Gupta Vs. State of Jammu & Kashmir & Ors  Insc 303 (20 April 2004)
S.B.Sinha & S.H. Kapadia.
CA Nos.3735/2002, 3736/2002, 3737/2002, 3738/2002 and 3739/2002 S.B. SINHA, J :
six appeals involving common questions of law and fact were taken up for
hearing and are being disposed of by this common judgment.
the Health Ministry of the State of Jammu and Kashmir there are two different departments, medical health and
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 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.
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 line, any distinction in sports/games, NCC
activities should furnish certificate, along with the application, to that
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.-
the posts in the teaching wing of the service, the Commission/ Department
Promotion Committee shall have regard to the following, namely,-
Academic qualifications of the candidates;
Research experience; and
Previous record of work, if any."
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 (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/
2 Marks]subject to
- 5 Marks]a maximum of ]5 marks
acquired by the candidate in the concerned Speciality/ Superspeciality/Subject/Discipline
1 year but not 2 years ...2 marks
for excess 2 years - for every full year 1 mark subject to a total of 5 marks
including those under (i) D. Sports/Game :
in sports/games (i.e., representing a University, State or Region in any
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).
Marks Total A to E ...140 Marks" The Commission interviewed the candidates
in terms of Rule 51 aforementioned.
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.
Petitions before the High Court:
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.
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 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.
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
State of Jammu & Kashmir did not file any counter affidavit but Public
Service Commission did. The private respondents also filed their counter
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;
Rule 51 of Rules 1980 should be re-framed by the Commission in accordance with
the observations made in the course of this judgment.
selection of selected candidates made by the Commission is not disturbed
subject to the relief granted to the petitioner;
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.
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 judgment.
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
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.
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
High Court having regard to the pleadings of the parties and submissions made
before it formulated the following questions:-
Whether the Commission has the competence and jurisdiction to frame the Jammu and Kashmir Public Service Commission (Conduct
of business and Procedure) Rules, 1980?
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?
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
selection and appointment as lecturer?
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?
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 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.
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.
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.
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.
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
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
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.
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
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 of the State, they
could only be reverted back to their parent departments and would not be out of
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.
submission was made on behalf of any other parties to the appeals.
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
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.
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].
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.
does not speak of any viva voce test.
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 or a
Senior Resident in the discipline of medicine in a recognised teaching medical
institution recognised by the Medical Council of India was specified.
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.
distinction in NCC activities had also been taken into consideration which were
not the criterion prescribed under the 1979 Rules.
is nothing to show that any mark was awarded in relation to the previous record
of work, if any.
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
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.
& Ors. [ AIR 1998 SCC 795 ], Bihar and Ors. [ 1994 (1) SCC 150] and Satpal
and (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
Ors.[2003 (2) SCC 132], Vijay Syal and Anr. 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. 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.
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.
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.
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
held so, the question which remains to be determined is as to what relief
should be granted to appellant herein.
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
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.
and Anr. [ 2003 (6) SCC 545], M.P.Vidyut 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.
appeals are disposed of accordingly.
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.