SWP/550/2002 of DR.NEERU SHARMA Vs STATE TH.MEDICAL DEPTT. AND ORS on 17 November 2009

HIGH COURT OF JAMMU AND KASHMIRAT JAMMU

KEE

OWP No. 5990/2002

Date of Decision: 17.11.2009Dr. Neeru SharmaVs.State and ors.Coram:

Mr. JUSTICE J.P.SINGH, JUDGE.

Appearing Counsel:

For the Petitioner(s) :|Mr.M.K.Bhardwaj, Sr. Advocatewith Mr. Ajay Abrol, AdvocateFor the Respondent(s):Mr. D.C.Raina, Sr. Advocatewith Mr. F.A. Natnoo, Advocate. |

i)|Whether approved for reportingin Press/Journal/ MediaYes/No.11)Whether to be reported inDigest/journalYes/No.

The petitioner has questioned the selection of respondentNos. 3 to 13 as Dental Surgeons, by the Jammu and Kashmir|Public Service Commission, Srinagar, held pursuant toNotification No. 5-PSC of 1999 dated 4.8.1999, inviting|candidates possessing minimum qualification of Bachelor’s|Degree in Dentistry (BDS), for selection against Twenty Eight|posts of Dental Surgeons, in the Health and Family Welfare|Department of the State Government, on the ground that the|petitioner’s merit was converted into de-merit by the Public|Service Commission, evaluating the merit of the candidates only|on the basis of their performance at the interview, relying on|Rule 51 of the Jammu and Kashmir Public Service Commission|(Conduct of Business and Procedure) Rules, 1980, which had|

been struck down by a Full Bench of this Court in Dr. Inder|Parkash’s case.

Mr. D.C.Raina, learned Senior Counsel, appearing for theJammu and Kashmir Public Service Commission, hereinafter to be referred as “the Commission’, for short, submitted that the|final verdict on Rule S11 of the Jammu and Kashmir PublicService Commission (Conduct of Business and Procedure)|Rules, 1980, was delivered by Hon’ble Supreme Court of India.1n|Inder Parkash Gupta versus State ofJammu and Kashmir andothers,reported as (2004) 6 SCC 756, In terms whereof theselections made prior to the Judgment had been saved, in that,|Rule 51, in terms of the Judgment, had to be recast for further|selections. Producing a short note indicating the merit of the|petitioner and respondent Nos. 3 to 13, on the basis of the PublicService Commission records, learned counsel supported the|selection made by the Commission urging that the petitioner’s|plea that her merit was converted into de-merit by the|Commission, was not tenable, in that, the records would not|support her plea.

I have considered the submissions of learned counsel forthe parties and gone through the judgment in Inder Parkash|Gupta’s case (supra).

Although the Supreme Court of India had foundCommission’s keeping 100 marks for a Viva Voce Test to|determine the suitability of the candidates, contrary to the law|laid-down by the Court, yet the direction, which, in the|circumstances of the case, had been issued by the Court, to the|Commission, was to recast the Rule, meaning thereby that the|vice in the Rule had been directed to be removed by the|(‘commission so that it did not affect the selections to be helafter the judgment.

The selection of respondent Nos. 3 to 13, having takenplace, prior to the judgment of Hon’ble Supreme Court of India, the vice pointed out in the Rule by the petitioner’s learned Senior|Counsel, may not thus affect the selection of the respondents, assuch, 1n the present case too, as it would not be in the interests ofJustice, to upset the selection and consequent appointment of therespondents who are serving the State Government for the last,eight years as Dental Surgeons.

That apart, the evaluation of the merit of the respondents,by the Commission, is not found based solely on_ theirperformance at the interview, in that, while evaluating the merit|of the petitioner and the respondents, along with other'candidates, the Commission had evaluated their merit on the|basis of their performance at the interview, giving due weightageto them for their academic merit as well.

Another reason which dissuades the Court not to interfere|with the selection of the respondents is that despite having been|awarded 65 marks in the interview, the petitioner had not been|able to make up the mark, when some of the selected candidates|with similar marks at the interview, had figured higher 1n the|Merit List, on the basis of their higher academic merit. |

Looking to the information supplied by the Commission’slearned counsel as to the merit of the petitioner and the selected|candidates, even if, the marks obtained by other selected|candidates, at the interview, were to be allowed to the petitioner|too, she would still not come in the zone of consideration to seek|selection, as her rating in the Open Merit Category candidate wasat Serial No.25 of the Merit List.

For all what has been said above, I do not find any merit inthe petitioner’s contention that petitioner’s merit has been|converted into de-merit by operating Rule 51 and that the|

selection of respondent Nos. 3 to 13 was in any way unjustified|warranting exercise of jurisdiction under Section 103 of theConstitution of Jammu and Kashmir..There is thus no merit in this Petition, which 1s,accordingly, dismissed. ©(J. P. Singh)JudgeJammu.17.11.2009|Pawan Chopra