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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.