SWP/630/2002 of GURVINDER KAUR Vs STATE OF J AND K AND ORS. on 16 October 2007

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

SWP NO. 630/ 2002;SWP No. 917/ 2002; SWP No. 963/ 2002;|SWP No. 884/ 2002; SWP No. 644/ 2002; SWP No. 1333/ 2002;|SWP No. 1172/ 2002; SWP No. 973/ 2002; SWP No. 94/ 2002;|SWP No. 113/ 2002; SWP No. 122/ 2002; SWP No. 597/ 2002;|SWP No. 624/ 2002; SWP No. 1713/ 2002; SWP No. 629/ 2002;|SWP No. 1633/ 2002; SWP No. 1749/ 2002; SWP No. 1760/ 2002;/|SWP No. 187/ 2002; SWP No. 1177/ 2002; SWP No. 82/ 2003;|SWP No. 199/ 2002; SWP No. 186/ 2002; SWP No. 184/ 2002;|SWP No. 417/ 2002; SWP No. 185/ 2002; SWP No. 188/|2002;/SWP NO. 365/ 2002; SWP No. 843/ 2002; SWP No. 967//|2002; SWP 134/ 2002; SWP 862/ 2002; SWP 902/2002;/SWP NO.|126/ 2002; SWP 497/ 2002; SWP 125/ 2002;/SWP. 175/ 2002;/SWP918/ 2002; SWP 1035/ 2002; SWP 146/ 2002; SWP No. 498/ 02;/SWP 416/ 2002; /SWP 147/ 2002; SWP No. 1701/ 2002;SWP 842/|2002. SWP 452/ 2002; SWP 244/ 2002; SWP 451/ 2002; SWP No.|362/ 2002; SWP No. 1086/ 2001; SWP NO. 301/2002; SWP 734/|2002; SWP No. 735/ 2002; SWP No. 916/ 2002; SWP NO. 808/|2002; SWP 66/ 2002; SWP 910/ 2002; SWP 2821/ 2002; SWP 471/|2002; SWP No. 420/ 2002; SWP NO. 425/ 2002; SWP 439/2002;|SWP No. 95/ 2002; SWP No. 254/ 2002; SWP 138/2002; SWP 183/|2002; SWP 309-A/ 2002; SWP No. 310/ 2002; SWP 733/ 2002.|SWP NO. 903/ 2002; SWP No. 316/ 2002; SWP No. 557/ 2002;|SWP NO 1057/ 2002; SWP No. 418/ 2002; SWP No. 351/ 2002;|SWP No. 325/ 2002; SWP 643/ 2002; SWP 445/ 2002; SWP No.|446/ 2002; SWP No. 56/ 2007; SWP NO. 2613/ 2001; SWP No. 86/|2002; SWP NO. 769/ 2002; SWP NO. 767/ 2002; SWP NO. 431/|2002; SWP No. 432/ 2002; SWP No. 99/ 2002; SWP No. 166/ 2002;|SWP NO. 203/ 2002; SWP No. 822/ 2002; SWP No. 1437/ 2002;|SWP No. 732/ 2002; SWP No. 364/ 2002; SWP No. 495/ 2002’|SWP No. 496/ 2002; SWP NO. 3516/ 2002; SWP No. 1567/ 2002;SWP NO. 139/ 2002; SWP NO. 137/ 2002; SWP No. 46/ 2002.

Date ofdecision: 16-10-2007

inGurvinder KourVsState and others;?)Rita Gupta _VsState and others:|3 Nitu RaniVsState and others;A Ramesh NathVsState and others;4 Ashok KumarVs_J&K SSRB;6 Surinder KourVsState and others;|Madhu SharmaVsState and others;§ Santosh Sharma.VsState and others;9 Rajesh KumarVsState and others;10.Yash Pal Sharma |VsState and others11.Jugal KishoreVsState and others;12,Sarav(eet Sin-hVsState and others|

13,Raghubir GandotraVsState and others;14,Sunil SinghVsState and others;15,Vinod Sharma)VsState and others;16,Sonika GuptaVsState and others;17.Manju SharmaVsState and others;18,Bharti Sharma.VsState and others19,Krishna DeviVsState and others20Nirmal KumarVsState and others2 1Saro] Bala _VsState and others;D?)Parveen KumariVsState and others) 3Kulvinder KourVsState and others;24.Ramesh Chander |VsState and others;245Swarma KumariVsState and others;26.Kamlesh GuptaVsState and others27]Manorma Sharma |VsState and others28.Rachpal SinghVsState and others;29.Shobha KumariVsState and others;30.Munisha KumariVsState and others;31,Hans RajVsState and others;37)Neeta Devi |VsState and others;33)Rita Sharma _VsState and others;34Ashok Kumar BhatVsState and others;345Kailash KumarVsState and others;36,Renu Bala |VsState and others;37.Tehmina AkhtarVsState and others;38.Mahesh Raj ©VsState and others;39.Monika Sharma|VsState and others;AQ.Manohar Lal VsJ&K SSRB& ors;Al.Fiaz AhmedVsState and others;4’)Joginder Pal & anrVsState and others;A3.Vijay KumarVsJ&K SSRB & ors;44|Lal Hussain |VsState and othersA45Kuldip Raj _VsState and others46,Swaran LataVsState and othersA’]Sangeeta AroraVsState and othersAS.Abhay SambyalVsState and othersAQ.Rajni SambyalVsState and others50.Suman SharmaVsState and others.51.Mohindro Dev1VsState and others5?|Jasmeet Kour.VsState and others;53)Charanjit KourVsState and others54Amarjeet KourVsState and others55.Veena SharmaVsState and others56.Narinder Pal SinghVsState and others577Ritu Ran)VsState and othersS&.Shaguita NazVsState and others59.Ramesh Chander |VsState and others.60.Bindu RaniVsState and others

61|Mayu SharmaVsState and others..6?|Riaz Ahmed ~VsState and others63|Abdul Qayoom|VsState and others,64|Pervez AhmedVsState and others..65.Tariq Ghani —VsState and others.66.Mohd AminVsState and others.67.Jyoti ParkashVsState and others.68.Davinder Kumar SharmaVsState and others.69.Dhan1t Ram VsState and others.70.Rajinder Singh KotwalVsState and othersTYKuldeep SinghVsState and others7)|Shakila Bano BegVsState and others73|Neelam Ran)VsState and others;74Varinder SinghVsState and othersTS.Champa DeviVsState and others716Sat Pal SangraVsState and othersTT]Reeta Anthal|VsState and othersTS.Dolly DeviVsState and othersT9.Neelam Kumar}VsState and othersSQ.Urmila RaniVsState and others.Sl.Surinder Kumar |VsState and others.$2.Surishta Dev1.VsState and others.$3.Neelam Kumar}VsState and others84|Usha Rani |VsState and others845Kewal Krishan|VsState and others86,Rekha Rani |VsState and others877Fateh Singh —VsState and othersSS|Radha SharmaVsState and others;89|Vijay KumarVsState and others;QQ.Renu MahajanVsState and othersOQ]Kailash Kumari)VsState andothers.Q).Ram PalVsState and others93.Nusrat Bano|VsState and othersQO4Manju KumariVsState and othersOS.AnuradhaVsState and others96.Yash PalVsState and others|Q’7Rajinder ParshadVsState and othersOS.Sagar Suith ©VsState and othersQ9_Pritam Kumar.VsState and others100.Anu Gandotra_VsState and others..

Coram:HON’BLE MR. JUSTICE Y.PNARGOTRA!

Appearing counsel:

In the instant batch of petitions the selection of privaterespondents as Teachers in the District cadres of Districts, Jammu,Rajouri, Kathua, Udhampur, Anantnag and Doda is being questioned, mainly on the following grounds:- :%5The selection criteria adopted by the ServiceSelection Board is invalid;:85The candidates possessing higher qualification le. M.Ed. B.Ed, Post graduation have been|

ignored whereas candidates possessing 10+ 2qualification have been selected; :15Additional higher qualification obtained by thecandidates after the last date fixed for.submission of application forms before the dateof interview has been ignored; :95Weightage has been given to the qualificationdoneIn|specializedfleldslke.B.Sc.(Agriculture),Engineeringe{c.whichqualification has no relevance to the job of ateacher; :-5The candidates who were already in servicehave been selected; and :>5Meritorious candidates have not been selected|whereas candidates who have obtained lesser§merit have been selected.

Before taking up independent grounds of challenge set up 1n thewrit petitions, | would first deal with the above common grounds ofchallenge.

Ground (a)

The Jammu and Kashmir Services Selection Board by virtue ofAdvertisement Notice No. | of 1999 dated 9[th]March 1999 invited|applications for the posts of teachers available in the district cadre ofvarious districts of the State. The essential qualification for the said.post was 10+2 with 50% marks and above. However bar of 50%_marks was not applicable to Graduates and above. Experience was.also to be given preference. Last date fixed for receipt of theapplications was 3 [St]March 1999, later extended to 15.4.1999.

The writ petitioners with many other candidates offered theircandidature for the said post. The Services Selection Board was to.make short listing of candidates for interview, but before it could do.so, a Judgment of the Division Bench of this Court came to berendered in case Balwinder Kour Vs. State ofJ&K and ors reportedin 2000 KLJ 421. In that case appellant Balwinder Kour had remained)unsuccessful in the selection process carried out for the posts ofteachers, pursuant to the advertisement notice No. 3/1999 dated 24[th]December 1996 issued by Services Selection Board. Her case was that,more weightage was given to the basic qualification prescribed 1.e.|10+2 and the criteria of selection was as follows:-.

Conclusion

** a) 10+2 : 50 Points.b) Graduation =: 10 Additional Points for Ist Division.* QOS Additional Points for 2[/9]DIVISION.* 06 Additional Points for 3[$9]DIVISION.c) Post-graduation: 10 Additional Points for Ist Division.08 Additional Points for 2[/9]Division.¢ 06 Additional Points for 3[$9]Division. |d) B.Ed. : 05 Additional Points.

e) M.Ed. : 05 Additional Points.

1) Viva-voice |: 20 points.

‘Total ‘|100 Points.7?

The learned Division Bench observed as follows: - “17. In view of the above, we are of the opinion that|giving undue Weightage to 10+2 qualification andgiving lesser importance to the degrees tn the disciplineof education is no apt. 10+2 qualification had norational with the object t.e. appointment as teacher.|L0+2 qualification ts basicfor allfurther attainments in|all walks of life. How does this qualification advancesthe cause ofteaching and ofthose who are to be taught.When this qualification ts not given any weightage forany other discipline then why give it so muchumportance in the selection of teachers. In any case, 50marks for 10+2 qualification ts definitely on the higherside. At 10+2 stage an individual’s personality is yet todevelop and as observed in Lila Dhar’s case (Supra) “itis too early to identify the personal qualities for whichgreater importance may have to be attached in laterlife”. Deeper traits of leadership, tact, forcefulness are Dyet to develop. Therefore, giving undue regard to 10+2qualification at the cost oflater qualifications is not apt.In somewhat different context, reserving 75 marksunder one head out of275 marks was held to be bad in|the case of Pariakaruppan Vs. State of Tamil Nadu,AIR 1971 SC 2503 (supra). Again reserving 50 marksout of 150 under one head in the case ofNishi MaghuVs. State ofJ&K and Others, AIR 1980 SC 1975 and 33‘2 percent of total marks for interview in Ajay Hasta’scase (supra), did not find favour with the SupremeCourt of India. As indicated above, this was in thecontext of reserving marks for viva-voce. Nevertheless,the thought behind this view is that giving undueweightage to one criteria at the cost of other attract thevice of inequality. This has certainly not been avoidedin this case. There is no rational there is no nexus withthe object to be achieved. The subject is to appoint ateacher. A trained teacher having graduation and postgraduation qualifications in the discipline of education would be best suitedfor the Job. By the process adopted|in the present case, a trained teacher is being almost|ousted from consideration by giving insignificant|weightage to his B.Ed. and M.Ed. qualifications. As|indicated above, if in the discipline of medical, law,engineering, architecture etc. the basic qualification isthe one which 1s possessed by a candidate in that verydiscipline, then there is no Justification to not to adoptthe same criteria when appointments are made inteaching faculty. The decisions of the Supreme Courtnoticed above do lay down the importance of trainedteachers. The criteria adopted tn the present case bringsin arbitrariness.”

After observing as above, learned Division Bench held as follows:-.

* We are not quashing the appointments which have already been made but we do feel that this criteria 1s required to be recast. Let steps be taken in this.regard. The question arises as to what relief theappellant is entitled to. The appellant does possess.degree in B.Ed. and also a Masters Degree. In ourview She has been put to a disadvantageous position.by considering her claims on the basis of 1042.qualification. She has not been properly judged. Thetraining which she has got in the discipline ofeducation has not been given significant importance.This 1s not in line with the recommendations made by.the Kothari Commission. [his 1s also not in line with|the observations made by the Supreme Court in the cases noticed above.

19. We are accordingly of the view”-|

%5that the allocation of 50 marks for 10-2|

qualification 1s on the higher side.

85That this allocation operates to thedetriment of those candidates who possess_graduate and postgraduate qualificationin the discipline of education.

This 1s not in conformity with the spirit ofArticles 14 and 16 of the Constitution; 15that the criteria is required to be recast; 95that the appointments already made arenot being quashed; -5that the appellant would, therefore beentitled to be considered against avacancy which 1s not available. She wouldnot be denied appointment merely on theeround that she has become overage.|Reference in this regard can be made to.

the decisions of the Supreme Court in thecase of Arun Kumar Rout and Ors Vs.|State of Bihar (1989) 9 SCC 71 andKeshav Narayan Gupta and Ors. Vs. JilaParishad Shivpur (MP) and Anr. (1989) 9°SCC 78.” |

The leaned Division Bench also observed as follows:- “ This can indeed be achieved if we have trained|teachers. This is the object which 1s foremost. It ts because of this, the State is advised to recast Its|selection policy in the matter ofappointing teachers.” |

Taking note of the above judgment, Services RecruitmentBoard vide its notification No. SSB/PA/Secy./ 826/2001 dated 2[nd]

March 2001, recast the selection criteria as follows: - FS.NoQualificationPoints1. 104+2 40GraduationIst Division 109)[/9]Division 6 |3[$9]Division 4)2 Post GraduationIst Division 109[/9]Division 6)3[$9]Division 4)3. B.Ed.10.4. M.Ed. 10.5. Viva20)Total 100.H

Thereafter, Service Selection Board vide its Notification dated A[th]April 2001, short-listed the candidates for interview andaccordingly interviews were held during the period around May, June.and July 2001. After concluding the interviews, select list was issued.by the Board on 3[rd]of January 2002.

The writ petitioners though were short-listed for interview, buthave not been able to make the grade and as such, have not been.selected. Being aggrieved of their non-selection they have filed the instant writ petitions.

Some of the candidates who were not short listed filed writ|petition titled Jyoti Rani and others Vs. State of J&K and ors, SWP|0.913/2001, claiming that during the selection process they had|acquired additional qualifications, which according to them were|required to be taken into consideration for giving them due weightage,in the selection. They sought acceptance of their documents of,additional qualifications, issuing roll number slips and to permit them,to participate in the interview. The learned Writ Court vide its order,dated &[th]of October 2001, did not accept the contention of the writpetitioners in regard to the acceptance of the additional qualification|yet found that selection criteria was bad in law, so directed therespondents to take steps to re-f1x the selection criteria, so as to enableall eligible candidates to take part in the selection process. Thejudgment dated 8[th]October 2001 came to be appealed against before a.Division Bench of this Court in LPA’s (SW) 488/2001 and 521/2001 titled State of J&K and others Vs. Jyoti Rani and ors. LearnedDivision Bench on finding the judgment of Writ Court un-stainable in|law, because it had allowed the relief not prayed for by the writpetitioners pertaining to the challenge to the selection criteria, allowedthe two appeals and set aside the judgment of the writ court withoutgoing into the question of validity or otherwise of selection criteria.It may be mentioned here that along with SWP No. 913 of 2001, abatch of writ petitions were disposed of. The writ petition of Rekha.Sharma was one of them.

The judgment of the writ court dated 8[th]October 2001, once|again became the subject matter of appeal filed by State of J&K.Services Selection Board LPA (SW) No. 145 of 2006. In this appeal acontention was raised by the writ petitioner Rekha Sharma, who wasrespondent No.1 before the learned Division Bench that the learnedwrit court had not considered all the points raised by her in the writ,petition, sO same needed consideration by the appellate Court(Division Bench).

The learned Division Bench noticed the facts and observationsof the Division Bench in Balwinder Kour’s case (supra) also. While,considering the challenge made by the writ petitioner who was.respondent No.! a candidate in the instant selection process to therecast criteria for short listing of the candidates for interview on theeround that it was contrary to the spirit and intent of the Division.Bench judgment dated 18[th]of October 1999 rendered in Balwiner|Kour Vs. State of J&K and ors (supra). Before the learned DivisionBench while challenging the criteria on the ground that it was not in)consonance with the Balwinder Kour’s judgment, it was also.contended that the Advertisement Notice inviting applications for thepost of teacher 1.e. Notification N. | of 1999, was also violative ofArticles 14 and 16 of the Constitution and that recruitment to the postcould not have been done on the basis of viva-voce test only. It was,prayed that Board notification prescribing the new criteria date 2[nd]March 2001, be quashed along with notification dated 4[th]April2001,and that respondents be directed to recast the criteria for

selection to the post of teachers by giving more weightage to thehigher qualification of candidates, like B.Ed. and M.Ed. and to.conduct the written test for making the selection. _

The learned Division Bench after considering the questions asto whether the recast criteria published by the Services Selection|Recruitment Board dated 2[nd]March 2001 was contrary to the letter|and spirit of the Division Bench judgment rendered in Balwinder,Kour Vs. State of J&K and ors (supra) and whether it was necessary,to publish the same in the advertisement notice or was it in any.manner violative of Articles 14 and 16 of the constitution of India|observed as follows: - “ We have extensively quotedfrom the Division Benchjudgment in Balwinder Kour’s case only to show thatthe Court had only found that the higher weightagegiven to basic qualification of 10+2 as inapt and hadonly directed the recasting of this criteria andconsideration of the respondent (writ petitioner)according to that recast criteria. We have carefullyexamined the Division Bench Judgment but we have notbeen able to come across any breach or violation ofthisjudgment in the newly prescribed criteria vide the twonotifications dated 2[nd]March 200! and 4[th]April 2001nor Is it the respondent’s case how and in what mannerthis criteria could be held to be in breach of any ofthedirections or observations made in the Division Benchjudgment in Balwinder Kour’s case. It seems that thisumpression has been gathered from the impugnedjudgment that any higher qualification of B.Ed. orM.Ed ought to be awarded a higher weightage than acomparativelylesserqualificationsofIT0A2Or|graduation, which is not the ratio laid down inBalwinder Kour’s case any way. Therefore, we have nodifficulty in holding that the newly laid down criteria isin compliance to the Judgment in Balwinder Kour’scase and not against its letter and spitrit.

The other contention that the recast criteriaprescribed by the Board was vitiated for being notpublished in the advertisement notice also requires to be rejected. It needs to be clarified that tt is not mandatory|for any selection authority to prescribe a criteria in|advance in advertisement notice inviting applications|for selection/appotntment to the post. Such criteria ts necessitated by the demand of the circumstances and isnormally applied where the advertisement noticeattracts large number of candidates which makes itdifficult to go through the selection process with thatnumber of candidates and requires short listing.Therefore, it is not mandatory or necessary to publishany such criteria in the advertisement notification for|information of the prospective candidates unless, of|course, it is required under some rules or regulations.

We also find no merit in the contention that therecast criteria was violative ofArticles 14 and 6 of the|Constitution. This ts so far the reason that no|minimum basics or foundation has been laid to|substantiate this plea which is ratsed in generalizedterms and seems to have been made for the heck of ttand in a routine manner. A criteria can be questionedfor its irrationality or perversity or arbitrariness or forbeing incapable of being satisfied which would attractArticle 14 and 16 of the Constitution. In the presentcase none of such eventualities are set out by therespondent in the writ petition to suggest that thecriteria could be questioned on any ofthese counts.

Ms. Surinder Kour, counsel for the respondentmade a last minute plea to suggest that the criteria wasto be recast by the Government and not the SSRKB aswas mandated by the Division Bench Judgment inBawinder Kour’s case. She invited out attention to para22 ofthejudgment, which reads:

“ This can indeed be achieved if we have trainedteachers. This 1s the object, which ts foremost. [tis because of this the State is advised to recast ttsselection policy in the matter of appointingteachers, ”

A plain reading of this observation by the Courtwhile parting with the Judgment does not lead to anyconclusion that it had directed the State to recast the|criteria for short listing/ screening or for callingcandidates for interview. It needs to be borne in mindthat there is clear cut distinction and vast differencebetween the eligibility prescribed for a post under therelevant recruitment rules and the criteria prescribedby the selection authority for short listing / screening /interview or even, for that matter, making the finalselection of candidates. Unless rules provide, it is forthe selection authority or the Board to fix the criteria of its own for all these purposes in a given Situation and inaccordance with the demands of the situation. In the|present case there is no grey area because rules|providedfor meeting this situation. For example rule 10ofthe relevant SRO 194 dated 15[th]Augustprovides:

“The board shall finalize theselection after holding such tests or examination as may beprescribed under rules, or if there are no suchrules, as the Board may consider necessary.5

This leaves no doubt that the Board has to makeselections after holding such test or examination s may|be prescribed under rules, or as it mayfeel necessary Inabsence of such rules. In other words, if the rules do|not prescribe any particular mode for holding test or examination or does not lay down the criteria, the|Board becomes competent to do the so in thecircumstances. Similarly para (i) ofRule 13 lays downas under:

“Ordinarily, the Board shall restrict the numberofapplicants to be admitted to oral or written testto a maximum of five times the number ofvacancies after doing the preliminary screeningon the basis of marks obtained in the qualifyingexamination and such other criteria as the Board may deem fit.””

A plain reading of this provision shows that theBoard was competent to hold a preliminary screeningelther on the basis of the marks obtained in thequalifying examinationor_any such criteria which ttmay deem fitRegard being had to the relevant rule|position, the submission of respondent’s counsel thatthe recast criteria was to be laid down by the StateGovernment only deserves outright rejection. It is a.different matter, however, that a prescribe or a laiddown criteria for short listing or for selecting may bequestioned as being irrational, perverse or contrary toany rules in force, which ts not the case here. So muchso that the respondent in the appeal has not chosen toquestion either rule l0orl3 ofthe relevant rules to showthat the recast criteria was in any way suffering fromany infirmity whatsoever. besides, it is no more res-intergra that selection Board would be within tts rightsto resort to short listing/screening of candidates ,prescribing a criteria in this regard or even for thatmatter for selection so long as it does not militateagainst any rules in force. This position has beenrepeatedly underscored and followed in_ severalSupreme Court Judgments. We may cite some of these, namely, Madhua Pradesh Public Service Commission vy.Navnit Kumar Potdar, AIR 1995 SC 77.”

On the above observations the learned Division Bench while!up-holding the recast criteria allowed the appeal and set aside the|judgment of the learned Single Bench dated 8[th]October 2001.

Arguments

Learned counsel for the petitioners seek to contend once againfor assailing the selection process that the recast criteria for short,listing the candidates for interview is not in consonance with theobservations of the Division Bench made in Balwinder Kour’s case)(supra) and therefore 1s bad in law. They submit that the learnedDivision Bench in Rekha Sharma’s case LPA (SW) 145/2006 has not,correctly interpreted the ratio of Balwinder Kour’s case, so the issue.should be referred to the Division Bench for reconsideration.

I do not find any force in the contention. The learned DivisionBench has interpreted the ratio of the Balwinder Kour’s judgment(supra) and that view 1s binding on this Court. Learned counsel for the petitioners have not brought to my notice any other Division Bench)authority holding a contrary view so as to justify a reference. Thecontention 1s, therefore, rejected and selected criteria 1s up-held.

Ground (b).

Itis the contention of learned counsel for the petitioners thatthe candidates possessing higher qualification of M.Ed and B.Edpossessed better right for selection and appointment over and above.the candidates having 10+ 2 or graduation level qualification.

There 1s no merit in the contention. Higher qualification other|than the basic eligibility qualification prescribed under the recruitment,rules as per the selection criteria was only to be given due weightageas per the selection criteria and not the preference for selection. Aftergiving such weightage to the higher qualification 1f a candidate havinghigher qualification was unable to make the grade, he cannot beallowed to urge that he ought to have been appointed because he.possessed higher qualification.

Ground (c)

In some cases the petitioners acquired the higher qualificationsafter the cut of date 1.e. the last date for submission of the application|forms, but before the date of interview. Such additional qualification|acquired by the candidates was not considered. The grievanceprojected is that such additional qualification ought to have been.considered.

It is trite to say that law stands firmly settled down by the Apex.Court in Mohd Sartaj and another Vs State of U.P and others, (2006)2 SCC 315 that only the qualification acquired before the cut off dateis to be considered and not the qualification acquired there-after.

Ground (d)

It has been contended by the learned counsel for the petitionersthat the candidates who have done the graduation in specialized fields|like B.Sc (Agriculture); Engineering etc have been given theweightage but according to them those subjects being not relevantfor the purpose of post of teacher ought not to have been given any.

benefit of the said qualification. The contention 1s without any merit,for the reason that the selection criteria does not make any distinction|between the ordinary graduation level qualification or the graduation|

in specialized subjects..

Ground (e)

Learned counsel for some of the writ petitioners alsocontended that in some cases the candidates who were alreadyserving in some other departments have been selected. The stand ofselection Board Projected by Mr. Shukla is that no such thing wasbrought to the notice of the Board by any one before the selection was_finalized. It 1s not denied by Mrs. Kour, learned counsel for thepetitioner that none of the petitioner had informed the selection Boardin this behalf. In such a situation without having placed any materialon record to show that any of the selected candidate was dis-entitled|for selection on account of his being already in service, thecontention raised does not deserve to be entertained.

Ground (f).

The contention of the writ petitioners is that their better merithas been ignored whereas candidates who obtained lesser merit have,been selected..

] have perused the selection record produced by Mr. Shukla,learned counsel for the selection Board and from the record the|District-wise merit position of the writ petitioners as against the last,selected candidates 1s as follows:-|

Kathua District

SWP NO. 365/ 2002; SWP No. 843/ 2002; SWP No. 967/ 2002; SWP|134/ 2002; SWP 862/ 2002; SWP 902/2002; SWP NO 1077/ 2002;,SWP No. 418/ 2002;:SWP No. 351/ 2002; SWP No. 325/ 2002; SWP643/ 2002; SWP 445/ 2002; SWP No. 446/ 2002; SWP No. 56/ 2007;SWP NO. 2613/ 2001; SWP No. 86/ 2002; SWP NO. 769/ 2002; SWPNO. 767/ 2002; SWP NO. 431/ 2002; SWP No. 432/ 2002; SWP No.99/ 2002; SWP No. 166/ 2002; SWP NO. 203/ 2002; SWP No. 822/|2002; SWP No. 1437/ 2002.

The petitioners in these writ petitions competed for the posts of teachers advertised forKathua DistrictThe case of the petitionersis that their better merit has been ignored, whereas the candidates|with lesser merit have been appointed. After going through the recordof the selection, Ido not find any merit in the case of the petitioners, |except in writ petitioner Mrs Ritu Salathia. The petitioners haveobtained the following merit:

As against this, the last selected candidate, namely, ParveshSharma, 1n open category obtained 53.80 points, in OBC Category thelast selected candidate, namely, Nettar Chand obtained 47.83 points,|in SC category the last selected candidate namely, Ritu Bhartiobtained 40.73 points; and in ST Category the last selected candidate, namely, Kuldeep Singh obtained 27.79 points. The merit of thepetitioners except petitioner Ritu Salathia, one of the petitioners inSWP No. 862/ 2002, being less than the last selected candidate, theywere not entitled to be selected. Surinder Kumar petitioner in SWP.No. 2613/2002 was dropped in — short-listng and was notinterviewed. Therefore, there 1s no merit in their writ petitions.

Mr. Pant, learned counsel for the petitioner in SWP No. 105/2002 also submitted that higher qualification acquired by thepetitioner after cut of date was not considered but such qualification in|case of Kailash Kumari, another candidate was considered by the.

respondents. The contention is of no avail to the petitioner as.undisputedly said Kailash Kumari has not been selected.

So far as petitioner Ritu Salathia is concerned she belonged toJammu District competed for the post available in District Kathua inOpen Category. Her merit is 55.86 points as against 53. 80 points|merit of last selected candidate. The reason for her non-selection for)appointment, according to Mr. Shukla, learned counsel for theSelection Board 1s that she was not selected because she was resident|of the district other than the District where the vacancy was available.

The reason advanced 1s un-tenable in the eye of law because no.discrimination can be legally made on the basis of place of residencefor the purposes of employment, the same being violative of themandate of Articles 14 & 16 of the Constitution. Any candidatehaving residence in any place in the State 1s entitled to compete and.be considered for selection for appointment on a post any where.available in the State, if he or she possesses the requisite eligibility. Therefore, in view of the higher merit obtained by the petitioner shelegally deserved to be selected for appointment and had she been.selected, the last selected candidate in the category of the petitionerwould not have found berth jn the select list.

In this view of the matter claim of the petitioner RituSalathia in writ petition SWP No. 862/ 2002 is allowed by providingthat in case there 1s any vacancy available then the petitioner shall begiven appointment against such vacancy. However, if no vacancy 1savailable then selection and appointment of the last selected candidate namely, Parvesh Sharma, figuring at S.No. 165 in open categoryselect list shall stand quashed and petitioner Ritu Salathia shall beappointed on the vacancy becoming available. The appointment ofthe petitioner shall date back to the date on which last selectedcandidate was appointed Mr. Johal, learned counsel for the petitioner 1n writ petitionSWP No. 862/ 2002 also contended that selection of candidate at S.|No. 51 1s bad because he was considered under RBA category despitethe fact that he had submitted his RBA category certificate after cut of|date. As it 1s not disputed by him that petitioner had competed 1n theopen merit category, therefore, he under law cannot be permitted to.question the selection of a candidate in RBA category.

For the afore-said reasons, the writ petitions except SWP NO.862/ 2002 so tar as it pertains to the writ petitioner Ritu Salathia,deserve to be dismissed, and are accordingly dismissed. SWP NO.)862/ 2002 so far as it relates petitioner Ritu Salathia, the same shallstand allowed.

Rayjour! Distric

SWP No. 187/ 2002; SWP No. 1177/ 2002; SWP No. 82/ 2003; SWP|No. 199/ 2002; SWP No. 186/ 2002; SWP No. 184/ 2002; SWP. No.417/ 2002; SWP No. 185/ 2002; SWP No. 188/ 2002'SWP 66/ 2002;SWP 910/ 2002;SWP 2821/ 2002; SWP 471/ 2002; SWP No. 420/|2002; SWP NO. 425/ 2002; SWP 439/2002; SWP No. 95/ 2002;|SWP No. 254/ 2002; SWP 138/2002; SWP 183/ 2002; SWP 309-A/|2002; SWP No. 310/ 2002; SWP 733/ 2002.

The writ petitioners in all these writ petitions competed for the posts of teachers advertised for Rajouri District. The case of the petitioners is that their better merit has been ignored, whereas the candidates with lesser merit have been appointed.

After going through the record of the selection Ido not find any merit in the case of the petitioners. The petitioners have obtained|

the following merits:

Conclusion

SWP No.Name of theQualification|Total pointsPointsGrandPetitioner.obtained onobtained in|Total.the basis ofViva Voce.=2%4.>.1%7.o/1187/2002Krishna Dev]|B.A. B.Ed|33.73|09.3343 06]1177/02Nirmal Kumar)B.A. B.Ed|33.40|05.3338.73|§$?/ 2003Saro] Bala|B.A. B.Ed|37 40 O&X.33A577|1199/2002Parveen Kumari M.A. B.Ed|3°77 D05.66|A) OO1186/2002Kulvinder KourB.A. B.Ed|29 4011.33]40.73|Raj Kumari B.Sc. B.Ed}31.40|12.33As 731184/2002RomeshB.A. B.Ed|29 10)10.3339 73Chander4177/2002Swarna KumariB.A. B.Ed|37 9011.00|A3 9(1185/2002Kamlesh GuptaB.A. B.Ed|37 25)13.00|45.25)“88/2002|ManormaB.Sc. B.Ed}34 13)09.3343 46SharmaRam PalB.Sc. B.Ed}3? $0]06.66|39 46 66/02.Narinder PalB.Sc.29 OQ 11.66)4().66Sin-h910/02Ritu RaniB.Sc. B.Ed|35.93|07.66|43.59)2821/02|Shaguita NazB.A B.Ed)35.53]10.3345 $6471/02RameshBSc. B.Ed.36.20|OX 66 44 $6 ChanderNeelam KumariB.A. B.Ed|34 0705.3339 40 420/02.Bindu RanM.Com|26.11|OS.3334 44 425/02.Manju SharmaB.A. B.Ed|35.20]07.00|4? 20]439/02Rayaz AhmedB.A. B.Ed|37 .6/12.33AS OQMohd ZultB.Sc.B.Ed)31.90|11.33]As 23)95/02.Abdul QayoomB.A!2] 40 09.00|30.40|?ST@2 54/700Parvez AhmedB.Sc.29 3317.33|46.66|?RBA@138/02Tariq GhaniB.Sc|24 2°706.66|30.93|?RBA@Mohd|B.Sc|21.40|07.66|29 06 Bashir?RBA@Zatter|B.Sc|19.00|10.00|29 OO Ahmed?RBA@Naien|B.A|20.4010.66|31.06)Akhtar?RBA@NaseemB.A|21.53|10.3331.86)Ullah?RBA@

Whereas the last selected candidates, namely, Waheeda Rehman,Sultana Kounser, Shabir Ahmed, Anju Tandon, and Monika Sharmaobtained 47.06 , 33.53, 34.93, 31.67, 42.80, points in Open Category,RBA Category, ST Category, SC Category and ALC Categoryrespectively.

Mrs. Surinder Kour, learned counsel for the petitioner in SWPs_No. 733/ 2002 (titled Dhani Ram Vs State and others) and SWP No.|66/ 2006 (titled Narinder Pal Singh Vs State and others) submits that, while evaluating the merit of the petitioners, the petitioners were notgiven the benefit of B.Ed. From the record, it appears that no.weightage on account of B.Ed. has been given to the petitioner, but|this is because the petitioners were not declared successful before thecut off date in B.Ed examination. It 1s the admitted case of both thesepetitioners that B. Ed result was declared on 8-3-1999 in which they,were declared un-successful. However, they applied for re-evaluation|and result of re-evaluation was declared on 18-5-1999 and 24-5-1999|1.e. after the expiry of the cut off date.

In view of this fact that on the cut off date the petitioners DhaniRam and Narinder Pal Singh were not possessing B.Ed qualification, they were not entitled to the benefit of subsequent declaration of theresult for the purpose of selection. Only that qualification which acandidate possesses before the cut off date is to be taken intoconsideration. Therefore, there 1s no merit in the contention raised bythe learned counsel for the petitioners Dhani Ram and Narinder Pal.Singh.

The merit of the petitioners being less than the last selectedcandidate, they were not entitled to be selected. Therefore, there 1s no.merit in the case of the petitioners.

Nrs, Surinder kour, learned counsel for Shagufta Naz, |petitioner in SWP No. 2821/ 2002, submits that since the case of thepetitioner has been kept in waiting list and some posts are availableon which the selected candidates have not joined. Therefore, thepetitioner be considered for appointment against the said post. Mrs.

Goswami submits that in case some posts are found to have remained vacant due to non-joining of the selected candidates the cases of thepetitioners shall be considered for appointment as per the order ofmerit in the wait list.

In SWP No. 416 of 2002, the petitioners applied under ALCcategory for the posts available in Rajouri District, but have not been.selected/appointed. Their case is that their better merit has been.ignored while candidates with lesser merit have been selected andappointed. From the record, it transpires that they have obtained 41.33.& 37.03 points whereas the merit of last selected candidate in ALC.category was 42.80. This being the merit position, there is no merit in|their writ petition, 1t as such 1s dismissed For the afore-said reasons, the writ petitions deserve to|be dismissed, and shall stand dismissed.

Jammu District

SWP 452/ 2002; SWP 244/ 2002; SWP 451/ 2002; SWP No. 362/|2002; SWP No. 1086/ 2001; 301/2002; SWP 734/ 2002; SWP No.|7335/ 2002; SWP No. 916/ 2002; SWP NO. 808/ 2002.

The writ petitioners in all these writ petitions competed for theposts of teachers advertised for Jammu District. The case of thepetitioners is that their better merit has been ignored, whereas thecandidates with lesser merit have been appointed. After going throughthe record of the selection Ido not find any merit 1n the case of thepetitioners. The petitioners have obtained the following merit:- As against this, the last selected candidate, namely, GaneshDass,, Reitu Dogra, Subash Chander, Urfan Ali, Bindu Bala, in open.category; SC Category, RBA Category, SI Category, OBC Categoryobtained 61.47 points; 53.33 points 24.33 points, 27.06 points 54.93)points respectively. Petitioner Suman Sharma in SWP No. 1082/ 2001 was dropped in short listing and was not called for interview.|

Thus the merit of the petitioners being less than the last selectedcandidate, they were not entitled to be selected. Therefore, there 1s no.merit in these writ petitions.

Udhampur District

SWP NO. 126/ 2002; SWP 497/ 2002; SWP 125/ 20029SWP No.|732/ 2002; SWP No. 362/ 2002; SWP No. 495/ 2002; SWP No. 496/|2002; SWP NO. 516/ 2002; SWP No. 1567/ 2002; SWP NO. 139/|2002; SWP NO. 137/ 2002; SWP No. 46/ 2002.

The petitioners in these writ petitions competed for the posts of teachers advertised for Udhampur District. The case of thepetitioners is that their better merit has been ignored, whereas the|candidates with lesser merit have been appointed. After going throughthe record of the selection, I do not find any merit 1n the case of the petitioners. The petitioners have obtained the following merit:

As against this, the last selected candidate, namely, AnitaSharma, Rakesh Kumar, Shahi Jahan, Darshan Kumar, Lalita Kumari, in open category; SC Category RBA Category, ST Category, OBC.Category obtained 51.74 points; 39.86 points 36.66 points, 27.87)points 43.37 points respectively.

In writ petitions SWP No. 147/2002 and 1701/2002 the writpetitioners competed for ST Category posts in District Udhampur and_Rajour: Districts respectively. It is their case that they weremeritorious so could not be denied selection and appointment. From)the selection record, it 1s manifest that they obtained 23.53 and 34.26,points, whereas the last selected candidates in that category hadobtained 27.87 points and 34.93 points in District cadre selection in|Udhampur and Rajouri Districts respectively. The petitioners being,lower in merit were rightly not selected. The writ petitions are withoutmerit, and are therefore, dismissed.|

Thus the merit of the petitioners being less than the last selectedcandidate, they were not entitled to be selected. Therefore, there 1s no.merit in these writ petitions.

For the afore-said reasons, the writ petitions deserve to be dismissed. Same are accordingly dismissed.

Anantnag District

Petitioner Ashok Kumar Bhat, who competed for the postfrom Anantnag District obtained 46.68 points in open category,|Whereas the last selected candidate obtained 50.39 points in thatcategory.

Thus the merit of the petitioner being less than the last selectedcandidate, he was not entitled to be selected. Therefore, there 1s no|merit in this writ petition.

For the afore-said reasons, the writ petition deserve to bedismissed. Same are accordingly dismissed.

Doda District

SWP NO. 903/ 2002; SWP No. 316/ 2002; SWP No. 557/ 2002;SWP NO. 236/2002; SWP 1618/20023

The petitioners in these writ petitions competed for the postsof teachers advertised for Doda District. The case of the petitioners 1sthat their better merit has been ignored, whereas the candidates withlesser merit have been appointed. After going through the record ofthe selection, I do not find any merit in the case of the petitioners. |The petitioners have obtained the following merit Nialla Rashid, Anupama Kotwal, Dhantar Singh, Chering Tesh,Pervez Ahmed, in open category; RBA Category, SC Category ST)Category, OBC Category obtained 46.45 points; 42.21 points 33.66.points, 24.72 points 33.72 points respectively;. Thus the merit of thepetitioners being less than the last selected candidate, they were notentitled to be selected. Therefore, there 1s no merit in these writ|petitions.

Similarly, the petitioner Tehmina Akhtar in SWP No.|175/ 2002 competed in open category for the post of teachers|advertised tor Doda District. The case of the petitioner is that herbetter merit has been ignored, whereas the candidates with lessermerit have been appointed. After going through the record of the selection, Ido not find any merit in the case of the petitioner. Thepetitioner Tehmina Akhtar obtained 42.25 points in the selection,whereas the last selected candidate has, obtained 46.45 points 1n open.category. The merit of the petitioner being less than the last selected|candidate, she was not entitled to be selected. Therefore, there is no|merit in the writ petition. In this view of the matter, the writ petition|filed by the petitioner Tehmina Akhtar deserves to be dismissed andis dismissed accordingly...

For the afore-said reasons, the above mentioned writ|petitions deserve to be dismissed. Same are accordingly dismissed.

SWP NO. 630/ 2002;SWP No. 917/ 2002; SWP No. 963/ 2002;|SWP No. 884/ 2002; SWP No. 644/ 2002; SWP No. 1333/ 2002;|SWP No. 1172/ 2002; SWP No. 973/ 2002; SWP No. 94/ 2002;|SWP No. 113/ 2002; SWP No. 122/ 2002; SWP No. 597/ 2002;|SWP No. 624/ 2002; SWP No. 1713/ 2002; SWP No. 629/ 2002;|SWP No. 1633/ 2002; SWP No. 1749/ 2002; SWP No. 1760/ 2002; In these petitions, the writ petitioners besides questioning theselection criteria have also questioned the individual selection of some.of private respondents. In some of the writ petitions on account offailure of the petitioners to take necessary steps for their service theirnames have already been deleted, whereas 1n some of the petitions thewrit petitioners have tailed to take necessary steps for service ofprivate respondents despite various opportunities and therefore,names of the private respondents shall also stand deleted in thosepetitions as well. Now the question arises whether in the absence of,private respondents, writ petitioners can be permitted to assail theirindividual selections..

The contention of learned counsel for the writ petitioners 1s that.even in the absence of the private respondents writ petitions aremaintainable in view of the law laid down by the Hon’ble Supreme|Court in case Rajesh Kumar Gupta Vs State of U.P. 2005 AIR SCW|2731. The reliance made by the learned counsel for the petitioners 1s misplaced. In that case challenge was to the entire selection and not to.the individual cases. As already said contention of the learned counselfor petitioners for challenging the entire selection on the basis ofselection criteria has been found without any merit, therefore, the writ,petitioners cannot be permitted to challenge individual selections ofthe candidates who are not before the Court. This apart merit of thewrit petitioner 1s less than the last selected candidates. Merit position|of the petitioners qua the last selected candidates in the respective categories and districts is as follows:- 597/ 02 Sarabjeet SinghB.S.C B.Ed)36.2715.00|51.27)(Udhampur)|RBAGopal Krishan(Udhampur)B.A!23.07O&X.3331.40|?RBA@624/02Raghbir|B.Sc. B.Ed3720)12.33)AQ 53(Gsandotr?Udhampur@Sushma Dev}|B.A. B.Ed|39 3307.3346.66?Udhampur@Shashi KiranB.A. B.Ed|32 0704.3336.40?UdhamPUT@Sushma Rani|B.A. B.Ed|30.80|OS.OO038.80|(Udhampur)|RBAVijay Kumar|B.Com. B.Ed47 82 06.3344 15)?UdhamPUT@Bhanu GuptaB.Sc. B.d-35.13)14.3349 46)?UdhamPUT@. Om ParkashB.Sc. B.Ed33 270OS.OO04} 20)?Udhampur@1713/02Sunil SinghB.Sc. B.Ed31.40|10.00|4] 40?Doda@RBA|629/02Vinod)Kumar104216.80|04.00|2080)Sharma?Ra([REDACTED] KumarB.Sc.24.87.03 .0003.00)27 87 ?Ra([REDACTED]/02Sonika GuptaB.Sc. B.Ed44 0005.33AQ 331749/ 02Manju SharmaB.A. B.Ed|41.01|17.33|5& 34?Jammu@1760/02.Bharti SharmaB.Sc.Agr|As D7 09.66|52.93|?Kathua@1713/02Shunil Singh.B.Sc. B.Ed41.40)10.00|4] 40)?Doda@RBA|Shahin AkhtarM.A23.05|10.66|43 71 ?Doda@RBA|

The petitioners are low in merit as such were not entitled to beselected. Writ petitions filed by they are therefore, liable to bedismissed and are dismissed accordingly.

SWP NQ. 842/ 2002

In writ petition SWP No. 842/ 2002 the writ petitioner KuldipRaj competed under Handicapped category but has not been selectedin District Rajouri. As per the stand taken by the respondents, which 1s_supported by the selection record, the petitioner secured 31.20 pointsas against the last selected candidate in that category, who has.

obtained 34.53 points. Therefore, in view of his lesser merit, the petitioner has not been selected.

The case of the petitioner 1s that dis-ability suffered by thepetitioner was more than the candidate selected, therefore, thepetitioner possessed a better right for selection. I am not 1n agreement|with the learned counsel..

Section 22? of the Jammu and Kashmir Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act,1998 reads as follows:- “22. Reservation of posts:

The(sovernmentshall.appoint1n|CVeCryestablishment such percentage of vacancies not has than|three percent, for persons or class of persons with|disabilities of which one percent, each shall be reserved|for persons suffering from:-

(1) blindness or low vision;

(11) hearing impairment;

(111) locomotor disability or cerebral palsy, in the postsidentified for each disabilities:

Provided that the Government may, having regard to the type of work carried on in any department or|establishment by notification, subject to such conditions,if any, as may be specified in such notification, exempt|any establishment from the provisions of this Section.”

Under the above section the persons suffering from thespecified dis-abilities are to be appointed on the reserved posts. Thereis no provision in the Act which envisages preference on account ofdegree of the dis-ability. The ‘dis-ability’ means ‘dis-ability’|

Irrespective of its degree, for the purposes of giving appointment on.the reserved posts. The merit of the petitioner in the dis-abilitycategory being less than the last selected candidate, he was not|entitled to be legally preferred over the meritorious candidate simply|for the reason that his dis-ability 1s more than that of the selected|candidate. Therefore, there 1s no merit in this writ petition, which 1s as_such dismissed.

Before parting with the case I would observe that experienceshows that lot of litigation 1s generated because of the non-publication of the merit petition of the unsuccessful candidates by the selectionagencies. If the selection agencies publish the merit position of all thecompeting candidates quite possibly many of them may not choose to.litigate which on one hand would save the precious time of the Courtwhile on the other save the precious money of the litigants from)being wasted. I am sure the selection agencies would certainly bestow,some thought to the suggestion.

Connected CMPs shall stand disposed of.

Original selection record is_ returned to Mr. S.K. Shukla,Advocate in open Court.

JAMMU.October 16, 2007.* Maini * PS |

(Y.P. NARGOTRA )|JUDGE