Darshan Kumar vs D/o Revenue on 31 December 2024

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP/WP(C) No. 3974/2019 was transferred from the Hon’ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/2100/2020 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court with following prayer: a) “allow the present writ petition;

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b) quash the result of the test conducted for testing the "Working Knowledge of Urdu" published vide Notice No. SSB/Secy/Sel/ 2019/4563-66 dated 04.09.2019 by the respondent SSB, to the extent, instead of taking aggregate 33% marks as required for qualifying the said test, 40% aggregate has been taken and the petitioner who fell just short of 40% aggregate, have been declared as "not qualified "the Urdu test;

c) command and direct the respondents to take aggregate 33% marks as the required percentage of marks for qualifying the descriptive test conducted by the SSB for testing the "Working Knowledge of Urdu" for the post of Naib Tehsildar, with further direction to declare the petitioner as having passed the test conducted by the SSB for testing the "Working Knowledge of Urdu";

d) command and direct the respondent SSB to select the petitioner as Naib Tehsildar in Revenue Department and recommend the names of the petitioner to respondent No. 1, for appointment as Naib Tehsildar in Revenue Department w.e.f the dates, other persons have been so appointed;

e) restrain the respondent No. 1 from issuing the final selection list for the post of Naib Tehsildar, pursuant to Advertisement

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Notification No. 01 of 2015 dated 07.04.2015 till the claim of the petitioner for selection as Naib Tehsildar, notwithstanding their aggregate 33% marks in the test conducted for testing the knowledge of Urdu” is considered and decided; f) Any other writ, order or direction which this Hon’ble Court may deem fit or proper in the facts and circumstances of the case.”

3. The facts of the case as averred by the applicant in his pleadings, are as follows: - a) It is submitted that that the petitioner is in possession of MSC and is having knowledge of Urdu. Vide advertisement notice no. 01 of 2015 dated 07.04.2015, the application was invited for several posts, including 134 posts of Naib Tehsildar in Revenue Department, with the following break: - OM- 82 RBA-14 SC-13 ST-13 ALC-02

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OSC-01 ESM-06 HC-03

It is submitted that the no. of posts was later increased. As per the advertisement notice, the prescribed qualification for the said post Naib Tehsildar was “Graduate with knowledge of Urdu”. The petitioner belongs to General Category and applied for the post of “Naib Tehsildar”. J & K Revenue (Subordinate) Service Recruitment Rules and the advertisement notice both prescribe graduation with “knowledge of Urdu”, as the prescribed qualification for the post of Naib Tehsildar. The term “knowledge of Urdu” as one of the requisite qualifications along with “Graduation” was introduced in 2009 only. It is submitted under J & K Revenue (Subordinate) Service Recruitment Rules, 2009 (issued vide SRO 74 dated 31.03.2009), the post of Naib Tehsildar is mentioned under Schedule-II-A (Executive) as Class-I post and the minimum qualification for direct recruitment is “Graduate with

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knowledge of Urdu” and the method of recruitment is (i) 45 % by direct recruitment and (ii) 50 % by promotion from Class-II posts and (iii) 5 % by promotion from Class II. b) It is submitted that since in the Advertisement Notice No. 01 of 2015 dated 07.04.2015 (to which the petitioner had responded), 30 marks out of 160 were earmarked for the "Knowledge of Urdu" in the written test for the post of Naib Tehsildar, therefore, aggrieved of this, a number of writ petitions were filed by some of the aggrieved candidates. Three of the such writ petitions were SWP No. 2657/2015, SWP No. 2676/2015 and 2715/2015 and the grounds taken in these writ petitions inter alia included that the 2009 Recruitment Rules provided that a candidate should have graduation plus "Knowledge of Urdu", as the requisite qualification, but the syllabus prescribed was of 9th / 10th standard Urdu, that the knowledge of Urdu for those graduates, who have not passed any formal Urdu

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examination could at the most be of qualifying nature, as is the case with English subject in UPSC for those candidates, who are from non-English Subject background, that Rules do not provide that preference will be given to those, who have "Knowledge of Urdu", therefore, prescribing as high as 30 marks out of 160 marks for Urdu is illegal, that in other subject, the written test is object type, but for Urdu subject, it is "descriptive type" and that such a practice is hit by Article 14 & 16 of the Constitution of India, that for the post of Patwari, the Urdu Test is objective and not descriptive, that for the post of Tehsildar, Sub-Inspector Police, Munsiff, no written test is prescribed for Urdu subject. “Knowledge of Urdu” is imparted to the selectees/appointees after they are appointed. The matter was finally heard on 25.10.2017, on which date, vide judgment and order dated 25.10.2017, all the writ petitions were allowed and the impugned notification which provided for descriptive test for Urdu subject was quashed, observing that the 30 marks

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prescribed for Urdu subject is in clear violation of recruitment rules. c) Vide notice no. SSB/ Sel/ Secy/2017/11832-46 dated 18.11.2017, fresh Syllabus for the posts of Naib Tehsildar and Patwari was Notified as Annexure-A to the said Notice (Multiple Choice based written test in General English, General Study, Constitution of India, Constitution of J&K, General knowledge with Special reference to J&K & Mensuration) and "Guidelines for working knowledge of Urdu" was Annexure-B. It was provided that candidates will first appear in the MCQ based test and that only the candidates short listed on the basis of MCQ written test will be required to appear in the subsequent exam for testing of "Working Knowledge of Urdu". It was further provided that "there shall be negative marking (0.25 for each wrong answer", that the exam for testing of "Working Knowledge of Urdu", will be computer based

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(Reading Section) and descriptive (writing Section). It was further provided that the criteria for overall merit shall be notified subsequently and that Urdu exam shall be of "qualifying nature only”. d) The Annexure-B referred to in the preceding paragraph is the Guidelines for checking "Working Knowledge of Urdu" and the same provides that working knowledge of Urdu of the candidates shall be tested through a Reading and Writing test (total comprising of 100 marks in a duration of 2 hours). It is further provided that a candidate belonging to 'OM' Category will be required to score 40% marks (over all) with "at least 33% in both reading and writing section" to be considered as having "working knowledge of Urdu". For reserve category candidates, they were required to score at least 35% marks (over all) with at least 33% in each section. Most significantly,

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it was also provided that there would be negative marking (0.25 per wrong question) in Reading section for wrong answers. e) The petitioner appeared on 29.04.2018 in the objective type written Test in the subjects mentioned in Annexure-A of Notice dated 18.11.2017 and secured such number of marks as made them qualify the objective type written test and were shortlisted for interview, where after, their viva voce was conducted between 03.12.2018 and 11.01.2019. Petitioner did well in the interview also. The Written Test for testing the "working knowledge of Urdu" was conducted on 12.05.2019 and the petitioner appeared in the same, fully confident that they shall get through the same and shall ultimately be selected and appointed as “Naib Tehsildar” in Revenue Department, but there was something else in the minds of the respondents. f) Vide Impugned Notice No. SSB/Secy/Sel/ 2019/4563-66 dated 04.09.2019 the result of the "Working knowledge of Urdu"

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was declared. Annexure-A to this Notice is the list of those candidates, whose result had been declared and Annexure-B is the list of those candidates, whose result was put on hold. Perusal of the impugned result of Urdu shall reveal that the petitioner has secured aggregate 33.75% marks in Urdu test, despite this he has been declared as “disqualified” simply because he has not secured 40% aggregate. For OM category, the aggregate marks to be secured in the test for testing the “working knowledge of Urdu” has been kept at 40%, whereas for reserved categories the same has been kept at 35 %, which is impermissible in a case the test was of qualifying nature only and the marks were not be counted for selection. The petitioner having secured aggregate 33.75% and despite this, he has been shown in the result list as “disqualified”. It is submitted that the SSB had no power or authority to fix 40 % aggregate marks for testing the “knowledge of Urdu”. On this ground, writ in the nature of mandamus is required to be

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issued, directing the respondent SSB, to ignore the illegal requirement of 40 % aggregate marks for OM category and 35 % for reserved category for qualifying the test conducted for testing the “working knowledge of Urdu”, with further direction to take 33% aggregate as the minimum required and thereafter declare the petitioner as having qualified the said test. g) Grievance of the petitioner is that he has qualified the objective type written test conducted by SSB on 29.04.2018 and further despite the fact that in the test conducted by the SSB on 12.05.2019 for testing the “working knowledge of Urdu” the petitioner has secured equal to or more than 33.75% marks, vide impugned notice no. SSB/Secy/Sel/2019/4563-66 dated 04.09.2019, the petitioner’s status in the said test has been mentioned as “disqualified”.

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4. The respondents have filed their written statement wherein they have averred as follows: - a) It is submitted that the respondents advertised the post of Naib Tehsildar (Revenue Department), State Cadre in pursuance of Advertisement Notification No. 01 of 2015, Item No. 007. The applicant namely Darshan Kumar S/o Sh. Sat Paul R/o Village Garah, Tehsil Hiranagar, District Kathua had applied for the post of Naib Tehsildar (Revenue Department), State Cadre in pursuance of Advertisement Notification No. 01 of 2015, Item No. 007 under REG NO. 1400161445, REG NO. 1501007028182. b) The answering respondent (JKSSB) conducted the objective type written examination on 29-04-2018 and written examination of working knowledge of Urdu test on 12-05-2019. The criteria which were notified for the post of Naib Tehsildar (01 of 2015, Item No. 007) were approved in the 137th minutes of Board Meeting held on 09 April, 2018. The admit card notice

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for the objective type written test and working knowledge of Urdu was issued vide Nos. SSB/Secy/Sel/2018/3757-61 dated: 04-04-2018 and SSB/Secy/Sel/2019/2644-48 dated: 22-04- 2019. c) The JKSSB notified the result of Working Knowledge of Urdu test for the above said post vide Notice No. SSB/Secy/Sel/2019/4563-66 dated: 04-09-2019, wherein Mr. Darshan Kumar S/o Sh. Sat Paul appeared in the said exam under category OM and Roll No. 20011000780. In the said exam he has attempted 21 questions and not attempted 29 questions out of which 16 were correct and he has secured: Mcq Marks: 14.75 Mcq Percentage: 29.50 Descriptive Marks: 19 Descriptive Percentage: 38 Sum of Mcq Descriptive: 33.75 MCQ status: Disqualified, Descriptive status: Qualified, Final status: Disqualified (Copy of result is annexed as Annexure-III).

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d) The respondents after completion of the selection process issued the Selection List and forwarded the same to the Indenting Department. It is submitted that the selection process has already been completed. The JKSSB, as recruiting agency, makes selections as per the Indents and the category-wise break up of vacancies as conveyed by the concerned Indenting Department, which is also reflected in the Advertisement Notifications, while seeking the applications from the candidates. e) The respondent has completed the selection process, as per the merit of the candidates and the applicant has no stack to challenge the same after being disqualified in the written examination. f) It is further submitted that the Board has notified the criteria for Working Knowledge of Urdu vide Notice No. SSB/Sel/Secy/2017/11832-46 dated: 18-11- 2017, which was 05 months before the objective type written examination and 18

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months before the working knowledge of Urdu examination, which was enough notice to all the eligible candidates. Further, the applicant after participating in the selection process and failing to secure position in the result/selection, filed the instant when failed to make position in the result/selection list, as such deserves to be dismissed. The selection process was completed in due deference to the recruitment rules in vogue and as per Indent/qualifications received from the Indenting Department. (Jammu and Kashmir Services Selection Board) being a creature of statute is under an obligation to carry out the selection process for the advertised posts in accordance with the rules/regulations occupying the field.

5. Heard learned counsel for the parties and perused the pleadings made by them.

6. In the present case, the petitioner is aggrieved of the impugned Notice No. SSB/Secy/Sel/2019/4563-66 dated 04.09.2019, by virtue of which

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the petitioner’s candidature in the test conducted on 12.05.2019 for testing “Working Knowledge of Urdu”- for the post of “Naib Tehsildar,” has been mentioned as “disqualified”.

7. The contention of the learned counsel for the petitioner is that despite the fact that the petitioner has qualified the objective type written test conducted by SSB on 29.04.2018 and further despite the fact that in the test conducted by the SSB on 12.05.2019 for testing the “Working Knowledge of Urdu”, the petitioner has secured equal to or more than 33.75% marks, vide impugned Notice No. SSB/Secy/Sel/2019/4563-66 dated 04.09.2019, the petitioner’s status has been mentioned as “disqualified”. It has further been contended that as per the advertisement notification no. 01/2015 dated 07.04.2015 (item no. 007), the prescribed qualification for the said post of Naib Tehsildar was “Graduate with Knowledge of Urdu”. The term “Knowledge of Urdu” was not defined. When the Rules provide for “Knowledge of Urdu”, it simply means some knowledge of Urdu and SSB has no

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power or authority to replace this provision of law with its own terminology “Working Knowledge of Urdu”.

8. Per contra, learned counsel for the respondents argued that the JKSSB, as recruiting agency, makes selections as per the Indents and the category-wise break up of vacancies as conveyed by the concerned Indenting Department, which is also reflected in the Advertisement Notifications, while seeking the applications from the candidates. The Selection process has been completed, as per the merit of the candidates and the applicant has no stack to challenge the same after being disqualified in the written examination. The selection process was completed in due deference to the recruitment rules in vogue and as per Indent/qualifications received from the Indenting Department. Jammu and Kashmir Services Selection Board being a creature of statute is under an obligation to carry out the selection process for the advertised posts in accordance with the rules/regulations occupying the field.

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9. In the case at hand, it is hard to give denial to the averments submitted by learned counsel for the respondents that post of “Naib Tehsildar” has been advertised vide notification no. 01 of 2015 (item no. 007) dated 07.04.2015 and the applicant namely Shri Darshan Kumar had applied for the said post after giving due consideration to the notification advertised which was advertised 05 months before the objective type written examination and 18 months before the working knowledge of Urdu, examination. It is a clear fact that the petitioner had applied for the post of “Naib Tehsildar” (Revenue Department), State Cadre in pursuance of advertisement notification No. 01 of 2015 (Item No. 007). In the said advertisement, prescribed qualification for the post of “Naib Tehsildar (Revenue Department) has been clearly mentioned as “Graduate with Knowledge of Urdu”. A notification had been released on 18.11.2017, detailing the syllabus for the post of Naib-Tehsildar and Patwari. For the ready reference, the syllabus is quoted as follows: -

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“1. The syllabus for the multiple choice based written test for the posts mentioned hereunder is enclosed as Annexure 'A'.

2. The general guidelines for testing the "working knowledge of Urdu” are enclosed as Annexure 'B'.

3. The candidates will first appear in the MCQ based test. Only the candidates shortlisted on the basis of the written test will be required to appear in the subsequent exam for testing the working knowledge of Urdu.

4. The exam will conducted in the month of April, 2018 (Naib- Tehsildar) and February/March, 2018 (Patwari).

5. The written exam will be offline (OMR based) exam. There shall be negative marking (0.25 for each wrong answer). The exam for testing working knowledge of Urdu will be computer based (Reading Section) and descriptive (Writing Section).

6. The criteria for the overall merit shall be notified subsequently. However, the Urdu exam will be of qualifying nature only.” Annexure ‘B’- Guidelines for checking working “working knowledge of Urdu” Naib Tehsildar & Patwari-is as follows:- “The exam intends to check the "working knowledge of Urdu" of the candidates. The same will be tested through a Reading

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and a Writing test (total comprising of 100 marks in a duration of two hours), to be conducted on the same day. The candidates belonging to 'OM’ Category will be required to score at least 40% marks (overall) in the said exam with at least 33% marks in both Reading and Writing sections to be considered as having "working knowledge of Urdu’ for the purpose of this exam/qualified. The candidates belonging to other categories (except OM) are required to score at least 35% marks (overall) with at least 33% in each Section. The test of Reading Section will be computer based having multiple choices. There will be negative marking (0.25 per question) in Reading Section for wrong answers.”

10. From the perusal of aforesaid syllabus notified vide No.- SSB/Sel/Secy/2017/11832-46 dated 18.11.2017, it is clear that the candidates belonging to ‘OM’ category will be required to score at least 40 % marks (overall) in the said exam with at least 33 % marks in both Reading and Writing sections to be considered as having ‘working knowledge of Urdu’ for the purpose of this exam qualified. The candidates belonging to other categories (except OM) are required to score at lease 35 % marks (overall) with at least 33 % in each section. Also, there will be negative marking (0.25 per question)

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in reading section for wrong answers. The criteria which were notified for the post of Naib Tehsildar (01 of 2015, item no. 007) were also approved in the 137th minutes of Board Meeting held on 09th April, 2018. As per the meeting, it has been declared that “the matter discussed and decided that the selection be released in view of the clarification furnished by the indenting department vide letter No. HD/FW/39/2017 dated 29.01.2018.”

11. The JKSSB conducted the objective type written examination on 29.04.2018 and written examination of working knowledge of Urdu test on 12.05.2019 and notified the result of “working knowledge of Urdu” test for the post of “Naib Tehsildar” vide notice no. SSB/Secy/Sel/2019/4563-66 dated 04.09.2019, wherein Mr. Darshan Kumar (petitioner herein) appeared in the said exam under category OM and Roll No. 20011000780. In the said exam, he has attempted 21 questions and not attempted 29 questions out of which 16 were correct and he has secured: -

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Mcq Marks: 14.75 Mcq Percentage: 29.50 Descriptive Marks: 19 Descriptive Percentage: 38 Sum of Mcq Descriptive: 33.75 MCQ status: Disqualified, Descriptive status: Qualified, Final status: Disqualified (Copy of result is annexed as Annexure-III).

It is clear that the petitioner did not meet the merit for qualifying the aforesaid examination. Therefore, the result of the petitioner is declared as “Disqualified”. Also, the criteria which were notified for the post of “Naib Tehsildar” which was also approved in the 137th minutes of Board Meeting held on 09th April, 2018.

12. It is well established that the petitioner is well aware of the criteria of the notification advertised. As per the merit, the petitioner has no right to challenge the same after being disqualified in the examination. It is well before 05 months before the objective type written examination and 18 months before the “working knowledge of Urdu” Examination, in the notice of the petitioner, the syllabus and criteria of notification

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advertised. Once participated and being disqualified, the petitioner cannot take a U-turn and say that the advertisement is not as per rules/regulations. It has been held by the Hon’ble Supreme Court in Basheshar Nath vs Commissioner Income Tax, Delhi & Rajasthan and another AIR 1959 SC 149 & Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576 that “We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.”

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13. When you participated in any examination without protest and later petitioner felt that he would not succeed then he has not right to approach the Court.

14. Keeping the above facts in view, the TA lacks merit and deserves to be dismissed.

15. Accordingly, the TA is dismissed.

16. However, there shall be no orders so as to costs.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member

Judicial Member

/harshit/