INDER PARKASH GUPTA v. STATE OF JAMMU & KASHMIR AND ORS

Citation: [2004] SUPP. 1 S.C.R. 453

Court: Supreme Court of India

Bench: V.N. KHARE, S.B. SINHA, S.H. KAPADIA

Case summary

INDER PARKASH GUPTA v. STATE OF JAMMU & KASHMIR AND ORS.pdf

Judgment text

INDER PARKASH GUPTA v. STATE OF JAMMU & KASHMIR AND ORS. APRIL 20, 2004 [V. N. KHARE, CJ. , S. B. SINHA AND S. H. KAPADIA, JJ. ] Service Law: Jammu & Kashmir Medical Education (Gazetted) Services Recruitment Rules, 1979: Nature of-Held: The Rules were framed under S. 124 of the J & K Constitution, which corresponds to Art. 309 of the Constitution af India-- The said Rules are, therefore, statutory in nature-The Public Service Commission must scrupulously follow these Rules while making the selection process-The Commission must lay down the procedure strictly in consonance with the statutory Rules-Therefore, it cannot take any action which violates the. statutory Rules or make the same inoperative-The Commission, therefore, cannot fix any cut-off marks even for short listing the candidates-] & K Constitution Ss. 124 and 133.

J & K Public Service Commission (Business & Procedure) Rules, 1980: Recruitment-Selection-Lecturers in medicine-Viva voce-100 marks allotted for-Validity of-Held: ls a clear breach ofR. 8 ofthe 1971J Rules, which is statutory in nature. Recruitment-Selection-Lecturers in medicine-Viva voce-100 marks allottedfor-Effect of-Held: No hard-and-fast rule ofuniversal application can be laid down for allocation ofmarks for viva voce-However, when such allocation is capable of being abused or misused in its exercise it is liable to be struck down being violative ofArt. 14-Direction issued to recast the Rules.

Rule 51-Selection-Lecturers in medicine-Public Service Commission allotted marks for games/sports and NCC achievements-JOO marks also allotted for viva voce-But such a/location not stipulated under statutory Rules-One candidate was awarded minimum marks, whereas some other candidates were awarded higher marks although they did not even fulfil the requisite criteria-Validity of-Held: Under such circumstances the said candidate entitled to be placed above the other candidates in the select list and also entitled to all consequential service benefits. Constitution of India, 1950: Article I36-Jurisdiction-Exercise of-Held: In a given case, with a view to doing complete justice between the parties, the Supreme Court may not exercise its jurisdiction-Practice and Procedure. Words & Phrases: "Post"-Meaning of-Jn the context of R. 51-B of the J & K Public Service Commission (Business & Procedure) Rules, 1980.

• Respondents 3 to 10 were appointed as Lecturers in the Medical Education Department ofthe State in accordance with Rule 51 of the J & K Public Service Commission (Business & Procedure) Rules, 1980. The appellant was placed at SI. No. 13 in the sele ce against 40 for record, makes a departure and is apparently cotittaty to 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 rend~red in Abdul Wahid Zargar's case vis-a-vis the judgments ofthe Supreme Court that marks for viva voce test could exceed the marks assigned for record/academic merit, where the selection is made_on *e basis ofinterview alone. There is another reason also thatRule Si. has not taken care of Rule 8 of Service Rules 1979, consequence whereof is that the statutory method ofselection 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 ofwork, 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 and 7 (namely, Masood Tanvir Bhat, Samia Rashid and Parvez Ahmed Shah) could not secure any mark out ofthe 15 marks as they did not possess the requisite research experience etc. and wer:e 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 ofthe 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. Resl'ondents 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 ofthe 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 J. P. GUPTA v. STATE [SINHA,!. ] 465 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. Submissions: Mr.

Ranjit Kumar, learned counsel appearing on behalfofthe 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 req4ireμients as regard qualification etc. and should have strictly appliecf 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 ofthe 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 I) 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 S~e Constitution or for that matter Article 320 of the Constitution oflndia 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 fi{'. 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 and 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 ofthe 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 f 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 tim~ 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 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 behalfof the State ofJammu 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: . - D. 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 duti,es 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 ofexecutive aetion. 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 sel~ction 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 perase would be violative of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of shortlisting, the Commission cannot fix any kind of cut off marks.

[See State of Punjab and Ors. v. Manjit Singh and Ors. , (2003] 11 SCC 559]. Rule 8 mandates that while selecting the teaching wing of the service, l. P. GUPTA v. STATE [SINHA, I. ] 467 the Commission must have regard to the academic qualification ofthe candidate, teaching experience, research experience and previous record ofwork, ifany. 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 ofM. 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 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 t~aching 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. Ifthe 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 5I providing for 100 marks for viva voce test against 40 for other criteria Is contrary to law laid down by this Court. (See Union ofIndia and Anr. v. N. Chandrasekharan and Ors. , AIR [1998] SCC 795, Indian Airlines Corporation v. Capt. K. C. Shukla and Or~. • [1993] 1SCC11,AnzarAhmadv. StateofBiharandOrs. , [1994] 1SCC150 and Satpa/ and Ors. v. State ofHaryana and Ors. , [I995) Suppl. 1 SCC 2Q6) 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 and Ors. v. State ofJ & Kand Ors. , [2003) 2 SCC 132, Vijay Syal and Anr. v. State ofPunjab and Ors. , [2003) 9 SCC401). It is also trite that when there is requirement ofconsultation, 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 and MD, BPL Ltd v. 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 ofverification 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 I. P. GUPTA v.

STATE [SINHA, J. ) 469 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 l0 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. v. State ofRajasthan and Anr. , [2003] 6 SCC 545, MP. Vidyut Karamchari Sangh v. MP. Electricity Board, JT (2004) 3 SC 423 and State ofPunjab and Ors. v.

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 lJigh Court by giving all benefits to the appellant herein including monetary , b~nefits 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 ofJammu and Kashmir quantified at l0,000; 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. v. s. s.

Appeals disposed of. '