TAJVIR SINGH SODHI & ORS. versus THE STATE OF JAMMU AND KASHMIR & ORS. on 28 March 2023

SUPREME COURT REPORTS

[2023] 3 S.C.R.

ATAJVIR SINGH SODHI & ORS.

v.

THE STATE OF JAMMU AND KASHMIR & ORS.

(Civil Appeal Nos. 2164–2172 of 2023)

BMARCH 28, 2023

[K. M. JOSEPH AND B. V. NAGARATHNA, JJ.]

Service law: Selection process – Quashing of – Selectionprocess conducted for appointment of drug inspectors – 64 personsincluding some appellants selected and appointed as drug inspectorsCand are serving on the said posts – However, the said selection andappointment challenged alleging discrepancies in the selectionprocedure – High Court quashed the selection and appointment –Upheld by the Division Bench – On appeal, held: Candidates, havingtaken part in the selection process without any demur or protest,Dcannot challenge the same after having been declared unsuccessful– Candidates cannot approbate and reprobate at the same time –Simply because the result of the selection process is not palatableto a candidate, he cannot allege that the process of interview wasunfair or that there was some lacuna in the process – Challengeought not to have been entertained in light of the principle of waiverEand acquiescence – Furthermore, no mala fide or arbitrariness isfound in the selection process – Recasting the selection criteriawas only with regard to allocation of marks for the respectiveeducational qualification of the candidates – It was with a view topreserve the standards of the selection process – Furthermore, theFassessment and evaluation of the performance of candidatesappearing before the Selection Committee/Interview Board shouldbe best left to the members of the committee – In light of the pertinentselection procedure that was followed, the Court is unable to holdthat the same was mechanical or casual or suffered from irregularitieswhich were so grave or arbitrary in nature so as to justify quashingGthe entire selection process –Thus, the High Court not justified inquashing and setting aside the entire selection process, more sowhen sixty-four candidates including the appellants had beenserving on the said post for over a decade – Jammu and KashmirSubordinate Services Recruitment Rules, 1992 – rr. 9 and 9A.H

Selection process for public employment – Scope of judicialreview – Held: Courts generally avoid interfering in the selectionprocess of public employment, to maintain the autonomy andintegrity of the selection process – Process of selection involves ahigh degree of expertise and discretion – Not appropriate for Courtsto substitute their judgment for that of a selection committee – Courtsintervene only when there are proven allegations of malfeasanceor violations of statutory rules, or inherent arbitrariness.

Words and Phrases: ‘Pharmacology’ and ‘Pharmacy’–Meaning of – Discussed.

Allowing the appeals, the Court

Conclusion

HELD: 1.1 The Courts generally avoid interfering in theselection process of public employment, recognising theimportance of maintaining the autonomy and integrity of theselection process. The Courts recognise that the process ofselection involves a high degree of expertise and discretion andthat it is not appropriate for Courts to substitute their judgmentfor that of a selection committee. It would be indeed, treading onthin ice if the Court were to venture into reviewing the decisionof experts who form a part of a selection board. Thus, it is notwithin the domain of the Courts, exercising the power of judicialreview, to enter into the merits of a selection process, a taskwhich is the prerogative of and is within the expert domain of aSelection Committee, subject of course to a caveat that if thereare proven allegations of malfeasance or violations of statutoryrules, only in such cases of inherent arbitrariness, can the Courtsintervene. Thus, the Courts while exercising the power of judicialreview cannot step into the shoes of the Selection Committee orassume an appellate role to examine whether the marks awardedby the Selection Committee in the viva-voce are excessive andnot corresponding to their performance in such test. Theassessment and evaluation of the performance of candidatesappearing before the Selection Committee/Interview Boardshould be best left to the members of the Committee. In light ofthe position that a Court cannot sit in appeal against the decisiontaken pursuant to a reasonably sound selection process, thefollowing grounds raised by the writ petitioners, which are basedon an attack of subjective criteria employed by the selection AB

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Aboard/interview panel in assessing the suitability of candidates,namely, that the candidates who had done their post–graduationhad been awarded 10 marks and in the viva-voce, such PGcandidates had been granted either 18 marks or 20 marks out of20; and that although the writ petitioners had performedexceptionally well in the interview, the authorities had acted inBan arbitrary manner while carrying out the selection process,would not hold any water. [Para 12, 12.1][748-C-D; 750-G-H; 751-A-C]

1.2. It is trite that candidates, having taken part in theselection process without any demur or protest, cannot challengeCthe same after having been declared unsuccessful. The candidatescannot approbate and reprobate at the same time. In other words,simply because the result of the selection process is not palatableto a candidate, he cannot allege that the process of interview wasunfair or that there was some lacuna in the process. Thus, theDwrit petitioners in these cases, could not have questioned beforea Court of law, the rationale behind recasting the selection criteria,as they willingly took part in the selection process even after thecriteria had been so recast. Their candidature was not withdrawnin light of the amended criteria. A challenge was thrown againstthe same only after they had been declared unsuccessful in theEselection process, at which stage, the challenge ought not to havebeen entertained in light of the principle of waiver andacquiescence. The only exception to the rule of waiver is theexistence of mala fides on the part of the Selection Board. In theinstant case, no mala fide or arbitrariness is found in the selection Fprocess and therefore the said exception cannot be invoked. [Para13, 13.2][753-F-H; 754-A-B]

1.3 In the instant case, the entire selection of the appellantswas set aside due to the non-availability of individual award rolls,despite, signed approval of the final Select List by the membersGof the Board. Whether quashing the entire selection process wasexcessive or justified, would depend on the selection procedureadopted and whether the same is arbitrary or reveals any malafides on the part of the selection board. [Para 14.4][755-F-G]

1.4. In light of the pertinent selection procedure that wasfollowed, it cannot be held that the same was mechanical or casualor suffered from irregularities which were so grave or arbitraryin nature so as to justify quashing the entire selection process.Further, the requirement of individual rolls being signed andverified by the members of the Selection Board cannot be tracedto any statute or rule. Therefore, the Court cannot sustain thefinding of the High Court that the entire selection process wasvitiated by such irregularity. The High Court was not justified inquashing and setting aside the entire selection process, more sowhen sixty–four candidates including the appellants had beenserving on the said post for over a decade. [Para 14.6][759-H;760-A-B]

1.5. The expert in the Selection Board, Dr. Samina Farhat,Assistant Professor, Department of Pharmacology, was a doctorby profession with a Post Graduate degree (MD) and Ph.D. inPharmacology to her credit. Rule 9A of the 1992 Rules providesthat the Chairman may if he feels necessary appoint a specialistin the discipline in which appointment is to be made, as a memberof the selection board. In the instant case, it was submitted that aperson with a qualification in the field of pharmacy would havebeen better suited on the panel.[Para 15][760-C-E]

1.6. It cannot be held that a doctor by profession with aPost Graduate degree (MD) and Ph.D. in Pharmacology was inany way underqualified or unsuitable for her role on the SelectionBoard. In fact, a pharmacologist is more appropriate to interviewthe candidates for the post of drug inspector. Further, it is to benoted that Rule 9 A provides that the Chairman may if he feelsnecessary appoint a specialist in the discipline in whichappointment is to be made, as a member of the selection board.Similarly Rule 9 (iii) provides that the Chairman may, if he feelsnecessary associate with the Selection Committee expert/specialist in the discipline in which recruitment is to be made.The use of the word ‘may’ would indicate that the Chairman ofthe Board has discretion in this regard and there is no mandatoryrequirement to appoint on the selection panel a person having aqualification in pharmacy. To this extent, the findings of the Single AB

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AJudge and the Division Bench of the High Court are upheld. [Para15.3][761-E-G]

1.7. The criteria for evaluation of a candidate’s performancein an interview may be diverse and some of it may be subjective.However, having submitted to the interview process with noBdemur or protest, the same cannot be challenged subsequentlysimply because the candidate’s personal evaluation of hisperformance was higher than the marks awarded by the panel.Only 20 out of 100 marks were allocated for interview/viva-voce.The same is only 20% of the total marks which cannot be said tobe an excessive proportion out of the total marks. Further CourtsCcannot sit in judgment over the award of marks by an interviewpanel. That is best left to the judgment and wisdom of the interviewpanel. There is no merit in the contention of the writ petitionersregarding the award of marks to the candidates who appeared forviva-voce before the panel. Moreover, the award of 80% of theDtotal marks is on objective criteria depending upon theeducational qualification of the individual candidates. [Para16.2][762-E-F; 763-D-E]

1.8. The criteria was recast vide Corrigendum dated 12thJune, 2009, by increasing the weightage accorded to candidatesEpossessing a Degree in pharmacy or pharmaceutical chemistryand advanced qualifications such as post–graduate degrees, Ph.Detc., with a view to incentivise more qualified persons who hadapplied for the said posts. Recasting the criteria was only withregard to allocation of marks for the respective educationalqualification of the candidates. It was with a view to preserve theFstandards of the selection process and was not motivated by malafide or oblique motive. Higher the qualification a candidatepossessed, higher marks were awarded. In other words, theminimum marks awarded for educational qualification was 65 andcould increase to 80 depending on the higher qualifications ofGthe candidates. Therefore, the selection process cannot beinterfered on the ground that the award of marks was recastunilaterally. The reallocation of marks based on the educationalqualification was in recognition of the higher qualification of thecandidates which cannot be termed to be arbitrary. It is a no brainerthat any candidate who was aggrieved by the recast of marksH

would either withdraw his candidature or challenge theCorrigendum dated 12th June, 2009 at a preliminary stage in theselection process. However, the writ petitioners did not do so.Having participated in the selection process without any demuror protest, the writ petitioners cannot challenge the same as beingtainted with mala fides, merely because they were unsuccessful.[Para 16.3][763-F-H; 764-A-C]

1.9. One of the directions issued by the Single Judge in theWrit Petitions was to retain the successful candidates but, at thesame time, to consider the case of the writ petitioners forappointment in the available posts. But if it was not possible toaccommodate the writ petitioners, owing to non-availability ofposts, then the entire selection was quashed and set aside and afresh Selection Committee was to be constituted to conduct freshinterviews of all the candidates who had earlier appeared beforeit and a fresh Select List was to be prepared. Further, till the saidexercise was to be carried out, the selected candidates were tobe continued. The Division Bench, however, quashed theSelection List in its entirety and directed and observed that nofurther appointments could be made against the vacancies thatmay have occurred subsequent to the appointments already madeand that a fresh selection was to be made by re-advertising theposts. Consequently, the selection of drug inspectors wasquashed in toto and a direction was issued to complete theexercise afresh within six months and till then, the appointedcandidates as drug inspectors were to be continued. Thedirections issued by both the Single Judge as well as by theDivision Bench were not in accordance with law and hence, thesaid directions have to be quashed. [Para 17][764-D-F]

1.10. The judgment of the Single Judge of the High Courtof Jammu and Kashmir at Srinagar, dated 18th December 2015and the impugned judgment passed by the Division Bench, dated29th October, 2021, are set aside. Consequently, the judgmentof the High Court of Jammu and Kashmir at Jammu dated 6thJuly, 2017 following the order of the Single Judge of the HighCourt of Jammu and Kashmir at Srinagar, dated 18th December,2015, is also set aside. [Para 18][764-G-H; 765-A]

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Sadananda Halo v. Momtaz Ali Sheikh, (2008) 4 SCC619 : [2008] 3 SCR 497; Trivedi HimanshuGhanshyambhai v. Ahmedabad Municipal Corporation,(2007) 8 SCC 644 : [2007] 10 SCR 1041 – relied on.

Reserve Bank of India v. C.L. Toora (2004) 4 SCC 657:[2004] 3 SCR 847; Union of India v. Bikash Kuanar(2006) 8 SCC 192; University of Mysore v.C.D. Govinda Rao [1964] 4 SCR 575; Indian RailwayConstruction Co. Ltd. v. Ajay Kumar (2003) 4 SCC 579:[2003] 2 SCR 387; State of Bihar v. P.P. Sharma (1992)1 Supp SCC 222 : [1991] 2 SCR 1; Ajit Kumar Nag v.Indian Oil Corporation Ltd. (2005) 7 SCC 764 : [2005]3 Suppl. SCR 314; Union of India v. Ashok Kumar(2005) 8 SCC 760 : [2005] 4 Suppl. SCR 317; NationalInstitute of Mental Health and Neuro Sciences v.Dr. K. Kalyana Raman (1992) 2 Supp. SCC 481;B.C. Mylarappa v. Dr. R. Venkatasubbaiah (2008) 14SCC 306 : [2008] 14 SCR 288; Baidyanath Yadav v.Aditya Narayan Roy (2020) 16 SCC 799 : [2019] 15SCR 427; Mohd. Mustafa v. Union of India (2022) 1SCC 294; Madan Lal v. State of J&K (1995) 3 SCC486 : [1995] 1 SCR 908; Union of India v. Bilash ChandJain (2009) 16 SCC 601; Anupal Singh v. State of UttarPradesh (2020) 2 SCC 173 : [2019] 12 SCR 1071;D. Sarojakumari v. R. Helen Thilakom (2017) 9 SCC478 : [2017] 9 SCR 512; Sachin Kumar v. DelhiSubordinate Service Selection Board (2021) 4 SCC 631;Inderpreet Singh Kahlon v. State of Punjab (2006) 11SCC 356 : [2006] 1 Suppl. SCR 772; Union of India v.Rajesh P.U. (2003) 7 SCC 285 : [2003] 1 Suppl. SCR883; Ashok Kumar Yadav v. State of Haryana (1985) 4SCC 417 : [1985] 1 Suppl. SCR 657; Buddhi NathChaudhary v. Abahi Kumar (2001) 3 SCC 328 : [2001]2 SCR 18; Jasvinder Singh v. State of J&K (2003) 2SCC 132; Secretary, State of Karnataka v. Umadevi(2006) 4 SCC 1 : [2006] 3 SCR 953; Dalpat AbasahebSolunke v. Dr. B.S. Mahajan AIR 1990 SC 434; Secy.(Health) Deptt. of Health & F.W. v. Dr. Anita Puri (1996)6 SCC 282 : [1996] 5 Suppl. SCR 361; M. V. Thimmaiah TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMUAND KASHMIR & ORS.

v. Union Public Service Commission (2008) 2 SCC 119: [2007] 13 SCR 624; Om Prakash Poplai and RajeshKumar Maheshwari v. Delhi Stock ExchangeAssociation Ltd. (1994) 2 SCC 117 : [1994] 1 SCR 120;Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC576; Ramesh Chandra Shah v. Anil Joshi (2013) 11 SCC309 : [2013] 5 SCR 687; Ashok Kumar v. State of Bihar,(2017) 4 SCC 357 : [2016] 8 SCR 815; KumariAnamica Mishra v. UP Public Service Commission,Allahabad AIR 1990 SC 461 : [1989] Suppl. SCR 124;Mohinder Sain Garg v. State of Punjab, (1991) 1 SCC662 : [1990] 3 Suppl. SCR 108; Minor A.Peeriakaruppan Etc. v. State of Tamil Nadu (1971) 1SCC 38 : [1971] 2 SCR 430; Miss Nishi Maghu v. Stateof J & K (1980) 4 SCC 95 : [1980] 3 SCR 1253; LilaDhar v. State of Rajasthan AIR 1981 SC 1777 : [1982]1 SCR 320 – referred to.

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P. Ramanatha Aiyar’s Advanced Law Lexicon, 6thEdition, Vol. 3; Oxford Concise Medical Dictionary, 7th Edition – referred to.

Case Law Reference

[2023] 3 S.C.R.

From the Judgment and Order dated 29.10.2021 of the High Courtof Jammu & Kashmir and Ladakh at Srinagar in LPASW Nos. 277 ofH2015, 278, 279, 12, 97, 98, 105, 134 and 135 of 2016.

With

Civil Appeal Nos.2182-2190, 2191-2199, 2200, 2173-2181, 2201-2203, 2204-2212, 2213-2215 and 2216-2221 of 2023.

Ms. Madhavi Goradia Divan, A.S.G., P. S. Patwalia, Sanjay R.Hegde, Ranjit Kumar, Rakesh Dwivedi, Sr. Advs., M. Shoeb Alam, UjjwalSingh, Agastya Sen, Krishna Sumanth, Siddhant Buxy, Rajensh SinghParihar, Sunando Raha, Raghav Gupta, Shah Rukh Ali, Ms. Fauzia Shakil,Anupam Raina, Ms. Purnima Krishna, G. M. Kawoosa, Ms. Pallak Mittal,Ms. Majula Gupta, Rushab Aggarwal, Japnish Singh Bhatia, Ms. RiddhimaJuneja, Mukul Kumar, Shailesh Madiyal, Vaibhav Sabharwal, AkshayKumar, Ms. Palak Mittal, Ms. S. Janani, Deepak Goel, Ms. Sarika Rai,Shiv Singh Yadav, Priya Ranjan Kumar, Ms. Beena Goyal, Hitesh KumarSharma, S. K. Rajora, Akhileshwar Jha, Ms. Niharika Dewivedi, Ms.Shweta Sand, Ravish Kumar Goyal, Anish Roy, Advs. for the appearingparties.

The Judgment of the Court was delivered by NAGARATHNA, J.

Leave granted.

2. I.A. No. 21153/2022 for substitution of the legal representativesof the deceased petitioner therein and I.A. No. 21154/2022 forcondonation of delay in filing I.A. No. 21153/2022 are allowed. Thedelay in filing I.A. No. 21154/2022 is condoned and the legalrepresentatives are brought on record.

3. I.A. No. 3739/2022 for impleadment is also allowed.

4. The present batch of appeals concern the selection processconducted on 8[th] September, 2009, for appointment of drug inspectors inthe then State of Jammu and Kashmir, and the appointments publishedon 12[th] November, 2009, whereby sixty-four persons including theappellants in SLP (C) Nos.20781-20789 of 2021; SLP (C) Nos. 20790-20798 of 2021; SLP (C) Nos. 20799-20807 of 2021; SLP (C) No. 976/2022; SLP (C) Nos. 967-975 of 2022 and Diary No. 1194/2022, wereselected and appointed as drug inspectors and are serving on the saidposts since 12[th] November, 2009. The selection and appointments werechallenged before the High Court of Jammu and Kashmir and werequashed by the learned Single Judge of the High Court of Jammu and A

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AKashmir at Srinagar, by judgment and order dated 18[th] December 2015,in SWP No. 1356 of 2009 and connected matters. The said judgmentwas affirmed by the Division Bench of the High Court by the impugnedjudgment dated 29[th] October, 2021, passed in Letters Patent Appeal No.277 of 2015 and connected matters. The appellants in SLP (C) No.976of 2022 have challenged the judgment and order dated 6[th] July, 2017Bpassed by the learned Single Judge of the High Court of Jammu andKashmir at Jammu, whereby, relying on the judgment and order of thelearned Single Judge of the High Court of Jammu and Kashmir atSrinagar dated 18[th] December, 2015, the writ petition filed by some ofthe appellants herein was dismissed. Hence, these appeals.C5. Succinctly stated, the facts leading to the present appeals areas follows:

5.1. On 05[th] May, 2008, the Jammu and Kashmir SubordinateServices Selection and Recruitment Board (hereinafter referred to as“the Board”) in exercise of the powers enshrined under the Jammu andDKashmir Subordinate Services Recruitment Rules, 1992, (hereinafterreferred to as ‘1992 Rules’) issued Advertisement Notice No. 3 of 2008,inviting applications for filling up vacancies in twenty services. TheAdvertisement Notice provided the breakup of available vacancies asalso the eligibility criteria prescribed under the relevant Recruitment Rules.EThe total number of posts advertised were 549. The said Advertisementinvited applications for 72 posts of drug inspectors out of which 42 postswere to be filled from the open merit category; 14 posts were to be filledby Residents of Backward Areas (hereinafter referred to as “RBA”)and 16 posts were to be filled by various other reserved categoriesincluding Other Social Categories (hereinafter referred to as “OSC”).FThe requisite qualifications prescribed in the advertisement, toapply for the post of drug inspector, was as under:

(a) The candidate must have a degree in Pharmacy orPharmaceutical Chemistry or a Post-Graduate Degree in Chemistry withGPharmaceuticals as a special subject of a University established in Indiaby law or must have an equivalent qualification recognized and notifiedby the Central Government for such purpose by the appointing authorityor the Associateship Diploma of the Institution of Chemists (India) bypassing the examination with analyst of drugs and pharmaceuticals asone of the subjects; orH

(b) The candidate must be a graduate in Medicine or Sciencefrom a University recognized for this purpose by the appointing authorityand must have at least one-year post-graduate training in a laboratoryunder:

i)Government Analyst appointed under the Act;

ii)Chemical examiner of the Head of the institution speciallyapproved for the purpose by the appointing authority.

5.2. The Board notified the approved criteria to regulate theselection and appointment to the posts of drug inspectors. The same areas under:

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5.3. After receipt of application forms for the post of drug inspectorFin pursuance of the advertisement, the authorities issued a notification ina local daily on 31[st] May, 2009, notifying the short-listed candidates.Another notification dated 12[th] June, 2009 was issued by the Boardcaptioned “Discrepancy noticed in criteria of drug inspector (Health).”By virtue of the said notification, the respondents recast the criteria ofGselection as under:

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5.4. On 8[th] September, 2009, the Board published the Select ListDand recommended sixty-four candidates for appointment as druginspectors in the Drug and Food Control Organisation of Jammu andKashmir. The Select List comprised of 42 candidates selected from theopen merit category and a total of 22 candidates were selected amongstthe other reserved categories out of which 14 names were selectedEunder the RBA category. The Board, on 15[th] October, 2009, placed theSelect List before the Health and Medical Education Department beingthe concerned department, for the issuance of appointment orders afterverifying all original documents.

5.5. On 12[th] November, 2009, the Office of the Controller, DrugFand Food Control Organisation of Jammu and Kashmir, issuedAppointment Orders, appointing the selected candidates as druginspectors in the Pay Scale of Rs.9300-34800 and Pay Band ofRs.4,200/-.

5.6. Some candidates who remained unsuccessful in the selectionprocess filed Writ Petition (Service) No. 1685 of 2009 before the JammuGand Kashmir High Court at Jammu, with a prayer to quash the selectionof 56 out of the total number selected candidates and to issue a writ inthe nature of mandamus commanding the authorities to instead selectand appoint the writ petitioners as drug inspectors. The salient groundson which the selection process was challenged are as under:H

a)That the candidates appointed as drug inspectors had acquiredthe prescribed qualifications for the post of drug inspector,from universities which were not affiliated with the PharmacyCouncil of India. That the eligibility criteria enshrined in theAdvertisement Notice dated 5[th] May, 2008 was recast videNotification dated 12[th] June 2009 and the criterion as regardsthe obtainment of qualifications from a University recognizedand notified by the Central Government, was omitted. Thepetitioners in the Writ Petition contended that the reason whythe qualification was omitted was neither gatherable norunderstandable.

b) That the selection carried out by the Selection Committeewas not legally sustainable as the quorum of the SelectionCommittee was not complete as the Chairman of the Boardbeing one of the members of the interview committee whichconducted the interview process did not participate in theinterview process. Further, the expert member of the InterviewCommittee was not from the field of pharmacy. Instead ofmaking a person member of the Interview Committee whohad expertise in the concerned field, the authorities brought amember who had MBBS qualification.

c)That the candidates who had a post-graduation degree hadbeen awarded 10 marks and in the viva-voce, such PGcandidates had been granted either 18 marks or 20 marks outof 20. That although the writ petitioners had performedexceptionally well in the interview, the authorities had actedin an arbitrary manner while carrying out the selection process.

5.7. On identical grounds as those raised in SWP No. 1685 of2009, three more Writ Petitions were filed by unsuccessful candidateschallenging the selection process. These petitions were filed before theSrinagar Bench of the High Court of Jammu and Kashmir. Details ofthe said writ petitions have been set out hereinunder:

i)Writ Petition SWP No. 1356 of 2009 was filed before theHigh Court seeking a writ in the nature of certiorari quashingthe criteria to the extent of allocating 20 marks for viva-voceand a direction to the authorities to formulate a fresh selectionlist of the candidates on the basis of their merit obtained after A

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Aexcluding the marks allocated to the candidates by theCommittee while conducting the viva-voce. The writpetitioners further sought a writ in the nature of a mandamusdirecting that interviews be conducted afresh with an expertin the Selection Committee who possesses the requisitequalification.B

ii)Writ Petition SWP No. 1535 of 2009 was filed by the Petitionertherein before the High Court at Srinagar, seeking a writ ofcertiorari quashing the Select List as published to the extentof the selection of drug inspectors; a direction to the authoritiesto produce the record pertaining to the interview for the postCof drug inspector and a writ of mandamus directing theconcerned authorities to select and appoint the writ petitionertherein against the post of drug inspector on the basis of hisacademic merit and the marks secured in the interview.

iii) Writ Petition SWP No. 1846 of 2009 was filed seeking a writDin the nature of certiorari quashing the selection list and a writof mandamus commanding the concerned authorities to selectand appoint the writ petitioner therein to the post of druginspector with retrospective effect w.e.f. the date thesuccessful candidates were selected.

E5.8. The learned Single Judge of the High Court, Srinagar Benchallowed the Writ Petitions i.e., SWP Nos. 1356 of 2009, 1846 of 2009and 1535 of 2009 by way of common judgement and order dated 18[th]December 2015. The pertinent findings in the judgement dated 18[th]December 2015 have been culled out hereinunder:

Fi)The learned Single Judge dismissed the challenge thrown bythe writ petitioners to the competence of the expert in theSelection Board, Dr. Samina Farhat, Assistant Professor,Department of Pharmacology. It was observed that the expertwas a doctor by profession with a Post Graduate degree (MD)Gand Ph.D. in Pharmacology to her credit. Pharmacology isan important component in the study of Pharmacy and isincluded among the major areas of instruction in the curriculumof a degree in pharmacy at the Bachelor’s and Master’s levels.All those who study and undergo the training in pharmacy arenecessarily to study Pharmacology. A pharmacist has to learn H

the effects of the medicine as well as the ways in whichmedicine can be introduced into the body. Pharmacists aremedication experts and their responsibilities include dispensingmedication to patients, monitoring patient health and progressand optimising the patient’s response to medication therapies.That pharmacology and pharmacy, therefore, are not like chalkand cheese, too different from each other. One who hasstudied medicine, and is an expert in pharmacology is expectedto have fairly good knowledge of pharmacy.

ii) The learned Single Judge was of the view that the Court whileexercising the power of judicial review cannot step into theshoes of the Selection Committee or assume an appellate roleto examine whether the marks awarded by the SelectionCommittee in the viva-voce are excessive and notcorresponding to their performance in such test. Theassessment and evaluation of the performance of candidatesappearing before the Selection Committee/Interview Boardshould be best left to the members of the Committee. Thus,there was no reason to find fault with the marks awarded bythe Selection Committee/Interview Board only because 100%marks had been awarded or that the marks awarded were ona higher side. That once the writ petitioners had participatedin the Selection Process, they were not to feel aggrieved withthe process for the reason that the marks awarded to them inthe viva-voce were not up to their expectations or on thelower side. The learned Single Judge of the High Court,however, held that the Court may not look into the decisionbut it was within its domain to examine whether the procedureand guidelines were followed. The Court thus examined thedecision-making process.

iii) The learned Single Judge observed that in the case in hand,the award rolls prepared by the members of the SelectionBoard individually were not on the selection record. Even thefinal award roll reflecting the performance of the candidatesin the viva-voice and the data of points secured on the basisof merit in the eligibility qualification and the qualificationwarranting extra weightage was not signed by the Membersof the Selection Committee and there was nothing on record A

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Ato indicate the assessment of candidates individually made bythe members of the Selection Committee and their overallmerit including the marks awarded in the interview. That theabsence of the award rolls prepared individually by theMembers of the Selection Committee, vitiated the entireselection process and the selection process did not conformBto the prescribed procedure.

iv) Upon perusal of the selection record, the learned Single Judgeobserved that it transpired that the Selection Board whilemaking the selection had given extra weightage to some ofthe candidates when such candidates did not have postgraduateCdegrees in Pharmacy/Medicine to their credit and therefore,they did not deserve to be given extra weightage. That theSelection Committee without verifying whether Post GraduateDegree in Pharmacy claimed by a candidate was to the creditof the candidate and if so, whether the degree was obtainedDfrom a recognized University or not before the cut-off date,awarded extra points, presuming the candidates to have PostGraduate Degree and therefore, eligible for extra weightage.That this cast a cloud on the selection process.

5.9. For the reasons set out above, the learned Single JudgeEallowed the said Writ Petitions and issued the following directions:

i)That successful candidates who were the respondents in thewrit petitions, had been serving as drug inspectors for sevenyears (at the time) and there was no dispute as regards theeligibility of the said candidates to the advertised posts. Thus,Fthe respondent authorities were given the discretion to retainthe successful candidates and were also directed to accordconsideration to the appointment of the writ petitioners in thethree writ petitions against available clear vacancies of druginspectors in the pay scale of Rs.9300-34800, in the respondentdepartment and to complete such exercise within four weeks.G

ii)That if the appointment of the writ petitioners as directed bythe Court was not possible due to the non-availability of posts,the Select List published by the Respondent Board on 8[th]September, 2009 and the appointment made pursuant theretoshall stand quashed and set aside. The Board would then beH

required constitute a Selection Committee to conduct freshinterviews of all candidates who earlier appeared before itand the members of the Selection Committee shall follow theprescribed procedure and shall individually assess and evaluatethe candidates, prepare individual award rolls reflecting suchassessment and handover the individual award rolls undersealed cover to the Convenor of the Selection Committee.That the Convenor of the Selection Committee shall computethe total marks awarded in the viva-voce and add the marksso obtained to the marks awarded to the candidates on thebasis of merit in the eligibility qualification and higherqualification, if any, on pro rata basis, and prepare a finalmerit list duly signed by all the members of the SelectionCommittee. The Board on the basis of the final merit list wasrequired to make recommendations to the intending departmentand the intending department was to act on therecommendations so made and issue appointment orders infavour of the selected candidates. The learned Single Judgedirected the authorities to conduct such exercise within sixmonths.

iii) The learned Single Judge further observed that in case therespondent authorities decide to carry out direction No. (ii)above, the Board may allow the selected/appointed candidatesto continue till the exercise undertaken in compliance withdirection No. (ii) was completed and appointment orders wereissued, as their ouster may result in administrative problems,risk to public health and would lead to the collapse of theentire machinery set up to achieve the objective of the Drugsand Cosmetics Act.

5.10. Thereafter, nine Letters Patent Appeals were filed beforethe High Court challenging the Order dated 18.12.2015 passed by thelearned Single Judge. Out of the nine appeals, three LPAs (LPA Nos277/2015, 278/2015 and 12/2016) were filed by persons who wereselected in the open merit category and made party respondents in atleast one of the writ petitions; three LPAs (LPA Nos. 279/2015, 134/2016 and 135/2016) were filed by the appellants herein, i.e., personswho were selected in the reserved category and were not made a partyto any of the three writ petitions and three LPAs (LPA Nos. 97/2016,98/2016 and 105/2016) were filed by the Board.

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A5.11. By the impugned judgment dated 29[th] October, 2021, theDivision Bench of the High Court upheld the findings of the learnedSingle Judge on merits and disposed of the appeals after modifying thedirections issued by the learned Single Judge. The relevant observationsin the impugned judgment dated 29[th] October, 2021 are as under:

Bi)The Division Bench of the High Court upheld the finding ofthe Single Judge viz the inclusion of Dr. Samina Farhat,Assistant Professor, Department of Pharmacology,Government Medical College, Srinagar, as an expert in theSelection Committee and held that it was expected that shehad a fairly good knowledge of Pharmacy.C

ii)The Division Bench also held that the final award roll as tothe performance of the candidates in viva-voce and the pointssecured on the basis of merit in the eligibility qualification andthe qualification warranting extra weight was not signed bymembers of the Selection Committee. Further, there wasDnothing on record to indicate the assessment of candidatesindividually made by members of the Selection Committeeand their overall merit including the marks awarded in theinterview.

iii) One of the Judges of the Division Bench, Justice VinodEChatterji Koul observed that direction No.(i) issued by thelearned Single Judge was contrary to and in conflict withdirection No. (ii). That if the learned Single Judge had foundthe marks awarded in the interview/viva-voce to be not up tothe mark and contradictory to the selection criteria, thenFdirection No.(i) ought not to have been issued by the learnedSingle Judge as it would also have an impact on prospectivecandidates and would be contrary to judicial precedent.

Direction No.(ii) was modified by the Division Benchto the extent that “appointment of petitioners as directedGis to be made” was omitted by the Division Bench. Thesubsequent part of direction (ii) i.e., “The select list publishedby respondent Board on 8[th] September, 2009 andappointments made pursuant thereto shall stand quashedand set aside.” and the consequential directions were upheldby the Division Bench.

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Justice Vinod Chatterji Koul upheld direction No.(iii)issued by the learned Single Judge and held that the sameshall remain intact and be implemented by the officials in letterand spirit.

iv) The learned Chief Justice (as he then was) in a separateopinion, concurred with the observations of Justice VinodChatterji Koul and the observations of the learned Single Judgeto the effect that the Select List was not properly drawn.That there was nothing on record to indicate that the membersof the Selection Committee had made the assessment of thecandidates individually and the final award roll reflecting theperformance of the candidates in the viva-voce and pointssecured on the basis of the merit in the eligibility qualificationas well as extra weightage granted for additional qualificationwas also not in accordance with the norms. Therefore, theselection process did not conform to the prescribed procedure.However, he further held that the learned Single Judge, havingmade the above finding to the effect that some of thecandidates had been arbitrarily awarded extra weightagewithout there being on record any material to show that theypossessed the post-graduate degrees for grant of such extramarks, the learned Single Judge could not have saved theselection of the candidates merely for the reason that theyhad been serving in the department for the last seven yearsand they were qualified to hold the post.

Further, it was held that the learned Single Judge wasnot justified in directing the authorities to retain the successfulcandidates in service and to accord consideration to theappointment of the writ petitioners-unsuccessful candidatesif they satisfy the eligibility criteria and to consider them forappointment against the available clear vacancies of the druginspectors. The learned Chief Justice opined that the selectionprocess pursuant to Advertisement Notice No. 3 of 2008 dated5[th] May 2008 was completed with the publication of the SelectList and the joining of the selected candidates. Therefore, nofurther appointments could be made on the basis of the saidselection against the clear vacancies that may have occurredsubsequently. The Division Bench held that all subsequent A

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Avacancies are to be filled up from the open market afresh andin case they are allowed to be filled up by the candidates ofthe earlier selection, it would certainly infringe upon the rightsof the candidates who would have applied against the saidvacancies if they were advertised afresh. The Division Benchthus held that once the selection was not found to be a validBone and therefore, the learned Single Judge could not haveissued any direction such as direction No. (i).

v)With respect to the argument that the unsuccessful candidateshad participated in the selection process and thus, were notentitled to challenge it, learned Chief Justice observed thatCthe writ petitioners or the unsuccessful candidates could nothave been debarred from filing the writ petition as thecandidates appearing in the selection process can always bringto the notice of the court the illegalities committed during theselection, though, they may not have any locus to challengeDthe constitution of the Selection Committee or the eligibility ofthe members of the Selection Committee, having participatedin the selection process with open eyes.

vi) The Division Bench thus quashed the selection list publishedby the Board on 8[th] September 2009 and gave the liberty toEthe Respondent-Board to constitute a Selection Committeeto conduct fresh interviews of all the candidates who hadappeared before it in accordance with the law, for selectionagainst the posts advertised. The Division Bench furtherclarified that no post or vacancy which had not been advertisedby the advertisement dated 5[th] May 2008 will be filled by theFsaid selection process. The Division Bench directed that theexercise if undertaken, should be completed within six monthsand till such time the selected candidates appointed may bepermitted to continue in the said posts to avoid administrativeproblems.

G5.12. Aggrieved by the common impugned judgment passed bythe Division Bench of the High Court of Jammu and Kashmir and Ladakhat Srinagar dated 29[th] October, 2021, the present appeals have beenfiled by various stakeholders. Further, SLP (C) No. 976/2022 has beenfiled assailing the judgment and order dated 6[th] July, 2017, passed by theHHigh Court in SWP No. 1685/2009, by way of which, the High Court

quashed the selection and the list published by the Board on 8[th] September2009.

Details of the various appeals filed before this Court, which wereheard and are being disposed of by way of this judgment, have beenpresented for easy reference in a tabular form hereinunder:

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6. We have heard learned Senior Counsel, Sri Ranjit Kumar andlearned counsel Sri Shoeb Alam appearing on behalf of the appellants inSLP (C) Nos. 20781-20789 of 2021, learned Senior Counsel Sri SanjayHegde for the appellants in Diary No. 1194 of 2022, learned SeniorCounsel Sri P.S. Patwalia appearing for the appellants in SLP (C) Nos.G20790 – 20798 of 2021, learned Additional Solicitor General Smt. MadhaviGoradia Divan appearing for the Board and learned counsel Ms. S. Jananiappearing on behalf of the Respondents herein-writ petitioners and otherlearned counsel appearing for the respective parties and perused thematerial on record.

Submissions:

7. Learned counsel Sri Shoeb Alam appearing on behalf of someof the appellants at the outset submitted that the impugned judgment ofthe High Court of Jammu and Kashmir and Ladakh at Srinagar dated29[th] October, 2021 was based on an incorrect appreciation of the lawand facts and therefore calls for interference by this Court.

7.1. It was submitted that it was an admitted position that therewas no rule or notification prescribing any procedure or requirement forthe Selection Committee to retain the individual award rolls or have thefinal award rolls signed by the members. That the selection recordsculminated in the final Select List and the same was approved with thesignatures of all seven members of the Board, including two membersof the Selection Committee, after perusing the selection records. Thatthe calculations made on the individual basis of the candidates had beenverified with reference to the records. The consolidated points were fedinto the computer by the Chairman of the Board himself and checked byanother member of the Board. The final Select List prepared on thisbasis was approved by the Board, after perusal of the selection record,with the signatures of all members of the Board. However, the SingleJudge did not refer to the same. Thus, the Impugned Order and theSingle Judge’s Order setting aside the entire selection of the appellantson the ground that the prescribed procedure was not followed and thatthe selections made by the Selection Committee were doubtful, iserroneous and contrary to law.

Reliance was placed on Reserve Bank of India vs. C.L. Toora,(2004) 4 SCC 657, to contend that where no procedure is prescribedfor a Selection Committee, it can formulate its own procedure which isreasonable and not arbitrary in nature.

7.2. It was further submitted that it is a settled position of law thatwhen a Selection Committee recommends the selection of a person, thesame cannot be presumed to have been done in an erroneous ormechanical manner in the absence of any allegation of favoritism orbias. That a presumption arises as regards the correctness of the decisionof a Selection Committee and the party who makes the allegation of biasor favoritism is required to prove the same. Thus, in the absence ofmala fides against the members, selection by a Selection Committeecannot be doubted. To buttress his argument, learned counsel placed A

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Areliance on Union of India vs. Bikash Kuanar, (2006) 8 SCC 192;Sadananda Halo vs. Momtaz Ali Sheikh, (2008) 4 SCC 619(Sadananda Halo) and University of Mysore vs. C.D. Govinda Rao,(1964) 4 SCR 575.

7.3. It was contended that this Court in the context of non-Bavailability of any part of selection records has, in Trivedi HimanshuGhanshyambhai vs. Ahmedabad Municipal Corporation, (2007) 8SCC 644 (Trivedi Himanshu Ghanshyambhai) held that only becausethe records could not be produced in view of the fact that they were notavailable, no inference as to mala fides can be drawn against the membersof a Selection Committee and the selection cannot be cancelled. In thisCregard it was submitted that the impugned judgment and the judgment ofthe Single Judge, setting aside the entire selection of the appellants hereindue to the non-availability of individual award rolls, despite, signedapproval of the final Select List by the Board, is contrary to law. Thatthe burden of establishing mala fides is heavily on the person who allegesDit and the allegations of mala fides are more than often easily made thanproved, and the very seriousness of such allegations demands proof of ahigh order of credibility, vide Indian Railway Construction Co. Ltd.vs. Ajay Kumar, (2003) 4 SCC 579; State of Bihar vs. P.P. Sharma,(1992 Supp. (1) SCC 222); Ajit Kumar Nag vs. Indian OilCorporation Ltd., (2005) 7 SCC 764; Union of India vs. AshokEKumar, (2005) 8 SCC 760.

7.4. It was further contended on behalf of the appellants that inthe absence of any rule or regulation requiring a Selection Committee orBoard to record reasons for selection and appointment, no fault can befound with the selection process due to the lack of individual awardFrolls. Reliance in this regard was placed on National Institute of MentalHealth and Neuro Sciences vs. Dr. K. Kalyana Raman, 1992 Supp.(2) SCC 481; B.C. Mylarappa vs. Dr. R. Venkatasubbaiah, (2008)14 SCC 306; Baidyanath Yadav vs. Aditya Narayan Roy, (2020)16 SCC 799; Mohd. Mustafa vs. Union of India, (2022) 1 SCC 294G(Mohd. Mustafa).

7.5. It was asserted that the power of judicial review does notextend to conducting a microscopic inquiry beyond the pleadings in thewrit petition. Reliance was placed on Sadananda Halo to contend thatthis Court has held that a roving and microscopic inquiry on factual aspectsHis not permissible in a writ petition. That a Writ Court cannot place itself as a fact-finding commission and cannot go all the way into the factsand microscopic details, which are revealed not via the pleadings but onthe basis of an unnecessary investigation. That in the present case, theHigh Court had called for the selection records, gone through the same,undertaken a fact-finding exercise and rendered microscopic findingsfor specific individuals, and all of it, not on the basis of pleadings. Thus,the present case is a perfect example of what a writ court ought not doin the exercise of its powers under Article 226 of the Constitution.

7.6. It was thus contended that the High Court cannot act as anappellate authority over the choice of candidates/selection process underArticle 226. To buttress his submission, learned counsel cited MadanLal vs. State of J&K, (1995) 3 SCC 486 (Madan Lal) wherein thisCourt held that it was in the exclusive domain of the expert committee todecide whether more marks should be assigned and the Court cannot sitas a Court of appeal over the assessment made by the Committee.Reliance was also placed on Union of India vs. Bilash Chand Jain,(2009) 16 SCC 601 to submit that it is settled law that a Writ Court isnot an Appellate Court. Thus, the High Court exceeded the WritJurisdiction while setting aside the selection of the appellants herein.

7.7. It was averred that persons who participated in the selectionprocess and interview cannot challenge the same upon being unsuccessfulsince they do not have a cause to challenge the same and a writ petitionfiled by them is not maintainable, vide Madan Lal; Anupal Singh vs.State of Uttar Pradesh, (2020) 2 SCC 173; Sadananda Halo andMohd. Mustafa. Reliance was also placed on D. Sarojakumari vs. R.Helen Thilakom, (2017) 9 SCC 478. That in the present case, none ofthe writ petitioners was selected on merit and they were not even on thewaiting list, therefore, the writ petitions filed by them were notmaintainable on the ground of the same being devoid of any locus.

7.8. Learned counsel Sri Shoeb Alam submitted that in the absenceof a large-scale systematic irregularity that denudes the legitimacy ofthe selection exercise, the entire selection cannot be set aside. That thisCourt in Sachin Kumar vs. Delhi Subordinate Service SelectionBoard, (2021) 4 SCC 631; Inderpreet Singh Kahlon vs. State ofPunjab, (2006) 11 SCC 356; Union of India vs. Rajesh P.U., (2003)7 SCC 285 (Rajesh P.U.) has held that those who are innocent ofwrongdoing should not pay a price for those who are actually found tobe involved in irregularities and therefore, the selection as a whole cannot AB

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Abe set aside for specific instances of irregularities. It was submitted thatunless there is a systematic malaise affecting the integrity of the selectionand denying equal opportunity, the entire selection cannot be set asideby taking away the appointment of innocent and meritorious candidates.

7.9. That it was within the exclusive domain of the expertBcommittee to decide whether more marks should be assigned to thecandidates and hence, it cannot be a subject-matter of an attack beforea Writ Court, as it does not sit as a Court of appeal over the assessmentmade by the Committee so far as the candidates interviewed by themare concerned. To buttress this submission, the learned counsel cited thedecisions of this Court in Madan Lal and Ashok Kumar Yadav vs.CState of Haryana, (1985) 4 SCC 417.

7.10. It was next submitted that appellants have been working asdrug inspectors since their appointment on 12[th] November, 2009, i.e., fora period of over 13 years, without any complaint against them and nofault on their part has been attributed at any point. Thus, their appointmentDshould not be set aside due to the long period of service rendered. Further,the petitioners are now at an age where they will not be able to secureany alternate employment, vide Buddhi Nath Chaudhary vs. AbahiKumar, (2001) 3 SCC 328.

7.11. That the writ petitions filed challenging the selection processEwere not maintainable, the same being defective as all the appointeeswere not impleaded as parties.

7.12. Specific submissions were made by learned Senior CounselMr. Patwalia as regards the selection of Mr. Pankaj Malhotra, Mr. AshishGupta and Ms. Rumeesa Mohammad. It was submitted that that thereFis no discrepancy in the selection of the aforesaid three individuals asdoubted by the High Court as all three individuals comfortably find aplace in the Select List even if no weightage for the M. Pharma degreeis added to their score. As to the alleged discrepancies in the selection ofthe aforesaid three individuals as pointed out by the Writ Court, the learnedGSenior Counsel for the petitioners submitted as under:

i)Rumeesa Mohammad: That her M. Pharma degree wasnot given weightage at the time of her selection as gradeswere allotted to her by her University for the said degreeand the formula for conversion of such grades intopercentage was not known. That even without suchH

weightage, she was selected at rank 17. Subsequently, shemade a representation to the Board along with theconversion formula, pursuant to which weightage was givento her M. Pharma degree vide Order dated 30[th] November,2010, revising her rank from 17 to 4.

ii)Ashish Gupta: That the final award roll records a remarkthat his M. Pharma degree was from Baba Mast NathUniversity and Vanika Mission. The Committee had hisdegree but it required a clarification about the institute thatissued the degree as Baba Mast Nath University wasderecognized and he was shifted to Vinayaka Mission underCourt Orders. It was submitted that he got his degree fromVinayaka Mission and even if no weightage was given tohis M. Pharma degree, his rank in the Select List wouldshift from 14 to 29 whereas the cutoff rank was 42.

iii)Pankaj Malhotra: It was submitted that he could not enclosehis marksheet along with his application as he had obtainedthe final marksheet only after submitting his application,however, he produced his final marksheet for the M. Pharmacourse at the time of the interview. He could not producethe original degree as it had not been issued by then, althoughhe had passed the course. Thus, he had “acquired” thequalification of M. Pharma at the time of the interview.That even if no weightage was given to his M. Pharmadegree, his rank in the Select List would shift from 2 to 14and the cutoff rank was 42.

8. Sri Sanjay Hegde, learned Senior Counsel for the appellants inDiary No. 1194 of 2022, i.e., persons who were appointed as druginspectors in the Scheduled Caste, Scheduled Tribe and residents of theActual Line of Control (A.L.C.) categories submitted that the DivisionBench of the High Court erred in setting aside and quashing the SelectList published by the respondent board on 8[th] September, 2009, therebyquashing all the appointments made pursuant thereto. That the selectionlist was correct as the same was published by the Board after followinglawful procedure and that the selection list has attained finality by effluxof time.

8.1. It was further submitted that denial of opportunity of beingheard before the Writ Court and the cancellation of their appointments, A

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Aon the ground of non-joinder of parties, warrants setting aside of theimpugned judgment. That the High Court was not justified in quashingthe whole selection list and appointments thereof as no such prayer quathe appellants in Diary No. 1194 of 2022 was maintainable as there wasno grievance against such persons. That such appellants’ selection/appointment was at no point of time ever challenged by the respondents/Bunsuccessful candidates and they did not figure as parties in any of theWrit Petitions, thus, violating the principles of natural justice and the WritPetitions were hit by non-joinder of necessary parties.

8.2. It was next submitted that there was no candidate from amongthe non-selectees, who could have challenged the selection of theseCpetitioners, because they belong to the Scheduled Tribe, Scheduled Casteand residents of Actual Line of Control (A.L.C.) category and vide theAdvertisement Notice dated 5[th] May, 2008, seven posts of ScheduledTribe category, six posts of Scheduled Caste category and two posts ofcandidates belonging to and residing within or near the A.L.C. wereDadvertised and there were fewer candidates available than the numberof posts advertised under Scheduled Tribe and Scheduled Caste category.In so far as the A.L.C. category posts are concerned, it was submittedthat only three candidates applied against the two posts and the oneunsuccessful candidate under ALC never challenged the selection ofthe petitioners belonging to ALC and this factum was evident from theESelect List issued by the Board while recommending the sixty-fourcandidates for appointment as drug inspectors. Four posts out of sevenposts belonging to Scheduled Tribe, and three posts out of six postsbelonging to Scheduled Caste remained vacant due to the non-availabilityof candidates.F

8.3. It was contended that the fact that such appellants werenever made parties and yet the entire selection was set aside, was itselfa stand alone reason and ground for setting aside the impugned judgment,qua the appellants in Diary No. 1194 of 2022. That the impugned judgmentdecided the fate of such appellants despite non-joinder as necessaryGparties.

With the aforesaid submissions, it was prayed that the presentappeals be allowed and the impugned judgment of the High Court dated29[th] October, 2021 and the judgment of the learned Single Judge dated18[th] December 2015 be set aside.

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9. Ms. Madhavi Goradia Divan, learned ASG appearing for theBoard submitted that neither the learned Single Judge nor the DivisionBench found any mala fides against the members of the SelectionCommittee and the Division Bench concurrently found that a court cannotstep into the shoes of the Selection Committee or assume an appellaterole to examine whether the marks awarded by the Selection Committeein the viva-voce test were excessive and not corresponding to theperformance in such test. Therefore, quashing the selection process, dehors any finding as to mala fides against the members of the SelectionCommittee, would not be sustainable.

9.1. It was further submitted that the Selection Committee wasformed as per Rule 9 of the 1992 Rules. Rule 9(1) clearly stipulates thatthe Chairman of the Board may nominate a Committee which shall consistof one or more members of the Board for the purpose of conductingexaminations and holding interviews and tests for the purposes of selectionof candidates to be appointed to the State Cadre. Further, Rule 9(iii)empowers the Chairman to associate with the Selection Committee, anExpert/Specialist with the Board if he feels necessary, in the discipline inwhich recruitment is sought to be made.

Thus, to ensure the selection of meritorious candidates was carriedout with all fairness and transparency the Selection Committee comprisedof (i) the Chairman of the Board (an IAS officer); (ii) a Member of theBoard (Kashmir Administrative Officer); and (iii) an Expert/Specialistwho was employed as an Assistant Professor in the Government MedicalCollege at Srinagar. It was contended that if there was any ulterior motiveto manipulate the scores in the viva-voce to benefit certain candidates,the Chairman of the Board could have just constituted a one-memberCommittee comprising of only himself to conduct the viva-voce for theselection of candidates.

9.2. It was further contended that each member of the three-member Selection Committee individually assessed each candidate andawarded points in the viva-voce which were averaged by dividing bythe number three and the same could be evidenced from the marksawarded to the candidates in the viva-voce such as 11.67, 13.67, 11.33etc.;

9.3. In so far as the marks awarded by the expert member of theSelection Committee are concerned, the learned ASG brought to the AB

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ACourt’s notice, Order dated 18[th] December, 2015 passed by the learnedSingle Judge wherein it was categorically held that a Court whileexercising the power of judicial review cannot step into the shoes of theSelection Committee and neither can it assume an appellate role inexamining whether the marks awarded by the Selection Committee inthe viva-voce were excessive and not corresponding to the performanceBin such test.

Further, that the respondents chose not to file an appeal/LPAchallenging the above finding and in fact, the aforesaid observation ofthe learned Single Judge vis-à-vis the marks allotted by the SelectionCommittee was affirmed by the Division Bench.C

The learned ASG further submitted that no SLP had been filed bythe Respondents challenging the observation of the Division Bench asregards the discretion exercised by the Selection Committee in awardingmarks in the viva-voce. Thus, the observation that the marks awardedby the Selection Committee in the viva-voce test cannot be reviewed byDa Court in the facts and circumstances of the present case, has attainedfinality.

9.4. The learned ASG placed reliance on Jasvinder Singh vs.State of J&K, (2003) 2 SCC 132 wherein it was held that in the absenceof any specific allegations of any mala fides or bias against the BoardEconstituted for selection or anyone in the Board, it cannot be held that aconscious effort was made for bringing some candidates within theselection zone. It was further held that picking up a negligible few instancescannot provide the basis for either striking down the method of selectionor the selections ultimately made. In the said case, it was also observedFthat there is no guarantee that a person who fared well in the writtentest, will or should be presumed to have fared well in the viva-voce testalso.

9.5. The learned ASG cited Rule 10 of the 1992 Rules whichprovides for Recruitment and Selection to contend that there is noGprescribed procedure for the appointment of drug inspectors. Rule 10(i)states that the Board shall finalize the selections after holding such testsor examinations as may be prescribed under rules or if there are no suchrules, as the Board may consider necessary. Thus, it is a matter of recordthat no rules have been prescribed for the selection of drug inspectorsand in the absence of prescribed rules, the Selection Committee and theH

Board carried out the selection process in a fair and transparent manner.That merely because the record of the case was not traceable when itwas called for by the Single Judge in February 2015, i.e., 6 years afterthe selection/appointments were made, cannot be a ground to set asidethe entire selection process.

Reliance was placed on Trivedi Himanshu Ghanshyambhai,wherein it was held that merely because the records could not beproduced since they were lost and not available, the appointment couldnot be cancelled.

9.6. As regards the selection of Pankaj Malhotra, RumessaMohammad and Ashish Gupta, learned ASG submitted that the findingof the Single Judge in paragraph 16 of his judgment that the SelectionCommittee had given weightage to some candidates for degrees whichthey did not possess, was erroneous.

It was submitted that Mr. Pankaj Malhotra produced his M.Pharma degree before the Selection Committee and the same wasconsidered on the date of his interview. Further, the High Court overlookedthe fact that even if the marks awarded by the Selection Committee onaccount of M. Pharma degree were excluded in his case, the candidatewould still be selected even though his rank would go down from SerialNo. 2 to Serial No. 14.

Secondly, in the case of Ms. Rumessa Mohammad, marks of herM. Pharma Degree were not added to her final score and the error waslater on rectified by the Board by the issuance of a subsequent notificationdated 30[th] November, 2010, thereby, revisiting the position of Ms.Rumessa Mohammad in the selection list from Serial No. 17 to SerialNo. 4. This notification was a part of the record.

Thirdly, in the case of Mr. Ashish Gupta, marks were rightlyawarded to him on account of possessing an M. Pharma degree whichwas filed along with the application form before the cut-off date.

With the said averments, it was contended that the present appealsbe allowed and the impugned judgments of the High Court be set-aside.

10. Per contra, learned counsel Ms. S. Janani appearing on behalfof the Respondents herein-writ petitioners before the High Court,supported the impugned judgments of the High Court and submitted thatthe same do not warrant any interference by this Court as the judgments A

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Awere passed based on an unimpeachable appreciation of the law andfacts.

10.1. It was averred that the Selection Committee formed wasdefective and inadequate as the Chairman opted for an expert and tookon board the Selection Committee, Dr. Samina Farhat who was a doctorBby profession with M.D. and Ph.D. in Pharmacology to her credit. Thatthe role of a doctor in Pharmacology is to research, develop, and testnew medications, as well as run clinical trials for new drug discoveries.On the other hand, the responsibility of a drug inspector is to inspectwhether the medicines maintain legal standards of sanitation, limpidness,and grading. They are entrusted with the task to ensure that licensingCconditions are being followed and they also have to obtain and send thedrug for testing or analysis if there is a reason to suspect that the drug isbeing sold or stocked in violation of the Act or Rules. Thus, the learnedcounsel for the respondents asserted that the expert selected by theChairman cannot be said to be an expert or specialist in the discipline inDwhich the recruitment was being made.

10.2. It was next contended that the eligibility criteria werechanged midway. That initially, the eligibility criteria required that theequivalent qualification was to be recognised and notified by the CentralGovernment. However, in the approved criteria, the same was dropped.EThe respondents contended that the criteria were changed after theapplications had been received pursuant to the advertisement. As a resultof the above, several candidates and brighter people may not have appliedand several persons from unrecognized colleges would have got selected.Further, the Selection Board had no mechanism to verify the genuinenessof the certificates or whether the universities were recognized or not.F

10.3. That some of the selected candidates did not produce theiroriginal mark sheet of B. Pharma or M. Pharma at the time of theinterview and some of them did not even produce their birth certificates.This was contrary to what was laid down in the advertisement asaccording to the advertisement, the candidates had to produce the originalGqualification certificates at the time of the interview and any candidatewho failed to produce the same was not to be allowed to appear in thewritten or oral test.

10.4. It was contended that the process was tainted by arbitrarinessand casualness with which the Selection Committee had acted. That H

this was evidenced by the fact that there were some candidates whowere not given marks for their M. Pharma Degree and they had to laterapproach the Board. That 11 selected candidates were given 20 out of20 marks and three were given 19 out of 20. Thus, almost 20% of theselected candidates were given unusually higher marks in the viva-vocewhich facilitated their selection.

10.5. It was submitted that there was no blanket estoppel tochallenge the selection by the candidates who participated in the selection.In the instant case, the Petitioners before the High Court were not awarewhen they participated in the selection that the Selection Committeewas faulty nor were they aware till the Select List was published thatseveral selected candidates had not produced their original certificatesof qualification or birth certificates at the time of the interview. Thateven the Selection Board did not have the facility to verify the veracityof the certificates produced.

10.6. The learned counsel for the respondents placed reliance onSecretary, State of Karnataka vs. Umadevi, (2006) 4 SCC 1 tocontend that the petitioners cannot seek the protection of their appointmenton the plea that they had been working for long years, if their initialselection was held to be illegal and faulty.

10.7. Learned counsel for the respondents concluded thesubmissions by stating that the total sanctioned strength of drug inspectorsis 84 and out of the total strength, 65 are currently working. In fact, outof the 65 inspectors, 4 had been promoted, thus, there are 25 vacanciesas of now and only 17 candidates are contesting before this Court andall other petitioners before the High Court have not chosen to contestthe matter even though notice was issued by this Court in ordinary modeand also by way of publication in newspapers. Thus, all the petitionerscan be adjusted and appointed in the vacant posts.

With the aforesaid submissions, it was prayed that the impugnedjudgments of the High Court be affirmed and the present appeals bedismissed as being devoid of merit.

Points for Consideration:

11. Having regard to the submissions of the learned Senior Counseland learned counsel for the respective parties, the following points wouldarise for our consideration:

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748SUPREME COURT REPORTS

Ai)Whether the High Court of Jammu and Kashmir at Srinagarerred in quashing and setting aside the the selection processconducted on 8[th] September, 2009, for appointment of druginspectors in the State of Jammu and Kashmir, and theappointments published on 12[th] November, 2009?

Bii)What order?Selection Process for Public Employment: Interference byCourts:

12. Before proceeding further, it is necessary to preface ourjudgment with the view that Courts in India generally avoid interfering inCthe selection process of public employment, recognising the importanceof maintaining the autonomy and integrity of the selection process. TheCourts recognise that the process of selection involves a high degree ofexpertise and discretion and that it is not appropriate for Courts to substitutetheir judgment for that of a selection committee. It would be indeed,Dtreading on thin ice for us if we were to venture into reviewing thedecision of experts who form a part of a selection board. The law on thescope and extent of judicial review of a selection process and resultsthereof, may be understood on consideration of the following case law:

i) In Dalpat Abasaheb Solunke vs. Dr. B.S. Mahajan, AIRE1990 SC 434, this Court clarified the scope of judicial reviewof a selection process, in the following words:

“9...It is needless to emphasise that it is not the function of thecourt to hear appeals over the decisions of the selectioncommittees and to scrutinise the relative merits of theFcandidates. Whether the candidate is fit for a particular postor not has to be decided by the duly constituted selectioncommittee which has the expertise on the subject. The courthas no such expertise. The decision of the selection committeecan be interfered with only on limited grounds, such as illegalityor patent material irregularity in the constitution of the committeeGor its procedure vitiating the selection, or proved malafidesaffecting the selection etc…..”

ii) In a similar vein, in Secy. (Health) Deptt. Of Health & F.W.vs. Dr. Anita Puri, (1996) 6 SCC 282, this Court observed H

as under as regards the sanctity of a selection process and thegrounds on which the results thereof may be interfered with:

“9. ... It is too well settled that when a selection is made by anexpert body like the Public Service Commission which is alsoadvised by experts having technical experience and high academicqualification in the field for which the selection is to be made, thecourts should be slow to interfere with the opinion expressed byexperts unless allegations of mala fide are made and established.It would be prudent and safe for the courts to leave the decisionson such matters to the experts who are more familiar with theproblems they face than the courts. If the expert body considerssuitability of a candidate for a specified post after giving dueconsideration to all the relevant factors, then the court should notordinarily interfere with such selection and evaluation…….”

iii) This position was reiterated by this Court in M. V. Thimmaiahvs. Union Public Service Commission, (2008) 2 SCC 119,in the following words:

“21. Now, comes the question with regard to the selection ofthe candidates. Normally, the recommendations of the SelectionCommittee cannot be challenged except on the ground of malafides or serious violation of the statutory rules. The courts cannotsit as an Appellate Authority to examine the recommendationsof the Selection Committee like the court of appeal. Thisdiscretion has been given to the Selection Committee only andcourts rarely sit as a court of appeal to examine the selectionof the candidates nor is the business of the court to examineeach candidate and record its opinion...

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30. We fail to understand how the Tribunal can sit as an AppellateAuthority to call for the personal records and constitute SelectionCommittee to undertake this exercise. This power is not given tothe Tribunal and it should be clearly understood that the assessmentof the Selection Committee is not subject to appeal either beforethe Tribunal or by the courts. One has to give credit to the SelectionCommittee for making their assessment and it is not subject toappeal. Taking the overall view of ACRs of the candidates, onemay be held to be very good and another may be held to be good.

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If this type of interference is permitted then it would virtuallyamount that the Tribunals and the High Courts have started sittingas Selection Committee or act as an Appellate Authority over theselection. It is not their domain, it should be clearly understood, ashas been clearly held by this Court in a number of decisions…..”

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Biv) Om Prakash Poplai and Rajesh Kumar Maheshwari vs.Delhi Stock Exchange Association Ltd., (1994) 2 SCC 117,was a case where an appeal was filed before this Courtchallenging the selection of members to the Delhi StockExchange on the ground that the Selection Committee formedfor the aforesaid purpose, arbitrarily favoured some candidatesCand was thus, against Article 14. This Court rejected theallegation of favouritism and bias by holding as under:

“5. …the selection of members by the Expert Committee hadto be done on the basis of an objective criteria taking intoconsideration experience, professional qualifications and similarDrelated factors. In the present cases, we find that certainpercentage of marks were allocated for each of these factors,namely, educational qualifications, experience, financialbackground and knowledge of the relevant laws and procedurespertaining to public issues etc. Of the total marks allocatedEonly 20 per cent were reserved for interviews. Therefore, theprocess of selection by the Expert Committee was not leftentirely to the sweet-will of the members of the Committee.The area of play was limited to 20 per cent and having regardto the fact that the members of the Expert Committeecomprised of two members nominated by the CentralFGovernment it is difficult to accept the contention that theyacted in an unreasonable or arbitrary fashion…...”

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12.1. Thus, the inexorable conclusion that can be drawn is that itis not within the domain of the Courts, exercising the power of judicialreview, to enter into the merits of a selection process, a task which is theGprerogative of and is within the expert domain of a Selection Committee,subject of course to a caveat that if there are proven allegations ofmalfeasance or violations of statutory rules, only in such cases of inherentarbitrariness, can the Courts intervene.

Thus, Courts while exercising the power of judicial review cannotHstep into the shoes of the Selection Committee or assume an appellate

role to examine whether the marks awarded by the Selection Committeein the viva-voce are excessive and not corresponding to theirperformance in such test. The assessment and evaluation of theperformance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. Inlight of the position that a Court cannot sit in appeal against the decisiontaken pursuant to a reasonably sound selection process, the followinggrounds raised by the writ petitioners, which are based on an attack ofsubjective criteria employed by the selection board/interview panel inassessing the suitability of candidates, namely, (i) that the candidateswho had done their post-graduation had been awarded 10 marks and inthe viva-voce, such PG candidates had been granted either 18 marks or20 marks out of 20. (ii) that although the writ petitioners had performedexceptionally well in the interview, the authorities had acted in an arbitrarymanner while carrying out the selection process, would not hold anywater.

13. The next aspect of the matter which requires consideration isthe contention of the writ petitioners to the effect that the entire selectionprocess was vitiated as the eligibility criteria enshrined in theAdvertisement Notice dated 5[th] May, 2008 was recast vide a corrigendumdated 12[th] June, 2009, without any justifiable reason. In order to considerthis contention, regard may be had to the following case law:

i)In Manish Kumar Shahi vs. State of Bihar, (2010) 12SCC 576, this Court authoritatively declared that havingparticipated in a selection process without any protest, itwould not be open to an unsuccessful candidate to challengethe selection criteria subsequently.

ii)In Ramesh Chandra Shah vs. Anil Joshi, (2013) 11 SCC309, an advertisement was issued inviting applications forappointment for the post of physiotherapist. Candidates whofailed to clear the written test presented a writ petition andprayed for quashing the advertisement and the process ofselection. They pleaded that the advertisement and the testwere ultra vires the provisions of the Uttar Pradesh MedicalHealth and Family Welfare Department Physiotherapist andOccupational Therapist Service Rules, 1998. After referringto a catena of judgments on the principle of waiver andestoppel, this Court did not entertain the challenge for the A

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reason that the same would not be maintainable afterparticipation in the selection process. The pertinentobservations of this Court are as under:

“24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having takenpart in the process of selection with full knowledge thatthe recruitment was being made under the General Rules,the respondents had waived their right to question theadvertisement or the methodology adopted by the Boardfor making selection and the learned Single Judge andthe Division Bench of the High Court committed graveerror by entertaining the grievance made by therespondents.”

iii) Similarly, in Ashok Kumar vs. State of Bihar, (2017) 4 SCC357, a process was initiated for promotion to Class-III postsfrom amongst Class-IV employees of a civil court. In the saidcase, the selection was to be made on the basis of a writtentest and interview, for which 85% and 15% marks wereearmarked respectively as per norms. Out of 27 (twenty-seven)candidates who appeared in the written examination, 14(fourteen) qualified. They were interviewed. The committeeselected candidates on the basis of merit and prepared a list.The High Court declined to approve the Select List on theground that the ratio of full marks for the written examinationand the interview ought to have been 90:10 and 45 ought to bethe qualifying marks in the written examination. A fresh processfollowed comprising of a written examination (full marks - 90and qualifying marks - 45) and an interview (carrying 10 marks).On the basis of the performance of the candidates, resultswere declared and 6 (six) persons were appointed on Class-III posts. It was thereafter that the appellants along with 4(four) other unsuccessful candidates filed a writ petition beforethe High Court challenging the order of the High Court on theadministrative side declining to approve the initial Select List.The primary ground was that the appointment process wasvitiated, since under the relevant rules, the written test wasrequired to carry 85 marks and the interview 15 marks. ThisCourt dismissed the appeals on the grounds that the appellants were clearly put on notice when the fresh selection processtook place that the written examination would carry 90 marksand the interview 10 marks. The Court was of the view thatthe appellants having participated in the selection processwithout objection and subsequently found to be not successful,a challenge to the process at their instance was precluded.The relevant observations are as under:

“13. The law on the subject has been crystalized in severaldecisions of this Court. In Chandra Prakash Tiwari v.Shakuntala Shukla, this Court laid down the principle thatwhen a candidate appears at an examination withoutobjection and is subsequently found to be not successful, achallenge to the process is precluded. The question ofentertaining a petition challenging an examination would notarise where a candidate has appeared and participated. Heor she cannot subsequently turn around and contend thatthe process was unfair or that there was a lacuna therein,merely because the result is not palatable. In Union of Indiav. S. Vinodh Kumar (2007) 8 SCC 100, this Court held that:“18. It is also well settled that those candidates who hadtaken part in the selection process knowing fully well theprocedure laid down therein were not entitled to questionthe same (See also Munindra Kumar v. Rajiv Govil (1991)3 SCC 368 and Rashmi Mishra v. M.P. Public ServiceCommission (2006) 12 SCC 724)”.

13.1. It is therefore trite that candidates, having taken part in theselection process without any demur or protest, cannot challenge thesame after having been declared unsuccessful. The candidates cannotapprobate and reprobate at the same time. In other words, simply becausethe result of the selection process is not palatable to a candidate, hecannot allege that the process of interview was unfair or that there wassome lacuna in the process. Therefore, we find that the writ petitionersin these cases, could not have questioned before a Court of law, therationale behind recasting the selection criteria, as they willingly tookpart in the selection process even after the criteria had been so recast.Their candidature was not withdrawn in light of the amended criteria. Achallenge was thrown against the same only after they had been declaredunsuccessful in the selection process, at which stage, the challenge ought A

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Anot to have been entertained in light of the principle of waiver andacquiescence.

13.2. This Court in Sadananda Halo has noted that the onlyexception to the rule of waiver is the existence of mala fides on the partof the Selection Board. In the present case, we are unable to find anyBmala fide or arbitrariness in the selection process and therefore the saidexception cannot be invoked.

Cancellation of the entire selection process: Whether justified?

14. In the present case, the entire selection of the appellants hasbeen quashed by the High Court primarily on the ground of non-availabilityCof individual award rolls or marksheets awarding marks individually.Whether such an irregularity would vitiate the entire selection processand set it at naught is the next aspect of the matter that requiresconsideration.

14.1. The decision of a three-judge Bench of this Court in KumariDAnamica Mishra vs. UP Public Service Commission, Allahabad,AIR 1990 SC 461 involved recruitment to various posts in the educationalservices of the State of Uttar Pradesh. There was a two-stage recruitmentinvolving a written test and an interview therein. It was found that afterthe written examination, due to the improper feeding of data into theEcomputer, some candidates who had a better performance in the writtenexamination were not called for interview and candidates who securedlesser marks were not only called for the interview but were finallyselected. The entire process was cancelled by the Public ServiceCommission. In the said context, this Court observed as under:

F“4. We have heard counsel for the parties and are of the viewthat when no defect was pointed out in regard to the writtenexamination and the sole objection was confined to exclusion of agroup of successful candidates in the written examination fromthe interview, there was no justification for cancelling the writtenpart of the recruitment examination.”G

The aforesaid case is therefore representative of a situation wherethe cancellation of the entire recruitment process was held to be notjustified since there was no systemic flaw in the written test, and theissue was only with regard to award of marks to the candidates in theinterview. The situation could have been remedied by setting aside the H

selection made after the interview stage and calling for a fresh interviewof all eligible candidates if the case so warranted which is also not so inthe instant case.

14.2. In Mohinder Sain Garg vs. State of Punjab, (1991) 1SCC 662, 1200 candidates were called for the interview, for filling up 54posts. Though not through a proper course to have been adopted it washeld that it would not vitiate the selection, more particularly when itcould not be said to be tainted with mala fides or ill motive.

14.3. The observations of this Court in Rajesh P.U. are highlyinstructive as regards the question, whether, setting aside the entireselection process would be excessive or disproportionate a remedy in agiven case. The pertinent findings of this Court in the said case are asunder:

“...Applying a unilaterally rigid and arbitrary standard to cancelthe entirety of the selections despite the firm and positiveinformation that except 31 of such selected candidates, no infirmitycould be found with reference to others, is nothing but totaldisregard of relevancies and allowing to be carried away byirrelevancies, giving a complete go-by to contextual considerationsthrowing to the winds the principle of proportionality in going fartherthan what was strictly and reasonably to meet the situation. Inshort, the competent authority completely misdirected itself in takingsuch an extreme and unreasonable decision of cancelling the entireselections, wholly unwarranted and unnecessary even on thefactual situation found too, and totally in excess of the nature andgravity of what was at stake, thereby virtually rendering suchdecision to be irrational.”

14.4. In the present case, the entire selection of the appellantswas set aside due to the non-availability of individual award rolls, despite,signed approval of the final Select List by the members of the Board.Whether quashing the entire selection process was excessive or justified,would depend on the selection procedure adopted and whether the sameis arbitrary or reveals any mala fides on the part of the selection board.

14.5. The selection process adopted in the instant case may besummarized as under:

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Ai)The process of selection was governed by the 1992 Rulesmade by the General Administration Department of theGovernment of Jammu and Kashmir.

Rule 9 (i) of the said Rules provided that the Chairmanof the Board may nominate a committee of “one or moreBmembers” of the Board for, inter alia, holding interviewsfor the purpose of selecting candidates for being appointedto the State Cadre.

Under Rule 9 (iii), the Chairman may, if he feelsnecessary associate with the Selection Committee an Expert/CSpecialist in the discipline in which recruitment is to be made.

The first proviso to Rule 9 provides that the selectionmade by the said Committee shall be approved by the Boardbefore the same is forwarded to the appointing authority.

For a better appreciation, Rule 9 and 9A of the 1992DRules are extracted as under:

“9. Nomination of Committees:

(i) The Chairman may nominate a Committee “which shallconsist of one or more members” of the Board forconducting examination and for holding interviews and testsEfor purposes of selection of candidates for being appointedto the State Cadre;

(ii) Every such Committee shall be chaired by the Chairmanand where the Chairman is not a member of the Committee,by a member to be nominated by the Chairman, andF

(iii) Chairman may, if he feels necessary associate with theselection committee expert/specialist in the discipline inwhich recruitment is to be made.

(iv) The Chairman may nominate a Committee of not less thanGthree persons for conducting and holding examinations,interviews and tests for purposes of making selection ofcandidates for being appointed to divisional and DistrictCadre; Provided that the said Committee shall be presided overby a member of the Board nominated by the Chairman and H

the other members of the Committee shall be nominated bythe Chairman out of the panel or names drawn up andapproved by the Board from time to time in this behalf. Theselection made by the said Committee shall be approved bythe Board before the same is forwarded to the appointingauthority.

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Provided further that in respect of selection for the postsfalling in the District cadre, the District Officer of thediscipline in which selection is required to be made, mayalso be accepted as member in the said Committee.

Provided also that the Chairman of the Board mayconstitute District Level Selection Committees for eachdistrict with Deputy Commissioner as Convenor/ Chairmanfor selection of Patwaris, as one time exception, for theyear 1995 – 96.

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“9-A. Notwithstanding anything contained in these rules,the Government may for any special employment driveauthorize the chairman to constitute following committeesfor the conduct of examination/tests and for holdinginterviews or both, as the case may be, for purposes ofselection of candidates for being appointed to the State/Divisional/District cadre posts:

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I. State Cadre posts

1. Chairman or any other Member of the Board to benominated by the Chairman.

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2. Head of the indenting Department or the Secretary ofconcerned Administrative Department.

3. Any other officer to be nominated by the Chairman.

II. Divisional Cadre posts

1. Member of the Board to be nominated by the Chairman,Gwho shall be Convenor of the Committee.

2. Additional Commissioner of the concerned Division.

3. Head of the indenting Department.

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4. Any other person to be nominated by the Member ofthe Board chairing the Committee.

III. District Cadre Posts.

1. Member of the Board to be nominated by the Chairmanwho shall be the Convenor of the Committee.

2. District Employment Officer of the district.

3. District Head of the indenting office/Department.

4. Any other person to be nominated by the Member ofthe Board chairing the Committee.

Provided that: -

(a) the Chairman may if he feels necessary coopt an expert,specialist in the discipline in which appointment is tobe made in respect of the State Cadre post; (b) the Member presiding over the Divisional level SelectionCommittee/district level Selection Committee may ifhe feels necessary coopt an expert, specialist in thediscipline in which recruitment is to be made in respectof Divisional/District cadre posts as the case may be;

(c) The above Committees shall be presided over by theChairman/Member of the Board as the case may be; (d) In case of special circumstances, the Board mayauthorize the aforesaid Committee/Committees toforward the select list to the appointing authority andthis action shall be deemed to have the approval of theBoard; (e) The District Employment Officers shall be responsibleto receive, compile and short-list applications for districtcadre posts;”

ii)In June 2009, a three-member Selection Committeeconstituted by the Chairman of the Board conductedInterviews. The Committee comprised of Chairman of theBoard, Ms. Salma Hamid and Dr. Samina Farhat.Thereafter, the marks awarded by the said SelectionCommittee in the viva-voce/interview and the marks

awarded for the academic qualifications were tabulated forall candidates by way of a Final Award Roll. The Final AwardRoll was produced by the Board before the High Court andwas also secured by the petitioners through RTI.

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iii)On 07[th] September, 2009, the Board approved the SelectList prepared by the Selection Committee. The approvalBletter enclosing the final Select List was signed by all sevenmembers of the Board. Two out of these seven memberswere members of the Selection Committee along with asubject expert who was appointed under Rule 9(iii). Theprocess of preparing the Select List was as under:

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a.Interviews of short-listed candidates were held in a ratio of1:5.

b.On completion of the interview, the award was sealed byeach member in an envelope and handed over to the Boardthrough the Convenor for further process.

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c.At the time of initiation of the selection process, the sealedenvelopes of the Convenor and Members of the Committeewere opened and fed into the computer for calculation andaddition of marks, obtained in the interview with theweightage of academic marks as per the criteria framedfor the purpose.

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d.The basic data input of interview awards and correction inacademic merit was received through a pen drive forconsolidation and had been fed into the computer by theChairman himself, and checked by another member of theBoard.

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e.The entire record of selection had been perused by theBoard and was accordingly approved.

f.Select List was prepared on the basis of total marksallocated for academic qualifications as well as marksGsecured in the interview.

14.6. In light of the pertinent selection procedure that was followed,we are unable to hold that the same was mechanical or casual or sufferedfrom irregularities which were so grave or arbitrary in nature so as tojustify quashing the entire selection process. Further, we are unable to H

Atrace the requirement of individual rolls being signed and verified by themembers of the Selection Board, to any statute or rule. Therefore, wecannot sustain the finding of the High Court that the entire selectionprocess was vitiated by such irregularity. The High Court was not justifiedin quashing and setting aside the entire selection process, more so whensixty-four candidates including the appellants had been serving on theBsaid post for over a decade.

Reliance in this regard may be placed on Trivedi HimanshuGhanshyambhai, wherein it was held that merely because the recordscould not be produced since they were lost and not available, theappointment could not be cancelled.C

15. The next prong of the challenge relates to the competence ofthe expert in the Selection Board, Dr. Samina Farhat, Assistant Professor,Department of Pharmacology. The expert was a doctor by professionwith a Post Graduate degree (MD) and Ph.D. in Pharmacology to hercredit. Rule 9A of the 1992 Rules provides that the Chairman may if heDfeels necessary appoint a specialist in the discipline in which appointmentis to be made, as a member of the selection board. In the present case,it is the contention of the writ petitioners that a person with a qualificationin the field of pharmacy would have been better suited on the panel. Inorder to consider if there is any merit in this contention, it is necessary toEdiscuss the meaning of ‘pharmacology’ as juxtaposed with ‘pharmacy.’

15.1. According to P. Ramanatha Aiyar’s Advanced Law Lexicon,6[th] Edition, Vol. 3, ‘pharmacology’ is defined as, “the study of drugs.Applied in analyzing and identifying drugs submitted as evidence.”

‘Pharmacy’ is defined as “a branch of knowledge or trade;Fthe preparation and dispensing of drugs.”

As per the Oxford Concise Medical Dictionary, 7[th] Edition,pharmacology is the science of the properties of drugs and their effectson the body. Pharmacy on the other hand is the preparation and dispensingof drugs. It defines a pharmacist to mean a person who is qualified byGexamination and registered and authorized to dispense medicines or tokeep open a shop for the sale and dispensing of medicines.

15.2. What emerges on a consideration of the said definitions isas under:

i)The science of pharmacology and the practice of pharmacyAare both concerned with a study of chemical substancesand how they affect the functioning of the body.

ii)In a nutshell, the main difference between pharmacologyand pharmacy is that pharmacology is the science ofdeveloping and understanding the effects of drugs and otherBsubstances, while pharmacy is the science and practice ofcollecting, preparing, standardizing, and distributing drugsto patients after a medical professional orders a prescriptionfor a drug.

iii)Despite their differences, pharmacology and pharmacy havesome similarities. Both fields are concerned with the use ofdrugs in healthcare, and both require an understanding ofdrug action, dosage, and potential side effects.Pharmacology and Pharmacy are both important fields inhealthcare, but they differ in their focus and level ofadvancement. Pharmacology is generally considered moreadvanced than pharmacy because it involves more complexresearch into the mechanisms of drug action and thedevelopment of new drugs.

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15.3. We therefore, cannot hold that a doctor by profession with aPost Graduate degree (MD) and Ph.D. in Pharmacology was in anyway underqualified or unsuitable for her role on the Selection Board. Infact, we think that a pharmacologist is more appropriate to interview thecandidates for the post of drug inspector. Further, it is to be noted thatRule 9 A provides that the Chairman may if he feels necessary appointa specialist in the discipline in which appointment is to be made, as amember of the selection board. Similarly Rule 9 (iii) provides that theChairman may, if he feels necessary associate with the SelectionCommittee expert/specialist in the discipline in which recruitment is tobe made. The use of the word ‘may’ would indicate that the Chairmanof the Board has discretion in this regard and there is no mandatoryrequirement to appoint on the selection panel a person having aqualification in pharmacy. To this extent, we affirm the findings of thelearned Single Judge and the Division Bench of the High Court. We donot find any substance in the arguments of learned counsel for therespondent/writ petitioners in this regard.

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A16. This Court has upheld the legitimacy of conducting interviewsas a part of a selection process, even where marks earmarked for thesame has been found to be prima-facie excessive, vide Minor A.Peeriakaruppan etc. vs. State of Tamil Nadu, (1971) 1 SCC 38;Miss Nishi Maghu vs. State of J & K, (1980) 4 SCC 95.

B16.1. This Court in Lila Dhar vs. State of Rajasthan, AIR 1981SC 1777 made the following pertinent observations as to the importanceof a viva-voce or interview in a selection process:

“It is now well recognised that while a written examinationassesses a candidate’s knowledge and intellectual ability, anCinterview test is valuable to assess a candidate’s overall intellectualand personal qualities. While a written examination has certaindistinct advantage over the interview test there are yet no writtentests which can evaluate a candidate’s initiative, alertness,resourcefulness, dependableness, cooperativeness, capacity forclear and logical presentation, effectiveness, in discussion,Deffectiveness in meeting and dealing with others, adaptability,judgment, ability to make decision, ability to lead, intellectual andmoral integrity. Some of these qualities may be evaluated, perhapswith some degree of error, by an interview test, much dependingon the Constitution of the interview Board.”

E16.2. The criteria for evaluation of a candidate’s performance inan interview may be diverse and some of it may be subjective. However,having submitted to the interview process with no demur or protest, thesame cannot be challenged subsequently simply because the candidate’spersonal evaluation of his performance was higher than the marksFawarded by the panel. In this case the break up of the marks referred toabove is reiterated as under:

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Only 20 out of 100 marks were allocated for interview/viva-voce.The same is only 20% of the total marks which cannot be said to be anexcessive proportion out of the total marks. Further Courts cannot sit injudgment over the award of marks by an interview panel. That is bestleft to the judgment and wisdom of the interview panel. In the abovepremise, we do not think there is any merit in the contention of the writpetitioners regarding the award of marks to the candidates who appearedfor viva-voce before the panel. Moreover, the award of 80% of thetotal marks is on objective criteria depending upon the educationalqualification of the individual candidates.

16.3. Further, it appears to us the criteria was recast videCorrigendum dated 12[th] June, 2009, by increasing the weightage accordedto candidates possessing a Degree in pharmacy or pharmaceuticalchemistry and advanced qualifications such as post-graduate degrees,Ph.D etc., with a view to incentivise more qualified persons who hadapplied for the said posts. Recasting the criteria was only with regard toallocation of marks for the respective educational qualification of thecandidates. In our view, it was with a view to preserve the standards ofthe selection process and was not motivated by mala fide or obliquemotive. Higher the qualification a candidate possessed, higher markswere awarded. In other words, the minimum marks awarded foreducational qualification was 65 and could increase to 80 depending on A

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Athe higher qualifications of the candidates. Therefore, we are unable tointerfere with the selection process on the ground that the award ofmarks was recast unilaterally. The reallocation of marks based on theeducational qualification was in recognition of the higher qualification ofthe candidates which cannot be termed to be arbitrary. It is a no brainerthat any candidate who was aggrieved by the recast of marks wouldBeither withdraw his candidature or challenge the Corrigendum dated12th June, 2009 at a preliminary stage in the selection process. However,the writ petitioners did not do so. Having participated in the selectionprocess without any demur or protest, the writ petitioners cannot challengethe same as being tainted with mala fides, merely because they wereCunsuccessful.

17. One of the directions issued by the learned Single Judge in theWrit Petitions was to retain the successful candidates but, at the sametime, to consider the case of the writ petitioners for appointment in theavailable posts. But if it was not possible to accommodate the writDpetitioners, owing to non-availability of posts, then the entire selectionwas quashed and set aside and a fresh Selection Committee was to beconstituted to conduct fresh interviews of all the candidates who hadearlier appeared before it and a fresh Select List was to be prepared.Further, till the said exercise was to be carried out, the selected candidateswere to be continued. The Division Bench, however, quashed theESelection List in its entirety and directed and observed that no furtherappointments could be made against the vacancies that may haveoccurred subsequent to the appointments already made and that a freshselection was to be made by re-advertising the posts. Consequently, theselection of drug inspectors was quashed in toto and a direction was Fissued to complete the exercise afresh within six months and till then,the appointed candidates as drug inspectors were to be continued.

We find that the aforesaid directions issued by both the learnedSingle Judge as well as by the Division Bench were not in accordancewith law and hence, the said directions have to be quashed.

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18. In light of the aforesaid discussion, the present appeals areallowed. The judgment of the learned Single Judge of the High Court ofJammu and Kashmir at Srinagar, dated 18[th] December 2015 and theimpugned judgment passed by the Division Bench, dated 29[th] October,2021, are set aside. Consequently, the judgment of the High Court ofHJammu and Kashmir at Jammu dated 6[th] July, 2017 following the order

of the learned Single Judge of the High Court of Jammu and Kashmir atSrinagar, dated 18[th] December, 2015, is also set aside.

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18.1. The candidates who were declared successful in selectionprocess conducted on 8[th] September, 2009, for appointment of druginspectors in the State of Jammu and Kashmir, and the appointmentspublished on 12[th] November, 2009, were permitted to continue in serviceBby virtue of stay of the impugned judgment. The stay order is madeabsolute.

18.2. All pending applications stand disposed of in the aforesaidterms.

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No order as to costs.

Nidhi Jain(Assisted by : Tamana, LCRA)

Appeals allowed.

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