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)

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

1194/2022, were selected and appointed as drug inspectors and are

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,

(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

(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)

55 Points

ii. Degree in Pharmaceutical Chemistry

55 Points

iii. P.G. in Chemistry with

Pharmaceutical as a special subject

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

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

Degree in Pharmaceutical Chemistry

P.G. in Chemistry with Pharmaceutical as

a special subject

Associateship diploma of the Institution of

Chemists (India) by passing the

examination with analyst of drugs and

Pharmaceutical as one of the subjects

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

6. P.G. Pharmacy/ Medicine/

Pharmaceutical Chemistry

10 Points

7. Ph.D. 05 Points

8. Viva-Voce 20 Points

Total 100

points

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.

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.

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.

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:

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

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

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,

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

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

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

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”

was omitted by the Division Bench. The subsequent part of

direction (ii) i.e., “The select list published by respondent Board on

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

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

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

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

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.

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.

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

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.

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

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

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

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.

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

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

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

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

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

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.

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

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

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

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.

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.

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

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.

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.

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

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.

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?

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

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...

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

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

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.

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

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

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

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

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

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,

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.

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

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: -

(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;

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

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.

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.

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

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

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

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:

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

01. Degree in Pharmacy (B.

Pharmacy = 65 points

02. Degree in Pharmaceutical

Chemistry

02. Degree in Pharmaceutical

Chemistry = 65 points

03. PG in Chemistry with

Pharmaceutical as a special subject

= 55 points

03. PG in Chemistry with

Pharmaceutical as a special subject

= 65 points

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

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

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

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

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.

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.

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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Indian Constitution

TAJVIR SINGH SODHI & ORS. VS. THE STATE OF JAMMU AND KASHMIR & ORS.

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