Full Judgment Text
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CASE NO.:
Appeal (civil) 5430-5434 of 2004
PETITIONER:
SANJAY KUMAR AND ORS.
RESPONDENT:
NARINDER VERMA AND ORS.
DATE OF JUDGMENT: 08/05/2006
BENCH:
B.N. SRIKRISHNA & LOKESHWAR SINGH PANTA
JUDGMENT:
JUDGMENT
SRIKRISHNA, J. :
This group of appeals arises from the same set of facts and from the same
impugned judgment of the Division Bench of the High Court of Jammu &
Kashmir, hence, it would be convenient to decide all these appeals by a
common judgment.
On 12.6.1997 the Government of Jammu & Kashmir, Power Development
Department, by a notification amended the Jammu & Kashmir Power
Development Department (Subordinate) Service Recruitment Rules,
1981 (hereinafter referred to as "the Rules"). The amendment was as
under:
"(A) In part ‘A’ of Schedule II (Executive), for class-I, the following
shall be substituted, namely :-
‘I’‘A’ Junior Engineer (Elect) 100% by promotion from
Grade-I (Selection category ‘B’ provided that :-
Category) 2125-3600
(a) Degree Holders possess at
least 5 years service as
such;
and
(b) Diploma Holders possess at
least 10 years service as
such
‘B’ Junior Engineer (Elect) Bachelors Degree in Electric/Electronic
Grade-II 1400-2300 Engineering or three years Diploma
in Electric/Electronic Engineering.
(a) 85% direct recruitment; and
(b) 15% by promotion from amongst
three years Diploma Holders in
Electric/Electronic Engineering
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from Recognised Polytechnic
Institution having at least 5 years
service in Class-III category ‘A’.
B. The following Notes shall be added after note (2) at the end of the
Part (A) of the schedule :-
(3) ‘The existing Junior Engineers (Degree Holders) in the pay scale of
2000-3400 (revised) shall, however, retain their own pay scale till they
are promoted as Assistant Engineers (Elect). The posts thus vacated by them
on their promotions shall be automically (sic) converted into the scale of
Junior Engineer Grade-II.
(4) Degree Holders in Electric/Electronic Engineering on recruitment as
Junior Engineer Grade-II shall be given a higher start on Rs. 1720 per
month in the pay scale of Rs. 1400-2300.
(5) The Diploma Holders having acquired AMIE (Section ‘A’& ‘B’)
qualification shall also on appointment as Junior Engineers Grade-II be
entitled to a higher start of Rs. 1720 per month.
(6) Similarly, a Diploma Holder functioning As (sic) Junior Engineer Grade-
II and drawing pay at a stage lower then Rs. 1720 per month shall be
entitled to refixation of his pay at the stage of Rs. 1720 per month on
acquiring AMIE (section A&B) qualification’."
The amended Rules require that for being eligible as a Junior Engineer
(Electrical) a candidate must possess either a Degree or Diploma in
Electric/Electronic Engineering. The Rules nowhere provide for any
preferential treatment for either category of candidates. The Power
Development Department made a requisition to the Service Selection
Recruitment Board (hereinafter referred to as "the Board") for selecting
Junior Engineers (Electrical) Grade-II. On a query raised by the Board the
Power Development Department clarified on 19.9.1997 that "there is no
need/justification for any quota to be laid down for intake of Diploma
holders or Degree holders through direct recruitment as Junior Engineers
(Electrical/Electronic)" and, further that, selection for Junior Engineers
had to be entirely on the basis of merit. It was further clarified that
"The methodology of determining merit amongst candidates having different
educational qualification should be decided by the SSRB, to whom these
posts have been referred."
An advertisement was issued inviting applications for the post of Junior
Engineers (Elect) Grade-II in the grade of Rs. 1400-2300 (pre-revised). The
prescribed qualification for the said post was indicated in the
advertisement as "BE/AMIE (A&B) India/ Diploma in Electric/Electronic
Engg." Several candidates holding either a Diploma or a Degree, as
prescribed, applied for the post. They were called for interviews for
selection. Out of the 2229 candidates, who had applied, about 300 were
selected and put on the Selection List and some more candidates were
maintained on a waiting list. The result of the selection process was
published on December 25, 1998. The selected candidates joined their duties
some time in 1999. Out of the 300 selected candidates, 153 were Degree
holders and 147 were Diploma holders. Some of the unsuccessful Degree
holders challenged the Selection List by their writ petitions. The learned
Single Judge who heard the writ petitions took the view that the writ
petitioners having participated in the selection process and failed, were
estopped from challenging the criteria adopted for the selection. The
learned Single Judge also held that the criteria adopted had been made
applicable uniformly to all the candidates; 80 points had been given for
educational qualifications and 20 marks had been assigned for the viva
voce, which was a proper method of selection and no objection could be
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taken thereto. In this view of the matter, by a judgment dated 30.4.1999
the learned Single Judge dismissed the writ petitions.
A number of Letters Patent Appeals were carried against the dismissal of
the writ petitions. The Division Bench of the High Court by the common
impugned judgment set aside the judgment of the learned Single Judge,
allowed the Letters Patent Appeals and directed re-framing of the criteria
for selection for assessment of the candidates on the basis of re-framed
criteria. Being aggrieved thereby, the present appeals have been filed.
Some are by the selected candidates, some by the unselected candidates and
some by the Selection Board.
The Division Bench observed, "The Degree holders being higher in
qualification and that the Executive while prescribing the eligibility
qualification has not prescribed the method and procedure to assess the
suitability and merit of the candidates possessing un-equal or superior
qualification to that which can make the post functional. The Degree
holders cannot thus be equated with Diploma holders. Criterian of 80% marks
cannot be applied uniformally to both differently situated. Therefore, the
selection to the extent cannot be maintained and the judgment of the
learned Single Judge needs interference. "In this view of the matter, while
allowing the Letters Patent Appeals, the High Court gave the following
directions :
"I. Criteria, reserving 80 marks for eligibility qualification and
applying these marks uniformally, proportionate to the marks secured in
Diploma and Degree Courses, to assess the merit and suitability of the
Degree holders vis-a-vis Diploma holders is set aside.
II. 20 marks for Viva-voce are maintained. The Viva-voce test and its
award by the Selection Committee, as a consequence of the Vica-voce, is
also maintained.
III. The Board shall re-frame the criteria within 80 marks, reserved for
eligibility qualification, giving adequate weightage to the higher
qualification of Degree; and
IV. The candidates shall be re-assessed by the Board according to the
re-framed criteria for determining their merit and suitability and issue
the Select List before August 31, 2000."
The grievance of the Diploma holders-appellants in these appeals is that
the High Court was wholly, unjustified in interfering the process of
selection and directing the State to grant higher weightage to Degree
holders, although there is no such weightage given to Degree holders under
the Rules. Learned senior counsel appearing for the appellants pointed out
that the Rules, as framed, had never been challenged in the writ petitions.
He urged that once the rules are to be followed, it is not open to the High
Court to ignore the rules and introduce a criterion which is not even
contemplated by the applicable rules.
Our attention was invited to the amended Rules, which do not make a
distinction between Degree holders and Diploma holders at the stage of
direct recruitment. However, at the stage of promotion, such a distinction
is maintained. The post of Junior Engineer (Elect) Grade-I is a promotional
post, which is to be filled only by promotion from the category of Junior
Engineer (Elect) Grade-II. While the appointment to the latter feeder
category was equally open to Degree holders or Diploma holders without
distinction : For the purposes of promotion to higher post of Junior
Engineer (Electrical) Grade-I, Degree holders need to possess only a
minimum of 5 years service while Diploma holders require at least 10 years
service. Further, the Rules also make a distinction between Degree holders
and Diploma holders, in that the Degree holders on recruitment as Junior
Engineer (Elect) Grade-II are given a higher start in the pay scale.
Learned counsel, therefore, contended that where the Executive thought it
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necessary to make a distinction between degree holders and Diploma holders
by according higher weightage to Degree holders, the Rules had been so
framed. As indicated in the Rules, the higher weightage to Decree holders
was available by way of a higher start and at the time of promotion to the
higher category. Such differentiation or difference in weightage was not
available under the Rules at the time of direct recruitment to the lower
post of Junior Engineer (Elect) Grade-II. It was, therefore, submitted on
behalf of the appellants that, the High Court was not justified in making a
departure from the Rules and introducing its own criteria of higher
weightage in favour of Degree holders in the manner of recruitment.
Learned counsel further contended that, once that Rules had been framed in
exercise of the Constitutional powers by the Executive (which were not even
challenged in the writ petitions), it was not open to the High Court to
depart therefrom. It is, therefore, contended that the Rules have an
inbuilt system of higher weightage in favour of Degree holders, as already
indicated, and if further weightage were to be given, as directed by the
High Court, then the Diploma holders, would be totally out of the fray. Any
such additional weightage given by the High Court would be unjust and
inequitable. The plea of the Diploma holder is supported by the learned
counsel appearing for the Board in Civil Appeal Nos. 5446-5450/2004. The
learned counsel also urged that there was no challenge made to the Rules
and, therefore, it was impermissible for the High Court to depart from the
Rules.
Reliance was also placed by the learned counsel for the appellants
on the judgment of this Court in University of Cochin v. N.S.
Kanjoonjamma and Ors., [1997] 4 SCC 426 to canvass that where the
concerned rules are not challenged and the candidates participate
in the selection process and become unsuccessful, such candidates
are estopped from challenging the procedure thereafter. The
reliance on the judgment appears to be justified.
Our attention was also drawn to the observations of this Court made in
Union of India and Anr. v. N. Chandrasekharan and Ors., [1998] 3 SCC 694
(Vide paragraph 13) in support of the same proposition.
Mr. Raju Ramachandran, learned senior counsel appearing for the Third
Respondent in Civil Appeal Nos. 5430-34/2004, however, urged that one of
the grounds of challenge before the Division Bench was that the statutory
qualification was discriminatory. He, therefore, contended that in view of
the said contention it was open to the High Court to read down the
offending rule instead of striking it down. Having read the portion of the
impugned judgment on which this argument is based, we are not satisfied
that such a contention was really urged. It is not in dispute that the writ
petitions were not directed towards challenge to the applicable Rules.
Merely because an argument was made in the Letters Patent Appeal that the
Rules were discriminatory, it was not open to the High Court to have struck
down the Rules. The Letters patent Appeals could have proceeded only on the
basis of the writ petitions and the judgment of the learned Single Judge,
which was being challenged. There being no substantive challenge to the
Rules, there was no question of striking down the Rules, nor was there any
situation of reading down the Rules. Reliance placed by Mr. Raju
Ramachandran on the judgment of this Court in Umesh Chandra Shukla v. Union
of India and Ors., [1985] 3 SCC 721 is of no avail. That was entirely a
different situation where this Court was of the view that the applicable
Rules had not been followed as the select list had been interfered with by
exercising a power which did not arise from Rule 18 of the applicable Rules
to fix the minimum marks in order to include candidates in the final select
list. Such is not the situation before us and, therefore, this authority is
of no help to us.
The contention of Mr. Kaushik, learned counsel appearing in Civil Appeal
No. 5451/04 for the selected Degree holder candidates also echoes the
argument of Mr. Ramachandran. He further contended that one of the
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appellants in Civil Appeal No. 5451/04 is a disabled person, who has not
been given his right under the provisions of the Jammu &Kashmir Persons
with Disabilities (Equal Opportunities, Protection of Right & Full
Participation) Act, 1998 (hereinafter referred to as the "1998 Act"). He,
therefore, contended that the appellant who has been appointed and
continues to be in service since 2002 ought not to be disturbed. We express
no opinion on this issue. If it is found by the concerned authority that
the appellant is a disabled person entitled to be appointed by reason of
the provisions of the 1998 Act, then his service may not be disturbed.
The respondents in Civil Appeal Nos. 5435-5439/04, and the interveners who
are now in the Select List as a result of the new criteria imposed by the
impugned judgment of the High Court, contended that the new criteria
formulated by the State pursuant to the direction of the High Court are
more sophisticated and enable better appreciation of merit than the ones
which were there under the Rules. It is contended that since the new
criteria are more rational, this Court should refrain from interfering with
the judgment of the High Court Learned counsel for the respondents also
claimed that since these screening and selection of the candidates had
already been taken place in accordance with the new criteria, we should
direct their retention in service.
Conclusion :
Civil Appeal Nos. 5430-5434/2004, 5435-5439/2004, 5440-5444/2004.
5446-5450/2004 and 5451/2004 :
Having heard the learned counsel on both sides for the different
contending parties, we are of the view that the impugned judgment
of the High Court needs to be interfered with. As already observed,
there was no challenge to the Rules in the writ petition. The
learned Single Judge was, therefore, justified in applying the
Rules and upholding the selection process made by the State
authorities. It was wholly unjustified on the part of the Division
Bench to have interfered with the selection process on the basis of
the criteria which were not laid down in the Rules and that too on
an erroneous appreciation of the Rules. The High Court failed to
see that the Rules made no distinction, whatsoever, between Degree
holders and Diploma holders at the stage of recruitment for the
purpose of minimum qualifications. In other words, no distinction
was made between the two categories at the stage of recruitment,
but a greater weightage was given to the Degree holders in the
post-recruitment period in the form of a higher starting pay and
also lesser number of years service requirement for qualifying for
promotion to the higher post. We agree with the contention
expressed by the learned counsel for the appellants that there was
sufficient inbuilt balance maintained between the two categories of
candidates and the impugned judgment of the High Court completely
throws the Rules out of balance. What the Executive did not think
fit to do by prescription in the Rules, could not have been done by
a judicial fiat.
In the result, the appeals are allowed and the impugned judgment of
the Division Bench of the High Court is set aside, and the judgment
of the learned Single Judge dismissing the writ petitions is
affirmed.
Civil Appeal No. 5445/2004 :
Consequently, this appeal arising out of the judgment of the Jammu
& Kashmir High Court in Contempt Petitions Nos. 150, 152, 159 and
160 of 2001 is dismissed.
No order as to costs.
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