Y.P. Nargotra, J.
1. The petitioners in this batch of writ petitions are calling in question the validity of selections and consequent recommendations for appointments made by the J&K Public Service Commission, (hereinafter called the Commission), to the Government for the posts of Assistant Surgeons. Health & Medical Education Department of the J&K State vide its No. HT(GAD)131/95 dated 11.12.2002 referred 31 posts of Assistant Surgeons to the Commission. Then vide another communication No. HD(GAD)131/95 dated 20.1.2003, Health & Medical Education Department referred 190 more posts of Assistant Surgeons to the Commission. Three posts of Assistant Surgeons in open merit category were already pending for selection with the Commission. Thus in all the Commission stood referred 224 posts as per the following break-up: --
-------------------------------------------------------------------- Open merit .. Three previous vacancies
--------------------------------------------------------------------- S.C. .. 08.
S.T. .. 38
RBA .. 139
LAC .. 23
Social caste .. 15
2. The Commission vide its notification No. 06/PSC of 2003 dated 23.6.2003 however advertised 221 posts for selection against the posts of Assistant Surgeons in the pay scale of Rs. 8000-13500 as per category wise break-up. Last date for receipt of applications was fixed as 7.8.2003 by personal delivery and 14.8.2003 by post delivery.
3. Before the selection process could be initiated pursuant to the aforesaid Notification of the Commission, the Commission was referred 206 more posts of Assistant Surgeons by the Health & Medical Education Department vide its No. HD(GAD)Gen-53/2002 dated 7.11.2003 with the following break-up: --
---------------------------------------------------- Open merit .. 111
RBA .. 42
S.C. .. 16
S.T. .. 20
Social caste .. 4
LAC .. 7
Handicap .. 6
4. After receiving requisition of the aforesaid 206 posts the Commission vide its Notification No. 16/PSC of 2003 dated 28.11.2003 notified 209 posts, including 03 open merit vacancies already pending with the Commission for being filled up as per the break-up received. The last date for receipt of applications fixed in the notification was 9.12.2003 for personal delivery and 26.12.2003 for postal delivery. Thus in both the notifications total posts advertised for selection were 430. 114 Open merit, 181, RBA, 56 St, 24 SC, 30 ALC, 19 Social cast, and 6 under HP Category. The qualification prescribed by the advertisement notices was possession of a recognized medical qualification included in the 1st and 2nd schedule or Part-II of the 3rd schedule/other than Licentiate qualifications to the Indian Medical Council Act 1956. The holders of educational qualifications, included in Part-II of the 3rd schedule were required to fulfill the conditions stipulated in Sub-section (3) of Section 13 of the Indian Medical Council Act, 1956. It was also stated in the advertisement that:-
"The prescribed qualifications are minimum and mere possession of the same does not entitle the candidate to be called for interview. Where the Commission considers that the number of candidates who have applied for the post to be filled up by direct recruitment, on the basis of interview is large and is not convenient or possible for the commission to interview all the candidates, the commission may restrict the num be of candidates called for interview to a reasonable limit on the basis of higher percentage of marks secured in the qualifying examination and /or qualifications and experience higher than the minimum prescribed in the advertisement notice as may be fixed by the commission or by holding screening test as provided in Rule 40 of J&K PSC (business & Procedure Rules) 1980, (hereinafter called the Rules of 1980).
Provided that in case of written screening test, the syllabus of the same shall be made known to the candidates at least one month before the date of holding such test;
Provided further the marks secured by the candidates in the screening test shall not be taken into account for determining the final order of merit.
Provided further that the number of candidates to be called for the interview on the basis of screening test shall not be more than three times the number of clear vacancies referred to the commission.
Further the summoning of candidates for interview convoys no assurance whatsoever that they will be selected. Appointment orders of the selected candidates will be issued by the Government in accordance with the availability of vacancies."
5. In response to the aforesaid two advertisement notices issued by the Commission for selection to 430 posts of Assistant Surgeons, 1957 applications were received by the Commission out of which 1464 applied as against 114 open merit category, 226 as against 118 RBA category, 110 against 24 schedule caste category, 101 as against 56 ST category, 21 as against 30 ALC category, 33 as against 19 Social caste category, 12 as against 6 PHC category posts. After receipt of application forms the Commission scrutinized the applications and finding that the number of applications received against the advertised posts was to the ratio of 1:45 aggregate, therefore it decided to call all the candidates for interview without submitting them to any written test/screening test in terms of Rule 40 of Rules of 1980.
6. The Commission decided to make selections on the basis of interview alone in accordance with the procedure prescribed under Rule 51 of Rules of 1980. The Commission for conducting the interviews constituted three selection committees, each committee consisting of two members of the commission with an expert from All Indian Institute of Medical Sciences Now Delhi or from medical colleges Lucknow or Amritsar from the rank of Professor/Addl.Professor who were otherwise Heads of the Department as well as members of medical institutions. The interviews were conducted by these selection committees from 10.5.2004 to 30.5.2004 at Srinagar and from 1.6.2004 to 12.6.2004 at Jammu. On each date of interview each selection committee interviewed 60 candidates on an average by giving 15 to 17 minutes time in average to each candidate.
7. When the interviews of the candidates were being conducted as against 430 advertised posts, Health and Medical Education Department vide its communication No. HD(GAD)131/95 dated 19.5.2004 and No. HD(GAD)131/95 dated 5.6.2004 referred 22 and 142 more posts of Assistant Surgeons respectively for selection to the commission with the following break-up:-
Open merit .. 88
RBA .. 32
SC .. 13
ST .. 17
Handicap .. 5
Social caste .. 4
LAC .. 5
8. These 164 posts referred by the Health & Medical Education Department were not advertised. Hereinafter these posts shall be referred as unadvertised posts. Despite non-advertisement of these posts the commission admittedly made selection on the basis of interviews conducted in respect of 430 advertised posts. The commission thus after the interviews completed the selection process of selection of total posts of 594 (430 advertised and 164 non-advertised). The commission selected 220 from open merit category 191, from RBA, 73 ST, 37 SC, 23 ALC and 11 from PHC category and issued a select list of 560 candidates. The result of one candidate in open merit category under first notification and one candidate in open merit in the second notification and other seven candidates who had become over age was kept withheld. Subsequently however, the result of five candidates was declared and they were selected. Thus the result of four candidates continues to remain withheld whereas 565 candidates have come to be selected by the commission. Thus as against total available posts of 594 (221 + 373 including 164 unadvertised posts) the commission made a recommendation of 565 candidates for appointment to the Government vide its communication No. PSC/DR/AS/2003 dated 28.6.2004 read with letter dated 1.7.2004, 17.7.2004, 20.7.2004 and 21.7.2004. The select list and the selection process is being challenged on various grounds by the petitioners who had participated in the selection process but have not been selected.
9. The petitioners in SWP 1157/2004, Geetika Gupta and others have submitted that Rule 51 of the Rules of 1980 confers arbitrary powers upon the commission to select candidates on the basis of interview alone. Out of 140 marks fixed for interview. 100 marks have been fixed for viva voce test and 40 marks for academic etc. Reservation of 100 marks for viva voce test is arbitrary and violative of rights of the petitioners guaranteed by the constitution of India and also is in violation of law settled down by the Hon'ble Supreme court in various judgments. The selection being based on illegal criteria is thus vitiated. It is also submitted that selection process is actuated by mala fides. The candidates with better merit like the petitioners have been ignored and candidates possessing less merit have been selected. It has been submitted that petitioner No. 16, Dr. Sunil Bhat was nominated by the Government for MAMS course in Rajasthan on the basis of his merit in 12th standard, He secured 4th rank in J&K Engineering Entrance examination and was allotted REC Jalandhar. He also secured 3rd rank in J&K Medical Entrance examination and left REC Jalandhar and joined GMC Jammu for MBBS. He topped all the four professional examinations and secured over all first position in the batch by obtaining 1920 marks out of 2750 marks. He was given gold medal in the year 2002 in recognition of his merit. He was also selected for undergoing postgraduate course in AIIMS Delhi but due to better subject available in Jammu he did not opt for the same. He secured II rank in the J&K Postgraduate entrance examination.
He was selected by the UPSC as Medical Officer in Railways but he did not join because he was undergoing postgraduate course in GMC Jammu. He was awarded two more gold medals in 11th Convocation of Jammu University. It is submitted that petitioner No. 20, Dr. Neetan Varmani cleared post-graduation entrance examination in 2001 and June 2002 and ranked 57 and 43 in MD examination and was having two and half years experience in the post-graduate department of Radio-Diagnosis. Similarly petitioner No. 21 stood 3rd in final MBBS examination and and stood 1st in 2nd professional MBBS and pre-final professional MBBS examination but none of them has been selected. The candidates who have been selected included Miss Sheleja Tikoo daughter of Sh. B.K. Tickoo, Member of the Commission when she was not available in India and was infact in United States. Private respondent No. 97 Miss B.S. Khan is the daughter of Sh. M.S. Khan another member of the commission. Private respondent Rakesh Banal is son of another member of the commission Sh. C.L. Banal whereas respondent Miss Gulnaz Choudhary happens to be the daughter of yet another member of the commission namely B.A. Choudhary. Respondent Athar Bashir Khan is the son-in-law of Shri B.A. Choudhary. Private respondent Rifat Jan and Musarat Jan and Sujad Ahmed who have been selected happen to be the daughters and son of former minister of National Conference regime namely Sh.Mohd Shafi Uri. Respondent Shagufta Yasmeen Rather is the daughter of former minister of National Conference regime namely Sh.Abdul Rahim Rather. While as Miss Lubna Shafi is the daughter of another minister of National Conference regime namely Shri Mohd Ramzan. Respondent Irshad Ahmed is the son of Revenue Minister in the present Government namely Hakim Mohd Yaseen. Respondent Nighat Dar is the daughter of Sh.Abdul Rashid Dar Chairman Legislative Council. Miss Malika is the daughter of Sh. Ghulam Hassan Mir, another minister of the present Government. The petitioners submit that the impugned select list is nothing but a pure form of favoritism and nepotism and the commission has selected candidates not on the basis of merit but on the basis of influence and political connections of the candidates. That the wards of ministers and influential persons out-numbered meritorious candidates in the impugned selection. Further submission of the petitioners is that the selection of candidates against 164 posts referred subsequently is also bad for having been made without issuing any advertisement when the law stands settled that selection cannot be made in excess of the advertised posts. For making selections without formal advertisement rights of those candidates who may have become eligible after notification have been infringed for having not been given chance for consideration for selection. This apart non-holding of screening test also vitiates the selection.
10. In SWP 1055/2004, Dr. Mohd Akbar Wani v. State, the petitioners have submitted that the Members of the Commission, especially respondents 3 to 6 have selected their sons and daughters and other close relatives by invoking reciprocity i.e. quid pro quo resulting into ouster of the petitioners from the select list. The Commission has made selection over and above the advertised posts. It is therefore bad. That the Commission has selected members of some of influential families like daughters and sons of former and present ministers. The selection being actuated by mala fide is bad in law.
11. In SWP 1160/2004, Dr. Jagdev Singh and Ors. v. State the select list has been challenged on identical grounds as made in SWP 1055/2004.
12. In SWP 1179/2004 Dr. Rubi Naz Bhatti v. State the petitioner applied under Scheduled Tribe category but has not been selected. She has challenged the selection on similar grounds as stated in SWP 1157/2004.
13. In SWP 1283/2004 Dr. Rajeev Kumar and others v. state the selection is being impugned again on the ground of mala fide alleged against the members of the commission. It has been submitted that the selection has not been made fairly and the members of the commission have selected their kith and kins and have committed flagrant violation of set principles of law and have selected candidates without adopting a uniform criteria. It is alleged that the selection has been made against the posts which were never advertised. The candidates possessing better merit have been ignored whereas candidates possessing less merit have been selected. It has also been submitted that the criteria adopted was not disclosed to the petitioners or the public in general. Whole exercise is based on favourtism, bias, discrimination and arbitrariness and influential persons have been selected.
14. In SWP 1372/2004 Dr. Syed Sajjad Hussain v. State the selection has been challenged on the ground of malafide as well as on the basis of arbitrary criteria on identical submissions as made in SWP 1157/2004.
15. In SWP 1428/2004, Dr. V.K. Sharma v. State and SWP 1429/2004, Dr. Suman Khajuria v. State and ors, the petitioners have challenged the selection on identical grounds on which it has been challenged in SWP 1157/2004.
16. In SWP 1576/2004 Dr. Naseem Chouhan v. State, the petitioner has submitted hat the Commission has not only exceeded the number of vacancies notified for selection but has also selected kith and kins of the members of the commission. It has also been submitted that candidates possessing fake Scheduled Tribe category certificates have been selected as according to the petitioners respondents 10 to 20 are fake schedule tribe and they wore not eligible to seek consideration under S.T. category as they belong to Sheikh/Mir/Lone/Khan etc. communities which candidates have yet not been declared as scheduled tribe as per SRO 126. It has further been submitted that respondents 19 & 20 are not scheduled tribe by birth but have been planted by marriage and were therefore not eligible for selection under the said category. The petitioners have questioned the selection of sons and daughters of the members of the commission on the ground of mala fide, besides submitting that reservation of 100 marks for viva voce test against 40 for academics is in violation of law laid down by the Supreme Court.
17. In SWP No. 1607/04 Dr. Romy Sharma v. State and others the petitioners are challenging the criteria fixed for selection as well as on the ground of mala fide; AND
18. In SWP No. 1658/2004 Dr. Sanjeev Kumar v. State, the selection is being challenged on the ground of malafide. According to the petitioners selection is bad as kith and kins of members of the commission have been selected and meritorious candidates have been left out.
19. The stand of the Public Service Commission-respondent projected in the counter affidavit broadly stated is that the selection in question was made by the commission by strictly following Rule 51 of the Rules of 1980. The selection process came to be initiated simultaneously with the issuance of advertisement notifications dated 23.6.2003 and 28.11.2003 and when the same was in currency the commission came to know about the judgment passed by the Hon'ble Supreme court in SLP 3734/2002 titled Dr. Inder Parkash Gupta v. State of J&K and ors on 17.5.2004. The commission by then had already interviewed 484 candidates and the rest of the candidates were to be interviewed up to 12.6.2004. When the process of interview was over the commission in all fairness and with all bona fide deemed it proper to complete the selection process being under the bona fide belief that the judgment of the Supreme Court was to operate prospectively and would not have any effect on the pending selections. The interviews were conducted by the selection committees comprised of two members of the commission and an expert on the subject called from out side the State belonging to prestigious medical institutions like AIIMS and medical colleges of Lucknow and Amritsar holding the rank of properfessor/Additional professors.
The Chairman of the commission ensured that no candidate especially those who were known to be related to the members of the commission should be placed before such committee of which such member was the member. That none of the wards appearing in the interview was interviewed by a committee comprised of such related members The candidates who are said to be relatives of some of the members were interviewed by a separate committee headed by the chairman alongwith another member namely Dr. R. Madan with the aid and assistance of an expert. Thus there was no occasion for any such member to show any favour to the wards of any such member whose kith and kins took part in the selection process. It has further been submitted by the commission that interviews used to start at 10.30 AM and till 1 PM and then from 2 PM to 5 PM on every date. Each candidate was interviewed for an average duration of 15/17 minutes. During the interview each candidate was assessed and evaluated as per his knowledge in the subject, capacity to interact, general awareness, knowledge and aptitude. The members of the selection committee apart from satisfying themselves about the ability, suitability, and merit of a candidate used to be aided and assisted by an expert. On collective assessment by the members of the commission appropriate marks were assigned to such candidates. Awarding of the marks in favour of each candidate by the committee was with the approval of the expert, the award roll used to be signed at the end of every day by the members as well as the expert. With a view to have uniformity in the standard of evaluation all the members of the selection committees would discuss and interact with each other and also with the expert. The entire object was to ensure that the candidates interviewed by the selection committees in Jammu/Srinagar were assessed and evaluated by a general common standard and possibility of variation in the standards could be eliminated. It has also been stated that the commission felt it impracticable to get each candidate interviewed by the same expert as the experts used to express their inability to stay all along that too in continuity till completion of interviews. According to the commission after adjudging inter-se merit of each candidate recommendations were accordingly made to the Government for appointments. The commission in the counter affidavit has denied malafide exercise of power for making selections and it has been submitted that selection has been made by strictly following the mandate of Rule 51 of Rules of 1980 on the basis of interview alone.
20. Private respondents besides taking up the preliminary objection to the maintainability of the writ petition on the ground that a candidate who participates in the selection process cannot turn around and file a writ petition challenging the selection process after having not succeeded in getting selected, in their reply have submitted that about 2000 candidates had applied for selection before the commission. The commission consisted of five members only. Relatives of four members out of five were appearing for the interview. If four members of the commission would have been excluded from the selection process then there would not have remained a Service Commission at all being left with only one member. In such a situation the commission was under law required to devise a fair selection method. The method devised by the commission was that interview committees are constituted consisting members of the commission and an expert from out side. It was made sure that none of the members of the committees interviewed any candidate who was in any manner whatsoever related to him. Therefore the allegation of the petitioners that wards of the members of the commission were favoured is baseless. Regarding Rule 51 of Rules of 1980 it has been submitted that the Supreme Court in its judgment rendered in Dr. Inder Parkash's case has commented on Rule 51 in a different context and is not applicable to the present case. The selection in that case was made on the basis of viva voce test alone. The contention of the petitioners that they were more meritorious than the private respondents is not tenable, as this court cannot be converted into an appellate court to sit over the judgment of the commission and return a judgment on the comparative merit of the candidates. According to the respondents the grounds urged by the petitioners are misconceived and allegations of favourtism and nepotism are wild allegations, without there being any basis for the same. In so far as the answering respondents are concerned they got selected because of their own merit, with absolutely no political dent in their favour.
Regarding non-holding of screening test by the commission it has been submitted that it is always the discretion of the commission to hold it but the best method is to consider every body in the written/viva voce test. It is only when the commission finds that it is not possible for it to examine/interview each and every candidate in view of large number of candidates that it could decide to conduct the screening test for restricting the number of candidates to a particular number for interview/examination. In the present case the number of candidates was not considered so large as to hold the screening test. It has also been submitted by these respondents that wards of ministers and members of the commission have equal opportunity of seeking employment with other eligible candidates in accordance with the mandate of Ar.16 of the constitution of India. Sons or wards of ministers or members of the commission cannot be shown the exit gate merely because providence has placed them in that position. It has further been stated that ground of mala fide is vague and cryptic. The petitioners have not made any minister or any member of the commission as party respondent by name therefore the allegation of mala fide is not entertainable, moreso when there is no allegation that marks in viva voce test in favour of the selected candidates, including the wards of the members of the commission and ministers were inflated so as to put them up in the merit list and there is also no allegation that the marks in viva voce have been deflated in case of the unsuccessful candidates, including the petitioners so as to put them down in the merit list.
Regarding unadvertised 164 vacancies referred to the commission for selection it has been submitted that the vacancies were referred in public interest so as to provide patient care in the newly created/upgraded hospitals. It is trite law that selection can be made against anticipated vacancies and the candidates who had applied for selection, including the petitioners and respondents have been considered for selection against all these posts. The petitioners having failed to secure their selection cannot be heard complaining that the posts which have been referred to the commission in the mid-stream and against which they too have been considered should not have been taken into consideration, without being advertised. The grievance of this nature is not available to the petitioners, same being available only to such candidates who becomes eligible after the initiation of selection process. No such candidate has come forward to challenge the selection on the basis that non-advertisement of posts referred to the commission during the mid-stream has been denied opportunity of seeking selection against those posts.
21. The stand of the State-respondent is that the petition is not maintainable in view of the fact that no right has yet accrued to the petitioners against the select list because the petitioners have raised disputed questions of facts which cannot be decided in writ jurisdiction. It has further been submitted by the State that since the writ petition is based on mala fides the principle laid down by the Supreme Court for alleging allegations of mala fides has not been followed.
22. I have hoard the learned counsel for the parties. They have made submissions on the following points mainly: --
A- Whether the criteria for selection envisaged by Rule 51 of the Rules of 1980 is invalid?
B- Whether the selection is vitiated for the reason of non- holding of the screening test by the commission for calling the candidates of interview?
C- Whether the selection made in respect of 164 posts without being advertised is bad in law?
D- Whether the selection is vitiated for having been made in exercise of power actuated by mala fide?
E- Whether the petitions of the petitioners are premature and not maintainable?
A-WHETHER THE CRITERIA FOR SELECTION ENVISAGED BY RULE 51 OF RULES OF 1980 IS INVALID?
23. The Commission in order to make selection for the posts of Assistant Surgeons has chosen the mode of interview alone. The selections by interview alone is one of the accepted modes which may be adopted for selection. The Commission is a constitutional authority. Its functions under Section 133 of the constitution of Jammu & Kashmir are enumerated as follows:-
"133. Functions of the Commission:-(1)-It shall be the duty of the Commission to conduct examinations for appointment to the services of the State.
(2) The Commission shall be consulted --
(a) On all matters relating to methods of recruitment to civil services and for civil posts;
(b) On the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) On all disciplinary matters affecting a person serving under the Government including memorials or petitions relating to such matters and it shall be the duty of the commission to advise on any matter so referred to them or on any other matter which the Government may refer to them.
Provided that the Governor may make regulations specifying the matters in which either generally or in any particular class or cause or in any particular circumstances it shall not be necessary for the commission to be consulted.
(3) Nothing in Sub-section (2) shall require the commission to be consulted as respects the manner in which a provision may be made by the State for the reservation of appointments or posts in favour of any class of permanent resident which in the opinion of the Government is not adequately represented in the services under the State;
(4) All regulations made under the proviso to Sub-section (2) by the Governor shall be laid for not loss than fourteen days before each House of the Legislature as much as possible after they are made and shall be subject to such modifications, whether by way of repeal or amendment, as the Legislative Assembly may make during the session in which they are so laid."
24. It is evident from the above statutory provision that the mandate of Section 133 expressly and specifically does not vest any power with the commission to frame rules for performing its primary functions like conducting of examinations etc. for appointment to public services. The Commission however for conducting its business and examinations etc. i.e. for performing its functions fairly and effectively has made procedural rules i.e. Jammu & Kashmir Public Service (Conduct of business and procedure) Rules, 1980. Whether the commission possesses power to frame such rules? This question arose and was answered by a Full Bench of this court in SWP 211/1994, titled Dr. Inder Parkash Gupta v. State of J&K and Ors. It was submitted before the Full Bench that it was not within the powers of the commission to do something beyond what is contemplated by Section 133 of the State constitution as it was evident from Section 133 that expressly or specifically no power stood conferred upon the commission to frame such rules. The learned Full Bench repelled the submission by observing: --
"If this plea of the petitioner is accepted, it runs counter to the functioning of the commission. Unless the commission devises the procedure for conducting the examinations, the purpose cannot be achieved. Under proviso to Sub-section (2) of Section 133, the Governor has been assigned the power to make regulations specifically bractting the matters where it is not necessary to consult the commission on matters relating to recruitment to civil services, promotions and transfers from one service to another and for suitability of the candidates for such appointments, promotions, transfer or on disputed matters affecting a person serving under the State. Section 133 no doubt speaks only of the conduct of examinations and does not specifically confer any power on the commission to frame such rules for conducting the business by the commission, yet in absence of the procedural rules or regulations it is beyond contemplation to control and regulate the business and discharge the functions by the commission effectively and fairly. To run and conduct the business, such procedural rules are necessary for exhibiting fairness in the action. Though such power is not expressly conferred even then it is impliedly granted by the very enactment. Such ancillary or incidental powers are implied in the very enactment and unless such implied power is not visualized it is difficult for a statutory body like the commission to discharge the functions and to regulate the business of conducting examinations."
Learned Full Bench after relying upon a Division Bench judgment of Andhra High Court, reported in AIR 1961 AP 378, held as under: --
"Accordingly we hold that the commission has the competence and jurisdiction to frame such regulatory procedural rules as Rules of 1980 for conduct of its business and this power is impliedly granted by the very enactment."
25. Thus there is no doubt that the commission possesses power to frame rules for conduct of its business but the fact remains that the rules so framed are only procedural rules which being in- house procedural rules have no statutory force but are binding upon the commission.. The action taken by following these rules is open to judicial review. It is within the administrative power of the commission to make recommendations to the Government in furtherance of the consultation process over matters enumerated by Section 133 of the constitution of J&K. But it is necessary that the power must be structured with a system of control involved by both relevant and reason-the relevance in relation to the object which it seeks to serve and reason in regard to the manner it attempts to do so. Article 14 of the constitution is violated by powers and procedures which themselves result in unfairness and arbitrariness. Vesting of absolute and uncontrolled power in such authority falls out side the constitution altogether.
The procedure for conducting interview is prescribed under Rule 51 of the Rules of 1980. The rule reads as follows: --
"51. The assessment at an interview shall be based on the following principles: --
---------------------------------------------------------------------- A. Performance of the candidate in ... 100 marks the Viva voce test.
B. Academic merit.
(i) Percentage of marks obtained ... 25 marks in the basic(i.e. minimum)
qualification prescribed for the
(ii) Higher qualification than the
basic, (minimum) prescribed for
the post such as Diploma or
degree in the concerned
(a) Diploma ... 2 marks) subject to maximu m
(b) Degree ... 5 marks) of 5 marks. (C) Experience acquired by the
candidate in the concerned
(i) Exceeding 1 year but not 2 ... 2 Marks. years
(ii) For two years and above ... 01 marks for every full year
subject to total 05 mark
(D) Sports/Games, Distinction in 3
representing a University, State
or Region in any Sports/games.
(E) Distinction in NCC activities 2
marks, (i.e. having held the rank
of Junior officer or Senior under
officer or having passed the top
grade certificate examination of
-------------------------------------------------------------------------------- Total A&E 140 marks."
26. Rule 51 reserves 100 marks for viva voce and 40 marks for academics etc. Whether the criteria envisaged by this rule is valid? The scope and legality of criteria under Rule 51 has been put to judicial scrutiny in different cases by this court and recently by the Hon'ble Supreme court. In a batch of writ petitions, SWP No. 227/93 being the lead case, titled Abdul Wahid Zargar v. State of J & K and Ors. selection to the post of Assistant Engineer (Civil) and Assistant Engineer (Electric) came to be challenged. The selections under challenge had been made by the Commission on the basis of interview alone conducted under Rule 51 of 1980 rules. It was submitted by the petitioners before the Division Bench of this court that reservation of 100 marks out of 140 marks for interview was excessive and left scope of arbitrariness in the selection and rejection of candidates and was therefore violative of Article 14 & 16 of the constitution. The petitioners prayed that Rule 51 be struck down same being unconstitutional. Learned Division Bench after noticing different judgments of the Supreme Court came to the view that Rule 51 was not unconstitutional by observing as under : --
"Apart from the fact that the Apex Court has clearly laid down that the question of marks to be allocated at interview has no relevance where the selection is held solely on the basis of interview or interview coupled with academic performance, in view of the decisions mentioned hereinabove it cannot be held as an immutable proposition of law that the marks allocated for interview cannot exceed 12'1/2%. The basis of claiming this limit is the judgments of the Apex court in Ashok Kumar Yadav and Ajay Hashia's case (supra. As mentioned hereinabove these decisions have been noticed in subsequent decisions of the Apex court in which allocation of even 50% marks at selections conducted by non-constitutional authorities has been upheld (see D.V. Bakshi supra). Relying upon subsequent decision of the Apex court a D.B. of this court upheld allocation of 20% marks at interview by a statutory Board (J&K State Services Selection Board) in Vijay Kumar v. State and Ors., 1991(XXX) KLJ
161. In view of these decisions the reliance placed by the petitioners upon the decisions in Ashok Kumar Yadav and Ajay Hashia is misconceived."
27. On the aforesaid reasoning learned Division Bench of this court concluded that Rule 51 of the Rules of 1980 is not invalid or ultra vires the constitution. The petitioners filed an S.L.P. against the judgment of the Division Bench before the Hon'ble Supreme court but the same was dismissed in limine by its order dated 28.3.1994.
28. In the year 1994 one Dr. Inder Parkash Gupta challenged the selection of respondents 3 to 10 for the post of Lecturer in Medicine made by the J&K Public Service Commission before this court in SWP No. 211/1994. A Full Bench of this Court considered the matter. The Full Bench formulated five points for determination. Point Nos. 2&4 read as under: --
2- Whether the selection made applying criteria prescribed under Rule 51 of the Rules (supra) has the effect of ignoring Rule 8 of the Jammu & Kashmir Medical (Gazetted) service Recruitment Rules 1979, which prescribes the statutory method of recruitment to the posts in teaching wing?
4-Whether 100 marks earmarked for viva voce test and 40 marks for record as per the criteria contained in Rule 51 (supra) are excessive and capable of turning the merit into demerit in view of the judgments of the Supreme Court and thus Rule 51 needs reconsideration?
On point No. 2 the learned Full Bench held as under: --
"It has been held in the preceding paragraphs that the commission has the implied power to frame rules for regulating its business of conducting examinations in terms of Section 133 of the State constitution. The Governor of the State in exercise of the powers conferred by proviso to Sub-section (2) of Section 133(supra) has framed regulations called "The Jammu & Kashmir Public Service Commission(Limitation of functions)Regulations 1957". Rules 1980 containing Rule 51 do not have the assent of the Governor but are only the procedural rules for conducting the business of the commission. Rules 1979 containing Rule 8 have been framed in exercise of the constitutional power conferred by the proviso to Section 124 of the State constitution relating to public services, by the Governor. These rules being the statutory provision of law have upper edge over the Rules of 1980 framed by the Commission. The post of lecturer is borne on the cadre strength of Medical Education Service to be regulated under the Rules 1979. Rule 8 whereof prescribes the method of recruitment. Rule 51 of the Rules 1980 is a general procedural rule prescribing criteria to be made applicable for determining the suitability of the candidates to all the services of the State by the Commission. This rule must also contain the statutory criteria prescribed by Rule 8 for making selection to the post of lecturers in the Medical Education Service. Appraisal of both the rules reveals that the research experience and publications and previous record of work prescribed by Rule 8 has not been taken care while framing Rule 51 by the commission. Rule 51 further provides sports/games and distinction in NCC activities as ingredients to assess the validity which has not been prescribed under Rule 8. The Commission for assessing suitability of the candidates, no doubt, can supplement the criteria and method of selection but cannot supplant it. The duty of the commission is to make selection according to the rules relating to the service in question and following the statutory rules faithfully. Therefore the statutory method of selection prescribed by Rule 8 of Rules 1979 cannot be ignored."
Learned Full Bench on point No. 4 while considering correctness and reservation of 100 marks for viva voce and 40 marks for record in terms of criterion contained in Rule 51 after noticing the judgments of the Supreme Court rendered Lila Dhar v. State of Rajasthan, AIR 1981 SC 1777; Ashok Kumar Yadav's case (AIR 1987 SC 454); State of U.P. v. Rafiquddin, AIR 1988 SC 162; D.V. Bakshi v. Union of India, AIR 1993 SC 2374; Indian Airlines v. Capt. K.C. Shukla, 1993 (1) SCC 17 and Amur Ahmed v. State of Bihar, 1994 (1) SCC 150 and other judgments also observed as follows: --
"It bears out that approach of the Supreme court so far has been that marks to the extent of 40%a to 50% for viva voce where selection is made on the basis of record and viva voce, are proper marks. In the instant case the selection is allegedly based on record and viva voce. 40 marks have been assigned for record and 100 for viva voce which appears to be excessive and the judgment delivered in Satpaul's case (1995) Suppl (1) SCC 206) applies to the present case on all fours."
It was further observed: --
"Here arises the question with regard to the validity of Rule 51 as to whether it needs to be re-cast in view of the judgments of the Supreme court referred to above and also declared to be bad as it provides 71% marks for interview and 29% for the record. In the present selection only 115 marks could be utilized because of the construction of Rule 51 vis--vis the eligibility qualification, 25 marks for essential qualification could not be utilized as revealed from the record. This selection is made subjecting the candidates to assess their suitability on the basis of 15 marks for record and 100 for interview, which makes an allocation of 87% of the total marks for interview.
The judgments of the Supreme Court in Satpal, Anzar Ahmed and C.P. Kalra's cases are pointer to the fact that marks for interview should not be more than 40% to 50%; in a selection where it has to be made on the basis of record and viva voce test. Rule 51 providing 100 marks for viva voce against 40 for record makes a departure and is apparently contrary to law laid down by the Supreme Court and necessitates reconsideration of Rule 51 for the added reason that there is no consensus of judicial pinion rendered in Abdul Wahid Zargar's case vis--vis the judgments of the Supreme Court that marks for viva voce test could exceed the marks assigned for record/academic merit where selection is made on the basis of interview alone. There is another reason also that Rule 51 has not taken care of Rule of Service Rules 1979, consequence whereof is that the statutory method of selection has not been comprehensively followed and adopted in the rule. For these reasons Rule 51 is required to be re-cast."
The Full Bench thus held the criteria envisaged by Rule 51 for selection by interview to be bad in law and the rule required to be recasted. The rule making authority i.e. the Public Service Commission did not challenge the judgment of the Full Bench before the Supreme court and instead State of J&K as well as the petitioner Dr. Inder Parkash assailed the judgment of the Full Bench in Civil Appeals before the Apex Court. It may be pertinent to mention here that under Health Ministry of the State of J&K there are two different Gazetted services, Medical Health and Medical Education. Recruitment of Medical Health(Gazetted) service is governed by J&K Med-ical(Gazetted)Service Recruitment Rules of 1970 whereas recruitment to Gazetted service in Medical Education is governed by J&K Medical Education(Gazetted)Service Recruitment Rules of 1979. In Dr. Inder Parkash's case challenge had been made by the petitioners to the selections made by the commission for recruitment to the post/service governed by J&K Medical Education (Gazetted) Service Recruitment Rules of 1979, (Rules of 1979 hereafter). The Commission had advertised the posts of Lecturers for recruitment under rules of 1979. Rule 8 of Rules of 1979 by which appointments to the post of Lecturers were governed read as follows:-
"8-Method of recruitment-While making selections:
(1) to the posts in the teaching wing of the service the commission/Department Promotion Committee shall have read to the following namely:
(a) Academic qualifications of the candidates;
(b) Teaching experience;
(c) Research experience; and
(d) Previous record of work, if any."
The Commission had made selections on the basis of interview conducted under Rule 51 of Rules of 1980. The challenge made by Dr. Inder Parkash was on the ground that in the first place Rule 51 could not have been followed for making selections because mode of selection was contained in Rule 8 of rules of 1979 and in the second place Rule 51 if could be applied for making selections then the criteria set down therein was in violation of Rule 8 of rules of 1979 and thirdly reservation of 100 marks for viva voce test being excessive was bad in law.
29. As already said the Full Bench of this court had held that selections made by following Rule 51 were bad in law being in contravention of the criteria set down by Rule 8 of rules of 1979 and secondly reservation of 100 marks for viva voce test was excessive and in violation of law authoritatively settled in various judgments of the Supreme court. Their lordships of the Supreme court decided the appeals filed by the petitioner Dr. Inder Parkash and the State by its judgment dated 20.4.2004, reported in 2004(3) Supreme 593 (Inder Parkash Gupta v. State of J&K). Their lordships with regard to mode of selection vis- a -vis Rule 8 of rules of 1979 observed as follows:-
"Rule 8 mandates that while selecting the teaching wing of the service, the commission must have regard to the academic qualification of the candidate, teaching experience, research experience and previous record of work, if any. Rule 8 does not speak of any viva voce test. It however appears that so far as academic qualification is concerned, the same had been laid in the advertisement and the requirement of
M.D(Medical/General(Medical),MCRF,FRCP,Spe-cial-ity Board of Internal Medicine(USA) or an equivalent qualification of the subject. So far as the teaching experience is concerned, two years experience as Registrar/Tutor/Demonstrator/Tutor or a Registrar Resident in the discipline of medicine in a recognized teaching medical institution recognized by the Medical Council of India was specified."
So far as the teaching experience is concerned the commission awarded marks to those who had even less than two years experience. One mark was to be awarded for every full year of experience subject to a total of 5 marks. Sports/Games distinction in NCC activities had also been taken into consideration which were not the criterion prescribed under the rules of 1979. There is nothing to show that any mark was awarded in relation to the previous record of work, if any.
In its judgment the High Court did notice that in awarding marks for minimum qualification prescribed for the post, the commission did not award any mark at all to some respondents. It therefore for all intent and purport had considered the candidatures of the candidates only on the basis of 110 marks. If the marks awarded for spots/games and NCC activities are excluded as they are beyond the purview of Rule 8 and as it fixed 100 marks for viva voce test, a clear case of breach of the statutory rules had been made out. While the appellant had been given minimum marks in the viva voce test, the other respondents who even did not fulfill the requisite criterion were awarded higher marks."
30. With regard to reservation of 100 marks for viva voce test their lordships held as follows:
"The High Court, in our opinion, was correct in holding that Rule 51 providing for 100 marks for viva voce test against 40 for other criteria is contrary to law laid down by this court.
(See Union of India and Anr. v. N. Chandersekharan and Ors., AIR 1998 SC 795, Indian Airlines Corporation v. Capt. K.C. Shukla and Ors. (1993) (1) SCC 171, Anzar Ahmad v. State of Bihar and Ors., 1994 (1) SCC 1501 and Satpal and Ors. v. State of Haryana and Ors. 1995 Suppl (1) SCC 206).
It is true that for allocation of marks for viva voce test no hard and fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such marks is made with an intention, which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the constitution of India.
(See Jasvinder Singh and Ors. v. State of J&K and Ors. (2003 SCC 1321, Vijay Sai and Anr. v. State of Punjab and Ors., 2003 (9) SCC 401).
It is also trite that when there is a requirement of consultation in absence of any statutory procedure, the competent authority may follow its own procedure subject to the conditions that the same is not hit by Article 14 of the constitution of India.
(See Chairman & MD BPL Ltd. v. S.P. Gururaja and Ors. 2003 (8) SCC 567):"
Their lordships further observed: --
"We would proceed on the assumption that the commission was entitled to not only ask the candidates to appear before it for the purpose of verification of records, certificates of the candidates and other documents as regards qualification, experience etc. but could also take viva voce test. But marks allotted therefore should indisputably be within a reasonable limit. Having regard to Rule 8 of 1979 rules higher marks for viva voce test could not have been allotted as has rightly been observed by the High Court. The Rules must therefore, be suitably recast."
Their lordships while disposing of the appeals finally observed: --
"These appeals are disposed of accordingly. The cost of the appellant herein shall be borne by the State of Jammu & Kashmir quantified at 10,000, we hope and trust that the State of Jammu and Kashmir as also Jammu and Kashmir Public Service Commission shall make all endeavors to see confidence in the Statutory Bodies restored and they would henceforth comply with legal requirements strictly and scrupulously."
31. It be seen that the J&K Public Service Commission was a party respondent before the Full Bench of this Court as well as before the Hon'ble Supreme court in Dr. Inder Parkash's case. The judgment of the Full Bench was rendered on 30.7.1999. This judgment was appealed against but admittedly it had not been stayed by the Supreme court and finally the judgment of the Supreme court was delivered on 20.4.2004, still unfortunately the Commission neither recasted Rule 51 nor changed the criterion for making selections on the basis of interview alone. It went on making selections by following Rule 51, as it existed before and after passing of the aforesaid judgments.
32. The principal contention of learned counsel for the petitioners is that the selections made by the commission by following same criteria which was envisaged by Rule 51 and which according to the Full Bench of this court, as well as the Hon'ble Supreme court was bad in law being contrary to law settled by the Supreme court by its various judgments, are bad in law so should be quashed.
33. Mr. Raina learned counsel appearing on behalf of the commission, however, contends that Rule 51 of rules of 1980 had not been declared ultra vires of the constitution but only advice was given to the commission to recast the same. Rule 51 had stood the test of judicial scrutiny in Abdul Wahid Zargar's case (supra) which was not interfered with even by the Apex Court in SLPs dismissed in limine on 20.3.1994 and therefore Rule 51 cannot be said to be illegal and more so when the Supreme Court was considering the scope of the same in the light of Rule 8 of Rules of 1979. He also submits that since the judgment of the Supreme Court came to the notice of the commission when it had already issued the advertisements for selection and therefore the selection process having been already started it was to be completed by strictly following Rule 51, for the reason the judgment of the Supreme Court was to operate prospectively and not retrospectively, assuming the same applied to the criteria in question.
34. Mr. A.V. Gupta, learned counsel for some of the private respondents who have been selected has argued that the selection in issue pertains to the posts of Assistant Surgeons which are governed by J&K Medical (Gazetted) Recruitment Rules of 1970 and not by J&K Medical Education (Gazetted) Recruitment Rules, 1979. Rule 6 of J&K Medical (Gazetted) Recruitment Rules 1970 prescribes the method of recruitment as follows:-
"Method of recruitment (1) Appointment to the service shall be made: --
(a) by direct recruitment; or
(b) by promotion from category or class as mentioned against the post in the schedule.
(2) In case suitable candidates are not available for promotion the post shall be filled up by direct recruitment."
The posts of Assistant Surgeons in issue are entry level posts and thus are required to be filled up by direct recruitment. Under rules of 1979 the criteria of selection stood prescribed but in the rules of 1970 under which the present posts are governed no such criteria has been prescribed. Mr. Gupta submits that Inder Parkash's judgment (supra) was rendered by the Supreme Court and Full Bench of this Court while taking into consideration the fact that statutory rules i.e. rules of 1979 which were governing those posts of Lecturers contained the criterion on which selections were required to be made but under the present rules which govern the selection in issue no such criteria is fixed/prescribed and therefore it was for the commission to decide as to in what manner the selections were to be made. Mr. Gupta submits that the commission decided to make selections by interview alone. The procedure for conducting interviews stood prescribed in Rule 51 and Rule 51 has strictly been followed. The validity of the criteria envisaged by Rule 51 cannot be allowed to be challenged on the basis of the observations made in Inder Parkash's case. Had Rule 8 not been applicable in Inder Parkash's case, perhaps their lordships of the Supreme court would not have observed that Rule 51 was bad in law. He also submits that the judgment of the Supreme Court in Inder Parkash's case has no application to the facts of the present case as Rule 8 of J&K Medical Education (Gazetted)Recruitment Rules of 1979 is not applicable herein this case. According to Mr. Gupta if application of Rule 8 is excluded which has to be excluded as rules of 1979 do not govern the present posts in issue, the field would continue to be governed by Abdul Wahid Zargar's case (supra), and therefore it will not be open for this court to go into the question of validity of Rule
51. According to him for judging the over all suitability of a candidate for appointment for the post the mode of interview is the best mode because by interview besides academic merit the personality, aptitude and suitability of a candidate for manning a particular post can be best judged. He further submits that when interview alone is the mode the selection cannot be questioned.
35. Mr. Lone, learned counsel for some of the other selected candidates submits that if the judgment of the Supreme court rendered in Dr. Inder Parkash's case had not come, the law rendered in Abdul Wahid Zargar's case would have held the field and Rule 51 would be held to be a valid rule. According to him the judgment of the Supreme court rendered in Dr. Inder Parkash's case does not affect the validity of Rule 51, as according to him the ratio of Full Bench judgment and the Supreme Court judgment is not that Rule 51 if taken independently of Rule 8 of rules of 1979 is bad in law. He submits that the Supreme Court has only made the observations in Inder Parkash's case vis--vis Rule 51 in peculiar circumstances of the case. It was not required to go into the question of validity of Rule 51 independently. The issue before the Supreme Court being whether the criteria set down in Rule 51 was invalid because the criteria of recruitment stood provided in Rule 8 of rules of 1979 itself. According to him their lordships of the Supreme court were examining the scope of Rule 51 in the light of Rule 8 of 1979 and in that context their lordships observed that as rules of 1979 were statutory rules therefore the criteria envisaged therein could not be ignored or changed by the Public Service Commission. He submits that the observations made in the judgment by the court are required to be understood in fact situation of that case. According to him the comments of the Supreme court in Inder Parkash's case regarding validity of Rule 51 is not ratio nor even obiter dicta but only a passing reference. According to him while discerning the ratio of a judgment it has to be read as a whole and it is not permissible to take one sentence from here and another from there to infer the rule of law enunciated by the judgment. He submits that in a judgment where reasons do not precede or follow an observation, such observation cannot be deemed the ratio of the judgment and operate as precedent. He further contends that the observations of their lordships made in the judgment in Inder Parkash's case are not even directory but advisory in nature and the Supreme court has only by making those observations suggested recasting of Rule 51 in view of the provision contained in Rule 8 of rules of 1979. He has also argued that assuming that the judgment of the Supreme Court rendered in Inder Parkash's case has done all the damage to Rule 51 still the selection made by the commission by adhering to Rule 51 cannot be faulted with for the reason that the selection process had already been initiated and decision to hold interview under Rule 51 stood taken on 23.6.2003 and 28.11.2003, the dates on which advertisement notices were issued.
36. In view of the submissions made by the learned counsel for the parties the controversy as to the criteria envisaged by Rule 51 boils down to interpretation of the judgment of the Hon'ble Supreme court rendered in Dr. Inder Parkash's case i.e. to say what is the ratio decidendi of the judgment.
37. Undisputedly the ratio decidendi of a judgment rendered by the Supreme court is the binding precedent on the High Courts. The word "ratio decidendi" has been defined in Black's Law Dictionary, 7th Edition, as follows:
"1. The principle or rule of law on which a court's decision is founded-many poorly written judicial opinions do not contain a clearly ascertainable ratio decidendi 2. The rule of law on which a later court thinks that a previous court founded its decision; a general rule without which a case must have been decided otherwise this opinion recognizes the Supreme court's ratio decidendi in the school desegregation cases-Often shortened to ratio pl.rationes decidendi"
In Divisional Controller, KSRTC v. Mahadeva Shetty and Anr., (2003) 7 SCC 197 it has been observed as follows: --
"The decision ordinarily is a decision on the case before the court while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Therefore, while applying the decision to a later case, the court dealing with it should carefully try to ascertain the principle laid down by the previous decision. A decision often takes its colour from the question involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty, as without an investigation into the facts, it cannot be assumed whether a similar direction must or ought to be made as a measure of social justice. Precedents sub silentio and without argument are of no moment. Mere casual expressions carry no weight at all, nor every passing expression of a judge, however, eminent, can be treated as an ox cathedra statement having the weight of authority."
In Arnit Das v. State of Bihar, 2000(5) SCC 488, their lordships observed as under: --
"When a particular point of law is not consciously determined by the court, that does not form part of ratio decidendi and is not binding."
In Dr. Inder Parkash's case the observations of their lordships that "High Court in our opinion was correct in holding that Rule 51 providing for 100 marks for viva voce against 40 for other criteria is contrary to law laid down by this court" is whether the ratio decidendi of the case? Is to be found. For finding the answer some investigation into the facts of that case is to be done. The appeal before the Supreme Court had arisen out of Full Bench judgment of this court. The basic facts can beneficially be gathered from the Full Bench judgment of this Court.
38. In that case the State Government referred some posts of Lecturers in Medicines in Medical Education Department for selection and recommendation to the Public Service Commission. The Commission advertised these posts under notification No. 40/PSC/94. The commission held interview for selection applying the criteria contained in Rule 51 of Rules of 1980 and recommended a list of candidates containing names of respondents 3 to 10 but the name of the petitioner was kept in the waiting list. The State accepting the recommendation appointed only respondents 3 to 10 as Lecturers. The petitioner did not come to be appointed so he challenged the selection of respondents 3 to 10 on the ground that respondents 3 to 6 and 9 were not eligible to be considered, as they did not possess the requisite experience of two years as Registrars/Tutors, respondent No. 10 being over ago was also not eligible. Petitioner's research work, experience and publications had not been taken into consideration by the selecting authority nor his higher qualification of D.M. was given due weightage. It was also submitted by the petitioner that selection of the respondents was arbitrary and illegal as the criteria contained in Rule 51 of rules of 1980 was not complied with to assess the merit and suitability of the candidates ignoring Rule 8 of rules of 1979, a statutory provision prescribed for eligibility and method of recruitment. Rule 51 was also specifically challenged being ultra vires of the constitution for the reason that the commission had no jurisdiction to frame rules and Rule 51 is in the nature of executive instructions whereas Rule 8 of 1979 rules is a subordinate legislation framed under constitutional power of the State and thus is not only in conflict with Rule 8 of rules of 1979 but also violative of Article 14 & 16 of the constitution of India. The criteria prescribed by Rule 51 was also challenged on the ground that 100 marks earmarked for viva voce were unreasonable and excessive in view of the law laid down under various judgments by the Apex Court. It was also submitted that excessive marks under viva voce turned merit into demerit. The petitioner also submitted that his superior merit keeping in view his higher qualifications, particularly the experience of research work and publication, which was far better to that of respondents 3 to 10 had not been taken into consideration by the commission, therefore, the selection was bad. 39. From the facts alleged by the petitioner the Full Bench formulated the following questions for determination and adjudication: --
1- Whether the commission has the competence and jurisdiction to frame the Jammu and Kashmir Public Service Commission (Conduct of Business and Procedure) Rules 1980?
2- Whether the selection made applying criteria prescribed under Rule 51 of the Rules (supra) has the effect of ignoring Rule 8 of the Jammu & Kashmir Medical(Gazetted) Service Recruitment Rules 1979, which prescribes the statutory method of recruitment to the posts in teaching wing?
3- Whether the experience as adhoc lecturer can be counted as experience gained as Registrar/Tutor, Demonstrator/Tutor or Senior Resident/Tutor to meet the requirement of statutory eligibility condition to seek consideration for selection and appointment as lecturer?
4- Whether 100 marks earmarked for viva voce test and 40 marks for record as per the criteria contained in Rule 51(supra) are excessive and capable of turning the merit into demerit in view of the judgments of the Supreme Court and thus Rule 51 needs re-consideration?
5- Whether the selection of respondents 6 to 10 and particularly of respondents 3,6,9 and 10 is bad being not in accordance with the statutory method of selection and is also the result of arbitrary selection?
40. From the above formulated questions for determination and adjudication it is evident that for determining the controversy two questions independent of each other, whether Rule 51 of rules of 1980 is ultra vires to Rule 8 and whether earmarking of 100 marks for viva voce test and 40 for record as per the criteria contained in Rule 51 were excessive and capable of turning merit into demerit were directly in issue in the case. The petitioner could have succeeded in his writ petition if the answer to any one of these questions would have been in the affirmative. Their lordships while agreeing with the view expressed by the Full Bench made the above quoted observations. Aforesaid observations therefore cannot in any manner be called passing reference or arbiter dicta but in my considered opinion are the ratio decidendi. By these observations their lordships have thus in clear terms held that the criteria set down in Rule 51 providing for 100 marks for viva voce test against 40 for other criteria is contrary to law laid down by the Supreme court in the judgments referred to by their lordships. The contention of learned counsel for selected candidates that the observations are not ratio decidendi and therefore are not binding precedent for this court is devoid of any force and is thus rejected.
41. The contention of Mr. Gupta that these observations of their lordships wore made in the context of Rule 8 of J&K Medical Education (Gazetted)Recruitment Rules of 1979 and therefore are not applicable to the present case is also devoid of any force for the reason that challenge to the selections in Inder Parkash's case has already said was thrown on different grounds and one of the grounds of challenge was that Rule 51 is contrary to law laid down by the Supreme Court. Their lordships of the Supreme court had concurred with the views of the Full Bench of this court on both counts, one that Rule 51 was bad because it had ignored the criteria set down in Rule 8 of 1979 and two; that reservation of 100 marks for viva voce test against 40 for other record is contrary to law laid down by the Supreme court. After Inder Parkash's judgment it stands authoritatively settled that Rule 51 of rules of 1980 reserving 100 marks for viva voce and 40 for other criteria is bad in law being contrary to law laid down by the Supreme court in its various judgments referred to in Inder Parkash's case (supra).
45. Now the question arises from which date the law declared by the court that the criteria is bad in law would be deemed to have become operative.
The sum and substance of doctrine of prospective overruling is that when the court finds or lays down the correct law in the process of which the prevalent understanding of the law undergoes a change the court, on considerations of justice and fair deal, restricts the operation of the new-found law to the future so that its impact does not fall on the past transactions. The doctrine recognizes the discretion of the court to prescribe the limits of retrospectivity of the law declared by it. It is a great harmonizing principle equipping the court with the power to mould the relief to meet the ends of justice. In the present case law was declared by the Full Bench of this court in its judgment dated 30.7.1999. This judgment was appealed against in Civil Appeal Nos. 3734, 3735, 3736, 3737, 3738, 3739/2000. These appeals came to be decided on 20.4.2004. The Supreme Court by its judgment delivered in these appeal affirmed the view expressed by the Full Bench of this court. The appeal being continuation of the lis the judgment of this court merged into the judgment of the Supreme court. The judgment of the Supreme court would have thus become effective from the date the judgment of the Full Bench of this Court was delivered i.e. 30.7.1999. I am fortified in my view by the judgment of the Supreme Court rendered in Harshlal v. State of Rajasthan, AIR 2002 SC 2897. In that case before the Supreme court the controversy pertained to validity of a provision contained in Rajasthan Government circular dated 22.2.1999 for awarding bonus marks in written examination for the post of Gram Sewak cum Pardhan, to candidates belonging to the same district or rural areas thereof. A Single Bench of the High Court in one judgment held the circular to be invalid, without interfering with the appointments made earlier. However, in another judgment which was subsequent thereto another Single Bench took same view with regard to said circular but it made it clear that the judgment would operate prospectively. The matter was considered by the Full Bench of that Court and it held the same provision invalid with prospective effect. Under such circumstances their lordships of the Supreme court though affirmed the High Court judgment regarding invalidity of the circular and observed as follows: --
"We now come to the question of relief. We are of the view that for the reasons set out in the judgment delivered by us today in Kailash Chand Sharma's case, the judgment of the High court has to be given prospective effect so that its impact may not fall on the appointments already made prior to the date of the judgment. That is also the view taken in Deepak Kumar Suther's case which has been followed in the impugned orders of the High Court. However In writ petition C.No. 6256/99 the High Court did not make it clear that the judgment will operate prospectively though in the other impugned order the High Court gave effect to the judgment without touching the appointments made before 21.10.1999. We are of the view that the date of application of the judgment should be from 27.7.2000 which was the date on which W.P.5/2000 was allowed by the learned Single Judge holding that notification in regard to bonus marks for the purpose of selection of Gram Sevaks was invalid."
46. Therefore, before the judgment rendered by the Full Bench the law governing the field was that Rule 51 was a valid rule. The Full Bench by its judgment dated 30.7.1999 declared Rule 51 and the criteria envisaged therein to be bad in law being violative of law settled by the Supreme Court. The view of the Full Bench was affirmed by the Supreme Court by its judgment dated 20.4.2004. Therefore the preposition of law that the criteria envisaged under Rule 51 became operative from the date of the judgment of the Full Bench i.e. 30.7.1999. The commission was therefore aware of the fact that the criteria envisaged by Rule 51 is not in accordance with law and reservation of 100 marks for viva voce against 40 for other record was in violation of law laid down by the Supreme court in its various judgments. The commission was thus not justified in applying Rule 51 in future selections after 30.7.1999 and in any case after 20.4.2004, the date on which judgment of the Supreme court was delivered. The issuance of advertisement notices only indicate that the selections would be made on the basis of interview alone. It was not stated in the advertisement notices that interview would be conducted in accordance with Rule 51 of rules of 1980. The commission therefore ought to have modified the criteria in view of the aforesaid judgment before conducting the interview. Simply because Rule 51 has not been declared ultra vires of the constitution does not make any difference. Once the criteria envisaged by Rule 51 has been declared to be invalid by the Supreme court, it has the effect of declaring Rule 51 invalid. Rule 51 not being a statutory rule and being a rule made for regulating in-house procedure for making selections by the commission, there was no necessity for declaring it being ultra vires of the constitution. Since reservation of 100 marks for viva voce test has been held to be excessive and arbitrary, as such the selections made on the basis of said viva voce test are violative of Article 14 & 16 of the constitution and thus vitiate the selections made.
B-WHETHER THE SELECTION IS VITIATED FOR NON-HOLDING OF SCREENING TEST:
47. Mr. Sethi learned counsel for the petitioners contends that in the advertisement the commission has stated that the prescribed qualifications are minimum and mere possession of the same did not entitle a candidate to be called for interview where the commission considers that number of candidates who have applied for the post to be filled up by direct recruitment on the basis of interview is large and is not convenient and possible for the commission to interview all the candidates, the commission may restrict the number of candidates to be called for interview to a reasonable limit on the basis of higher percentage of marks secured in the qualifying examination and/or qualification and experience higher than the minimum prescribed in the advertisement notice as may be fixed by the commission or by holding screening test as provided under Rule 40 of rules of 1980 provided that number of candidates to be called for interview on the basis of screening test shall not be more than three times of the number of clear vacancies referred to the commission. According to Mr. Sethi the commission in violation of advertisement notices as well the mandate of Rule 40 called all the candidates for interview who had applied which is more than the ratio of three times the number of clear vacancies referred to the commission. He submits that by dispensing with the short listing process the commission has allowed even those candidates possessing lesser merit in qualifying examination to be called for interview resulting into enlargement of the area of arbitrariness in the viva voce test, especially when marks reserved for viva voce test were very excessive being 100 for viva voce test and 40 for academic etc. He submits that chances of the petitioners being selected, though possessing better merit in academic qualifications became marred. The selection process therefore is vitiated.
48. The contention of Mr. Raina learned counsel for the commission is that ratio of the candidates who had applied for selection vis--vis the vacancies was 4.5:1. The commission therefore took decision of dispensing with the screening test and for choosing best out of the lot all the eligible candidates were called for interview. All the petitioners have participated in the interview process and they now cannot be allowed to urge that they have been prejudiced by calling of more candidates than ratio of 1:3 for interview.
Rule 40 of the rules of 1980 reads as under: --
"In every' notification inviting applications for a post it shall be mentioned that the prescribed qualifications are minimum and mere possession of the same does not entitle candidates to be called for interview. Where the commission consider that the number of candidates who have applied for a post to be filled up by direct recruitment on the basis of interview is large and it is not convenient or possible for the commission to interview all the candidates the commission may restrict the number of candidates for interview to a reasonable limit on the basis of higher percentage of marks secured in the qualifying examination and/or qualifications and experience, higher than the minimum prescribed in the advertisement as may be fixed by the commission, or by holding a written screening test.
Provided that in case of written screening test, the syllabus of the same shall be made known to the candidates at least one month before the date of holding such test.
Provided further that the marks secured by the candidates in the screening test shall not be taken into account for determining the final order of merit.
Provided further that the number of candidates to be called for, the interview on the basis of screening test shall not be more than three times of number of clear vacancies referred to the commission."
49. It is manifest that holding of screening test for short listing of candidates to be called for interview is in the discretion of the commission. Short-listing of candidates under Rule 40 can be made either on the basis of higher percentage of marks secured in the qualifying examination or qualification and experience higher than minimum prescribed in the advertisement notice or by holding a written screening test. The discretion vested in the commission does not appear to be absolute. It is controlled by third proviso of Rule 40 which says that number of candidates to be called for interview on the basis of screening test shall not be more than three times of the number of clear vacancies referred to the commission. The commission thus could dispense with holding of short listing process only if number of the candidates was not more than three times of the clear vacancies referred to the commission. The ratio of vacancies vis--vis the candidates called for interview admittedly is 1:4:5, meaning thereby that the candidates who possessed lesser merit falling out side the ratio of 1:3 have also been called for interview and they have been allowed to compete with the candidates possessing better merit. The result of calling more candidates than the prescribed ratio of 1:3 for interview ex-facie appears to be that the area of arbitrariness in viva voce test became enlarged.
50. In Ashok Kumar Yadav v. State of Haryana, 1985(4) SCC 417 what had happened was that Haryana Public Service Commission had invited applications for recruitment to 61 posts of Haryana Civil and other allied services. The number of vacancies arose during the time taken up in the written examination and viva voce test and thus in all 119 posts became available for being filled up. Haryana Public Service Commission therefore selected and recommended 119 candidates to the Government. Writ petitions were filed in Punjab & Haryana High Court challenging the validity on various grounds. A contention was raised before the Division Bench that there was reasonable likelihood of bias vitiating the whole gamut of selection process. The contention was based on the context that though 61 posts were advertised for being filled up over 1300 candidates representing more than 20 times of the available vacancies were called for viva voce test. The Division Bench pointed out that in order to have proper objective assessment of personality by viva voce test the candidates to be called for interview should not exceed twice, at the highest thrice, the number of available vacancies. This practice was being followed consistently by the Union Public Service Commission in case of civil services examinations but in that case, observed the Division Bench, a departure was made by the Haryana Public Service commission and candidates numbering more than 20 times of the available vacancies were called for interview, the result according to the Division Bench was that the area of arbitrariness in the viva voce test was considerably enlarged and even a student who had poor marks in the written examination and who having regard to dismal performance at the written examination did not deserve to be called for interview could get a chance to be called and then he could be pulled up within the range of selection by awarding undue higher marks at the viva voce examination. The Division Bench sought to support its conclusion by relying on comparison of marks obtained by some of the candidates in the written examination and viva voce test. Their lordships held as follows:-
"We do not think we can agree with this conclusion reached by the Division Bench. But whilst disagreeing with the conclusion, we must admit that the Haryana Public Service Commission was not right in calling for interview all the 1300 and odd candidates who secured 45% or more marks in the written examination. The respondents sought to justify the action of the Haryana Public Service Commission by relying on Regulation 3 of the Regulations contained in Appendix 1 of the Punjab Civil Service (Executive Branch)Rules 1930 which were applicable in the State of Haryana and contended that on a true interpretation of that regulation, the Haryana Public Service Commission was bound to call for interview all the candidates who secured a minimum of 45% marks in the aggregate at the written examination. We do not think this contention is well founded. A plain reading of regulation 3 will show that it is wholly unjustified. We have already referred to Regulation 3 in an earlier part of the judgment and we need not reproduce it again. It is clear on a plain natural construction of regulation 3 that what it prescribes is merely a minimum qualification for eligibility to appear in the viva voce teat. Every candidate to be eligible for appearing at the viva voce test must obtain at least 45% marks in aggregate in the written examination. But obtaining of minimum 45% marks does not by itself entitle a candidate to insist that he should be called for the viva voce test. There is no obligation on the Haryana Public Service Commission to call for the viva voce test all candidates who satisfy the minimum eligibility requirement. It is open to the Haryana Public Service Commission to say that out of the candidates who satisfy the eligibility criterion of minimum 45% marks in the written examination only a limited number of candidates at the top of the list shall be called for interview. And this has necessarily to be done because otherwise the viva voce test would be reduced to a farce."
51. In the present case there was no rule like Rule 40 of J&K Public Service (Conduct of Business and Procedure) Rules 1980 still calling of more candidates twice or thrice the number of vacancies was found to be bad as it enlarged the area of arbitrariness in viva voce test. The commission in the present case in the face of Rule 40 was not justified in dispensing with short-listing process and in calling more candidates for interview than the prescribed ratio of three candidates against one vacancy and therefore, the selections made cannot be sustained on this ground as well.
G: WHETHER THE SELECTION MADE IN RESPECT OF 164 POSTS WITHOUT BEING ADVERTISED IS BAD IN LAW.
52. Admittedly the Public Service Commission has not advertised 164 posts referred to it by Health and Medical Education Department through its requisition dated 19.5.2004 and 5.6.2004. The commission received these requisitions when its process for selection against 430 advertised posts was on and interviews of the candidates were being conducted. The commission in its wisdom did not advertise said 164 posts and has made selections against those 164 posts also out of the candidates who had applied in response to advertisement notices issued earlier for filling up 430 advertised posts. The commission adopted the same mode of selection i.e. by interview alone by following the same criteria as prescribed by Rule 51 of rules of 1980. The contention of Mr. Sethi, learned counsel for the petitioner is that it was not competent for the commission to make selections against 164 unadvertised posts referred to the commission subsequently without having issued advertisement notice inviting applications from all eligible persons. It is submitted that it was also not competent for the commission to have made selections against those unadvertised posts from amongst the candidates who had not submitted their applications against these 164 posts and that too from the same selection process initiated for filling up 430 advertised posts. Mr. Sethi submits that selection of candidates, without advertising the posts and without inviting applications of all eligible candidates is violative of Article 14 & 16 of the constitution.
53. The contention of Mr. Raina, learned counsel for the Commission, in this regard, is that when these 164 posts were referred to the commission the selection process in regard to the advertised 430 posts was already in pipeline, so issuance of fresh advertisement notice in respect of freshly requisitioned posts was not considered necessary. All the petitioners had opportunity of competing for advertised and unadvertised posts therefore; their chances for selection had become enlarged. As such the petitioners are not entitled to raise any grievance in this behalf. According to him none of the persons who had become eligible subsequently has come forward to say that his right for competing for selection to any of the unadvertised post has been denied and violated.
54. Mr. A.V. Gupta and Mr. G.A. Lone learned counsel for the selected candidates submitted that 164 vacancies were existing vacancies and there was urgency for filling up these posts because the healthcare of the citizens was suffering because of non-availability of doctors. 430 posts had already been advertised and large number of eligible candidates had applied therefore, initiation of fresh selection process was not necessary. It has also been submitted by them that none of the persons who could have applied for the unadvertised posts, had the notification thereof been issued, has chosen to come to the court to say that he has been prejudiced.
55. Was the commission justified in making selection of 164 posts without having issued notification inviting applications from the eligible candidates?
"The right to public employment is undoubtedly, as noticed above, a new form of property. It is not only a vast source of patronage for the Government but is also a great source of living and happiness to our unemployed millions.
56. I agree with this view of the learned Judge regarding public employment being property of the nation which has to be shared equally subject of course to the qualification necessary for holding the office or post, I wish to add that it should not be monopolized by any particular section of the people of this country in the name of efficiency, though efficiency cannot altogether be ignored."
So was observed by His Lordship Vardarajan J in State of Maharashtra v. Chandrabhan, AIR 1983 SC 803.
57. The concept of equality enshrined in Article 14 & 16 of the constitution guarantees equal opportunity to all eligible persons to compete for selection and appointment to a post/public employment. As a general rule appointments to public services must be made strictly on the basis of open invitation of applications and merit. However some exceptions have been carved out in the interest of justice like in case of compassionate appointments. To make appointments in public service is the domain of the State. For making appointments to various services of the State, State has made recruitment rules providing therein the mode and method and manner of appointments into service. A person who should be appointed substantively on a particular post under recruitment rules by the State must be most meritorious and suitable person for holding that post for the reason that every appointment made by the State is made in the larger public interest and not for private interest of any person. Suitable person to hold the post can be chosen by an open competition between all eligible persons. By Section 133 of the constitution of J&K it has been mandated expressly and specifically that it shall be the duty of the commission to conduct examinations for appointment to the services of the State and the commission shall be consulted on all matters relating to method of recruitment to civil services and for every post. The commission under Rule 19 of the rules of 1980 has provided that applications for the posts for which request is made to it to make selection shall be invited by issuance of notification in government Gazette and two local dailies but in respect of 164 posts referred subsequently no such notification was issued. No rule has been cited by Mr. Raina under which the commission has reserved power to opt for making selections without advertising the post from any other selection process initiated pursuant to any previous notification.
58. In Hoshiar Singh v. State of Haryana, 1993 (4) SCC 377 a request was sent to select candidates for appointments on six posts of Police Inspectors. By advertisement dated 22.1.1988. Applications were invited for the said six posts. Subsequent to the written examination but prior to the physical test and interview a revised request for eight posts was sent. The Board recommended 19 names out of which 18 persons were appointed. The appointment of 19th post was not made because there was an order from the High Court for reserving one post for ex-serviceman. Said selection and recommendation by the Board and appointments made pursuant thereto were challenged before the High Court in writ petition. As regards number of posts for which selection could be made by the Board the High Court pointed out that the original requisition was for six posts which was subsequently revised to eight and appointments beyond eight posts were not legally sustainable. Their lordships of the Supreme court in appeal against the judgment of the High court observed:-
"The learned counsel for these appellants have not been able to show that after the revised requisition dated January 24, 1991 whereby the Board was requested to send its recommendation for 8 posts, any further requisition was sent by the Director General of Police for a larger number of posts. Since the requisition was for eight posts of Inspector of Police, the Board was required to send its recommendations for eight posts only. The Board on its own could not recommend names of 19 persons for appointment even though the requisition was for eight posts only because the selection and recommendation of larger number of persons than the posts for which requisition is sent. The appointment on the additional posts on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court was therefore right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only, was not legally sustainable."
59. From the above observations of their lordships the rule emerging therefrom appears to be that the commission can make selections and recommendations of candidates for appointment only against the vacancies for which requisition has been sent to it. The selection process initiated pursuant to the advertisement issued for 430 posts was in pursuance to the requisition dated 11.12.2002 20.1.2003 and 7.11.2003 and three backlog vacancies available with the commission. These 164 posts were referred to the commission by the Health and Medical Education Department through its fresh requisition dated 19.5.2004 and 5.6.2004. These requisitions read as under: --
"No. HD(Gaz) 131/95 Dated 19.05.2004
Sub:-Filling up the post of Assistant Surgeon.
I am directed to forward herewith Performa (in duplicate) for filling up of 22 posts of Assistant Surgeons which are available in the department and to request you kindly to furnish the selection panel of eligible candidates against these posts for their appointment as per the following categorization: --
OC = 11
ST = 03
SC = 02
RBA = 04
HC = 01
Social caste = 01
"No.HD(GAD)131/95 Dated 5.6.2004.
Sub:-Filling up of the various posts in Health Deptt.
I am directed to forward herewith proforma(in duplicate) duly filled in for filling up of 96 posts of B-Grade Spits. And 142 posts of Asstt.Surgeons and 23 posts of Dental Surgeons which have been created in the department afresh on account of upgradation of various health institutions and opening of new health centers in the State and request you to make the selection of suitable candidates against these posts as per the break up given below and furnish the selection panel to this department for making their appointments against these posts: --
1. OC = 77 posts
2. RBA = 28 "
3. SC = 11 "
4. ST = 14 "
5. Social caste = 03 "
6. Handicapped 04 "
7. LAC = 05
Total = 142 "
60. From the bare reading of these two requisitions it comes out that by these requisitions, the requisitions already sent for 430 posts were not revised and for all practical purposes were fresh requisitions referring 164 more posts. The commission in view of its rules framed for conducting its business was bound to issue fresh advertisement for filling up these 164 posts. The commission could not have legally clubbed these posts for selection with the posts already referred under previous requisitions for the reason that by clubbing these 164 posts for selection with 430 posts referred earlier the candidates who may have become eligible on the date of requisition of 164 posts for selection and appointment have been denied opportunity of being considered on these additional posts and their rights of equality in selection and appointment enshrined in Article 14 & 16 of the constitution have been jeopardized. In 1994 (2) SCC 603 titled J&K Public Service Commission v. Dr. Inder Mohan their lordships observed as follows: --
"Moreover the proviso to Article 320 (proviso to Section 133 of J&K constitution), though gives power to the State Government to specify case or class of cases in respect of which consultation with the PSC may be dispensed with still the recruitment shall be in compliance with either of the Article 320(1) and Section 133(1) of the J&K constitution or by duly constituted body or authority. The rules or instructions should be in compliance with the requirements of Articles 14 and 16 of the constitution. The procedure prescribed shall be just, fair and reasonable. Opportunity shall be given to eligible persons by inviting applications through the public notification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the State."
164 vacancies not referred to the commission before the selection process was initiated are the vacancies, which have to be treated to be the future vacancies. Appointments on such future vacancies could not be made even if there has been a waiting list prepared by the commission on the basis of the initiated selection process. In the case of Gujrat State Dy. Executive Engineer Assn. v. State of Gujrat, 1994 (2) SCC 591 their lordships held as follows:-
"How a waiting list should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance if an examination is held say for selection of 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reasons or the next selection or examination is not held so. Therefore once the selected candidates join and no vacancy arises due to resignation etc. Or for any other reasons within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it."
Their lordships further held: --
"Appointment in future vacancies from waiting list prepared by the commission should be exception rather than the rule. It has many ramifications. There was no contingency nor the State Government had taken any decision to fill the vacancies from the waiting list as it was not possible for it to hold the examination nor any emergent situation had arisen except the claim of some of the candidates from the waiting list that they should be given appointment for vacancies which arose between 1980 and 1983 and between 1983 and 1993. The direction of the High Court therefore to appoint the candidates from the waiting list in the vacancies which according to its calculation arose between the years 1980 to 1983 and between 1983 to 1993 cannot be upheld."
In State of Bihar v. Madan Mohan Singh, 1994 (3) SCC 308, the Supreme Court held that if the advertisement and the consequent selection process were meant only to fill up a certain number of vacancies then the merit list will hold good for the purpose of filling up those notified vacancies and no further. In that case 32 vacancies were advertised but a select list of 129 candidates was prepared. A question arose whether more candidates could be appointed on the basis of the said select list. The court held that once the 32 vacancies were filled up the process of selection for those 32 vacancies got exhausted and came to an end It was further held that if the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process.
In Madanlal v. State of J&K, 1995 (3) SCC 486 one of the question which fell for consideration before their lordships was whether preparation of merit list of 20 candidates was bad as the vacancies for which the advertisement was issued by the commission were only 11 and the requisition that was sent by the Government for selection was also for those 11 vacancies. The Supreme Court held that said action of the commission by itself was not bad but at the time of giving actual appointments the merit list had to be so operated that only 11 vacancies were filled up. The reason given by the court was that as the requisition was for 11 vacancies the consequent advertisement and recruitment could also be for 11 vacancies and no more.
61. From the aforesaid authorities it stands firmly settled that the commission can make selections only to fill up that number of vacancies for which it has issued the advertisement. The selection for the vacancies for which no advertisement has been issued cannot be made as the same would be violative of Article 14 & 16 of the constitution. In Prem Singh v. Haryana State Electricity Board, 1996 (4) SCC 319 their lordships after noticing the law laid down by the Supreme court in its favour judgments have observed as follows: --
"From the above discussion of law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case."
62. In the present case the stage for appointments has not yet come. The State has yet to take decision whether to appoint or not to appoint the candidates selected and recommended by the commission. Advertisement for filling up 430 vacancies alone was admittedly issued. 164 vacancies have been referred subsequently. The commission should have issued advertisement-inviting applications from all eligible candidates against newly referred posts but instead it has made selections against these posts too out of the selection process initiated on the basis of the advertisement issued for filling up 430 posts. The action of the commission thus cannot be justified and in the circumstances of the case no question for moulding the relief arises.
63. The contention of learned counsel for the selected candidates that these were not future vacancies and were existing vacancies has no merit for the reason that the existing and anticipated vacancies for the purpose of selections meant only the vacancies referred to the commission. Once the process of selection for filling up these vacancies is initiated all subsequent vacancies referred to the commission thereafter have to be deemed to be future vacancies and for filling up future vacancies the commission is required to follow its own procedure i.e. to issue an advertisement and invite applications from all eligible candidates and make selections thereafter. The commission, therefore, was not right in making selections against these 164 unadvertised posts. Even otherwise the selection of these 164 posts cannot be sustained under law for the reason that the criteria adopted for selections has been the same as envisaged by Rule 51 of rules of 1980 and, as already said, the criteria envisaged by Rule 51 is bad in law.
64. The contention of learned counsel for the respondents that the petitioners who have been considered against these unadvertised posts cannot be allowed to make the grievance cannot be accepted. This court being custodian of fundamental rights guaranteed by the constitution and possessing the constitutional power to issue writs including the writ of certiorari can and must reach where the breach of fundamental rights is. It shall not be deterred from doing so by any rules of procedure.
D-WHETHER THE SELECTION IS VITIATED FOR HAVING BEEN MADE IN EXERCISE OF POWER ACTUATED BY MALAFIDE?
65. Learned counsel for the petitioners have argued that selection is bad for having been made in exercise of power actuated by mala fide. The commission consisted of five members and a chairman. Wards of four of the members of the commission were candidates in the selection. The members of the commission have shown undue favour to them for bringing them within the zone of selection. Meritorious candidates have been ignored and though they possessed lesser merit they have been selected. It is alleged that besides them the candidates who are wards of former and present ministers and other influential persons have also been showered with favours on the basis of their political connections. It has also been submitted that it is just a case of quid pro quo where one member favoured the ward of another member and the other member favoured his ward in the matter of selection.
66. The petitioners have inferred bias on account of relationship of such candidates with the members or the ministers. As the close relations of the members of the commission and former and present ministers have been selected therefore the suspicion of these candidates being favoured by the commission entertained by the petitioners appears to be natural. The commission is a constitutional body. How it could have acted in the matter of selection when the wards of some of its members were candidates. The answer to the question lies in the judgment of the Supreme Court rendered in Ashok Kumar Yadav v. State of Haryana, 1995(4) SCC 417. Their lordships have observed as follows:-
"We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with the natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting."
The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that these rule hs received wide recognition in several decisions of this court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised.
It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a Welfare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the state should discharge their functions in a fair and just manner. This was the basis on which the applicability of this rule was extended to the decision-making process of a selection committee constituted for selecting officers to the Indian forest Service in A.K. Kraipak v. Union of India. What happened in this case was that one Naquishbund, the acting Chief Conservator of Forests, Jammu and Kashmir was a member of the Selection Board which had been set up to select officers to the Indiana Forest Service from those serving in the Forest Department of Jammu and Kashmir. Naquishbund who was a member of the Selection Board was also one of the candidates for selection to the Indian Forest Service. He did not sit on the Selection Board at the time when his name was considered for selection but he did sit on the Selection Board and participated in the deliberations when the names of his rival officers were considered for selection and took part in the deliberations of the Selection Board while preparing the list of the selected candidates in order of preference. This court held that the presence of Naquishbund vitiated the selection on the ground that there was reasonable likelihood of bias affecting the process of section. Hegde J. speaking on behalf of the court countered the argument that Naquishband did not take part in the deliberations of the Selection Board when his name was considered by saying: --
But then the very fact that he was a member of the Selection Board must have had its own impact on the decision of the Selection Board. Further admittedly he participated in the deliberations of the Selection Board when the claims of his rivals was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the Selection Board there was a conflict between his interest and duty...The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.
67. This court emphasized that it was not necessary to establish bias but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietary interest or on account of persona reasons, such as, hostility to one party or personal friendship or family relationship with the other. Where reasonable likelihood of bias is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words. Is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection."
Their lordships further observed: --
"We must straightway point out that A.K. Kraipak case is a landmark in the development of administrative law and it has contributed in a large measure to the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision, which has nourished the roots of the rule of law and injected justice and fair play into legality. There can be no doubt that if a selection committee is constituted for the purpose of selecting candidates on merits and one of the members of the Selection Committee is closely relation to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate relation to him but he must withdraw altogether from the entire selection process and ask the authorities to nominate another person in his place on the selection committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection"
Then referring to the case before their lordships, it was observed as follows: --
"But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and Allied. Services is being made not by any selection committee constituted for that purpose but it is being done by the Haryana Public Service Commission which is a commission which consists of a Chairman and a specified number of members and is a constitutional authority. We do not think that the principle which requires that a member of a selection committee whose close relative is appearing for selection should decline to become a member of the section committee or withdraw from it leaving it to the appointing authority to nominate another person in his palce, need be applied to in case of a constitutional authority like the Public/service Commission, whether central or state. If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected. When two or more members of a Public Service Commission are holding a viva voce examination they are functioning not as individuals but as the Public Service Commission. Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him. Cinnappa Reddu JJ. observed to the same effect in Javid Rasool Bhat v. State of J&K while dealing with a similar question which arose before him for consideration (1984 (2) SCC 631).
The procedure adopted by the Selection Committee and the member concerned was in accord with the quite well known and generally accepted procedure adopted by the Public Service Commissions everywhere. It is not unusual for candidates related to members of the Service Commission or other Selection committee to seek employment. Whenever such a situation arises, the practice generally is for the member concerned to excuse himself when the particular candidate is interviewed. We notice that such a situation had also been noticed by this court in case of Nagarajan v. State of Mysore (1966 3 SCR 682) where it was pointed out that in the absence of mala fides, it would not be right to set aside the selection merely because one of the candidates happened to be related to a member of the selection committee who had abstained from participating in the interview of that candidates. Nothing unusual was done by the present selection committee. The girl's father was not present when she was interviewed. She was one among several hundred candidates. The marks obtained by her in the written test were not even known when she was interviewed. In the case before us, the Principal Medical College Srinagar, disassociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed he did not know the marks obtained either by his daughter or by any of the candidates. There was no occasion to suspect his bias, leave alone a reasonable likelihood of bias. There was no violation of the principles of natural justice.
We wholly endorse these observations."
68. In the present case the wards of four members out of five were candidates for the selection to be made by the J&K Public Service Commission. If those members had withdrawn from the selection process altogether on the ground of their close relationship with some of the candidates appearing for selections, no other person, except a member could be substituted in their place and therefore the functioning of the Commission could be affected and the decision taken qua the selections might not have been the decision of the Public Service Commission at all. It is the case of the commission that the wards of the members were not interviewed at all by any of the selection committees in which such a member was a member. According to the commission a committee consisting of Chairman and another member, Dr. Madan, assisted by an expert, has interviewed all these candidates, related to the members. It is also the stand of the commission that marks given to particular candidate by each committee used to be reflected in the award rolls prepared at the end of every day by each committee and all the members including the expert would sign on the award rolls on that date itself. A candidate who happens to be the ward of a member or son or daughter of a former or present minister cannot be denied right of equality guaranteed in under Article 14 & 16 of the constitution of India in matters of selection and appointment simply because he has been placed by providence in that position/situation.
69. I have perused the record of the commission produced by Mr. Farooq Ahmed Natnoo, counsel for the Commission, with a view to examine the allegation of bias and favourtism made by the petitioners in respect of the selected candidates who happen to be by providence sons and daughters and sons in law and daughters in law of members of the commission and present and ex-ministers of the State and Speaker of the Legislative Assembly. As per the stand of the commission the wards of the members of the commission were interviewed by a selection committee headed by the Chairman of the commission with Dr. Madan and an expert as members on different dates while others were interviewed by one or the other committee. The selected candidates respondent, Rakesh Banal son of Sh. C.L. Banal a member of the Commission, was interviewed by the committee, headed by the Chairman of the commission on 3.6.2004 in a batch of 20 candidates under SC category. He has been awarded by the committee 79 marks out of 100 for viva voce, though his academic merit was not highest being 13.95 out of 25. Another candidate who had highest academic marks i.e. 15.50 could secure only 70 marks in viva voce out of 100. Another candidate with 13.97 marks in academics was given 30 marks (lowest in viva voce) out of 100. Miss Gulnaz Choudhary who is daughter-in-law of Ch.Bashir Ahmed another member of the commission was awarded 67 marks out of 100 in viva voce competing in batch of 20 candidates on 2.6.2004 in ST category the highest being 70 out of 100. Miss Shelija Tikoo D/O Mr. V.K. Tikoo another member of the commission who was interviewed in a batch of 20 candidates on 18.5.2004 has been awarded 87 out of 100, which are highest in the batch. Miss Bisma Sharief Khan another selected candidate who happens to be D/O another member Mr. M.S./Khan has been awarded 87 out of 100 in viva voce whereas two more candidates only could secure 88 and 89 marks in the interview held on 27.5.2004. Athar Bashir s/o Mr. B.A. Khan who is son-in-law of Mr. B.A. Choudhary the member of the commission competed in open merit category and was interviewed in a batch of 20 candidates on 4.6.2004 by the same committee. He has been awarded 87 out of 100 in viva voce test, which are highest in his batch.
70. All this refers to the selection of the wards of the members. Now I refer to the relations of present and former ministers of the State Government, Mrs. Shagufta Rahim W/O Mr. Sajad Shafi is the daughter-in-law of Mr. A.R. Rather Ex-Finance Minister of the State. She was interviewed by another selection committee on 11.5.2004 in a batch of 20 candidates in RBA category. She has been awarded 68 out of 100 marks, which are highest in batch with two more candidates securing 68 out of 100 in viva voce. Miss Nighat Rashid Dar who is the D/O present Speaker Mr. A.R. Dar competed in RBA category and was interviewed on 11.5.2004 has been awarded 70-marks out of 100 which are highest marks given in the batch of 20 candidates interviewed by the committee. Sh. Irshad Ahmed Shah S/O Hakim Mohd Yaseen present Revenue Minister was interviewed 24.5.2004 and has been awarded 87 marks out of 100 whereas highest being 89 secured by another candidate and 87 by yet another candidate. Likewise Rifat Jan D/O Mohd Shafi Uri a former minister was interviewed on 25.5.2004 has been awarded 86 marks out of 100 in viva voce whereas 6 other candidates secured 86,87,89 and 90 out of 100. Miss Lubana Shall another D/O Sh. Mohd Shafi Uri ex-minister and daughter-in-law of another ex-minister Ch. Mohd Ramzan has been awarded 86 out of 100, when 87 and 89 have been the highest marks. Nusrat Jahan another D/O Mohd Shafi Uri interviewed on 7.6.2004 has secured 86 marks out of 100 in viva voce which are highest marks in her batch. Mr. Sajad Ahmed is also son of Sh.Mohd Shafi Uri. He has been awarded 84 marks out of 100 in viva voce on being interviewed in a batch of 20 on 10.6.2004. His position is No. 2 in the batch highest marks being 86. Miss Malika W/O Afroz daughter-in-law of Mr. G.H. Mir. Present Housing Minister was interviewed on 26.5.2004 and has been awarded 89 marks out of 100 in viva voce which are highest in her batch besides her one more candidate has secured 89 marks.
71. From the marks awarded to the wards of the members of the Commission and former and present ministers it appears that they have been awarded unusually high percentage of marks in the viva voce test. It can be argued and infact has been argued that quite possibly their performance in the interview has been exceptionally good so they have obtained such a high percentage of marks. The commission has not retained/maintained any record of any of the selection committee from which the performance of these candidates in the interview can be commented upon. The award rolls prepared by each selection committee in respect of the interviews conducted by it of each batch though bear the signatures of all the members of each committee and expert yet awarding of higher marks in interview cannot be said to be absolutely free from suspicion. This is because though it was not legally required that an interview committee should have divided total number of marks under different heads on which a candidate was required to be interviewed yet it was necessary in my view that total marks reserved for viva voce should have been equitably been divided amongst the members of the committee. The award rolls prepared by the commission do not indicate as to how many marks were kept with any particular member while interviewing a candidate and as to how many marks were awarded by each such member to each candidate. The award roll shows total number of marks only given to each candidate in all by the selection committee. It is therefore not discernible from the record as to on which matters a candidate was interviewed by any particular member of a selection committee and how many marks were given to such a candidate by each member of that committee,
72. In such circumstances reasonable suspicion of giving undue advantage to the candidates whose instances have been quoted above, by members of the selection committee concerned cannot be ruled out completely, moreoso, when according to learned counsel for the Commission, the Commission has not maintained separate record as to how many marks were given by the expert to each candidate during the interview.
E-WHETHER THE PETITIONS OF THE PETITIONER ARE PRE-PARUTRE AND NOT MAINTAINABLE:
73. It has been submitted by the learned Advocate General and learned counsel for the selected candidates that the petitioners cannot be allowed to challenge the result of the interview after having taken a chance to get selected at the said interview and after ultimately finding themselves to be unsuccessful. Mr. Naik learned Advocate General argued that the writ petitions are premature for the reasons that the Government has yet to take a decision whether to appoint the selected persons or not. Merely on the basis of selection no right is conferred upon the selected candidates to get appointed. He has only right that when appointments shall be made those shall be made strictly according to the selections made by the Commission.
In Madanlal v. State of J&K, 1995(3) SCC 486 their lordships have observed as follows: --
"It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the selection committee was not properly constituted. In the case of Om Parkash Shukla v. Akhilesh Kumar Shukla (1986 Supp SCC 285) it has been clearly laid down by a Bench of three learned Judges of this court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
Therefore the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they wore given less marks though their performance was better. It is for the Interview Committee, which amongst others consisted of a sitting Judge to judge the relative merit of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee."
74. From the aforesaid legal position the rule of law enunciated by the Supreme Court appears to be that a candidate who participated in the selection process cannot turn round and challenge the process on the ground that his merit has been ignored by the Interview Committee and the candidates possessing less merit have been selected. There is no bar, which prohibits a candidate who participated in the selection to challenge the legal validity of the selection process itself. Where the selection is made in violation of fundamental rights or express provision of a statute unsuccessful candidates cannot be asked to wait for challenging the selection till appointments are made. Even in the case of Madanlal the challenge was thrown by the petitioners to the selection process itself. Since the petitioners in the present case have thrown challenge to the selection process on the ground of its being violative of Article 14 & 16 of the constitutions their writ petitions cannot be said to be premature and not maintainable.
75. Before concluding my judgment on the basis of the aforesaid discussions on the points formulated, I now proceed to deal with other submissions made by learned counsel for the parties.
Learned counsel for the petitioners have also contended that for conducting selections three selection committees were constituted who interviewed separately each set of candidates and therefore there could not be uniformity in the standard of norms and assessment for evaluating comparative merit of each candidate qua other candidates and as such the whole selection is vitiated.
76. It is true that normally it is essential for a selecting body that for judging comparative merit of each candidate in a single selection process all the candidates are interviewed by the same selection committee so that there is uniformity in the standards to be adopted for assessing comparative merit of each candidate in judging his suitability and merit for being selected but this rule has to be applied in the light of doctrine of necessity i.e. to say in a case where number of candidates to be interviewed is so large that their interview by the same committee is likely to take considerable long time, different selection committees can be constituted by setting down common parameters of consideration for judging the merit of the candidates in the interview. It may be necessary out of the necessity for making selections with expediency in a case where interest of administration is likely to suffer by the delay in making selections and appointments. It is the case of the commission that three committees were constituted for the reason that no expert was willing to sit all along till entire selection was over. Selection and appointment was to be made for the posts of Assistant Surgeons (doctors) and going by the nature of duties to be performed by such doctors it can reasonably be assumed that commission was right in forming three selection committees for making the selections otherwise healthcare of the general public could be the causality in case of a long delay in the selections.
77. Mr. Datta learned counsel for the selected candidates under reserve categories in SWP 1160/2004 submits that even if Rule 51 is held to be bad in law the selection under reserved categories cannot be faulted with for the reason that number of vacancies was more and number of available candidates was less and therefore the inter-se competition between the reserve category candidates being marginal their selection can be upheld. Similar is the contention of Mr. S.S. Ahmed. He has submitted that no ST/SC candidate who has been selected has filed writ petition therefore their selection cannot be allowed to be challenged by the petitioners.
78. I am not in agreement with M/S Datta and Ahmed. The selection of the reserved category candidates has also been made on the basis of criteria set down under Rule 51 which has already been found invalid. Therefore, the selection of the candidates under reserve categories cannot be upheld for being based upon invalid criteria. This apart merit wise position of the reserve categories candidates has come to be assigned on the basis of their merit assessed by following the criteria under Rule 51, so their merit position may become affected in case they ultimately out of fresh selection come to be selected.
79. At this stage Mr. Raina learned counsel for the commission has informed that the Commission in compliance to the judgment of this court and of the Hon'ble Supreme Court has re-casted Rule 51 of rules of 1980 and the criteria has been changed where under only 50 marks have been earmarked for viva voce test and 50 for record etc.
80. For the aforesaid reasons I quash the impugned selection conducted pursuant to the advertisement notices dated 23.6.2003 and 28.11.2003 in respect of 430 vacancies and also as against 164 unadvertised vacancies and quash the consequent recommendation for appointments of the selected candidates made by the Jammu & Kashmir Public Service Commission to the Government and direct the Commission;
A- To conduct fresh interviews of the candidates who have applied pursuant to the advertisements issued as against the advertised 430 posts of Assistant Surgeons by following the criteria set down in Rule 51 of Jammu & Kashmir Public Service Commission (Conduct of Business and Procedure) Rules 1980 (amended); after restricting the number of candidates to be called for interview to the ratio of 1:3 i.e. three candidates against one vacancy;
B- To issue notification inviting applications as against 164 vacancies referred to the Commission by the Health and Medical Education Department through its requisition dated 19.5.2004 and 05.6.2004 and make selections thereafter in accordance with rules and law.
All the above said writ petitions are disposed of accordingly, alongwith connected C.M.Ps.
Registrar (Judicial) shall place one copy of this judgment on each file.