to be
passed
Category of the parties
aggrieved by the
Impugned Judgment
the High
Court of
Jammu &
Kashmir
and
Ladakh at
Srinagar
135 of 2016,
278 of 2015,
279 of 2015
and 105 of
2016.
4. SLP (C) No.
976/2022
Impugned
Judgment
and Order
dated 6th
July,
2017
passed
High
Court of
Jammu &
Kashmir
at Jammu
(Jammu
Bench)
SWP No.
1685/2009
titled
Shivani
Bakshi &
Ors. v. State
of J&K and
Ors.
The appeal has been
filed by candidates who
were selected vide the
Select List dated
08.09.2009 in the Open
Merit Category as well
as in the posts reserved
for Residents of
Backward Areas (RBA).
5. SLP (C) No.
967-975 of
2022
Impugned
Judgment
and Order
dated 29th
October,
2021
passed by
the High
Court of
Jammu &
Kashmir
and
Ladakh at
LPA Nos.
277 of 2015,
12 of 2016,
97 of 2016,
98 of 2016,
134 of 2016,
135 of 2016,
278 of 2015,
279 of 2015
and 105 of
2016.
The appeals have been
filed by Mr. Gagan
Bhardwaj who was
selected in the Other
Social Category (OSC)
vide the Select List
dated 08.09.2009.
25
SI.
No.
Special
Leave
Petition
No.
Impugned
Judgmen
t and the
Court
which
passed
the same
Details of
proceeding
s in which
the
Impugned
Judgment
came to be
passed
Category of the parties
aggrieved by the
Impugned Judgment
Srinagar
6. Diary No.
1194/202
2
Impugned
Judgment
and Order
dated 29th
October,
2021
passed by
the High
Court of
Jammu &
Kashmir
and
Ladakh at
Srinagar
LPA Nos.
279/2015,
134/2016
and
135/2016
The appeal has been
filed by those who were
selected in the Schedule
Caste, Schedule Tribe
and residents of the
Actual Line of Control
(A.L.C.) category vide
the Select List dated
08.09.2009.
7. SLP (C) No.
2642-2650
of 2022
Impugned
Judgment
and Order
dated 29th
October,
2021
passed by
the High
Court of
Jammu &
Kashmir
and
Ladakh at
Srinagar
LPA Nos.
277 of 2015,
12 of 2016,
97 of 2016,
98 of 2016,
134 of 2016,
135 of 2016,
278 of 2015,
279 of 2015
and 105 of
2016.
The appeals have been
filed by the State of
Jammu and Kashmir
(Now U.T. of Jammu
and Kashmir) and the
Commissioner/Secretar
y to the Government,
Health and Medical
Education Department,
U.T. of Srinagar.
8. SLP (C) No.
3930-3932
of 2022
Impugned
Judgment
and Order
dated 29th
October,
LPA Nos.
97/2016,
98/2016
and
105/2016.
The appeals have been
filed by the Jammu and
Kashmir Subordinate
Services Selection and
Recruitment Board.
26
SI.
No.
Special
Leave
Petition
No.
Impugned
Judgmen
t and the
Court
which
passed
the same
Details of
proceeding
s in which
the
Impugned
Judgment
came to be
passed
Category of the parties
aggrieved by the
Impugned Judgment
2021
passed by
the High
Court of
Jammu &
Kashmir
and
Ladakh at
Srinagar
9. SLP (C) No.
4359-4364
Impugned
Judgment
and Order
dated 29th
October,
2021
passed by
the High
Court of
Jammu &
Kashmir
and
Ladakh at
Srinagar
LPA Nos.
277 of 2015,
12/2016,
134/2016,
135/2016,
278/2015
and
279/2015.
The appeals have been
filed by the Jammu and
Kashmir Subordinate
Services Selection and
Recruitment Board.
6. We have heard learned Senior Counsel, Sri Ranjit Kumar and
learned counsel Sri Shoeb Alam appearing on behalf of the appellants
in SLP (C) Nos. 20781-20789 of 2021, learned Senior Counsel Sri
Sanjay Hegde for the appellants in Diary No. 1194 of 2022, learned
Senior Counsel Sri P.S. Patwalia appearing for the appellants in SLP
(C) Nos. 20790 – 20798 of 2021, learned Additional Solicitor General
27
Smt. Madhavi Goradia Divan appearing for the Board and learned
counsel Ms. S. Janani appearing on behalf of the Respondents hereinwrit petitioners and other learned counsel appearing for the respective
parties and perused the material on record.
Submissions:
7. Learned counsel Sri Shoeb Alam appearing on behalf of some of
the appellants at the outset submitted that the impugned judgment of
the High Court of Jammu and Kashmir and Ladakh at Srinagar dated
29th October, 2021 was based on an incorrect appreciation of the law
and facts and therefore calls for interference by this Court.
7.1. It was submitted that it was an admitted position that there was
no rule or notification prescribing any procedure or requirement for
the Selection Committee to retain the individual award rolls or have
the final award rolls signed by the members. That the selection
records culminated in the final Select List and the same was approved
with the signatures of all seven members of the Board, including two
members of the Selection Committee, after perusing the selection
records. That the calculations made on the individual basis of the
candidates had been verified with reference to the records. The
consolidated points were fed into the computer by the Chairman of the
Board himself and checked by another member of the Board. The final
28
Select List prepared on this basis was approved by the Board, after
perusal of the selection record, with the signatures of all members of
the Board. However, the Single Judge did not refer to the same. Thus,
the Impugned Order and the Single Judge’s Order setting aside the
entire selection of the appellants on the ground that the prescribed
procedure was not followed and that the selections made by the
Selection Committee were doubtful, is erroneous and contrary to law.
Reliance was placed on Reserve Bank of India vs. C.L. Toora,
(2004) 4 SCC 657, to contend that where no procedure is prescribed
for a Selection Committee, it can formulate its own procedure which is
reasonable and not arbitrary in nature.
7.2. It was further submitted that it is a settled position of law that
when a Selection Committee recommends the selection of a person,
the same cannot be presumed to have been done in an erroneous or
mechanical manner in the absence of any allegation of favoritism or
bias. That a presumption arises as regards the correctness of the
decision of a Selection Committee and the party who makes the
allegation of bias or favoritism is required to prove the same. Thus, in
the absence of mala fides against the members, selection by a
Selection Committee cannot be doubted. To buttress his argument,
learned counsel placed reliance on Union of India vs. Bikash
Kuanar, (2006) 8 SCC 192; Sadananda Halo vs. Momtaz Ali
29
Sheikh, (2008) 4 SCC 619 (Sadananda Halo) and University of
Mysore vs. C.D. Govinda Rao, (1964) 4 SCR 575.
7.3. It was contended that this Court in the context of nonavailability of any part of selection records has, in Trivedi Himanshu
Ghanshyambhai vs. Ahmedabad Municipal Corporation, (2007) 8
SCC 644 (Trivedi Himanshu Ghanshyambhai) held that only
because the records could not be produced in view of the fact that
they were not available, no inference as to mala fides can be drawn
against the members of a Selection Committee and the selection
cannot be cancelled. In this regard it was submitted that the
impugned judgment and the judgment of the Single Judge, setting
aside the entire selection of the appellants herein due to the nonavailability of individual award rolls, despite, signed approval of the
final Select List by the Board, is contrary to law. That the burden of
establishing mala fides is heavily on the person who alleges it and the
allegations of mala fides are more than often easily made than proved,
and the very seriousness of such allegations demands proof of a high
order of credibility, vide Indian Railway Construction Co. Ltd. vs.
Ajay Kumar, (2003) 4 SCC 579; State of Bihar vs. P.P. Sharma,
(1992 Supp. (1) SCC 222); Ajit Kumar Nag vs. Indian Oil
Corporation Ltd., (2005) 7 SCC 764; Union of India vs. Ashok
Kumar, (2005) 8 SCC 760.
30
7.4. It was further contended on behalf of the appellants that in the
absence of any rule or regulation requiring a Selection Committee or
Board to record reasons for selection and appointment, no fault can be
found with the selection process due to the lack of individual award
rolls. Reliance in this regard was placed on National Institute of
Mental Health and Neuro Sciences vs. Dr. K. Kalyana Raman,
1992 Supp. (2) SCC 481; B.C. Mylarappa vs. Dr. R.
Venkatasubbaiah, (2008) 14 SCC 306; Baidyanath Yadav vs.
Aditya Narayan Roy, (2020) 16 SCC 799; Mohd. Mustafa vs.
Union of India, (2022) 1 SCC 294 (Mohd. Mustafa).
7.5. It was asserted that the power of judicial review does not extend
to conducting a microscopic inquiry beyond the pleadings in the writ
petition. Reliance was placed on Sadananda Halo to contend that
this Court has held that a roving and microscopic inquiry on factual
aspects is not permissible in a writ petition. That a Writ Court cannot
place itself as a fact-finding commission and cannot go all the way into
the facts and microscopic details, which are revealed not via the
pleadings but on the basis of an unnecessary investigation. That in
the present case, the High Court had called for the selection records,
gone through the same, undertaken a fact-finding exercise and
rendered microscopic findings for specific individuals, and all of it, not
31
on the basis of pleadings. Thus, the present case is a perfect example
of what a writ court ought not do in the exercise of its powers under
Article 226 of the Constitution.
7.6. It was thus contended that the High Court cannot act as an
appellate authority over the choice of candidates/selection process
under Article 226. To buttress his submission, learned counsel cited
Madan Lal vs. State of J&K, (1995) 3 SCC 486 (Madan Lal)
wherein this Court held that it was in the exclusive domain of the
expert committee to decide whether more marks should be assigned
and the Court cannot sit as a Court of appeal over the assessment
made by the Committee. Reliance was also placed on Union of India
vs. Bilash Chand Jain, (2009) 16 SCC 601 to submit that it is
settled law that a Writ Court is not an Appellate Court. Thus, the High
Court exceeded the Writ Jurisdiction while setting aside the selection
of the appellants herein.
7.7. It was averred that persons who participated in the selection
process and interview cannot challenge the same upon being
unsuccessful since they do not have a cause to challenge the same
and a writ petition filed by them is not maintainable, vide Madan Lal;
Anupal Singh vs. State of Uttar Pradesh, (2020) 2 SCC 173;
Sadananda Halo and Mohd. Mustafa. Reliance was also placed on
32
D. Sarojakumari vs. R. Helen Thilakom, (2017) 9 SCC 478. That in
the present case, none of the writ petitioners was selected on merit
and they were not even on the waiting list, therefore, the writ petitions
filed by them were not maintainable on the ground of the same being
devoid of any locus.
7.8. Learned counsel Sri Shoeb Alam submitted that in the absence of
a large-scale systematic irregularity that denudes the legitimacy of the
selection exercise, the entire selection cannot be set aside. That this
Court in Sachin Kumar vs. Delhi Subordinate Service Selection
Board, (2021) 4 SCC 631; Inderpreet Singh Kahlon vs. State of
Punjab, (2006) 11 SCC 356; Union of India vs. Rajesh P.U., (2003)
7 SCC 285 (Rajesh P.U.) has held that those who are innocent of
wrongdoing should not pay a price for those who are actually found to
be involved in irregularities and therefore, the selection as a whole
cannot be set aside for specific instances of irregularities. It was
submitted that unless there is a systematic malaise affecting the
integrity of the selection and denying equal opportunity, the entire
selection cannot be set aside by taking away the appointment of
innocent and meritorious candidates.
7.9. That it was within the exclusive domain of the expert committee
to decide whether more marks should be assigned to the candidates
33
and hence, it cannot be a subject-matter of an attack before a Writ
Court, as it does not sit as a Court of appeal over the assessment
made by the Committee so far as the candidates interviewed by them
are concerned. To buttress this submission, the learned counsel cited
the decisions of this Court in Madan Lal and Ashok Kumar Yadav
vs. State of Haryana, (1985) 4 SCC 417.
7.10. It was next submitted that appellants have been working as drug
inspectors since their appointment on 12th November, 2009, i.e., for a
period of over 13 years, without any complaint against them and no
fault on their part has been attributed at any point. Thus, their
appointment should not be set aside due to the long period of service
rendered. Further, the petitioners are now at an age where they will
not be able to secure any alternate employment, vide Buddhi Nath
Chaudhary vs. Abahi Kumar, (2001) 3 SCC 328.
7.11. That the writ petitions filed challenging the selection process
were not maintainable, the same being defective as all the appointees
were not impleaded as parties.
7.12. Specific submissions were made by learned Senior Counsel Mr.
Patwalia as regards the selection of Mr. Pankaj Malhotra, Mr. Ashish
Gupta and Ms. Rumeesa Mohammad. It was submitted that that there
34
is no discrepancy in the selection of the aforesaid three individuals as
doubted by the High Court as all three individuals comfortably find a
place in the Select List even if no weightage for the M. Pharma degree
is added to their score. As to the alleged discrepancies in the selection
of the aforesaid three individuals as pointed out by the Writ Court, the
learned Senior Counsel for the petitioners submitted as under:
i) Rumeesa Mohammad: That her M. Pharma degree was not given
weightage at the time of her selection as grades were allotted to
her by her University for the said degree and the formula for
conversion of such grades into percentage was not known. That
even without such weightage, she was selected at rank 17.
Subsequently, she made a representation to the Board along with
the conversion formula, pursuant to which weightage was given to
her M. Pharma degree vide Order dated 30th November, 2010,
revising her rank from 17 to 4.
ii) Ashish Gupta: That the final award roll records a remark that his
M. Pharma degree was from Baba Mast Nath University and
Vanika Mission. The Committee had his degree but it required a
clarification about the institute that issued the degree as Baba
Mast Nath University was derecognized and he was shifted to
Vinayaka Mission under Court Orders. It was submitted that he
got his degree from Vinayaka Mission and even if no weightage
35
was given to his M. Pharma degree, his rank in the Select List
would shift from 14 to 29 whereas the cutoff rank was 42.
iii) Pankaj Malhotra: It was submitted that he could not enclose his
marksheet along with his application as he had obtained the final
marksheet only after submitting his application, however, he
produced his final marksheet for the M. Pharma course at the
time of the interview. He could not produce the original degree as
it had not been issued by then, although he had passed the
course. Thus, he had “acquired” the qualification of M. Pharma at
the time of the interview. That even if no weightage was given to
his M. Pharma degree, his rank in the Select List would shift from
2 to 14 and the cutoff rank was 42.
8. Sri Sanjay Hegde, learned Senior Counsel for the appellants in
Diary No. 1194 of 2022, i.e., persons who were appointed as drug
inspectors in the Scheduled Caste, Scheduled Tribe and residents of
the Actual Line of Control (A.L.C.) categories submitted that the
Division Bench of the High Court erred in setting aside and quashing
the Select List published by the respondent board on 8th September,
2009, thereby quashing all the appointments made pursuant thereto.
That the selection list was correct as the same was published by the
Board after following lawful procedure and that the selection list has
attained finality by efflux of time.
36
8.1. It was further submitted that denial of opportunity of being
heard before the Writ Court and the cancellation of their
appointments, on the ground of non-joinder of parties, warrants
setting aside of the impugned judgment. That the High Court was not
justified in quashing the whole selection list and appointments thereof
as no such prayer qua the appellants in Diary No. 1194 of 2022 was
maintainable as there was no grievance against such persons. That
such appellants’ selection/appointment was at no point of time ever
challenged by the respondents/unsuccessful candidates and they did
not figure as parties in any of the Writ Petitions, thus, violating the
principles of natural justice and the Writ Petitions were hit by nonjoinder of necessary parties.
8.2. It was next submitted that there was no candidate from among
the non-selectees, who could have challenged the selection of these
petitioners, because they belong to the Scheduled Tribe, Scheduled
Caste and residents of Actual Line of Control (A.L.C.) category and
vide the Advertisement Notice dated 5th May, 2008, seven posts of
Scheduled Tribe category, six posts of Scheduled Caste category and
two posts of candidates belonging to and residing within or near the
A.L.C. were advertised and there were fewer candidates available than
the number of posts advertised under Scheduled Tribe and Scheduled
37
Caste category. In so far as the A.L.C. category posts are concerned, it
was submitted that only three candidates applied against the two
posts and the one unsuccessful candidate under ALC never challenged
the selection of the petitioners belonging to ALC and this factum was
evident from the Select List issued by the Board while recommending
the sixty-four candidates for appointment as drug inspectors. Four
posts out of seven posts belonging to Scheduled Tribe, and three posts
out of six posts belonging to Scheduled Caste remained vacant due to
the non-availability of candidates.
8.3. It was contended that the fact that such appellants were never
made parties and yet the entire selection was set aside, was itself a
stand alone reason and ground for setting aside the impugned
judgment, qua the appellants in Diary No. 1194 of 2022. That the
impugned judgment decided the fate of such appellants despite nonjoinder as necessary parties.
With the aforesaid submissions, it was prayed that the present
appeals be allowed and the impugned judgment of the High Court
dated 29th October, 2021 and the judgment of the learned Single
Judge dated 18th December 2015 be set aside.
9. Ms. Madhavi Goradia Divan, learned ASG appearing for the
Board submitted that neither the learned Single Judge nor the
38
Division Bench found any mala fides against the members of the
Selection Committee and the Division Bench concurrently found that a
court cannot step into the shoes of the Selection Committee or assume
an appellate role to examine whether the marks awarded by the
Selection Committee in the viva-voce test were excessive and not
corresponding to the performance in such test. Therefore, quashing
the selection process, de hors any finding as to mala fides against the
members of the Selection Committee, would not be sustainable.
9.1. It was further submitted that the Selection Committee was
formed as per Rule 9 of the 1992 Rules. Rule 9(1) clearly stipulates
that the Chairman of the Board may nominate a Committee which
shall consist of one or more members of the Board for the purpose of
conducting examinations and holding interviews and tests for the
purposes of selection of candidates to be appointed to the State Cadre.
Further, Rule 9(iii) empowers the Chairman to associate with the
Selection Committee, an Expert/Specialist with the Board if he feels
necessary, in the discipline in which recruitment is sought to be
made.
Thus, to ensure the selection of meritorious candidates was
carried out with all fairness and transparency the Selection Committee
comprised of (i) the Chairman of the Board (an IAS officer); (ii) a
Member of the Board (Kashmir Administrative Officer); and (iii) an
39
Expert/Specialist who was employed as an Assistant Professor in the
Government Medical College at Srinagar. It was contended that if
there was any ulterior motive to manipulate the scores in the viva-voce
to benefit certain candidates, the Chairman of the Board could have
just constituted a one-member Committee comprising of only himself
to conduct the viva-voce for the selection of candidates.
9.2. It was further contended that each member of the three-member
Selection Committee individually assessed each candidate and
awarded points in the viva-voce which were averaged by dividing by
the number three and the same could be evidenced from the marks
awarded to the candidates in the viva-voce such as 11.67, 13.67,
11.33 etc.;
9.3. In so far as the marks awarded by the expert member of the
Selection Committee are concerned, the learned ASG brought to the
Court’s notice, Order dated 18th December, 2015 passed by the
learned Single Judge wherein it was categorically held that a Court
while exercising the power of judicial review cannot step into the shoes
of the Selection Committee and neither can it assume an appellate role
in examining whether the marks awarded by the Selection Committee
in the viva-voce were excessive and not corresponding to the
performance in such test.
40
Further, that the respondents chose not to file an appeal/LPA
challenging the above finding and in fact, the aforesaid observation of
the learned Single Judge vis-à-vis the marks allotted by the Selection
Committee was affirmed by the Division Bench.
The learned ASG further submitted that no SLP had been filed
by the Respondents challenging the observation of the Division Bench
as regards the discretion exercised by the Selection Committee in
awarding marks in the viva-voce. Thus, the observation that the
marks awarded by the Selection Committee in the viva-voce test
cannot be reviewed by a Court in the facts and circumstances of the
present case, has attained finality.
9.4. The learned ASG placed reliance on Jasvinder Singh vs. State
of J&K, (2003) 2 SCC 132 wherein it was held that in the absence of
any specific allegations of any mala fides or bias against the Board
constituted for selection or anyone in the Board, it cannot be held that
a conscious effort was made for bringing some candidates within the
selection zone. It was further held that picking up a negligible few
instances cannot provide the basis for either striking down the method
of selection or the selections ultimately made. In the said case, it was
also observed that there is no guarantee that a person who fared well
in the written test, will or should be presumed to have fared well in
the viva-voce test also.
41
9.5. The learned ASG cited Rule 10 of the 1992 Rules which provides
for Recruitment and Selection to contend that there is no prescribed
procedure for the appointment of drug inspectors. Rule 10(i) states
that the Board shall finalize the selections after holding such tests or
examinations as may be prescribed under rules or if there are no such
rules, as the Board may consider necessary. Thus, it is a matter of
record that no rules have been prescribed for the selection of drug
inspectors and in the absence of prescribed rules, the Selection
Committee and the Board carried out the selection process in a fair
and transparent manner. That merely because the record of the case
was not traceable when it was called for by the Single Judge in
February 2015, i.e., 6 years after the selection/appointments were
made, cannot be a ground to set aside the entire selection process.
Reliance was placed on Trivedi Himanshu Ghanshyambhai,
wherein it was held that merely because the records could not be
produced since they were lost and not available, the appointment
could not be cancelled.
9.6. As regards the selection of Pankaj Malhotra, Rumessa
Mohammad and Ashish Gupta, learned ASG submitted that the
finding of the Single Judge in paragraph 16 of his judgment that the
42
Selection Committee had given weightage to some candidates for
degrees which they did not possess, was erroneous.
It was submitted that Mr. Pankaj Malhotra produced his M.
Pharma degree before the Selection Committee and the same was
considered on the date of his interview. Further, the High Court
overlooked the fact that even if the marks awarded by the Selection
Committee on account of M. Pharma degree were excluded in his case,
the candidate would still be selected even though his rank would go
down from Serial No. 2 to Serial No. 14.
Secondly, in the case of Ms. Rumessa Mohammad, marks of her
M. Pharma Degree were not added to her final score and the error was
later on rectified by the Board by the issuance of a subsequent
notification dated 30th November, 2010, thereby, revisiting the position
of Ms. Rumessa Mohammad in the selection list from Serial No. 17 to
Serial No. 4. This notification was a part of the record.
Thirdly, in the case of Mr. Ashish Gupta, marks were rightly
awarded to him on account of possessing an M. Pharma degree which
was filed along with the application form before the cut-off date.
With the said averments, it was contended that the present
appeals be allowed and the impugned judgments of the High Court be
set-aside.
43
10. Per contra, learned counsel Ms. S. Janani appearing on behalf of
the Respondents herein-writ petitioners before the High Court,
supported the impugned judgments of the High Court and submitted
that the same do not warrant any interference by this Court as the
judgments were passed based on an unimpeachable appreciation of
the law and facts.
10.1. It was averred that the Selection Committee formed was defective
and inadequate as the Chairman opted for an expert and took on
board the Selection Committee, Dr. Samina Farhat who was a doctor
by profession with M.D. and Ph.D. in Pharmacology to her credit. That
the role of a doctor in Pharmacology is to research, develop, and test
new medications, as well as run clinical trials for new drug
discoveries. On the other hand, the responsibility of a drug inspector
is to inspect whether the medicines maintain legal standards of
sanitation, limpidness, and grading. They are entrusted with the task
to ensure that licensing conditions are being followed and they also
have to obtain and send the drug for testing or analysis if there is a
reason to suspect that the drug is being sold or stocked in violation of
the Act or Rules. Thus, the learned counsel for the respondents
asserted that the expert selected by the Chairman cannot be said to be
an expert or specialist in the discipline in which the recruitment was
being made.
44
10.2. It was next contended that the eligibility criteria were changed
midway. That initially, the eligibility criteria required that the
equivalent qualification was to be recognised and notified by the
Central Government. However, in the approved criteria, the same was
dropped. The respondents contended that the criteria were changed
after the applications had been received pursuant to the
advertisement. As a result of the above, several candidates and
brighter people may not have applied and several persons from
unrecognized colleges would have got selected. Further, the Selection
Board had no mechanism to verify the genuineness of the certificates
or whether the universities were recognized or not.
10.3. That some of the selected candidates did not produce their
original mark sheet of B. Pharma or M. Pharma at the time of the
interview and some of them did not even produce their birth
certificates. This was contrary to what was laid down in the
advertisement as according to the advertisement, the candidates had
to produce the original qualification certificates at the time of the
interview and any candidate who failed to produce the same was not
to be allowed to appear in the written or oral test.
10.4. It was contended that the process was tainted by arbitrariness
and casualness with which the Selection Committee had acted. That
45
this was evidenced by the fact that there were some candidates who
were not given marks for their M. Pharma Degree and they had to later
approach the Board. That 11 selected candidates were given 20 out of
20 marks and three were given 19 out of 20. Thus, almost 20% of the
selected candidates were given unusually higher marks in the vivavoce which facilitated their selection.
10.5. It was submitted that there was no blanket estoppel to challenge
the selection by the candidates who participated in the selection. In
the instant case, the Petitioners before the High Court were not aware
when they participated in the selection that the Selection Committee
was faulty nor were they aware till the Select List was published that
several selected candidates had not produced their original certificates
of qualification or birth certificates at the time of the interview. That
even the Selection Board did not have the facility to verify the veracity
of the certificates produced.
10.6. The learned counsel for the respondents placed reliance on
Secretary, State of Karnataka vs. Umadevi, (2006) 4 SCC 1 to
contend that the petitioners cannot seek the protection of their
appointment on the plea that they had been working for long years, if
their initial selection was held to be illegal and faulty.
46
10.7. Learned counsel for the respondents concluded the submissions
by stating that the total sanctioned strength of drug inspectors is 84
and out of the total strength, 65 are currently working. In fact, out of
the 65 inspectors, 4 had been promoted, thus, there are 25 vacancies
as of now and only 17 candidates are contesting before this Court and
all other petitioners before the High Court have not chosen to contest
the matter even though notice was issued by this Court in ordinary
mode and also by way of publication in newspapers. Thus, all the
petitioners can be adjusted and appointed in the vacant posts.
With the aforesaid submissions, it was prayed that the
impugned judgments of the High Court be affirmed and the present
appeals be dismissed as being devoid of merit.
Points for Consideration:
11. Having regard to the submissions of the learned Senior Counsel
and learned counsel for the respective parties, the following points
would arise for our consideration:
i) Whether the High Court of Jammu and Kashmir at Srinagar erred
in quashing and setting aside the the selection process conducted
on 8th September, 2009, for appointment of drug inspectors in the
State of Jammu and Kashmir, and the appointments published
on 12th November, 2009?
ii) What order?
47
Selection Process for Public Employment: Interference by Courts:
12. Before proceeding further, it is necessary to preface our
judgment with the view that Courts in India generally avoid interfering
in the selection process of public employment, recognising the
importance of maintaining the autonomy and integrity of the selection
process. The Courts recognise that the process of selection involves a
high degree of expertise and discretion and that it is not appropriate
for Courts to substitute their judgment for that of a selection
committee. It would be indeed, treading on thin ice for us if we were to
venture into reviewing the decision of experts who form a part of a
selection board. The law on the scope and extent of judicial review of a
selection process and results thereof, may be understood on
consideration of the following case law:
i) In Dalpat Abasaheb Solunke vs. Dr. B.S. Mahajan, AIR 1990
SC 434, this Court clarified the scope of judicial review of a
selection process, in the following words:
"9...It is needless to emphasise that it is not the function
of the court to hear appeals over the decisions of the
selection committees and to scrutinise the relative merits
of the candidates. Whether the candidate is fit for a
particular post or not has to be decided by the duly
constituted selection committee which has the expertise
on the subject. The court has no such expertise. The
decision of the selection committee can be interfered with
only on limited grounds, such as illegality or patent
material irregularity in the constitution of the committee
48
or its procedure vitiating the selection, or proved
malafides affecting the selection etc…..”
ii) In a similar vein, in Secy. (Health) Deptt. Of Health & F.W. vs.
Dr. Anita Puri, (1996) 6 SCC 282, this Court observed as under
as regards the sanctity of a selection process and the grounds on
which the results thereof may be interfered with:
"9. ... It is too well settled that when a selection is made
by an expert body like the Public Service Commission
which is also advised by experts having technical
experience and high academic qualification in the field for
which the selection is to be made, the courts should be
slow to interfere with the opinion expressed by experts
unless allegations of mala fide are made and established.
It would be prudent and safe for the courts to leave the
decisions on such matters to the experts who are more
familiar with the problems they face than the courts. If
the expert body considers suitability of a candidate for a
specified post after giving due consideration to all the
relevant factors, then the court should not ordinarily
interfere with such selection and evaluation…….”
iii) This position was reiterated by this Court in M. V. Thimmaiah
vs. Union Public Service Commission, (2008) 2 SCC 119, in the
following words:
“21. Now, comes the question with regard to the selection
of the candidates. Normally, the recommendations of the
Selection Committee cannot be challenged except on the
ground of mala fides or serious violation of the statutory
rules. The courts cannot sit as an Appellate Authority to
examine the recommendations of the Selection
Committee like the court of appeal. This discretion has
been given to the Selection Committee only and courts
rarely sit as a court of appeal to examine the selection of
the candidates nor is the business of the court to
examine each candidate and record its opinion...
49
xxx
30. We fail to understand how the Tribunal can sit as an
Appellate Authority to call for the personal records and
constitute Selection Committee to undertake this
exercise. This power is not given to the Tribunal and it
should be clearly understood that the assessment of the
Selection Committee is not subject to appeal either before
the Tribunal or by the courts. One has to give credit to
the Selection Committee for making their assessment and
it is not subject to appeal. Taking the overall view of
ACRs of the candidates, one may be held to be very good
and another may be held to be good. If this type of
interference is permitted then it would virtually amount
that the Tribunals and the High Courts have started
sitting as Selection Committee or act as an Appellate
Authority over the selection. It is not their domain, it
should be clearly understood, as has been clearly held by
this Court in a number of decisions…..”
iv) Om Prakash Poplai and Rajesh Kumar Maheshwari vs. Delhi
Stock Exchange Association Ltd., (1994) 2 SCC 117, was a
case where an appeal was filed before this Court challenging the
selection of members to the Delhi Stock Exchange on the ground
that the Selection Committee formed for the aforesaid purpose,
arbitrarily favoured some candidates and was thus, against
Article 14. This Court rejected the allegation of favouritism and
bias by holding as under:
“5. …the selection of members by the Expert Committee
had to be done on the basis of an objective criteria taking
into consideration experience, professional qualifications
and similar related factors. In the present cases, we find
that certain percentage of marks were allocated for each
of these factors, namely, educational qualifications,
experience, financial background and knowledge of the
50
relevant laws and procedures pertaining to public issues
etc. Of the total marks allocated only 20 per cent were
reserved for interviews. Therefore, the process of selection
by the Expert Committee was not left entirely to the
sweet-will of the members of the Committee. The area of
play was limited to 20 per cent and having regard to the
fact that the members of the Expert Committee
comprised of two members nominated by the Central
Government it is difficult to accept the contention that
they acted in an unreasonable or arbitrary fashion…...”
12.1. Thus, the inexorable conclusion that can be drawn is that it is
not within the domain of the Courts, exercising the power of judicial
review, to enter into the merits of a selection process, a task which is
the prerogative of and is within the expert domain of a Selection
Committee, subject of course to a caveat that if there are proven
allegations of malfeasance or violations of statutory rules, only in such
cases of inherent arbitrariness, can the Courts intervene.
Thus, Courts while exercising the power of judicial review cannot
step into the shoes of the Selection Committee or assume an appellate
role to examine whether the marks awarded by the Selection
Committee in the viva-voce are excessive and not corresponding to
their performance in such test. The assessment and evaluation of the
performance of candidates appearing before the Selection
Committee/Interview Board should be best left to the members of the
committee. In light of the position that a Court cannot sit in appeal
against the decision taken pursuant to a reasonably sound selection
51
process, the following grounds raised by the writ petitioners, which are
based on an attack of subjective criteria employed by the selection
board/interview panel in assessing the suitability of candidates,
namely, (i) that the candidates who had done their post-graduation
had been awarded 10 marks and in the viva-voce, such PG candidates
had been granted either 18 marks or 20 marks out of 20. (ii) that
although the writ petitioners had performed exceptionally well in the
interview, the authorities had acted in an arbitrary manner while
carrying out the selection process, would not hold any water.
13. The next aspect of the matter which requires consideration is the
contention of the writ petitioners to the effect that the entire selection
process was vitiated as the eligibility criteria enshrined in the
Advertisement Notice dated 5
th May, 2008 was recast vide a
corrigendum dated 12th June, 2009, without any justifiable reason. In
order to consider this contention, regard may be had to the following
case law:
i) In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC
576, this Court authoritatively declared that having participated
in a selection process without any protest, it would not be open to
an unsuccessful candidate to challenge the selection criteria
subsequently.
52
ii) In Ramesh Chandra Shah vs. Anil Joshi, (2013) 11 SCC 309,
an advertisement was issued inviting applications for appointment
for the post of physiotherapist. Candidates who failed to clear the
written test presented a writ petition and prayed for quashing the
advertisement and the process of selection. They pleaded that the
advertisement and the test were ultra vires the provisions of the
Uttar Pradesh Medical Health and Family Welfare Department
Physiotherapist and Occupational Therapist Service Rules, 1998.
After referring to a catena of judgments on the principle of waiver
and estoppel, this Court did not entertain the challenge for the
reason that the same would not be maintainable after
participation in the selection process. The pertinent observations
of this Court are as under:
“24. In view of the propositions laid down in the above
noted judgments, it must be held that by having taken
part in the process of selection with full knowledge that
the recruitment was being made under the General
Rules, the respondents had waived their right to question
the advertisement or the methodology adopted by the
Board for making selection and the learned Single Judge
and the Division Bench of the High Court committed
grave error by entertaining the grievance made by the
respondents."
iii) Similarly, in Ashok Kumar vs. State of Bihar, (2017) 4 SCC
357, a process was initiated for promotion to Class-III posts from
amongst Class-IV employees of a civil court. In the said case, the
53
selection was to be made on the basis of a written test and
interview, for which 85% and 15% marks were earmarked
respectively as per norms. Out of 27 (twenty-seven) candidates
who appeared in the written examination, 14 (fourteen) qualified.
They were interviewed. The committee selected candidates on the
basis of merit and prepared a list. The High Court declined to
approve the Select List on the ground that the ratio of full marks
for the written examination and the interview ought to have been
90:10 and 45 ought to be the qualifying marks in the written
examination. A fresh process followed comprising of a written
examination (full marks - 90 and qualifying marks - 45) and an
interview (carrying 10 marks). On the basis of the performance of
the candidates, results were declared and 6 (six) persons were
appointed on Class-III posts. It was thereafter that the appellants
along with 4 (four) other unsuccessful candidates filed a writ
petition before the High Court challenging the order of the High
Court on the administrative side declining to approve the initial
Select List. The primary ground was that the appointment process
was vitiated, since under the relevant rules, the written test was
required to carry 85 marks and the interview 15 marks. This
Court dismissed the appeals on the grounds that the appellants
were clearly put on notice when the fresh selection process took
54
place that the written examination would carry 90 marks and the
interview 10 marks. The Court was of the view that the appellants
having participated in the selection process without objection and
subsequently found to be not successful, a challenge to the
process at their instance was precluded. The relevant observations
are as under:
"13. The law on the subject has been crystalized in
several decisions of this Court. In Chandra Prakash
Tiwari v. Shakuntala Shukla, this Court laid down the
principle that when a candidate appears at an
examination without objection and is subsequently found
to be not successful, a challenge to the process is
precluded. The question of entertaining a petition
challenging an examination would not arise where a
candidate has appeared and participated. He or she
cannot subsequently turn around and contend that the
process was unfair or that there was a lacuna therein,
merely because the result is not palatable. In Union of
India v. S. Vinodh Kumar (2007) 8 SCC 100, this Court
held that: "18. It is also well settled that those candidates
who had taken part in the selection process knowing fully
well the procedure laid down therein were not entitled to
question the same (See also Munindra Kumar v. Rajiv
Govil (1991) 3 SCC 368 and Rashmi Mishra v. M.P.
Public Service Commission (2006) 12 SCC 724)".
13.1. It is therefore trite that candidates, having taken part in the
selection process without any demur or protest, cannot challenge the
same after having been declared unsuccessful. The candidates cannot
approbate and reprobate at the same time. In other words, simply
because the result of the selection process is not palatable to a
55
candidate, he cannot allege that the process of interview was unfair or
that there was some lacuna in the process. Therefore, we find that the
writ petitioners in these cases, could not have questioned before a
Court of law, the rationale behind recasting the selection criteria, as
they willingly took part in the selection process even after the criteria
had been so recast. Their candidature was not withdrawn in light of
the amended criteria. A challenge was thrown against the same only
after they had been declared unsuccessful in the selection process, at
which stage, the challenge ought not to have been entertained in light
of the principle of waiver and acquiescence.
13.2. This Court in Sadananda Halo has noted that the only
exception to the rule of waiver is the existence of mala fides on the part
of the Selection Board. In the present case, we are unable to find any
mala fide or arbitrariness in the selection process and therefore the
said exception cannot be invoked.
Cancellation of the entire selection process: Whether justified?
14. In the present case, the entire selection of the appellants has
been quashed by the High Court primarily on the ground of nonavailability of individual award rolls or marksheets awarding marks
individually. Whether such an irregularity would vitiate the entire
56
selection process and set it at naught is the next aspect of the matter
that requires consideration.
14.1. The decision of a three-judge Bench of this Court in Kumari
Anamica Mishra vs. UP Public Service Commission, Allahabad,
AIR 1990 SC 461 involved recruitment to various posts in the
educational services of the State of Uttar Pradesh. There was a twostage recruitment involving a written test and an interview therein. It
was found that after the written examination, due to the improper
feeding of data into the computer, some candidates who had a better
performance in the written examination were not called for interview
and candidates who secured lesser marks were not only called for the
interview but were finally selected. The entire process was cancelled by
the Public Service Commission. In the said context, this Court
observed as under:
“4. We have heard counsel for the parties and are of the
view that when no defect was pointed out in regard to the
written examination and the sole objection was confined
to exclusion of a group of successful candidates in the
written examination from the interview, there was no
justification for cancelling the written part of the
recruitment examination.”
The aforesaid case is therefore representative of a situation
where the cancellation of the entire recruitment process was held to be
not justified since there was no systemic flaw in the written test, and
57
the issue was only with regard to award of marks to the candidates in
the interview. The situation could have been remedied by setting aside
the selection made after the interview stage and calling for a fresh
interview of all eligible candidates if the case so warranted which is
also not so in the instant case.
14.2. In Mohinder Sain Garg vs. State of Punjab, (1991) 1 SCC
662, 1200 candidates were called for the interview, for filling up 54
posts. Though not through a proper course to have been adopted it
was held that it would not vitiate the selection, more particularly when
it could not be said to be tainted with mala fides or ill motive.
14.3. The observations of this Court in Rajesh P.U. are highly
instructive as regards the question, whether, setting aside the entire
selection process would be excessive or disproportionate a remedy in a
given case. The pertinent findings of this Court in the said case are as
under:
“...Applying a unilaterally rigid and arbitrary standard to
cancel the entirety of the selections despite the firm and
positive information that except 31 of such selected
candidates, no infirmity could be found with reference to
others, is nothing but total disregard of relevancies and
allowing to be carried away by irrelevancies, giving a
complete go-by to contextual considerations throwing to
the winds the principle of proportionality in going farther
than what was strictly and reasonably to meet the
situation. In short, the competent authority completely
misdirected itself in taking such an extreme and
unreasonable decision of cancelling the entire selections,
58
wholly unwarranted and unnecessary even on the factual
situation found too, and totally in excess of the nature
and gravity of what was at stake, thereby virtually
rendering such decision to be irrational.”
14.4. In the present case, the entire selection of the appellants was set
aside due to the non-availability of individual award rolls, despite,
signed approval of the final Select List by the members of the Board.
Whether quashing the entire selection process was excessive or
justified, would depend on the selection procedure adopted and
whether the same is arbitrary or reveals any mala fides on the part of
the selection board.
14.5. The selection process adopted in the instant case may be
summarized as under:
i) The process of selection was governed by the 1992 Rules made by
the General Administration Department of the Government of
Jammu and Kashmir.
Rule 9 (i) of the said Rules provided that the Chairman of the
Board may nominate a committee of “one or more members” of
the Board for, inter alia, holding interviews for the purpose of
selecting candidates for being appointed to the State Cadre.
Under Rule 9 (iii), the Chairman may, if he feels necessary
associate with the Selection Committee an Expert/Specialist in
the discipline in which recruitment is to be made.
59
The first proviso to Rule 9 provides that the selection made by
the said Committee shall be approved by the Board before the
same is forwarded to the appointing authority.
For a better appreciation, Rule 9 and 9A of the 1992 Rules
are extracted as under:
“9. Nomination of Committees:
(i) The Chairman may nominate a Committee “which
shall consist of one or more members” of the Board for
conducting examination and for holding interviews and
tests for purposes of selection of candidates for being
appointed to the State Cadre;
(ii)Every such Committee shall be chaired by the
Chairman and where the Chairman is not a member of
the Committee, by a member to be nominated by the
Chairman, and
(iii) Chairman may, if he feels necessary associate with
the selection committee expert/specialist in the
discipline in which recruitment is to be made.
(iv) The Chairman may nominate a Committee of not less
than three persons for conducting and holding
examinations, interviews and tests for purposes of
making selection of candidates for being appointed to
divisional and District Cadre;
Provided that the said Committee shall be presided
over by a member of the Board nominated by the
Chairman and the other members of the Committee shall
be nominated by the Chairman out of the panel or names
drawn up and approved by the Board from time to time in
this behalf. The selection made by the said Committee
shall be approved by the Board before the same is
forwarded to the appointing authority.
Provided further that in respect of selection for the
posts falling in the District cadre, the District Officer of
60
the discipline in which selection is required to be made,
may also be accepted as member in the said Committee.
Provided also that the Chairman of the Board may
constitute District Level Selection Committees for each
district with Deputy Commissioner as Convenor/
Chairman for selection of Patwaris, as one time
exception, for the year 1995 – 96.
“9-A. Notwithstanding anything contained in these rules,
the Government may for any special employment drive
authorize the chairman to constitute following
committees for the conduct of examination/tests and for
holding interviews or both, as the case may be, for
purposes of selection of candidates for being appointed to
the State/Divisional/District cadre posts:
I. State Cadre posts
1. Chairman or any other Member of the Board to be
nominated by the Chairman.
2. Head of the indenting Department or the Secretary
of concerned Administrative Department.
3. Any other officer to be nominated by the Chairman.
II. Divisional Cadre posts
1. Member of the Board to be nominated by the
Chairman, who shall be Convenor of the Committee.
2. Additional Commissioner of the concerned Division.
3. Head of the indenting Department.
4. Any other person to be nominated by the Member of
the Board chairing the Committee.
III. District Cadre Posts.
1. Member of the Board to be nominated by the
Chairman who shall be the Convenor of the Committee.
2. District Employment Officer of the district.
3. District Head of the indenting office/Department.
4. Any other person to be nominated by the Member of
the Board chairing the Committee.
Provided that: -
61
(a) the Chairman may if he feels necessary coopt an
expert, specialist in the discipline in which appointment
is to be made in respect of the State Cadre post;
(b) the Member presiding over the Divisional level
Selection Committee/district level Selection Committee
may if he feels necessary coopt an expert, specialist in
the discipline in which recruitment is to be made in
respect of Divisional/District cadre posts as the case may
be;
(c) The above Committees shall be presided over by the
Chairman/Member of the Board as the case may be;
(d) In case of special circumstances, the Board may
authorize the aforesaid Committee/Committees to
forward the select list to the appointing authority and
this action shall be deemed to have the approval of the
Board;
(e) The District Employment Officers shall be responsible
to receive, compile and short-list applications for district
cadre posts;”
ii) In June 2009, a three-member Selection Committee constituted
by the Chairman of the Board conducted Interviews. The
Committee comprised of Chairman of the Board, Ms. Salma
Hamid and Dr. Samina Farhat. Thereafter, the marks awarded by
the said Selection Committee in the viva-voce/interview and the
marks awarded for the academic qualifications were tabulated for
all candidates by way of a Final Award Roll. The Final Award Roll
was produced by the Board before the High Court and was also
secured by the petitioners through RTI.
iii) On 07th September, 2009, the Board approved the Select List
prepared by the Selection Committee. The approval letter
62
enclosing the final Select List was signed by all seven members of
the Board. Two out of these seven members were members of the
Selection Committee along with a subject expert who was
appointed under Rule 9(iii). The process of preparing the Select
List was as under:
a. Interviews of short-listed candidates were held in a ratio of
1:5.
b. On completion of the interview, the award was sealed by each
member in an envelope and handed over to the Board
through the Convenor for further process.
c. At the time of initiation of the selection process, the sealed
envelopes of the Convenor and Members of the Committee
were opened and fed into the computer for calculation and
addition of marks, obtained in the interview with the
weightage of academic marks as per the criteria framed for
the purpose.
d. The basic data input of interview awards and correction in
academic merit was received through a pen drive for
consolidation and had been fed into the computer by the
Chairman himself, and checked by another member of the
Board.
63
e. The entire record of selection had been perused by the Board
and was accordingly approved.
f. Select List was prepared on the basis of total marks allocated
for academic qualifications as well as marks secured in the
interview.
14.6. In light of the pertinent selection procedure that was followed,
we are unable to hold that the same was mechanical or casual or
suffered from irregularities which were so grave or arbitrary in nature
so as to justify quashing the entire selection process. Further, we are
unable to trace the requirement of individual rolls being signed and
verified by the members of the Selection Board, to any statute or rule.
Therefore, we cannot sustain the finding of the High Court that the
entire selection process was vitiated by such irregularity. The High
Court was not justified in quashing and setting aside the entire
selection process, more so when sixty-four candidates including the
appellants had been serving on the said post for over a decade.
Reliance in this regard may be placed on Trivedi Himanshu
Ghanshyambhai, wherein it was held that merely because the
records could not be produced since they were lost and not available,
the appointment could not be cancelled.
64
15. The next prong of the challenge relates to the competence of the
expert in the Selection Board, Dr. Samina Farhat, Assistant Professor,
Department of Pharmacology. The expert was a doctor by profession
with a Post Graduate degree (MD) and Ph.D. in Pharmacology to her
credit. Rule 9A of the 1992 Rules provides that the Chairman may if
he feels necessary appoint a specialist in the discipline in which
appointment is to be made, as a member of the selection board. In the
present case, it is the contention of the writ petitioners that a person
with a qualification in the field of pharmacy would have been better
suited on the panel. In order to consider if there is any merit in this
contention, it is necessary to discuss the meaning of ‘pharmacology’ as
juxtaposed with ‘pharmacy.’
15.1. According to P. Ramanatha Aiyar’s Advanced Law Lexicon, 6th
Edition, Vol. 3, ‘pharmacology’ is defined as, “the study of drugs.
Applied in analyzing and identifying drugs submitted as evidence.”
‘Pharmacy’ is defined as “a branch of knowledge or trade; the
preparation and dispensing of drugs.”
As per the Oxford Concise Medical Dictionary, 7th Edition,
pharmacology is the science of the properties of drugs and their effects
on the body. Pharmacy on the other hand is the preparation and
dispensing of drugs. It defines a pharmacist to mean a person who is
qualified by examination and registered and authorized to dispense
65
medicines or to keep open a shop for the sale and dispensing of
medicines.
15.2. What emerges on a consideration of the said definitions is as
under:
i) The science of pharmacology and the practice of pharmacy are
both concerned with a study of chemical substances and how
they affect the functioning of the body.
ii) In a nutshell, the main difference between pharmacology and
pharmacy is that pharmacology is the science of developing
and understanding the effects of drugs and other substances,
while pharmacy is the science and practice of collecting,
preparing, standardizing, and distributing drugs to patients
after a medical professional orders a prescription for a drug.
iii) Despite their differences, pharmacology and pharmacy have
some similarities. Both fields are concerned with the use of
drugs in healthcare, and both require an understanding of
drug action, dosage, and potential side effects. Pharmacology
and Pharmacy are both important fields in healthcare, but
they differ in their focus and level of advancement.
Pharmacology is generally considered more advanced than
pharmacy because it involves more complex research into the
66
mechanisms of drug action and the development of new
drugs.
15.3. We therefore, cannot hold that a doctor by profession with a Post
Graduate degree (MD) and Ph.D. in Pharmacology was in any way
underqualified or unsuitable for her role on the Selection Board. In
fact, we think that a pharmacologist is more appropriate to interview
the candidates for the post of drug inspector. Further, it is to be noted
that Rule 9 A provides that the Chairman may if he feels necessary
appoint a specialist in the discipline in which appointment is to be
made, as a member of the selection board. Similarly Rule 9 (iii)
provides that the Chairman may, if he feels necessary associate with
the Selection Committee expert/specialist in the discipline in which
recruitment is to be made. The use of the word ‘may’ would indicate
that the Chairman of the Board has discretion in this regard and there
is no mandatory requirement to appoint on the selection panel a
person having a qualification in pharmacy. To this extent, we affirm
the findings of the learned Single Judge and the Division Bench of the
High Court. We do not find any substance in the arguments of learned
counsel for the respondent/writ petitioners in this regard.
16. This Court has upheld the legitimacy of conducting interviews as
a part of a selection process, even where marks earmarked for the
67
same has been found to be prima-facie excessive, vide Minor A.
Peeriakaruppan etc. vs. State of Tamil Nadu, (1971) 1 SCC 38;
Miss Nishi Maghu vs. State of J & K, (1980) 4 SCC 95.
16.1. This Court in Lila Dhar vs. State of Rajasthan, AIR 1981 SC
1777 made the following pertinent observations as to the importance
of a viva-voce or interview in a selection process:
“It is now well recognised that while a written
examination assesses a candidate's knowledge and
intellectual ability, an interview test is valuable to assess
a candidate's overall intellectual and personal qualities.
While a written examination has certain distinct
advantage over the interview test there are yet no written
tests which can evaluate a candidate's initiative,
alertness, resourcefulness, dependableness,
cooperativeness, capacity for clear and logical
presentation, effectiveness, in discussion, effectiveness in
meeting and dealing with others, adaptability, judgment,
ability to make decision, ability to lead, intellectual and
moral integrity. Some of these qualities may be evaluated,
perhaps with some degree of error, by an interview test,
much depending on the Constitution of the interview
Board.”
16.2. The criteria for evaluation of a candidate’s performance in an
interview may be diverse and some of it may be subjective. However,
having submitted to the interview process with no demur or protest,
the same cannot be challenged subsequently simply because the
candidate’s personal evaluation of his performance was higher than
the marks awarded by the panel. In this case the break up of the
marks referred to above is reiterated as under:
68
Criteria as per the Advertisement
Notification dated 05th May, 2008
Recast Criteria as per the
Corrigendum dated 12th June,
2009
01. Degree in Pharmacy (B.
Pharmacy = 55 points
OR
01. Degree in Pharmacy (B.
Pharmacy = 65 points
OR
02. Degree in Pharmaceutical
Chemistry
OR
02. Degree in Pharmaceutical
Chemistry = 65 points
OR
03. PG in Chemistry with
Pharmaceutical as a special subject
= 55 points
OR
03. PG in Chemistry with
Pharmaceutical as a special subject
= 65 points
OR
04. Associateship diploma of the
Institution of Chemists (India) by
passing the examination with
analyst of drugs and Pharmaceutical
as one of the subjects = 55 points
OR
04. Associateship diploma of the
Institution of Chemists (India) by
passing the examination with
analyst of drugs and pharmaceutical
as one of the subjects = 65 points
OR
05. Graduate in Medicines or
Science of University recognized for
this purpose by the appointing
authority and has at least one year
post graduate training in a
laboratory under (i) Govt. Analyst
appointed under Act (ii) Chemical
examiner of (iii) the Head of an
Institution specially approved for the
purpose by the appointing = 55
points
05. Graduate in medicines or
Science of a University recognized
for this purpose by appointing
authority and has at least one year
post graduate training in a
laboratory under (i) Govt. analyst
appointed under act (ii) chemical
Examiner of (iii) the Head of an
Institution specially approved for the
purpose by the appointing authority
= 65 points
06. P.G. Pharmacy/medicine = 25
points
06. P.G. Pharmacy/ Medicine/
Pharmaceutical/ Chemistry = 10
points
07. Viva Voce = 20 points 07. Ph.D = 05 points Across the
Board
Total = 100 points 08. Viva-voce = 20 points
Total = 100 points
Only 20 out of 100 marks were allocated for interview/viva-voce.
The same is only 20% of the total marks which cannot be said to be an
excessive proportion out of the total marks. Further Courts cannot sit
in judgment over the award of marks by an interview panel. That is
69
best left to the judgment and wisdom of the interview panel. In the
above premise, we do not think there is any merit in the contention of
the writ petitioners regarding the award of marks to the candidates
who appeared for viva-voce before the panel. Moreover, the award of
80% of the total marks is on objective criteria depending upon the
educational qualification of the individual candidates.
16.3. Further, it appears to us the criteria was recast vide Corrigendum
dated 12th June, 2009, by increasing the weightage accorded to
candidates possessing a Degree in pharmacy or pharmaceutical
chemistry and advanced qualifications such as post-graduate degrees,
Ph.D etc., with a view to incentivise more qualified persons who had
applied for the said posts. Recasting the criteria was only with regard
to allocation of marks for the respective educational qualification of the
candidates. In our view, it was with a view to preserve the standards of
the selection process and was not motivated by mala fide or oblique
motive. Higher the qualification a candidate possessed, higher marks
were awarded. In other words, the minimum marks awarded for
educational qualification was 65 and could increase to 80 depending
on the higher qualifications of the candidates. Therefore, we are unable
to interfere with the selection process on the ground that the award of
marks was recast unilaterally. The reallocation of marks based on the
educational qualification was in recognition of the higher qualification
70
of the candidates which cannot be termed to be arbitrary. It is a no
brainer that any candidate who was aggrieved by the recast of marks
would either withdraw his candidature or challenge the Corrigendum
dated 12th June, 2009 at a preliminary stage in the selection process.
However, the writ petitioners did not do so. Having participated in the
selection process without any demur or protest, the writ petitioners
cannot challenge the same as being tainted with mala fides, merely
because they were unsuccessful.
17. One of the directions issued by the learned Single Judge in the
Writ Petitions was to retain the successful candidates but, at the same
time, to consider the case of the writ petitioners for appointment in the
available posts. But if it was not possible to accommodate the writ
petitioners, owing to non-availability of posts, then the entire selection
was quashed and set aside and a fresh Selection Committee was to be
constituted to conduct fresh interviews of all the candidates who had
earlier appeared before it and a fresh Select List was to be prepared.
Further, till the said exercise was to be carried out, the selected
candidates were to be continued. The Division Bench, however,
quashed the Selection List in its entirety and directed and observed
that no further appointments could be made against the vacancies
that may have occurred subsequent to the appointments already made
and that a fresh selection was to be made by re-advertising the posts.
71
Consequently, the selection of drug inspectors was quashed in toto
and a direction was issued to complete the exercise afresh within six
months and till then, the appointed candidates as drug inspectors
were to be continued.
We find that the aforesaid directions issued by both the learned
Single Judge as well as by the Division Bench were not in accordance
with law and hence, the said directions have to be quashed.
18. In light of the aforesaid discussion, the present appeals are
allowed. The judgment of the learned Single Judge of the High Court of
Jammu and Kashmir at Srinagar, dated 18th December 2015 and the
impugned judgment passed by the Division Bench, dated 29th October,
2021, are set aside. Consequently, the judgment of the High Court of
Jammu and Kashmir at Jammu dated 6th July, 2017 following the
order of the learned Single Judge of the High Court of Jammu and
Kashmir at Srinagar, dated 18th December, 2015, is also set aside.
18.1. The candidates who were declared successful in selection process
conducted on 8th September, 2009, for appointment of drug inspectors
in the State of Jammu and Kashmir, and the appointments published
on 12th November, 2009, were permitted to continue in service by
virtue of stay of the impugned judgment. The stay order is made
absolute.
72
18.2. All pending applications stand disposed of in the aforesaid
terms.
No order as to costs.
……………..………………….J.
[K.M. JOSEPH]
………..………..…………….J.
[B.V. NAGARATHNA]
New Delhi;
28th March, 2023.
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