DB quashes selectlist of Drug Inspector after 12 years
JKUT (Jammu), October-29-2021-( JNF):- A Division Bench of Jammu & Kashmir High Court comprising Chief Justice Pankaj Mithal and Justice Vinod Chatterji Koul quashed the selection list of Drug Inspector published by the Board on 8th September 2009.
While quashing the selection list, Division Bench ordered that respondent-Board is at liberty to constitute a Selection Committee to conduct a fresh interview of all the candidates who have appeared before it in accordance with law for selection against the posts advertised. It is made clear that no post or vacancy which had not been advertised by the aforesaid advertisement will be filled up by the said selection process. The said exercise if undertaken shall be completed within a period of six months as directed and till such time, the selected candidates appointed may be permitted to continue to avoid any administrative problem.
DB observed that as is discernible from perusal of the file, Advertisement Notice no.03 of 2008 dated 5th May 2008 was issued by J&K Services Selection Board, inviting applications, amongst others, for selection to the 72 posts of Drug Inspectors. In terms thereof cut-off date was 26th May 2008. Select List published on 8th September 2009, recommending 64 candidates for appointment as Drug Inspectors, came to be challenged in a number of writ petitions, diarized and registered as SWP nos.1356/2009, 1535/2009 and 1846/2009. The Learned Writ Court decided those writ petitions vide impugned judgement, with the following orders/directions that the private respondents selected and appointed in the year 2008, have been serving the respondent Department as Drug Inspectors for last
seven years and there is no dispute as regards their eligibility to the advertized post. The official respondents therefore may retain private respondents and their other selected/appointed colleagues and shall accord consideration to appointment of petitioners in three writ petitions admittedly satisfying the eligibility criteria, against available clear vacancies of Drug Inspectors in the grade of 9300-34800, in the respondent Department and complete such exercise within four weeks from the date of receipt of copy of this Judgment. In case, the consideration to appointment of petitioners as directed is not possible, because of non-availability of the posts, the select list published by respondent Board on 8th September 2009, and appointment made pursuant thereto shall stand quashed and set aside. The respondent Board shall constitute Selection Committee to conduct fresh interview of all the candidates who earlier appeared before it. The members of the Selection Committee as per prescribed procedure shall individually assess and evaluate the candidates, prepare individual award rolls reflecting such assessment and hand over individual award rolls under sealed cover to the Convenor of the Selection Committee. The Convenor of the Selection Committee, shall compute total marks
awarded in viva-voice test and adding the marks so obtained to the marks awarded to the candidates on the basis of merit in eligibility qualification and higher qualification, if any, on pro date basis, prepare final merit list duly signed by all the members of the Selection Committee. Respondent Board on the basis of the final merit list shall make recommendation to the respondents 1 and 2 i.e. indenting department and respondents 1 and 2, shall act on the recommendation so made, and issue appointment order in favour of the selected candidates, of course after verification of the certificates and completion of other procedural formalities. This exercise shall be completed within six months from the date of receipt of copy of this judgment. iii) In the event, the respondents decide to carry out direction No. II (supra), it may allow the selected/appointed candidates including private respondents to continue till the exercise undertaken in compliance of direction No. II, is completed and appointment orders issued, as their en bloc exit/ouster may result in administrative problems, risk to public health and lead to collapse of the entire machinery set up to achieve the objective of Drugs and Cosmetics Act.
DB further observed that the grounds of challenge in LPA no.277/2015 are: that learned Writ Court erred in law in not appreciating that selection and appointment of appellants against advertised posts of Drug Inspectors is well deserved having been earned by them on the basis of their superior academic merit and qualification, besides other achievements possessed by them, answering all imperative of special attributes of vital importance and bearings on the spheres of the duties being performed by a Drug Inspector, assessed and evaluated by respondent-Board; that the learned Writ Court has not appreciated the fact that writ petitioner/contesting respondent having participated in selection process and on taking calculated chance having failed to make grade, is estopped and precluded in law to question selection process and/or voicing any grievance against non-selection; that it was demonstrably shown before the learned Writ Court that the assertions and allegations levelled by writ petitioner in his writ petition was all bogus and contrary to the position obtaining under relevant records resorted to with a malevolent intent to prejudice the mind of the Court.
The judgment written by Justice Vinod Chatterji Koul for the Division Bench while modifying the judgment of writ Court ordered that the select list published by respondent Board on 8th September 2009 and appointments made pursuant thereto shall stand quashed and set-aside. The respondent Board shall constitute Selection Committee to conduct fresh interview of all the candidates who earlier appeared before it. The members of the Selection Committee as per prescribed procedure shall individually assess and evaluate the candidates, prepare individual award rolls reflecting such assessment and hand over individual award rolls under sealed cover to the Convenor of the Selection Committee. The Convenor of the Selection Committee, shall compute total marks awarded in viva-voice test and adding the marks so obtained to the marks awarded to the candidates on the basis of merit in eligibility qualification and higher qualification, if any, on pro date basis, prepare final merit list duly signed by all the members of the Selection Committee. Respondent Board on the basis of the final merit list shall make recommendation to the respondents 1 and 2, i.e., indenting department and respondents 1 and 2 shall act on the recommendation so made and issue appointment order in favour of the selected candidates, of course, after verification of the certificates and completion of other procedural formalities. This exercise shall be completed within six months from the date of receipt of copy of this judgment.”
Chief Justice Pankaj Mithal while ggreeing with the opinion expressed by Justice Vinod Chatterji Koul, added that despite the fact that the writ court has opined that the select list was not properly drawn as there was nothing on record to indicate that the members of the selection committee had made the assessment of the candidates individually. The final award roll reflecting the performance of the candidates in viva voce and points secured on the basis of the merit in eligibility qualification as well as extra weightage granted for additional qualification is also not in accordance with the norms. Therefore, the selection process does not conform to the prescribed procedure. Having noted the above finding and that some of the candidates have been arbitrarily awarded extra weightage without there being on record any material to show that they possessed post graduate degree for grant of such extra marks, the writ court could not have saved the selection of the candidates merely for the reason that they have now been serving in the department for last seven years and they are qualified to hold the post. The writ court at the same time was not even justified in directing the official respondents to retain them in service and to accord consideration to the appointment of the writ petitioners if they satisfy the eligibility criteria and consider them for appointment against the available clear vacancies of the Drug Inspectors.
CJ further said that the selection process pursuant to the Advertisement Notice No. 03 of 2008 dated 5th May 2008 was completed with the publication of the select list and the joining of the selected candidates. Thus, no further appointments could be given on the basis of the said selection against the clear vacancies that may have occurred subsequently. All subsequent vacancies are to be filled up from open market afresh and in case they are allowed to be filled up by the candidates of the earlier selection, it would certainly infringe upon the rights of the candidates who would have applied against the said vacancies if they were advertised afresh. In view of the above, once the selection was not found to be a valid one, the writ court could not have issued any direction as contained in direction (i) of the impugned judgment.
Chief Justice further observed that though the petitioners have participated in the selection process and, as such, were not entitled to challenge it nonetheless as one of the grounds for challenge of the selection is arbitrariness in the award of marks in viva voce during the selection process, the petitioners could not have been debarred from filing the writ petition. The candidates appearing in the selection process can always bring to the notice of the court the illegalities committed during the selection though they may not have any locus to challenge the constitution of the Selection Committee or the eligibility of the members of the selection committee having participated in the selection process with open eyes.
18.In view of the aforesaid facts and circumstances, the select list published by the Board on 8th September 2009 stands quashed. The respondent-Board is at liberty to constitute a Selection Committee to conduct a fresh interview of all the candidates who have appeared before it in accordance with law for selection against the posts advertised. It is made clear that no post or vacancy which had not been advertised by the aforesaid advertisement will be filled up by the said selection process. The said exercise if undertaken shall be completed within a period of six months as directed and till such time, the selected candidates appointed may be permitted to continue to avoid any administrative problem. With these observations, Division Bench disposed of the petitions.