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CASE NO.:

Appeal (civil) 3734 of 2002

PETITIONER:

Inder Parkash Gupta

RESPONDENT:

State of Jammu & Kashmir & Ors.

DATE OF JUDGMENT: 20/04/2004

BENCH:

CJI, S.B.Sinha & S.H. Kapadia.

JUDGMENT:

J U D G M E N T

With CA Nos.3735/2002, 3736/2002,

3737/2002, 3738/2002 and 3739/2002

S.B. SINHA, J :

INTRODUCTION:

These six appeals involving common questions

of law and fact were taken up for hearing and are

being disposed of by this common judgment.

BACKGROUND FACTS:

Under the Health Ministry of the State of

Jammu and Kashmir there are two different

departments, medical health and medical education.

The employees working in those departments are

borne on separate cadres. The Respondents 3 to 10

before the High Court were appointed as ad hoc

lecturers in medicine in the medical education

department by the State of Jammu and Kashmir. No

recommendation of the Jammu and Kashmir Public

Service Commission was obtained therefor. The

said ad hoc appointments were set aside by this

court in Jammu and Kashmir Public Service

Commission Vs. Dr.Narender Mohan & Ors. reported

in 1994 (2) SCC 630 wherein the State was directed

to refer the vacancies to the Commission and make

appointments in terms of the recommendations made

by it in that behalf. Pursuant thereto and in

furtherance thereof, an advertisement was issued

by the Commission for some posts of Lecturers on

or about 8.3.1994 in the Health and Medical

education department. The educational

qualification prescribed therefor was

"M.D.(Medical/general medical) MCRF, FRCP.

Speciality Board of Internal Medical (USA) or an

equivalent qualification in the subject with

experience as Registrar/Tutor/Demonstrator/Tutor

or Senior Resident for a period of two years in

the discipline of Medicine, in a teaching medical

institution recognised by the Medical Council of

India. The notification issued by the Public

Service Commission further stipulated that the

candidates who possessed any experience in the

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line, any distinction in sports/games, NCC

activities should furnish certificate, along with

the application, to that effect.

It is not in dispute that the appointment in

the posts of Lecturers was governed by a statutory

rule called Jammu & Kashmir Medical (Gazetted)

Service Recruitment Rules, 1979 (for short, 1979

Rules; Rule 8 whereof reads thus:-

"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 regard 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 Public Service Commission, however,

framed a rule in the year 1980, known as Jammu &

Kashmir Public Service Commission (Business &

Procedure) Rules, 1980 (for short, 1980 Rules )

although there did not exist any provision

therefor. Rule 51 of 1980 Rules is as under:-

"Rule 51. The assessment at an

interview shall be based on the following

principles:-

A. Performance of the candidate in the

viva voce test

...100 Marks

B. Academic Merit \026

(i) Percentage of marks obtained in

the basic (i.e., minimum

qualification prescribed for the

post

...25 Marks

(ii) Higher qualification than the

basic (minimum) prescribed for

the post such as Diploma or

Degree in the concerned

Speciality/Superspeciality/

Subject/Discipline-

(a)Diploma\026 2 Marks]subject to

(b)Degree - 5 Marks]a maximum of

]5 marks

C. Experience acquired by the candidate

in the concerned Speciality/

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Superspeciality/Subject/Discipline

(i) exceeding 1 year

but not 2 years ...2 marks

(ii) for excess

2 years - for every full year

1 mark subject to a

total of 5 marks

including those under

(i)

D. Sports/Game :

Distinction in sports/games (i.e.,

representing a University, State or

Region in any Sports/Games.

...3 Marks

E. Distinction in NCC activities (i.e.,

having held the rank of Junior Under

Officer or Senior under officer or

having passed the top grade

certificate examination of NCC).

...2 Marks

Total A to E ...140 Marks"

The Commission interviewed the candidates in

terms of Rule 51 aforementioned.

Upon taking the vice voce test and

considering the materials on records, the public

Service Commission made recommendations pursuant

to or in furtherance whereof, the Respondent Nos.3

to 10 were appointed by the State.

Writ Petitions before the High Court:

Questioning the validity of the Rule 51 of

1980 and consequently the selection and

appointment of the Respondents No.3 to 10, a writ

petition was filed by Shri Inder Parkash Gupta,

inter alia, contending therein that the

Respondents No.3, 6 & 9 were not eligible to be

considered for appointment to the said posts as

they did not possess requisite experience of two

years as Registrar/Tutor. It was further alleged

that the Respondent No.10 at that time was

overage. Further contention of the writ

petitioner was that his research work, experience

and publications had not been taken into

consideration by the Commission. In particular,

his higher qualification of D.M. had not been

given due weightage.

It was also urged that keeping in view the

decision of this Court in J & K Public Service

Commission V. Dr. Narender Mohan [1994 (2) SCC

630] wherein the appointments of Respondent Nos. 3

and 10 as ad hoc Lecturers have been quashed, the

purported experience gained by them in the said

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capacity could not have been taken into

consideration by the Commission. The selection

made by the Commission was said to be arbitrary

and illegal as the criteria laid down in Rule 51

of 1980 Rules had been applied to assess the merit

and suitability of the candidates ignoring Rule 8

of 1979 Rules whereby and wherein eligibility

criterion and method of recruitment were laid

down.

A further contention was raised by the said

writ petitioner to the effect that 100 marks

earmarked for viva voce test in Rule 51 is

unreasonable and excessive.

The State of Jammu & Kashmir did not file any

counter affidavit but Public Service Commission

did. The private respondents also filed their

counter affidavits.

The writ petition having regard to the

importance of the questions involved was referred

to a Full Bench for its decision. The Full Bench

by its judgment dated 30.7.1999 passed in SWP

No.211 of 1994, for all intent and purport

accepted the major contentions raised on behalf of

the writ petitioner/appellant holding:-

"1. The Commission has the

competence and jurisdiction to

frame rules for conducting its

business such as Rules 1980;

2. Rule 51 of Rules 1980 should be

re-framed by the Commission in

accordance with the observations

made in the course of this

judgment.

3. The selection of selected

candidates made by the

Commission is not disturbed

subject to the relief granted to

the petitioner;

4. The petitioner shall be treated

to have been selected and placed

in the select panel above

respondents 3 and 9 who in turn

shall be the selected candidates

in the select panel after

respondent no.4 and the

petitioner. The petitioner shall

further be entitled to all

consequential service benefits."

The writ petitioner, Inder Parkash Gupta has

filed an appeal thereagainst which has been marked

as C.A.No.3734/2002 and the State has filed an

appeal which has been marked as 3736/2002.

One Dr. Vinay Rampal who was not a party in

the writ petition has filed an appeal which has

been marked as C.A.No.3735 of 2002 against the

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judgment.

An order of Jammu & Kashmir High Court passed

by a learned single Judge dated 5.5.1997 in a

batch of writ petitions which were disposed of

following the Full Bench decision of this Court is

the subject matter of other three appeals. A

further contention was raised in the said writ

petitions to the effect that even assuming Rule 51

of 1980 Rules to be valid, as it prescribed

certain marks to be allotted, the same should be

allotted to the superspeciality post which the

concerned person had been holding and not his

experience in any other capacity. The said

appeals are marked as Civil Appeal Nos.3737/2002,

3738/2002 and 3739/2002.

It is not in dispute that the Public Service

Commission proposed a select list of 16 candidates

for appointment. Dr.Inder Parkash Gupta's name

appeared at Sl.No.13 therein. The private

respondents whose names appeared at Sl.No.3 to 10

of the select list were appointed. Two posts were

kept in abeyance as the matter regarding

reservation was pending before the State

Government.

It, however, stands admitted that during the

pendency these appeals the proceedings the State

of Jammu & Kashmir issued a notification dated

22.5.2002 whereby and whereunder the appellant

herein Inder Parkash Gupta was given promotion in

terms of the judgment of the High Court but the

same had been applied prospectively and without

giving any monetary and seniority benefits to Shri

Gupta.

High Court Judgment:

The High Court having regard to the pleadings

of the parties and submissions made before it

formulated the following questions:-

"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 ad hoc

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

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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 & 10 is bad being

not in accordance with the statutory

method of selection and is also the

result of arbitrary selection?"

As regard question No.1, it was answered in

the negative stating that although no such power

is expressly conferred upon the Commission but

proceeded to hold that the Commission had the

competence and jurisdiction to frame such

regulatory procedural rules for conduct of its own

business and this power is impliedly granted by

the enactment. As regard question No.2, the High

Court was of the opinion that Rule 8 of 1979 Rules

prevailed over Rule 51 of 1980 Rules holding that

no additional qualification can be attached or

added to the prescribed eligibility qualification

or method of selection by the Commission holding:-

"Thus, the Commission has not properly

followed and applied the method of

selection relating to the service, while

making selection, prescribed under rule 8

of Rules 1979."

As regard the eligibility of the Respondents

3, 6 & 9, the High Court noticed that the said

respondents did not possess requisite experience

observing that the Commission did not specifically

explain as to how these Respondents were said to

have possessed two years experience as Registrar,

Demonstrator or a Senior Resident. It was held:-

"Respondent No.3 Dr.Jaipal Singh, is

having experience as Registrar only of 22

months whereas Respondent No.9

Dr.Jatinder Singh is having experience of

20 months 27 days which is less than two

years."

As regard the question No.4, the High Court

answered the same in the affirmative relying on

various decisions of this Court. It was held that

in Engineering Service there is no such rule

providing statutory method of selection as is

found in Rule 8 of 1979 Rules holding:-

"Rule 51 providing 100 marks for viva

voce against 40 for record, makes a

departure and is apparently contrary to

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the law laid down by the Supreme Court

and necessitates re-consideration of Rule

51 for the added reason that there is no

consensus of judicial opinion 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

the selection is made on the basis of

interview alone. There is another reason

also that Rule 51 has not taken care of

Rule 8 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

recast."

While answering question No.5, the High Court

noticed that no marks had been assigned for the

research experience, publications or previous

record of work, which could not be ignored as

there was a statutory obligation upon the

Commission to make selection according to the

statutory rules governing the service and further

noticing that the Respondent Nos.4, 5 & 7 (namely,

Masood Tanvir Bhat, Samia Rashid and Parvez Ahmed

Shah) could not secure any mark out of the 15

marks as they did not possess the requisite

research experience etc. and were not found

entitled thereto but despite the same had been

selected as higher marks were allotted to them in

the viva voce test. It was held:-

"It is established from the record that

the selection has been based upon 15

marks for record (as 25 marks could not

be utilised) and 100 marks for interview.

The claim of the respondent-Commission

that 40 marks have been taken into

consideration for record while applying

Rule 51, is not forthcoming from the

record maintained by the Commission.

The Petitioner is admittedly possessed of

the higher qualification and record of

research experience, publications etc. in

comparison to the other selected

candidates. Respondents 3 and 9 are not

having any such record. The petitioner

has been assigned minimum marks in the

viva voce which has down-graded him in

the merit list of the candidates supplied

to the court even though he is D.M. The

Commission has turned the merit of the

petitioner into de-merit by giving

minimum marks..."

Despite such findings, the High Court refused

to set aside the entire selection on the premise

that the same had been made long ago and one of

the respondents had been promoted and proceeded to

dispose of the writ petition with the directions

as noticed hereinbefore.

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Submissions:

Mr.Ranjit Kumar, learned counsel appearing on

behalf of the appellant would submit that Rule 51

of 1980 Rules framed by the Public Service

Commission is not statutory in nature. He would

urge that keeping in view the advertisement

issued, the Commission was bound to scrupulously

comply with the requirements as regard

qualification etc. and should have strictly

applied Rule 8 of 1979 Rules which is admittedly

statutory in nature. The Learned Counsel would

further contend that as the Commission had no

jurisdiction to frame such rules, the same should

have been declared ultra vires by the High Court.

Mr.Ranjit Kumar would urge that Section 133 of the

Jammu and Kashmir Constitution which is in pari

materia with Article 320 of Constitution of India

clearly provides that only in certain situations

the Governor can frame regulations as a result

whereof the necessity to consult the Commission

may be done away with. The Rules framed by the

Public Service Commission does not also satisfy

the test laid down in the proviso appended to

Section 133 of the State Constitution or for that

matter Article 320 of the Constitution of India

and in any event the same having not been laid

before the Legislature as is mandatorily required

under sub-section (4) thereof, the selection held

pursuant to or in furtherance of Rule 51 of 1980

Rules must be held to be wholly illegal and

without jurisdiction.

The Learned Counsel Kumar would argue that

having regard to the findings arrived at by the

High Court, the writ petition could not have been

disposed of in the manner as was sought to be done

inasmuch as some of the private respondents

admittedly did not have the requisite

qualification or experience to be appointed.

Merit of the appellant, it was contended, having

admittedly been turned into demerit as was found

by the High Court, relief by way of solace given

to the appellant by placing him respondent No.6 &

9 must be held to be insufficient and he, in any

event, deserved to be placed above some other

respondents in view of the fact that he had not

been assigned 5 marks for higher qualification.

In any view of the matter, awarding of 100 marks

in viva voce examination out of the total 115

marks (as no marks have been awarded for academic

merit) was bad in law.

The learned counsel would further submit that

as some of the respondents did not have two years'

experience and as admittedly Respondents No.3 to 5

did not have any higher qualification, there was

no reason as to why the entire selection was not

set aside. Lapse of time in selection of the

candidates may not itself be sufficient ground to

uphold his selection, the learned counsel would

urge, having regard to the seniority of the

petitioner and further having regard to the fact

that all the private parties being in the service

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of the State, they could only be reverted back to

their parent departments and would not be out of

job.

Mr. Anis Suhrawardy, learned counsel

appearing on behalf of the State of Jammu and

Kashmir, on the other hand, would submit that

keeping in view the fact that appellant Inder

Parkash Gupta had already been promoted and

furthermore in view of the subsequent event this

Court should not interfere in the matter.

No submission was made on behalf of any other

parties to the appeals.

Analysis:

Section 133 of the Jammu & Kashmir Medical

(Gazetted) Service Recruitment Rules, 1979

admittedly were issued under Section 124 of the

Jammu and Kashmir Constitution which is in pari

materia with Article 309 of the Constitution of

India. The said rules are statutory in nature.

Public Service Commission is a body created under

the Constitution. Each State constitutes its own

Public Service Commission to meet the

Constitutional requirement for the purpose of

discharging its duties under the Constitution.

Appointment to service in a State must be in

consonance with the constitutional provisions and

in conformity with the autonomy and freedom of

executive action. Section 133 of the Constitution

imposes duty upon the State to conduct examination

for appointment to the services of the State. The

Public Service Commission is also required to be

consulted on the matters enumerated under Section

133. While going through the selection process

the Commission, however, must scrupulously follow

the statutory rules operating in the field. It

may be that for certain purposes, for example, for

the purpose of short-listing, it can lay down its

own procedure. The Commission, however, must lay

down the procedure strictly in consonance with the

statutory rules. It can not take any action which

perse would be violative of the statutory rules or

makes the same inoperative for all intent and

purport. Even for the purpose of short-listing,

the Commission cannot fix any kind of cut off

marks. [See State of Punjab & Ors. vs. Manjit

Singh and Ors. [2003 (11) SCC 559].

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, Speciality

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

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or a Senior Resident in the discipline of medicine

in a recognised teaching medical institution

recognised 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 1979 Rules.

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 sports/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.

The High Court, in our opinion, was correct

in holding that Rule 51 providing for 100 marks

for viva voce test against 4o for other criteria

is contrary to law laid down by this Court.

[See Union of India and Anr. Vs.

N.Chandrasekharan & Ors. [ AIR 1998 SCC 795 ],

Indian Airlines Corporation Vs. Capt. K.C.Shukla &

Ors. [1993 (1) SCC 17], Anzar Ahmad Vs. State of

Bihar and Ors. [ 1994 (1) SCC 150] and Satpal and

Ors. Vs. 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 mark 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 & Ors. Vs. State of J &

K and Ors.[2003 (2) SCC 132], Vijay Syal and Anr.

Vs. State of Punjab and Ors. [2003 (9) SCC\026401].

It is also trite that when there is

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.

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[See Chairman & MD, BPL Ltd. Vs. S.P.Gururaja

and Ors. [2003 (8) SCC 567]

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 therefor

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.

The High Court assigned sufficient and cogent

reasons in support of its conclusions which have

been noticed by us hereinbefore. We agree with the

said reasonings.

The only question which survives for

consideration is what would be the meaning of the

'post' contained in Rule 51 (b)?

In our opinion, a higher qualification than

the basic (minimum) prescribed for the post would

evidently mean the department of superspeciality

for which the appointment was made and not any

other superspeciality.

Conclusions:

Having held so, the question which remains to

be determined is as to what relief should be

granted to appellant herein.

While issuing the Notification dated

22.5.2002 the State evidently did not fully comply

with the judgment of the High Court. The

appellant in view of the judgment of the High

Court was not only entitled to be placed in the

select panel above Respondent Nos.3 and 9 but also

should have been given all consequential service

benefits which would include monetary benefits,

seniority etc.

In ordinary course we would have allowed the

appeal but we cannot lose sight of the fact that

the selections had been made in the year 1994. A

valuable period of 10 years has elapsed. The

private respondents have been working in their

posts for the last 10 years. It is trite that

with a view to do complete justice between the

parties, this Court in a given case may not

exercise its jurisdiction under Article 136 of the

Constitution of India.

[See Chandra Singh and Ors. Vs. State of

Rajasthan and Anr. [ 2003 (6) SCC 545], M.P.Vidyut

Karamchari Sangh Vs. M.P. Electricity Board [ JT

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2004 (3) SC 423] and State of Punjab & Ors. Vs.

Savinderjit Kaur [JT 2004 (3) SC 470]

We are, therefore, of the opinion that the

interest of justice would be subserved if the

State is directed to fully comply with the

directions of the High Court by giving all

benefits to the appellant herein including

monetary benefits and seniority by placing him in

the select list above Respondents 3 and 9. We

further direct that if any respondent has been

promoted to the higher post in the meantime the

same would be subject to our aforementioned

direction. Necessary order in this behalf must be

passed by the State.

These appeals are disposed of accordingly.

The cost of the appellant herein shall be borne by

the State of Jammu and 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 endeavours to

see confidence in the Statutory Bodies restored,

and they would henceforth comply with legal

requirements strictly and scrupulously.