Full Judgment Text
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CASE NO.:
Appeal (civil) 3734 of 2002
PETITIONER:
Inder Parkash Gupta
RESPONDENT:
State of Jammu & Kashmir & Ors.
DATE OF JUDGMENT: 20/04/2004
BENCH:
CJI, S.B.Sinha & S.H. Kapadia.
JUDGMENT:
J U D G M E N T
With CA Nos.3735/2002, 3736/2002,
3737/2002, 3738/2002 and 3739/2002
S.B. SINHA, J :
INTRODUCTION:
These six appeals involving common questions
of law and fact were taken up for hearing and are
being disposed of by this common judgment.
BACKGROUND FACTS:
Under the Health Ministry of the State of
Jammu and Kashmir there are two different
departments, medical health and medical education.
The employees working in those departments are
borne on separate cadres. The Respondents 3 to 10
before the High Court were appointed as ad hoc
lecturers in medicine in the medical education
department by the State of Jammu and Kashmir. No
recommendation of the Jammu and Kashmir Public
Service Commission was obtained therefor. The
said ad hoc appointments were set aside by this
court in Jammu and Kashmir Public Service
Commission Vs. Dr.Narender Mohan & Ors. reported
in 1994 (2) SCC 630 wherein the State was directed
to refer the vacancies to the Commission and make
appointments in terms of the recommendations made
by it in that behalf. Pursuant thereto and in
furtherance thereof, an advertisement was issued
by the Commission for some posts of Lecturers on
or about 8.3.1994 in the Health and Medical
education department. The educational
qualification prescribed therefor was
"M.D.(Medical/general medical) MCRF, FRCP.
Speciality Board of Internal Medical (USA) or an
equivalent qualification in the subject with
experience as Registrar/Tutor/Demonstrator/Tutor
or Senior Resident for a period of two years in
the discipline of Medicine, in a teaching medical
institution recognised by the Medical Council of
India. The notification issued by the Public
Service Commission further stipulated that the
candidates who possessed any experience in the
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line, any distinction in sports/games, NCC
activities should furnish certificate, along with
the application, to that effect.
It is not in dispute that the appointment in
the posts of Lecturers was governed by a statutory
rule called Jammu & Kashmir Medical (Gazetted)
Service Recruitment Rules, 1979 (for short, 1979
Rules; Rule 8 whereof reads thus:-
"8. Method of recruitment: While making
selections.-
(1) to the posts in the teaching wing of
the service, the Commission/
Department Promotion Committee shall
have regard to the following,
namely,-
(a) Academic qualifications of the
candidates;
(b) Teaching experience;
(c) Research experience; and
(d) Previous record of work, if
any."
The Public Service Commission, however,
framed a rule in the year 1980, known as Jammu &
Kashmir Public Service Commission (Business &
Procedure) Rules, 1980 (for short, 1980 Rules )
although there did not exist any provision
therefor. Rule 51 of 1980 Rules is as under:-
"Rule 51. The assessment at an
interview shall be based on the following
principles:-
A. Performance of the candidate in the
viva voce test
...100 Marks
B. Academic Merit \026
(i) Percentage of marks obtained in
the basic (i.e., minimum
qualification prescribed for the
post
...25 Marks
(ii) Higher qualification than the
basic (minimum) prescribed for
the post such as Diploma or
Degree in the concerned
Speciality/Superspeciality/
Subject/Discipline-
(a)Diploma\026 2 Marks]subject to
(b)Degree - 5 Marks]a maximum of
]5 marks
C. Experience acquired by the candidate
in the concerned Speciality/
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Superspeciality/Subject/Discipline
(i) exceeding 1 year
but not 2 years ...2 marks
(ii) for excess
2 years - for every full year
1 mark subject to a
total of 5 marks
including those under
(i)
D. Sports/Game :
Distinction in sports/games (i.e.,
representing a University, State or
Region in any Sports/Games.
...3 Marks
E. Distinction in NCC activities (i.e.,
having held the rank of Junior Under
Officer or Senior under officer or
having passed the top grade
certificate examination of NCC).
...2 Marks
Total A to E ...140 Marks"
The Commission interviewed the candidates in
terms of Rule 51 aforementioned.
Upon taking the vice voce test and
considering the materials on records, the public
Service Commission made recommendations pursuant
to or in furtherance whereof, the Respondent Nos.3
to 10 were appointed by the State.
Writ Petitions before the High Court:
Questioning the validity of the Rule 51 of
1980 and consequently the selection and
appointment of the Respondents No.3 to 10, a writ
petition was filed by Shri Inder Parkash Gupta,
inter alia, contending therein that the
Respondents No.3, 6 & 9 were not eligible to be
considered for appointment to the said posts as
they did not possess requisite experience of two
years as Registrar/Tutor. It was further alleged
that the Respondent No.10 at that time was
overage. Further contention of the writ
petitioner was that his research work, experience
and publications had not been taken into
consideration by the Commission. In particular,
his higher qualification of D.M. had not been
given due weightage.
It was also urged that keeping in view the
decision of this Court in J & K Public Service
Commission V. Dr. Narender Mohan [1994 (2) SCC
630] wherein the appointments of Respondent Nos. 3
and 10 as ad hoc Lecturers have been quashed, the
purported experience gained by them in the said
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capacity could not have been taken into
consideration by the Commission. The selection
made by the Commission was said to be arbitrary
and illegal as the criteria laid down in Rule 51
of 1980 Rules had been applied to assess the merit
and suitability of the candidates ignoring Rule 8
of 1979 Rules whereby and wherein eligibility
criterion and method of recruitment were laid
down.
A further contention was raised by the said
writ petitioner to the effect that 100 marks
earmarked for viva voce test in Rule 51 is
unreasonable and excessive.
The State of Jammu & Kashmir did not file any
counter affidavit but Public Service Commission
did. The private respondents also filed their
counter affidavits.
The writ petition having regard to the
importance of the questions involved was referred
to a Full Bench for its decision. The Full Bench
by its judgment dated 30.7.1999 passed in SWP
No.211 of 1994, for all intent and purport
accepted the major contentions raised on behalf of
the writ petitioner/appellant holding:-
"1. The Commission has the
competence and jurisdiction to
frame rules for conducting its
business such as Rules 1980;
2. Rule 51 of Rules 1980 should be
re-framed by the Commission in
accordance with the observations
made in the course of this
judgment.
3. The selection of selected
candidates made by the
Commission is not disturbed
subject to the relief granted to
the petitioner;
4. The petitioner shall be treated
to have been selected and placed
in the select panel above
respondents 3 and 9 who in turn
shall be the selected candidates
in the select panel after
respondent no.4 and the
petitioner. The petitioner shall
further be entitled to all
consequential service benefits."
The writ petitioner, Inder Parkash Gupta has
filed an appeal thereagainst which has been marked
as C.A.No.3734/2002 and the State has filed an
appeal which has been marked as 3736/2002.
One Dr. Vinay Rampal who was not a party in
the writ petition has filed an appeal which has
been marked as C.A.No.3735 of 2002 against the
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judgment.
An order of Jammu & Kashmir High Court passed
by a learned single Judge dated 5.5.1997 in a
batch of writ petitions which were disposed of
following the Full Bench decision of this Court is
the subject matter of other three appeals. A
further contention was raised in the said writ
petitions to the effect that even assuming Rule 51
of 1980 Rules to be valid, as it prescribed
certain marks to be allotted, the same should be
allotted to the superspeciality post which the
concerned person had been holding and not his
experience in any other capacity. The said
appeals are marked as Civil Appeal Nos.3737/2002,
3738/2002 and 3739/2002.
It is not in dispute that the Public Service
Commission proposed a select list of 16 candidates
for appointment. Dr.Inder Parkash Gupta’s name
appeared at Sl.No.13 therein. The private
respondents whose names appeared at Sl.No.3 to 10
of the select list were appointed. Two posts were
kept in abeyance as the matter regarding
reservation was pending before the State
Government.
It, however, stands admitted that during the
pendency these appeals the proceedings the State
of Jammu & Kashmir issued a notification dated
22.5.2002 whereby and whereunder the appellant
herein Inder Parkash Gupta was given promotion in
terms of the judgment of the High Court but the
same had been applied prospectively and without
giving any monetary and seniority benefits to Shri
Gupta.
High Court Judgment:
The High Court having regard to the pleadings
of the parties and submissions made before it
formulated the following questions:-
"1. Whether the Commission has the
competence and jurisdiction to frame
the Jammu and Kashmir Public Service
Commission (Conduct of business and
Procedure) Rules, 1980?
2. Whether the selection made applying
criteria prescribed under Rule 51 of
the Rules (supra), has the effect of
ignoring Rule 8 of the Jammu &
Kashmir Medical (Gazetted) Service
Recruitment Rules, 1979, which
prescribes the statutory method of
recruitment to the posts in teaching
wing?
3. Whether the experience as ad hoc
lecturer can be counted as
experience gained as Registrar/
Tutor, Demonstrator/Tutor or Senior
Resident/Tutor to meet the
requirement of statutory eligibility
condition to seek consideration for
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selection and appointment as
lecturer?
4. Whether 100 marks earmarked for viva
voce test and 40 marks for record as
per the criteria contained in rule
51 (supra), are excessive and
capable of turning the merit into
demerit in view of the judgments of
the Supreme Court and thus Rule 51
needs re-consideration?
5. Whether the selection of respondents
6 to 10 and particularly of
respondents 3,6,9 & 10 is bad being
not in accordance with the statutory
method of selection and is also the
result of arbitrary selection?"
As regard question No.1, it was answered in
the negative stating that although no such power
is expressly conferred upon the Commission but
proceeded to hold that the Commission had the
competence and jurisdiction to frame such
regulatory procedural rules for conduct of its own
business and this power is impliedly granted by
the enactment. As regard question No.2, the High
Court was of the opinion that Rule 8 of 1979 Rules
prevailed over Rule 51 of 1980 Rules holding that
no additional qualification can be attached or
added to the prescribed eligibility qualification
or method of selection by the Commission holding:-
"Thus, the Commission has not properly
followed and applied the method of
selection relating to the service, while
making selection, prescribed under rule 8
of Rules 1979."
As regard the eligibility of the Respondents
3, 6 & 9, the High Court noticed that the said
respondents did not possess requisite experience
observing that the Commission did not specifically
explain as to how these Respondents were said to
have possessed two years experience as Registrar,
Demonstrator or a Senior Resident. It was held:-
"Respondent No.3 Dr.Jaipal Singh, is
having experience as Registrar only of 22
months whereas Respondent No.9
Dr.Jatinder Singh is having experience of
20 months 27 days which is less than two
years."
As regard the question No.4, the High Court
answered the same in the affirmative relying on
various decisions of this Court. It was held that
in Engineering Service there is no such rule
providing statutory method of selection as is
found in Rule 8 of 1979 Rules holding:-
"Rule 51 providing 100 marks for viva
voce against 40 for record, makes a
departure and is apparently contrary to
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the law laid down by the Supreme Court
and necessitates re-consideration of Rule
51 for the added reason that there is no
consensus of judicial opinion rendered in
Abdul Wahid Zargar’s case vis-‘-vis the
judgments of the Supreme Court that marks
for viva voce test could exceed the marks
assigned for record/academic merit, where
the selection is made on the basis of
interview alone. There is another reason
also that Rule 51 has not taken care of
Rule 8 of Service Rules 1979, consequence
whereof is that the statutory method of
selection has not been comprehensively
followed and adopted in the rule. For
these reasons Rule 51 is required to be
recast."
While answering question No.5, the High Court
noticed that no marks had been assigned for the
research experience, publications or previous
record of work, which could not be ignored as
there was a statutory obligation upon the
Commission to make selection according to the
statutory rules governing the service and further
noticing that the Respondent Nos.4, 5 & 7 (namely,
Masood Tanvir Bhat, Samia Rashid and Parvez Ahmed
Shah) could not secure any mark out of the 15
marks as they did not possess the requisite
research experience etc. and were not found
entitled thereto but despite the same had been
selected as higher marks were allotted to them in
the viva voce test. It was held:-
"It is established from the record that
the selection has been based upon 15
marks for record (as 25 marks could not
be utilised) and 100 marks for interview.
The claim of the respondent-Commission
that 40 marks have been taken into
consideration for record while applying
Rule 51, is not forthcoming from the
record maintained by the Commission.
The Petitioner is admittedly possessed of
the higher qualification and record of
research experience, publications etc. in
comparison to the other selected
candidates. Respondents 3 and 9 are not
having any such record. The petitioner
has been assigned minimum marks in the
viva voce which has down-graded him in
the merit list of the candidates supplied
to the court even though he is D.M. The
Commission has turned the merit of the
petitioner into de-merit by giving
minimum marks..."
Despite such findings, the High Court refused
to set aside the entire selection on the premise
that the same had been made long ago and one of
the respondents had been promoted and proceeded to
dispose of the writ petition with the directions
as noticed hereinbefore.
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Submissions:
Mr.Ranjit Kumar, learned counsel appearing on
behalf of the appellant would submit that Rule 51
of 1980 Rules framed by the Public Service
Commission is not statutory in nature. He would
urge that keeping in view the advertisement
issued, the Commission was bound to scrupulously
comply with the requirements as regard
qualification etc. and should have strictly
applied Rule 8 of 1979 Rules which is admittedly
statutory in nature. The Learned Counsel would
further contend that as the Commission had no
jurisdiction to frame such rules, the same should
have been declared ultra vires by the High Court.
Mr.Ranjit Kumar would urge that Section 133 of the
Jammu and Kashmir Constitution which is in pari
materia with Article 320 of Constitution of India
clearly provides that only in certain situations
the Governor can frame regulations as a result
whereof the necessity to consult the Commission
may be done away with. The Rules framed by the
Public Service Commission does not also satisfy
the test laid down in the proviso appended to
Section 133 of the State Constitution or for that
matter Article 320 of the Constitution of India
and in any event the same having not been laid
before the Legislature as is mandatorily required
under sub-section (4) thereof, the selection held
pursuant to or in furtherance of Rule 51 of 1980
Rules must be held to be wholly illegal and
without jurisdiction.
The Learned Counsel Kumar would argue that
having regard to the findings arrived at by the
High Court, the writ petition could not have been
disposed of in the manner as was sought to be done
inasmuch as some of the private respondents
admittedly did not have the requisite
qualification or experience to be appointed.
Merit of the appellant, it was contended, having
admittedly been turned into demerit as was found
by the High Court, relief by way of solace given
to the appellant by placing him respondent No.6 &
9 must be held to be insufficient and he, in any
event, deserved to be placed above some other
respondents in view of the fact that he had not
been assigned 5 marks for higher qualification.
In any view of the matter, awarding of 100 marks
in viva voce examination out of the total 115
marks (as no marks have been awarded for academic
merit) was bad in law.
The learned counsel would further submit that
as some of the respondents did not have two years’
experience and as admittedly Respondents No.3 to 5
did not have any higher qualification, there was
no reason as to why the entire selection was not
set aside. Lapse of time in selection of the
candidates may not itself be sufficient ground to
uphold his selection, the learned counsel would
urge, having regard to the seniority of the
petitioner and further having regard to the fact
that all the private parties being in the service
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of the State, they could only be reverted back to
their parent departments and would not be out of
job.
Mr. Anis Suhrawardy, learned counsel
appearing on behalf of the State of Jammu and
Kashmir, on the other hand, would submit that
keeping in view the fact that appellant Inder
Parkash Gupta had already been promoted and
furthermore in view of the subsequent event this
Court should not interfere in the matter.
No submission was made on behalf of any other
parties to the appeals.
Analysis:
Section 133 of the Jammu & Kashmir Medical
(Gazetted) Service Recruitment Rules, 1979
admittedly were issued under Section 124 of the
Jammu and Kashmir Constitution which is in pari
materia with Article 309 of the Constitution of
India. The said rules are statutory in nature.
Public Service Commission is a body created under
the Constitution. Each State constitutes its own
Public Service Commission to meet the
Constitutional requirement for the purpose of
discharging its duties under the Constitution.
Appointment to service in a State must be in
consonance with the constitutional provisions and
in conformity with the autonomy and freedom of
executive action. Section 133 of the Constitution
imposes duty upon the State to conduct examination
for appointment to the services of the State. The
Public Service Commission is also required to be
consulted on the matters enumerated under Section
133. While going through the selection process
the Commission, however, must scrupulously follow
the statutory rules operating in the field. It
may be that for certain purposes, for example, for
the purpose of short-listing, it can lay down its
own procedure. The Commission, however, must lay
down the procedure strictly in consonance with the
statutory rules. It can not take any action which
perse would be violative of the statutory rules or
makes the same inoperative for all intent and
purport. Even for the purpose of short-listing,
the Commission cannot fix any kind of cut off
marks. [See State of Punjab & Ors. vs. Manjit
Singh and Ors. [2003 (11) SCC 559].
Rule 8 mandates that while selecting the
teaching wing of the service, the Commission must
have regard to the academic qualification of the
candidate, teaching experience, research
experience and previous record of work, if any.
Rule 8 does not speak of any viva voce test.
It, however, appears that so far as academic
qualification is concerned, the same had been laid
in the advertisement and the requirement of M.D.
(Medical/General Medical), MCRF, FRCP, Speciality
Board of Internal Medicine (USA) or an equivalent
qualification of the subject. So far as the
teaching experience is concerned, two years
experience as Registrar/Tutor/Demonstrator/Tutor
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or a Senior Resident in the discipline of medicine
in a recognised teaching medical institution
recognised by the Medical Council of India was
specified.
So far as the teaching experience is
concerned, the Commission awarded marks to those
who had even less than two years experience. One
mark was to be awarded for every full year of
experience subject to a total of 5 marks.
Sports/Games distinction in NCC activities had
also been taken into consideration which were not
the criterion prescribed under the 1979 Rules.
There is nothing to show that any mark was awarded
in relation to the previous record of work, if
any.
In its judgment, the High Court did notice
that in awarding marks for minimum qualification
prescribed for the post, the Commission did not
award any mark at all to some respondents. It,
therefore, for all intent and purport had
considered the candidatures of the candidates only
on the basis of 110 marks. If the marks awarded
for sports/games and NCC activities are excluded
as they are beyond the purview of Rule 8; and as
it fixed 100 marks for viva voce test, a clear
case of breach of the Statutory Rules had been
made out. While the appellant had been given
minimum marks in the viva voce test, the other
respondents who even did not fulfill the requisite
criterion were awarded higher marks.
The High Court, in our opinion, was correct
in holding that Rule 51 providing for 100 marks
for viva voce test against 4o for other criteria
is contrary to law laid down by this Court.
[See Union of India and Anr. Vs.
N.Chandrasekharan & Ors. [ AIR 1998 SCC 795 ],
Indian Airlines Corporation Vs. Capt. K.C.Shukla &
Ors. [1993 (1) SCC 17], Anzar Ahmad Vs. State of
Bihar and Ors. [ 1994 (1) SCC 150] and Satpal and
Ors. Vs. State of Haryana and Ors. [1995 Suppl.
(1) SCC 206]
It is true that for allocation of marks for
viva voce test, no hard and fast rule of universal
application which would meet the requirements of
all cases can be laid down. However, when
allocation of such mark is made with an intention
which is capable of being abused or misused in its
exercise, it is liable to be struck down as ultra
vires Article 14 of the Constitution of India.
[See Jasvinder Singh & Ors. Vs. State of J &
K and Ors.[2003 (2) SCC 132], Vijay Syal and Anr.
Vs. State of Punjab and Ors. [2003 (9) SCC\026401].
It is also trite that when there is
requirement of consultation, in absence of any
statutory procedure, the competent authority may
follow its own procedure subject to the conditions
that the same is not hit by Article 14 of the
Constitution of India.
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[See Chairman & MD, BPL Ltd. Vs. S.P.Gururaja
and Ors. [2003 (8) SCC 567]
We would proceed on the assumption that the
Commission was entitled to not only ask the
candidates to appear before it for the purpose of
verification of records, certificates of the
candidates and other documents as regards
qualification, experience etc. but could also take
viva voce test. But marks allotted therefor
should indisputably be within a reasonable limit.
Having regard to Rule 8 of 1979 Rules higher marks
for viva voce test could not have been allotted as
has rightly been observed by the High Court. The
Rules must, therefore, be suitably recast.
The High Court assigned sufficient and cogent
reasons in support of its conclusions which have
been noticed by us hereinbefore. We agree with the
said reasonings.
The only question which survives for
consideration is what would be the meaning of the
’post’ contained in Rule 51 (b)?
In our opinion, a higher qualification than
the basic (minimum) prescribed for the post would
evidently mean the department of superspeciality
for which the appointment was made and not any
other superspeciality.
Conclusions:
Having held so, the question which remains to
be determined is as to what relief should be
granted to appellant herein.
While issuing the Notification dated
22.5.2002 the State evidently did not fully comply
with the judgment of the High Court. The
appellant in view of the judgment of the High
Court was not only entitled to be placed in the
select panel above Respondent Nos.3 and 9 but also
should have been given all consequential service
benefits which would include monetary benefits,
seniority etc.
In ordinary course we would have allowed the
appeal but we cannot lose sight of the fact that
the selections had been made in the year 1994. A
valuable period of 10 years has elapsed. The
private respondents have been working in their
posts for the last 10 years. It is trite that
with a view to do complete justice between the
parties, this Court in a given case may not
exercise its jurisdiction under Article 136 of the
Constitution of India.
[See Chandra Singh and Ors. Vs. State of
Rajasthan and Anr. [ 2003 (6) SCC 545], M.P.Vidyut
Karamchari Sangh Vs. M.P. Electricity Board [ JT
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2004 (3) SC 423] and State of Punjab & Ors. Vs.
Savinderjit Kaur [JT 2004 (3) SC 470]
We are, therefore, of the opinion that the
interest of justice would be subserved if the
State is directed to fully comply with the
directions of the High Court by giving all
benefits to the appellant herein including
monetary benefits and seniority by placing him in
the select list above Respondents 3 and 9. We
further direct that if any respondent has been
promoted to the higher post in the meantime the
same would be subject to our aforementioned
direction. Necessary order in this behalf must be
passed by the State.
These appeals are disposed of accordingly.
The cost of the appellant herein shall be borne by
the State of Jammu and Kashmir quantified at
10,000; we hope and trust that the State of Jammu
and Kashmir as also Jammu and Kashmir Public
Service Commission shall make all endeavours to
see confidence in the Statutory Bodies restored,
and they would henceforth comply with legal
requirements strictly and scrupulously.