Holding

The 1979 Recruitment Rules are statutory and must be strictly followed; Rule 51 of the 1980 Rules and its 100‑mark viva voce allocation are ultra vires and unconstitutional, but the appointments stand and the appellant is to be placed above respondents 3 and 9 with full benefits.

Summary

Inder Parkash Gupta challenged his placement at No.13 in the select list for lecturer posts in the Jammu & Kashmir Medical Education Department, alleging that the J&K Public Service Commission had applied its 1980 Rules, which allocated 100 marks to a viva voce test, in violation of the statutory 1979 Recruitment Rules that required consideration of academic qualifications, teaching, research and work experience only. The Supreme Court held that the 1979 Rules, framed under Section 124 of the J&K Constitution (paralleling Art. 309 of the Indian Constitution), are statutory and must be strictly followed; the 1980 Rules and the excessive viva voce marks are ultra vires and contravene Art. 14. While the Court affirmed the High Court’s direction that Gupta be placed above respondents 3 and 9 and receive all consequential benefits, it declined to set aside the entire selection because a decade had elapsed since the appointments. The Court therefore ordered the State to comply with the High Court’s relief and directed the respondents to adjust seniority and benefits accordingly.

Issues considered

Whether the Jammu & Kashmir Public Service Commission has the competence to frame the 1980 Rules governing its recruitment process.
Whether Rule 51 of the 1980 Rules, which allocates 100 marks to viva voce, is ultra vires the statutory Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1979.
Whether the allocation of 100 marks to viva voce is unreasonable, excessive and violative of Article 14 of the Constitution of India.
Whether the selection process complied with the two‑year experience requirement prescribed in the 1979 Rules.
Whether the appellant is entitled to be placed above respondents 3 and 9 and to receive all consequential service benefits.
Whether the Supreme Court can exercise jurisdiction under Article 136 given the lapse of ten years since the appointments.

Legislation cited

Constitution of Indias. Article 136, s. Article 14, s. Article 309, s. Article 320

Subjects

Service lawRecruitment rulesStatutory rulesPublic Service CommissionViva voce marksArticle 14Article 309Article 136Jammu & KashmirAppointmentSelectionUltra vires

Judgment

INDER PARKASH GUPTA A
v.
ST A TE OF JAMMU & KASHMIR AND ORS.

APRIL 20, 2004

[V.N. KHARE, CJ., S.B. SINHA AND S.H. KAPADIA, JJ.] B

Service Law:

Jammu & Kashmir Medical Education (Gazetted) Services Recruitment C
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 D
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.
E
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 of R. 8 of the 1971J Rules,
which is statutory in nature.
E
Recruitment-Selection-Lecturers in medicine-Viva voce-100 marks
allotted for-Effect of-Held: No hard-and-fast rule of universal application
can be laid down for allocation of marks 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 of Art. 14-Direction issued to recast the
Rules. G
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

453 H
454 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A 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.

B Constitution of India, 1950:

Article I 36-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.

C 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
D Education Department of the 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<:l list.

Questioning the validity of Rule 51 of the 1980 Rules and consequently
the selection and appointment of respondents 3 to 10, the appellant filed a
E writ petition before the High Court, inter alia, contending therein that
respondents Nos. 3, 6 and 9 were not eligible to be considered for appointment
to the said posts as they did not possess the requisite experience of two years
as Registrarffutor; that respondent No. 10 at that time was overaged; that
the appellant's research work, experience and publications had not been· taken
F into consideration by the Commission; that, in particular, the appellant;s
higher qualification ofD.M. had not been given due weightage; and that 100
marks earmarked for viva voce in Rule 51 were unreasonable and excessive.

The High Court decided in favour of the appellant but refused to set
aside the entire selection on the premise that the same had been made long
G ago and one of the respondents had been promoted and proceeded to dispose
of the writ petition with certain directions. Hence the appeal.

On behalf of the appellant, it was contended that Rule 51 of the 1980
Rules framed by the Public Service Commission was not statutory in nature;
that the Commission ought to have applied the Jammu & Kashmir Medical
H
I.P. GUPTA v. STATE 455
Education (Gazetted) Services Recruitment Rules, 1979, which were statutory A
in nature; and that the 1980 Rules violated Section 133 of the J & K
Constitution which was in pari materia with Article 309 of the Constitution
oflndia.

Disposing of the appeal, the Court
B
HELD: 1. The Jammu & Kashmir Medical Education (Guetted) Services
Recruitment Rules, 1979 admittedly were issued under Section 124 of the
J & K Constitution, which is in pari materia with Article 309 of the
Constitution of India. The said Rules are statutory in nature. The Public
Service Commission is a body created under the Constitution. Each State
constitutes its own Public Service Commission to meet the constitutional C
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 J & K Constitution imposes a duty upon the State to conduct
examination for appointment to the services of the State. The Public Service D
Commission is also required to be consulted on the matters enumerated under
Section 133. While going through the selection process ~he 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 E
cannot take any action, which per se would be violative of the statutory rules
or makes the same inoperative for au intent and purport. Even for the purpose
of short listing the Commission cannot fix any kind of cut-off marks.

State of Punjab v. Manjit Singh, [2003) 11 SCC 559, relied on.
F
Jammu and Kashmir Public Service Commission v. Dr. Narender Mohan,
[1994) 2 sec 630, referred to.

2.1. Rule 8 of the 1979 Rules mandates that while selecting the
teaching wing of the service, the Commission must have regard to the G
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. [466-H; 467-AJ .

' 2.2. So far as the teaching experience is concerned, the Commission
awarded marks to those who had even less than two yea!'S' experience. One H
456 SUPREME COURT REPORTS [2004] SUPP. t S.C.R.

A mark was to be awarded for every full year of experience subject to a total of
5 marks. Distinction .in sports/Games, distinction in NCC activities had also
been taken into consideration which were not the criteria prescribed under
the 1979 Rules. There is nothing to show that any mark was awarded in
relation to tbe previous record of work, if any. (467-C-D)

B 2.3. 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
C 8, and as the Commission 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 ~est, the other respondents who
even did not fulfill the requisite criterion were awarded higher marks.
(467-D-F)

D 3.1. Rule 51 of the J & K Public Service Commission (Business &
Procedure) Rules, 1980 providing for 100 marks for viva voce test against
40 for other criteria is contrary to law laid down by this Court. (467-F)

Union of India v. N. Chandrasekharan, AIR (1998) SC 795, Indian
.Airlines Corporation v. Capt.K.C. Shukla, (1993) 1 SCC 17, Anzar Ahmad v.
E State ofBihar, [1994) 1 SCC 150 and Satpal v~ State ofHaryana, (19~5) Supp.
1 sec 206, relied on.

3.2. 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 marks is made
F 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. (467-H; 468-A)

Jasvinder Singh v. State ofJ & K, (2003) 2 SCC 132 and Vijay Syal v.
G State of Punjab, (2003) 9 sec 401, relied on.
4. It is also trite that when there is a 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. (468-B) ~

H
1.P. GUPTA v. ST ATE 457
Chairman & MD, BPL Ltd v. S.P. Gururaja, (2003) 8 SCC 567, relied A
on.

5. Proceeding 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 B
allotted therefore should indisputably be within a reasonable limit Having
regard to Rule 8 of the 1979 Rules higher marks for viva voce test could not
have been allotted. The 1980 Rules must, therefore, be suitably recast.
[468-D-E)

6. The word "post" in Rule 51-B of the 1980 Rules would mean that a C
higher qualification than the basic (minimum) prescribed for the "post" in
the department of super speciality for which the appointment was made and
not any other super speciality. [468-F)

7. The appellant was not only entitled to be placed in the select panel
above respondents Nos. 3 and 9 but also should have been given all 0
consequential service benefits which would include monetary benefits,
seniority etc. [469-A)

8. In the ordinary course, this Court would have allowed the appeal but
this Court cannot lose sight of the fact that the selections had been made in
the year 1984. A valuable period of 10 years has elapsed. The private E
respondents have been working in their posts for the last 10 years. It is trite
that with a view to doing complete justice between the parties, this court in a
given case may not exercise the jurisdiction under Article 136 of the
Constitution of India. [469-B)

Chandra Singh v. State of Rajasthan, (2003) 6 SCC 545, MP. Vidyut F
Karamchari Sangh v. MP. Electricity Board, JT (2004) 3 SC 423 and State
of Punjab v. Savinderjit Kaur, JT (2004) 3 SC 470, relied on.

9. Therefore, the interest of justice would be sub-served if the State is
directed to fully comply with the' directions of the High Court by giving all G
benefits to the appellant including monetary benefits and seniority by placing
him in the select list above respondent Nos. 3 and 9. It is further directed
that if any respondent has been proinoted to the higher post in the meantime
the same would be subject to the~aforementioned direction. (469-D-E)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3734 of2002.
H
458 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A From the Judgment and Order dated 30.7.99 of the Jammu and Kashmir
High Court in S.W.P. No. 21lof1994 ..

WITH

C.A: Nos. 3735, 3736, 3737, 3738 and 3739 of2002
B
Ranjit Kumar, Ms. Binu Tamta, Anis Suhrawardy, G.M. Kawoosa, R.K.
Talwar and B.S. Banthia for the appearing parties. ·

The Judgment of the Court was delivered by

C 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 FACI'S:
D
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 IO before the High Court were appointed as ad hoc lecturers
in medicine in the medical education department by the State of Jammu and
E Kashmir. No recommendation of the Jaminu 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 v. Dr.
Narender Mohan and Ors., reported in (1994) 2 SCC 630 wherein the State
was directed to refer the vacancies to the Commission and make appointments
F 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
G as Registrarffutor/Demonstratorffutor 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 St:rvice
Commission further stipulated that the candidates who .possessed any
experience in the line, any distinction in sports/games, NCC activities should
H furnish certificate, along with the application, to that effect.
l.P. GUPTA v. STATE [SINHA,J.] 459
It is not in dispute that the appointment in the posts of Lecturers was A
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:-
B
(I) 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
(c) Research experience; and

(d) Previous record of work, if any."

The Public Service Commission, however, framed a rule in the year 1980, D
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 :- E
A. Performance of the candidate in the viva voce test ... 100 Marks
B. Academic Merit -

(i) Percentage of marks obtained in the basic (i.e., minimum
qualification prescribed for the post ...25 Marks p
(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 - 2 Marks ]subject to
(b) Degree - 5 Marks ]a maximum of G
]S marks
C. Experience acquired by the candidate in the concerned Speciality/
Superspeciality/Subject/Discipline ·

(0 exceeding l year but not 2 years ... 2 marks
H
460 SUPREME COURT REPORTS [2004) SUPP. 1 S.C.R.

A (ii) for excess 2 years - for every full year I mark
subject to a total of 5 marks
including those under (i)
D. Sports/Game :
Distinction in sports/games (i.e., representing a University,
B 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
C grade certificate examination of NCC). ... 2 Marks
Total A to E ... 140 Marks"

The Commission interviewed the candidates in terms of Rule 51
aforementioned.

D 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 IO were appointed by the
State.

E 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 IO; a writ petition was
filed by Shri Inder Parkash Gupta, inter a/ia, contending therein that the
Respondents No. 3, 6 and 9 were not eligible to be considered for appointment
F 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. IO 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 Commiss:on. In particular, his higher qualification of
D.M. had not been given due weightage.
G
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
H capacity could. not have been taken into consideration by the Commission.
1.P. GUPTA v. STATE [SINHA, J.] 461

The selection made by the Commission w~/said tp be arbitrary and illegal A
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 B
that l 00 marks earmarked for viva voce test in Rul~ 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 C
affidavits.
r
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/ D
· 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 E
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 . F
in the select panel above respondents 3 and 9 who in tum 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 G
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 Rampa! who was not a party in the writ petition has filed
an appeal which has been marked as C.A.No.3735 of2002 against the judgment.
H
462 SUPREME COURT REPORTS (2004) SUPP. l S.C.R.

A An order of Jammu & Kashmir High Court passed by a learned single i
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
B 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 Servi_ce Commission proposed a
C 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.

D 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.
E
High Court Judgment:

The High Court having regard to the pleadings of the parties and
submissions made before it formulated the following questions :- .I

F "I. Whether the Commission has the competence and jurisdiction to
frame the )ammu 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
G the Jammu & Kashmir Medical (Gazetted) Service Recruitment
Rules, 1979, which prescribes the statutory method ofrecruitment
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
. H. Resident/Tutor to meet the requirement of statutory eligibility
LP. GUPTA v. STATE [SINHA, J.] 463
condition to seek consideration for selection and appointment as A
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
judgmen~ of the Supreme Court and thus Rule 51 needs re- B
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?" c
As regard question No. I, 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, D
the High Court was of the opinion that Rule 8 of 1979 Rules prevailed over
Rule 51of1980 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 E
method of selection relating to the service, while making select.ion,
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 F
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." G

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 :-
H
464 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A "Rule 51 providing l 00 marks for viva vc;>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 of the
Supreme Court that marks for viva voce test could exceed the marks
B assigned for record/academic merit, where the selection is made _on
of
*e
basis interview 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 of selection has not been comprehensively
followed and adopted in the rule. For these reasons Rule 51 is required
C 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
D 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 of the 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
E 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
F 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
G 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 ..."

H 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 A
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 behalf of the appellant B
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 C
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 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 E
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 F
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 G
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 H
466
f
SUPREME COURT REPORTS (2904] SUPP. I S.C.R.

A 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
B 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 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
C 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
E 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 of executive 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
F 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
G 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 short-
listing, 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].

H 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 of the candidate, A
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 B
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 C
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 D
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 E
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 F
higher marks.

The High Court, in our opinion, was correct in holding that Rule 5 I
providing for 100 marks for viva voce test against 40 for other criteria Is
contrary to law laid down by this Court.
G
(See Union of India 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 of Haryana and Ors., [I 995) Suppl. 1 SCC 2Q6)

It is true that for allocation of marks for viva voce test, no hard and fast H
468 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A 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
B 132, Vijay Syal and Anr. v. State of Punjab and Ors., [2003) 9 SCC401).

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.
c
(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
D 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
E 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.

F 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.
G
Conclusions:

Having held so, the question which remains to be determined is as to
what relief should be granted to appellant herein. ·

H 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 A
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 B
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 l 0 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. C
[See Chandra Singh and Ors. v. State of Rajasthan and Anr., [2003] 6
SCC 545, MP. Vidyut Karamchari Sangh v. MP. Electricity Board, JT (2004)
3 SC 423 and State of Punjab and Ors. v. Savinderjit Kaur, JT (2004) 3 SC
470].
D
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 E
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 l 0,000;
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 F
in the Statutory Bodies restored, and they would henceforth comply with
legal requirements strictly and scrupulously.

v.s.s. Appeals disposed of. '