TMI Blog2004 (4) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The said ad hoc appointments were set aside by this court in Jammu and Kashmir Public Service Commission v. Dr. Narender Mohan and Ors reported in (1994)ILLJ780SC 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 therefore 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 line, any distinction in sports/games, NCC activities should furnish certificate, along with the application, to that effect. 3. It is not in dispute that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in furtherance whereof, the Respondent Nos. 3 to 10 were appointed by the State. Writ Petitions before the High Court: 7. 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. 8. It was also urged that keeping in view the decision of this Court in J K Public Service Commission v. Dr. Narender Mohan (1994)ILLJ780SC 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 capacity could not have been taken into considering by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 super specialty 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. 15. It is not in dispute that the Public Service Commission proposed a selected 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. 1 6 . 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: 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8 Dr. Jatinder Singh is having experience of 20 months 27 days which is less than two years. 20. 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 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-a-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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 24. The Learned Counsel Kumar would argue that having regard to the findings arrived at by the High Court, the writ petition could not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and Ors. v. Manjit Singh and Ors. AIR2003SC4580 . 29. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal 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. 36. (See Jasyinder Singh and Ors. v. State of J K and Ors. (2003)2SCC132 , Vijay Syal and Anr. v. State of Punjab and Ors. AIR2003SC4023 ). 37. 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. 38. (See Chairman MD, BPL Ltd. v. S.P. Gururaja and Ors. AIR2003SC4536 ). 39. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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