Supreme Court of India
TAJVIR SINGH SODHI & ORS.versusTHE STATE OF JAMMU AND KASHMIR & ORS.
- Citation
- 2023 INSC 309
- Decided
- 28 March 2023
- Disposal
- Appeal(s) allowed
- Bench
- K M JOSEPH
Holding
The selection process was not vitiated by the alleged irregularities and, absent proof of mala fides or statutory breach, the High Court's quashing of the selection was unwarranted.
Summary
The Supreme Court examined the selection of 64 drug inspectors in Jammu & Kashmir, where the High Court had quashed the selection on grounds of procedural irregularities, lack of individual award rolls, and alleged bias. The Court held that candidates who participated in the selection without protest cannot later challenge the process unless there is proven mala fides or statutory violation. It emphasized that courts should not substitute the expertise of a selection committee and that the recasting of weightage for educational qualifications was a legitimate exercise, not arbitrary. The absence of individual award rolls was not a statutory requirement, and the expert panel, including a pharmacologist, was deemed appropriate. Consequently, the Supreme Court set aside the High Court judgments, restored the appointments, and dismissed the writ petitions.
Issues considered
- The validity of quashing the entire selection process for drug inspectors on the basis of procedural irregularities.
- Whether candidates who participated in the selection process without objection can later challenge the process under principles of waiver and acquiescence.
- Whether the lack of individually signed award rolls constitutes a fatal irregularity justifying cancellation of the selection.
- The suitability of a pharmacology expert on the selection panel for a drug inspector post.
- The scope of judicial review over public employment selection procedures.
Legislation cited
- Jammu and Kashmir Subordinate Services Recruitment Rules, 1992s. Rule 10, s. Rule 9, s. Rule 9A
Subjects
selection processjudicial reviewpublic employmentwaiveracquiescencemala fidesinterview markseligibility criteriaservice lawdrug inspectorJammu and Kashmir
Judgment
714 [2023]REPORTS
SUPREME COURT 3 S.C.R. 714 [2023] 3 S.C.R.
A TAJVIR SINGH SODHI & ORS.
v.
THE STATE OF JAMMU AND KASHMIR & ORS.
(Civil Appeal Nos. 2164–2172 of 2023)
B MARCH 28, 2023
[K. M. JOSEPH AND B. V. NAGARATHNA, JJ.]
Service law: Selection process – Quashing of – Selection
process conducted for appointment of drug inspectors – 64 persons
including some appellants selected and appointed as drug inspectors
C
and are serving on the said posts – However, the said selection and
appointment challenged alleging discrepancies in the selection
procedure – High Court quashed the selection and appointment –
Upheld by the Division Bench – On appeal, held: Candidates, having
taken part in the selection process without any demur or protest,
D cannot challenge the same after having been declared unsuccessful
– Candidates cannot approbate and reprobate at the same time –
Simply because the result of the selection process is not palatable
to a candidate, he cannot allege that the process of interview was
unfair or that there was some lacuna in the process – Challenge
ought not to have been entertained in light of the principle of waiver
E
and acquiescence – Furthermore, no mala fide or arbitrariness is
found in the selection process – Recasting the selection criteria
was only with regard to allocation of marks for the respective
educational qualification of the candidates – It was with a view to
preserve the standards of the selection process – Furthermore, the
F assessment and evaluation of the performance of candidates
appearing before the Selection Committee/Interview Board should
be best left to the members of the committee – In light of the pertinent
selection procedure that was followed, the Court is unable to hold
that the same was mechanical or casual or suffered from irregularities
which were so grave or arbitrary in nature so as to justify quashing
G
the entire selection process –Thus, the High Court not justified in
quashing and setting aside the entire selection process, more so
when sixty-four candidates including the appellants had been
serving on the said post for over a decade – Jammu and Kashmir
Subordinate Services Recruitment Rules, 1992 – rr. 9 and 9A.
H
714
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 715
AND KASHMIR & ORS.
Selection process for public employment – Scope of judicial A
review – Held: Courts generally avoid interfering in the selection
process of public employment, to maintain the autonomy and
integrity of the selection process – Process of selection involves a
high degree of expertise and discretion – Not appropriate for Courts
to substitute their judgment for that of a selection committee – Courts
B
intervene only when there are proven allegations of malfeasance
or violations of statutory rules, or inherent arbitrariness.
Words and Phrases: ‘Pharmacology’ and ‘Pharmacy’–
Meaning of – Discussed.
Allowing the appeals, the Court C
HELD: 1.1 The Courts generally avoid interfering in the
selection process of public employment, recognising the
importance of maintaining the autonomy and integrity of the
selection process. The Courts recognise that the process of
selection involves a high degree of expertise and discretion and D
that it is not appropriate for Courts to substitute their judgment
for that of a selection committee. It would be indeed, treading on
thin ice if the Court were to venture into reviewing the decision
of experts who form a part of a selection board. Thus, it is not
within the domain of the Courts, exercising the power of judicial
review, to enter into the merits of a selection process, a task E
which is the prerogative of and is within the expert domain of a
Selection Committee, subject of course to a caveat that if there
are proven allegations of malfeasance or violations of statutory
rules, only in such cases of inherent arbitrariness, can the Courts
intervene. Thus, the Courts while exercising the power of judicial F
review cannot step into the shoes of the Selection Committee or
assume an appellate role to examine whether the marks awarded
by the Selection Committee in the viva-voce are excessive and
not corresponding to their performance in such test. The
assessment and evaluation of the performance of candidates
appearing before the Selection Committee/Interview Board G
should be best left to the members of the Committee. In light of
the position that a Court cannot sit in appeal against the decision
taken pursuant to a reasonably sound selection process, the
following grounds raised by the writ petitioners, which are based
on an attack of subjective criteria employed by the selection H
716 SUPREME COURT REPORTS [2023] 3 S.C.R.
A board/interview panel in assessing the suitability of candidates,
namely, that the candidates who had done their post–graduation
had been awarded 10 marks and in the viva-voce, such PG
candidates had been granted either 18 marks or 20 marks out of
20; and that although the writ petitioners had performed
exceptionally well in the interview, the authorities had acted in
B
an arbitrary manner while carrying out the selection process,
would not hold any water. [Para 12, 12.1][748-C-D; 750-G-H; 751-
A-C]
1.2. It is trite that candidates, having taken part in the
selection process without any demur or protest, cannot challenge
C the same after having been declared unsuccessful. The candidates
cannot approbate and reprobate at the same time. In other words,
simply because the result of the selection process is not palatable
to a candidate, he cannot allege that the process of interview was
unfair or that there was some lacuna in the process. Thus, the
D writ petitioners in these cases, could not have questioned before
a Court of law, the rationale behind recasting the selection criteria,
as they willingly took part in the selection process even after the
criteria had been so recast. Their candidature was not withdrawn
in light of the amended criteria. A challenge was thrown against
the same only after they had been declared unsuccessful in the
E selection process, at which stage, the challenge ought not to have
been entertained in light of the principle of waiver and
acquiescence. The only exception to the rule of waiver is the
existence of mala fides on the part of the Selection Board. In the
instant case, no mala fide or arbitrariness is found in the selection
F process and therefore the said exception cannot be invoked. [Para
13, 13.2][753-F-H; 754-A-B]
1.3 In the instant case, the entire selection of the appellants
was set aside due to the non-availability of individual award rolls,
despite, signed approval of the final Select List by the members
G of the Board. Whether quashing the entire selection process was
excessive or justified, would depend on the selection procedure
adopted and whether the same is arbitrary or reveals any mala
fides on the part of the selection board. [Para 14.4][755-F-G]
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 717
AND KASHMIR & ORS.
1.4. In light of the pertinent selection procedure that was A
followed, it cannot be held that the same was mechanical or casual
or suffered from irregularities which were so grave or arbitrary
in nature so as to justify quashing the entire selection process.
Further, the requirement of individual rolls being signed and
verified by the members of the Selection Board cannot be traced
B
to any statute or rule. Therefore, the Court cannot sustain the
finding of the High Court that the entire selection process was
vitiated by such irregularity. The High Court was not justified in
quashing and setting aside the entire selection process, more so
when sixty–four candidates including the appellants had been
serving on the said post for over a decade. [Para 14.6][759-H; C
760-A-B]
1.5. The expert in the Selection Board, Dr. Samina Farhat,
Assistant Professor, Department of Pharmacology, was a doctor
by profession with a Post Graduate degree (MD) and Ph.D. in
Pharmacology to her credit. Rule 9A of the 1992 Rules provides D
that the Chairman may if he feels necessary appoint a specialist
in the discipline in which appointment is to be made, as a member
of the selection board. In the instant case, it was submitted that a
person with a qualification in the field of pharmacy would have
been better suited on the panel.[Para 15][760-C-E]
E
1.6. It cannot be held that a doctor by profession with a
Post Graduate degree (MD) and Ph.D. in Pharmacology was in
any way underqualified or unsuitable for her role on the Selection
Board. In fact, a pharmacologist is more appropriate to interview
the candidates for the post of drug inspector. Further, it is to be
noted that Rule 9 A provides that the Chairman may if he feels F
necessary appoint a specialist in the discipline in which
appointment is to be made, as a member of the selection board.
Similarly Rule 9 (iii) provides that the Chairman may, if he feels
necessary associate with the Selection Committee expert/
specialist in the discipline in which recruitment is to be made. G
The use of the word ‘may’ would indicate that the Chairman of
the Board has discretion in this regard and there is no mandatory
requirement to appoint on the selection panel a person having a
qualification in pharmacy. To this extent, the findings of the Single
H
718 SUPREME COURT REPORTS [2023] 3 S.C.R.
A Judge and the Division Bench of the High Court are upheld. [Para
15.3][761-E-G]
1.7. The criteria for evaluation of a candidate’s performance
in an interview may be diverse and some of it may be subjective.
However, having submitted to the interview process with no
B demur or protest, the same cannot be challenged subsequently
simply because the candidate’s personal evaluation of his
performance was higher than the marks awarded by the panel.
Only 20 out of 100 marks were allocated for interview/viva-voce.
The same is only 20% of the total marks which cannot be said to
be an excessive proportion out of the total marks. Further Courts
C cannot sit in judgment over the award of marks by an interview
panel. That is best left to the judgment and wisdom of the interview
panel. There is no merit in the contention of the writ petitioners
regarding the award of marks to the candidates who appeared for
viva-voce before the panel. Moreover, the award of 80% of the
D total marks is on objective criteria depending upon the
educational qualification of the individual candidates. [Para
16.2][762-E-F; 763-D-E]
1.8. The criteria was recast vide Corrigendum dated 12th
June, 2009, by increasing the weightage accorded to candidates
E possessing a Degree in pharmacy or pharmaceutical chemistry
and advanced qualifications such as post–graduate degrees, Ph.D
etc., with a view to incentivise more qualified persons who had
applied for the said posts. Recasting the criteria was only with
regard to allocation of marks for the respective educational
qualification of the candidates. It was with a view to preserve the
F standards of the selection process and was not motivated by mala
fide or oblique motive. Higher the qualification a candidate
possessed, higher marks were awarded. In other words, the
minimum marks awarded for educational qualification was 65 and
could increase to 80 depending on the higher qualifications of
G the candidates. Therefore, the selection process cannot be
interfered on the ground that the award of marks was recast
unilaterally. The reallocation of marks based on the educational
qualification was in recognition of the higher qualification of the
candidates which cannot be termed to be arbitrary. It is a no brainer
that any candidate who was aggrieved by the recast of marks
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 719
AND KASHMIR & ORS.
would either withdraw his candidature or challenge the A
Corrigendum dated 12th June, 2009 at a preliminary stage in the
selection process. However, the writ petitioners did not do so.
Having participated in the selection process without any demur
or protest, the writ petitioners cannot challenge the same as being
tainted with mala fides, merely because they were unsuccessful.
B
[Para 16.3][763-F-H; 764-A-C]
1.9. One of the directions issued by the Single Judge in the
Writ Petitions was to retain the successful candidates but, at the
same time, to consider the case of the writ petitioners for
appointment in the available posts. But if it was not possible to
accommodate the writ petitioners, owing to non-availability of C
posts, then the entire selection was quashed and set aside and a
fresh Selection Committee was to be constituted to conduct fresh
interviews of all the candidates who had earlier appeared before
it and a fresh Select List was to be prepared. Further, till the said
exercise was to be carried out, the selected candidates were to D
be continued. The Division Bench, however, quashed the
Selection List in its entirety and directed and observed that no
further appointments could be made against the vacancies that
may have occurred subsequent to the appointments already made
and that a fresh selection was to be made by re-advertising the
posts. Consequently, the selection of drug inspectors was E
quashed in toto and a direction was issued to complete the
exercise afresh within six months and till then, the appointed
candidates as drug inspectors were to be continued. The
directions issued by both the Single Judge as well as by the
Division Bench were not in accordance with law and hence, the F
said directions have to be quashed. [Para 17][764-D-F]
1.10. The judgment of the Single Judge of the High Court
of Jammu and Kashmir at Srinagar, dated 18th December 2015
and the impugned judgment passed by the Division Bench, dated
29th October, 2021, are set aside. Consequently, the judgment G
of the High Court of Jammu and Kashmir at Jammu dated 6th
July, 2017 following the order of the Single Judge of the High
Court of Jammu and Kashmir at Srinagar, dated 18th December,
2015, is also set aside. [Para 18][764-G-H; 765-A]
H
720 SUPREME COURT REPORTS [2023] 3 S.C.R.
A Sadananda Halo v. Momtaz Ali Sheikh, (2008) 4 SCC
619 : [2008] 3 SCR 497; Trivedi Himanshu
Ghanshyambhai v. Ahmedabad Municipal Corporation,
(2007) 8 SCC 644 : [2007] 10 SCR 1041 – relied on.
Reserve Bank of India v. C.L. Toora (2004) 4 SCC 657:
B [2004] 3 SCR 847; Union of India v. Bikash Kuanar
(2006) 8 SCC 192; University of Mysore v.
C.D. Govinda Rao [1964] 4 SCR 575; Indian Railway
Construction Co. Ltd. v. Ajay Kumar (2003) 4 SCC 579:
[2003] 2 SCR 387; State of Bihar v. P.P. Sharma (1992)
1 Supp SCC 222 : [1991] 2 SCR 1; Ajit Kumar Nag v.
C Indian Oil Corporation Ltd. (2005) 7 SCC 764 : [2005]
3 Suppl. SCR 314; Union of India v. Ashok Kumar
(2005) 8 SCC 760 : [2005] 4 Suppl. SCR 317; National
Institute of Mental Health and Neuro Sciences v.
Dr. K. Kalyana Raman (1992) 2 Supp. SCC 481;
D B.C. Mylarappa v. Dr. R. Venkatasubbaiah (2008) 14
SCC 306 : [2008] 14 SCR 288; Baidyanath Yadav v.
Aditya Narayan Roy (2020) 16 SCC 799 : [2019] 15
SCR 427; Mohd. Mustafa v. Union of India (2022) 1
SCC 294; Madan Lal v. State of J&K (1995) 3 SCC
486 : [1995] 1 SCR 908; Union of India v. Bilash Chand
E Jain (2009) 16 SCC 601; Anupal Singh v. State of Uttar
Pradesh (2020) 2 SCC 173 : [2019] 12 SCR 1071;
D. Sarojakumari v. R. Helen Thilakom (2017) 9 SCC
478 : [2017] 9 SCR 512; Sachin Kumar v. Delhi
Subordinate Service Selection Board (2021) 4 SCC 631;
F Inderpreet Singh Kahlon v. State of Punjab (2006) 11
SCC 356 : [2006] 1 Suppl. SCR 772; Union of India v.
Rajesh P.U. (2003) 7 SCC 285 : [2003] 1 Suppl. SCR
883; Ashok Kumar Yadav v. State of Haryana (1985) 4
SCC 417 : [1985] 1 Suppl. SCR 657; Buddhi Nath
Chaudhary v. Abahi Kumar (2001) 3 SCC 328 : [2001]
G 2 SCR 18; Jasvinder Singh v. State of J&K (2003) 2
SCC 132; Secretary, State of Karnataka v. Umadevi
(2006) 4 SCC 1 : [2006] 3 SCR 953; Dalpat Abasaheb
Solunke v. Dr. B.S. Mahajan AIR 1990 SC 434; Secy.
(Health) Deptt. of Health & F.W. v. Dr. Anita Puri (1996)
H 6 SCC 282 : [1996] 5 Suppl. SCR 361; M. V. Thimmaiah
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 721
AND KASHMIR & ORS.
v. Union Public Service Commission (2008) 2 SCC 119 A
: [2007] 13 SCR 624; Om Prakash Poplai and Rajesh
Kumar Maheshwari v. Delhi Stock Exchange
Association Ltd. (1994) 2 SCC 117 : [1994] 1 SCR 120;
Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC
576; Ramesh Chandra Shah v. Anil Joshi (2013) 11 SCC
B
309 : [2013] 5 SCR 687; Ashok Kumar v. State of Bihar,
(2017) 4 SCC 357 : [2016] 8 SCR 815; Kumari
Anamica Mishra v. UP Public Service Commission,
Allahabad AIR 1990 SC 461 : [1989] Suppl. SCR 124;
Mohinder Sain Garg v. State of Punjab, (1991) 1 SCC
662 : [1990] 3 Suppl. SCR 108; Minor A. C
Peeriakaruppan Etc. v. State of Tamil Nadu (1971) 1
SCC 38 : [1971] 2 SCR 430; Miss Nishi Maghu v. State
of J & K (1980) 4 SCC 95 : [1980] 3 SCR 1253; Lila
Dhar v. State of Rajasthan AIR 1981 SC 1777 : [1982]
1 SCR 320 – referred to.
D
P. Ramanatha Aiyar’s Advanced Law Lexicon, 6th
Edition, Vol. 3; Oxford Concise Medical Dictionary,
7th Edition – referred to.
Case Law Reference
[2004] 3 SCR 847 referred to Para 7.1 E
(2006) 8 SCC 192 referred to Para 7.2, 7.5, 7.7 & 13.2
[2008] 3 SCR 497 relied on Para 7.2
[1964] 4 SCR 575 referred to Para 7.2
F
[2007] 10 SCR 1041 relied on Para 7.3, 9.5 & 14.6
[2003] 2 SCR 387 referred to Para 7.3
[1991] 2 SCR 1 referred to Para 7.3
[2005] 3 Suppl. SCR 314 referred to Para 7.3
G
[2005] 4 Suppl. SCR 317 referred to Para 7.3
(1992) 2 Supp. SCC 481 referred to Para 7.4
[2008] 14 SCR 288 referred to Para 7.4
[2019] 15 SCR 427 referred to Para 7.4
H
722 SUPREME COURT REPORTS [2023] 3 S.C.R.
A (2022) 1 SCC 294 referred to Para 7.4, 7.7
[1995] 1 SCR 908 referred to Para 7.6, 7.7 & 7.9
(2009) 16 SCC 601 referred to Para 7.6
[2019] 12 SCR 1071 referred to Para 7.7
B [2017] 9 SCR 512 referred to Para 7.7
(2021) 4 SCC 631 referred to Para 7.8
[2006] 1 Suppl. SCR 772 referred to Para 7.8
[2003] 1 Suppl. SCR 883 referred to Para 7.8, 14.3
C
[1985] 1 Suppl. SCR 657 referred to Para 7.9
[2001] 2 SCR 18 referred to Para 7.10
(2003) 2 SCC 132 referred to Para 9.4
[2006] 3 SCR 953 referred to Para 10.6
D
AIR 1990 SC 434 referred to Para 12 (i)
[1996] 5 Suppl. SCR 361 referred to Para 12 (ii)
[2007] 13 SCR 624 referred to Para 12 (iii)
[1994] 1 SCR 120 referred to Para 12 (iv)
E
(2010) 12 SCC 576 referred to Para 13 (i)
[2013] 5 SCR 687 referred to Para 13 (ii)
[2016] 8 SCR 815 referred to Para 13 (iii)
F [1989] Suppl. SCR 124 referred to Para 14.1
[1990] 3 Suppl. SCR 108 referred to Para 14.2
[1971] 2 SCR 430 referred to Para 16
[1980] 3 SCR 1253 referred to Para 16
G [1982] 1 SCR 320 referred to Para 16.1
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2164-
2172 of 2023.
From the Judgment and Order dated 29.10.2021 of the High Court
of Jammu & Kashmir and Ladakh at Srinagar in LPASW Nos. 277 of
H 2015, 278, 279, 12, 97, 98, 105, 134 and 135 of 2016.
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 723
AND KASHMIR & ORS.
With A
Civil Appeal Nos.2182-2190, 2191-2199, 2200, 2173-2181, 2201-
2203, 2204-2212, 2213-2215 and 2216-2221 of 2023.
Ms. Madhavi Goradia Divan, A.S.G., P. S. Patwalia, Sanjay R.
Hegde, Ranjit Kumar, Rakesh Dwivedi, Sr. Advs., M. Shoeb Alam, Ujjwal
Singh, Agastya Sen, Krishna Sumanth, Siddhant Buxy, Rajensh Singh B
Parihar, Sunando Raha, Raghav Gupta, Shah Rukh Ali, Ms. Fauzia Shakil,
Anupam Raina, Ms. Purnima Krishna, G. M. Kawoosa, Ms. Pallak Mittal,
Ms. Majula Gupta, Rushab Aggarwal, Japnish Singh Bhatia, Ms. Riddhima
Juneja, Mukul Kumar, Shailesh Madiyal, Vaibhav Sabharwal, Akshay
Kumar, Ms. Palak Mittal, Ms. S. Janani, Deepak Goel, Ms. Sarika Rai, C
Shiv Singh Yadav, Priya Ranjan Kumar, Ms. Beena Goyal, Hitesh Kumar
Sharma, S. K. Rajora, Akhileshwar Jha, Ms. Niharika Dewivedi, Ms.
Shweta Sand, Ravish Kumar Goyal, Anish Roy, Advs. for the appearing
parties.
The Judgment of the Court was delivered by D
NAGARATHNA, J.
Leave granted.
2. I.A. No. 21153/2022 for substitution of the legal representatives
of the deceased petitioner therein and I.A. No. 21154/2022 for
E
condonation of delay in filing I.A. No. 21153/2022 are allowed. The
delay in filing I.A. No. 21154/2022 is condoned and the legal
representatives are brought on record.
3. I.A. No. 3739/2022 for impleadment is also allowed.
4. The present batch of appeals concern the selection process F
conducted on 8th September, 2009, for appointment of drug inspectors in
the then State of Jammu and Kashmir, and the appointments published
on 12th November, 2009, whereby sixty-four persons including the
appellants in SLP (C) Nos.20781-20789 of 2021; SLP (C) Nos. 20790-
20798 of 2021; SLP (C) Nos. 20799-20807 of 2021; SLP (C) No. 976/
2022; SLP (C) Nos. 967-975 of 2022 and Diary No. 1194/2022, were G
selected and appointed as drug inspectors and are serving on the said
posts since 12th November, 2009. The selection and appointments were
challenged before the High Court of Jammu and Kashmir and were
quashed by the learned Single Judge of the High Court of Jammu and
H
724 SUPREME COURT REPORTS [2023] 3 S.C.R.
A Kashmir at Srinagar, by judgment and order dated 18th December 2015,
in SWP No. 1356 of 2009 and connected matters. The said judgment
was affirmed by the Division Bench of the High Court by the impugned
judgment dated 29th October, 2021, passed in Letters Patent Appeal No.
277 of 2015 and connected matters. The appellants in SLP (C) No.976
of 2022 have challenged the judgment and order dated 6th July, 2017
B
passed by the learned Single Judge of the High Court of Jammu and
Kashmir at Jammu, whereby, relying on the judgment and order of the
learned Single Judge of the High Court of Jammu and Kashmir at
Srinagar dated 18th December, 2015, the writ petition filed by some of
the appellants herein was dismissed. Hence, these appeals.
C 5. Succinctly stated, the facts leading to the present appeals are
as follows:
5.1. On 05th May, 2008, the Jammu and Kashmir Subordinate
Services Selection and Recruitment Board (hereinafter referred to as
“the Board”) in exercise of the powers enshrined under the Jammu and
D Kashmir Subordinate Services Recruitment Rules, 1992, (hereinafter
referred to as ‘1992 Rules’) issued Advertisement Notice No. 3 of 2008,
inviting applications for filling up vacancies in twenty services. The
Advertisement Notice provided the breakup of available vacancies as
also the eligibility criteria prescribed under the relevant Recruitment Rules.
E The total number of posts advertised were 549. The said Advertisement
invited applications for 72 posts of drug inspectors out of which 42 posts
were to be filled from the open merit category; 14 posts were to be filled
by Residents of Backward Areas (hereinafter referred to as “RBA”)
and 16 posts were to be filled by various other reserved categories
including Other Social Categories (hereinafter referred to as “OSC”).
F
The requisite qualifications prescribed in the advertisement, to
apply for the post of drug inspector, was as under:
(a) The candidate must have a degree in Pharmacy or
Pharmaceutical Chemistry or a Post-Graduate Degree in Chemistry with
G Pharmaceuticals as a special subject of a University established in India
by law or must have an equivalent qualification recognized and notified
by the Central Government for such purpose by the appointing authority
or the Associateship Diploma of the Institution of Chemists (India) by
passing the examination with analyst of drugs and pharmaceuticals as
one of the subjects; or
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 725
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
(b) The candidate must be a graduate in Medicine or Science A
from a University recognized for this purpose by the appointing authority
and must have at least one-year post-graduate training in a laboratory
under:
i) Government Analyst appointed under the Act;
ii) Chemical examiner of the Head of the institution specially B
approved for the purpose by the appointing authority.
5.2. The Board notified the approved criteria to regulate the
selection and appointment to the posts of drug inspectors. The same are
as under:
C
D
E
5.3. After receipt of application forms for the post of drug inspector F
in pursuance of the advertisement, the authorities issued a notification in
a local daily on 31st May, 2009, notifying the short-listed candidates.
Another notification dated 12th June, 2009 was issued by the Board
captioned “Discrepancy noticed in criteria of drug inspector (Health).”
By virtue of the said notification, the respondents recast the criteria of
G
selection as under:
H
726 SUPREME COURT REPORTS [2023] 3 S.C.R.
A
B
C
5.4. On 8th September, 2009, the Board published the Select List
D and recommended sixty-four candidates for appointment as drug
inspectors in the Drug and Food Control Organisation of Jammu and
Kashmir. The Select List comprised of 42 candidates selected from the
open merit category and a total of 22 candidates were selected amongst
the other reserved categories out of which 14 names were selected
E under the RBA category. The Board, on 15th October, 2009, placed the
Select List before the Health and Medical Education Department being
the concerned department, for the issuance of appointment orders after
verifying all original documents.
5.5. On 12th November, 2009, the Office of the Controller, Drug
F and Food Control Organisation of Jammu and Kashmir, issued
Appointment Orders, appointing the selected candidates as drug
inspectors in the Pay Scale of Rs.9300-34800 and Pay Band of
Rs.4,200/-.
5.6. Some candidates who remained unsuccessful in the selection
process filed Writ Petition (Service) No. 1685 of 2009 before the Jammu
G
and Kashmir High Court at Jammu, with a prayer to quash the selection
of 56 out of the total number selected candidates and to issue a writ in
the nature of mandamus commanding the authorities to instead select
and appoint the writ petitioners as drug inspectors. The salient grounds
on which the selection process was challenged are as under:
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 727
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
a) That the candidates appointed as drug inspectors had acquired A
the prescribed qualifications for the post of drug inspector,
from universities which were not affiliated with the Pharmacy
Council of India. That the eligibility criteria enshrined in the
Advertisement Notice dated 5th May, 2008 was recast vide
Notification dated 12th June 2009 and the criterion as regards
B
the obtainment of qualifications from a University recognized
and notified by the Central Government, was omitted. The
petitioners in the Writ Petition contended that the reason why
the qualification was omitted was neither gatherable nor
understandable.
b) That the selection carried out by the Selection Committee C
was not legally sustainable as the quorum of the Selection
Committee was not complete as the Chairman of the Board
being one of the members of the interview committee which
conducted the interview process did not participate in the
interview process. Further, the expert member of the Interview D
Committee was not from the field of pharmacy. Instead of
making a person member of the Interview Committee who
had expertise in the concerned field, the authorities brought a
member who had MBBS qualification.
c) That the candidates who had a post-graduation degree had E
been awarded 10 marks and in the viva-voce, such PG
candidates had been granted either 18 marks or 20 marks out
of 20. That although the writ petitioners had performed
exceptionally well in the interview, the authorities had acted
in an arbitrary manner while carrying out the selection process.
F
5.7. On identical grounds as those raised in SWP No. 1685 of
2009, three more Writ Petitions were filed by unsuccessful candidates
challenging the selection process. These petitions were filed before the
Srinagar Bench of the High Court of Jammu and Kashmir. Details of
the said writ petitions have been set out hereinunder:
G
i) Writ Petition SWP No. 1356 of 2009 was filed before the
High Court seeking a writ in the nature of certiorari quashing
the criteria to the extent of allocating 20 marks for viva-voce
and a direction to the authorities to formulate a fresh selection
list of the candidates on the basis of their merit obtained after
H
728 SUPREME COURT REPORTS [2023] 3 S.C.R.
A excluding the marks allocated to the candidates by the
Committee while conducting the viva-voce. The writ
petitioners further sought a writ in the nature of a mandamus
directing that interviews be conducted afresh with an expert
in the Selection Committee who possesses the requisite
qualification.
B
ii) Writ Petition SWP No. 1535 of 2009 was filed by the Petitioner
therein before the High Court at Srinagar, seeking a writ of
certiorari quashing the Select List as published to the extent
of the selection of drug inspectors; a direction to the authorities
to produce the record pertaining to the interview for the post
C of drug inspector and a writ of mandamus directing the
concerned authorities to select and appoint the writ petitioner
therein against the post of drug inspector on the basis of his
academic merit and the marks secured in the interview.
iii) Writ Petition SWP No. 1846 of 2009 was filed seeking a writ
D in the nature of certiorari quashing the selection list and a writ
of mandamus commanding the concerned authorities to select
and appoint the writ petitioner therein to the post of drug
inspector with retrospective effect w.e.f. the date the
successful candidates were selected.
E 5.8. The learned Single Judge of the High Court, Srinagar Bench
allowed the Writ Petitions i.e., SWP Nos. 1356 of 2009, 1846 of 2009
and 1535 of 2009 by way of common judgement and order dated 18th
December 2015. The pertinent findings in the judgement dated 18th
December 2015 have been culled out hereinunder:
F i) The learned Single Judge dismissed the challenge thrown by
the writ petitioners to the competence of the expert in the
Selection Board, Dr. Samina Farhat, Assistant Professor,
Department of Pharmacology. It was observed that the expert
was a doctor by profession with a Post Graduate degree (MD)
G and Ph.D. in Pharmacology to her credit. Pharmacology is
an important component in the study of Pharmacy and is
included among the major areas of instruction in the curriculum
of a degree in pharmacy at the Bachelor’s and Master’s levels.
All those who study and undergo the training in pharmacy are
necessarily to study Pharmacology. A pharmacist has to learn
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 729
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
the effects of the medicine as well as the ways in which A
medicine can be introduced into the body. Pharmacists are
medication experts and their responsibilities include dispensing
medication to patients, monitoring patient health and progress
and optimising the patient’s response to medication therapies.
That pharmacology and pharmacy, therefore, are not like chalk
B
and cheese, too different from each other. One who has
studied medicine, and is an expert in pharmacology is expected
to have fairly good knowledge of pharmacy.
ii) The learned Single Judge was of the view that the Court while
exercising the power of judicial review cannot step into the
shoes of the Selection Committee or assume an appellate role C
to examine whether the marks awarded by the Selection
Committee in the viva-voce are excessive and not
corresponding to their performance in such test. The
assessment and evaluation of the performance of candidates
appearing before the Selection Committee/Interview Board D
should be best left to the members of the Committee. Thus,
there was no reason to find fault with the marks awarded by
the Selection Committee/Interview Board only because 100%
marks had been awarded or that the marks awarded were on
a higher side. That once the writ petitioners had participated
in the Selection Process, they were not to feel aggrieved with E
the process for the reason that the marks awarded to them in
the viva-voce were not up to their expectations or on the
lower side. The learned Single Judge of the High Court,
however, held that the Court may not look into the decision
but it was within its domain to examine whether the procedure F
and guidelines were followed. The Court thus examined the
decision-making process.
iii) The learned Single Judge observed that in the case in hand,
the award rolls prepared by the members of the Selection
Board individually were not on the selection record. Even the G
final award roll reflecting the performance of the candidates
in the viva-voice and the data of points secured on the basis
of merit in the eligibility qualification and the qualification
warranting extra weightage was not signed by the Members
of the Selection Committee and there was nothing on record
H
730 SUPREME COURT REPORTS [2023] 3 S.C.R.
A to indicate the assessment of candidates individually made by
the members of the Selection Committee and their overall
merit including the marks awarded in the interview. That the
absence of the award rolls prepared individually by the
Members of the Selection Committee, vitiated the entire
selection process and the selection process did not conform
B
to the prescribed procedure.
iv) Upon perusal of the selection record, the learned Single Judge
observed that it transpired that the Selection Board while
making the selection had given extra weightage to some of
the candidates when such candidates did not have postgraduate
C degrees in Pharmacy/Medicine to their credit and therefore,
they did not deserve to be given extra weightage. That the
Selection Committee without verifying whether Post Graduate
Degree in Pharmacy claimed by a candidate was to the credit
of the candidate and if so, whether the degree was obtained
D from a recognized University or not before the cut-off date,
awarded extra points, presuming the candidates to have Post
Graduate Degree and therefore, eligible for extra weightage.
That this cast a cloud on the selection process.
5.9. For the reasons set out above, the learned Single Judge
E allowed the said Writ Petitions and issued the following directions:
i) That successful candidates who were the respondents in the
writ petitions, had been serving as drug inspectors for seven
years (at the time) and there was no dispute as regards the
eligibility of the said candidates to the advertised posts. Thus,
F the respondent authorities were given the discretion to retain
the successful candidates and were also directed to accord
consideration to the appointment of the writ petitioners in the
three writ petitions against available clear vacancies of drug
inspectors in the pay scale of Rs.9300-34800, in the respondent
department and to complete such exercise within four weeks.
G
ii) That if the appointment of the writ petitioners as directed by
the Court was not possible due to the non-availability of posts,
the Select List published by the Respondent Board on 8th
September, 2009 and the appointment made pursuant thereto
shall stand quashed and set aside. The Board would then be
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 731
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
required constitute a Selection Committee to conduct fresh A
interviews of all candidates who earlier appeared before it
and the members of the Selection Committee shall follow the
prescribed procedure and shall individually assess and evaluate
the candidates, prepare individual award rolls reflecting such
assessment and handover the individual award rolls under
B
sealed cover to the Convenor of the Selection Committee.
That the Convenor of the Selection Committee shall compute
the total marks awarded in the viva-voce and add the marks
so obtained to the marks awarded to the candidates on the
basis of merit in the eligibility qualification and higher
qualification, if any, on pro rata basis, and prepare a final C
merit list duly signed by all the members of the Selection
Committee. The Board on the basis of the final merit list was
required to make recommendations to the intending department
and the intending department was to act on the
recommendations so made and issue appointment orders in
D
favour of the selected candidates. The learned Single Judge
directed the authorities to conduct such exercise within six
months.
iii) The learned Single Judge further observed that in case the
respondent authorities decide to carry out direction No. (ii)
above, the Board may allow the selected/appointed candidates E
to continue till the exercise undertaken in compliance with
direction No. (ii) was completed and appointment orders were
issued, as their ouster may result in administrative problems,
risk to public health and would lead to the collapse of the
entire machinery set up to achieve the objective of the Drugs F
and Cosmetics Act.
5.10. Thereafter, nine Letters Patent Appeals were filed before
the High Court challenging the Order dated 18.12.2015 passed by the
learned Single Judge. Out of the nine appeals, three LPAs (LPA Nos
277/2015, 278/2015 and 12/2016) were filed by persons who were G
selected in the open merit category and made party respondents in at
least one of the writ petitions; three LPAs (LPA Nos. 279/2015, 134/
2016 and 135/2016) were filed by the appellants herein, i.e., persons
who were selected in the reserved category and were not made a party
to any of the three writ petitions and three LPAs (LPA Nos. 97/2016,
98/2016 and 105/2016) were filed by the Board. H
732 SUPREME COURT REPORTS [2023] 3 S.C.R.
A 5.11. By the impugned judgment dated 29th October, 2021, the
Division Bench of the High Court upheld the findings of the learned
Single Judge on merits and disposed of the appeals after modifying the
directions issued by the learned Single Judge. The relevant observations
in the impugned judgment dated 29th October, 2021 are as under:
B i) The Division Bench of the High Court upheld the finding of
the Single Judge viz the inclusion of Dr. Samina Farhat,
Assistant Professor, Department of Pharmacology,
Government Medical College, Srinagar, as an expert in the
Selection Committee and held that it was expected that she
had a fairly good knowledge of Pharmacy.
C
ii) The Division Bench also held that the final award roll as to
the performance of the candidates in viva-voce and the points
secured on the basis of merit in the eligibility qualification and
the qualification warranting extra weight was not signed by
members of the Selection Committee. Further, there was
D nothing on record to indicate the assessment of candidates
individually made by members of the Selection Committee
and their overall merit including the marks awarded in the
interview.
iii) One of the Judges of the Division Bench, Justice Vinod
E Chatterji Koul observed that direction No.(i) issued by the
learned Single Judge was contrary to and in conflict with
direction No. (ii). That if the learned Single Judge had found
the marks awarded in the interview/viva-voce to be not up to
the mark and contradictory to the selection criteria, then
F direction No.(i) ought not to have been issued by the learned
Single Judge as it would also have an impact on prospective
candidates and would be contrary to judicial precedent.
Direction No.(ii) was modified by the Division Bench
to the extent that “appointment of petitioners as directed
G is to be made” was omitted by the Division Bench. The
subsequent part of direction (ii) i.e., “The select list published
by respondent Board on 8 th September, 2009 and
appointments made pursuant thereto shall stand quashed
and set aside.” and the consequential directions were upheld
by the Division Bench.
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 733
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
Justice Vinod Chatterji Koul upheld direction No.(iii) A
issued by the learned Single Judge and held that the same
shall remain intact and be implemented by the officials in letter
and spirit.
iv) The learned Chief Justice (as he then was) in a separate
opinion, concurred with the observations of Justice Vinod B
Chatterji Koul and the observations of the learned Single Judge
to the effect that the Select List was not properly drawn.
That there was nothing on record to indicate that the members
of the Selection Committee had made the assessment of the
candidates individually and the final award roll reflecting the
performance of the candidates in the viva-voce and points C
secured on the basis of the merit in the eligibility qualification
as well as extra weightage granted for additional qualification
was also not in accordance with the norms. Therefore, the
selection process did not conform to the prescribed procedure.
However, he further held that the learned Single Judge, having D
made the above finding to the effect that some of the
candidates had been arbitrarily awarded extra weightage
without there being on record any material to show that they
possessed the post-graduate degrees for grant of such extra
marks, the learned Single Judge could not have saved the
selection of the candidates merely for the reason that they E
had been serving in the department for the last seven years
and they were qualified to hold the post.
Further, it was held that the learned Single Judge was
not justified in directing the authorities to retain the successful
candidates in service and to accord consideration to the F
appointment of the writ petitioners-unsuccessful candidates
if they satisfy the eligibility criteria and to consider them for
appointment against the available clear vacancies of the drug
inspectors. The learned Chief Justice opined that the selection
process pursuant to Advertisement Notice No. 3 of 2008 dated G
5th May 2008 was completed with the publication of the Select
List and the joining of the selected candidates. Therefore, no
further appointments could be made on the basis of the said
selection against the clear vacancies that may have occurred
subsequently. The Division Bench held that all subsequent
H
734 SUPREME COURT REPORTS [2023] 3 S.C.R.
A vacancies are to be filled up from the 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. The Division Bench
thus held that once the selection was not found to be a valid
B
one and therefore, the learned Single Judge could not have
issued any direction such as direction No. (i).
v) With respect to the argument that the unsuccessful candidates
had participated in the selection process and thus, were not
entitled to challenge it, learned Chief Justice observed that
C the writ petitioners or the unsuccessful candidates could not
have been debarred from filing the writ petition as 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
D 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.
vi) The Division Bench thus quashed the selection list published
by the Board on 8th September 2009 and gave the liberty to
E the Respondent-Board to constitute a Selection Committee
to conduct fresh interviews of all the candidates who had
appeared before it in accordance with the law, for selection
against the posts advertised. The Division Bench further
clarified that no post or vacancy which had not been advertised
by the advertisement dated 5th May 2008 will be filled by the
F said selection process. The Division Bench directed that the
exercise if undertaken, should be completed within six months
and till such time the selected candidates appointed may be
permitted to continue in the said posts to avoid administrative
problems.
G 5.12. Aggrieved by the common impugned judgment passed by
the Division Bench of the High Court of Jammu and Kashmir and Ladakh
at Srinagar dated 29th October, 2021, the present appeals have been
filed by various stakeholders. Further, SLP (C) No. 976/2022 has been
filed assailing the judgment and order dated 6th July, 2017, passed by the
H High Court in SWP No. 1685/2009, by way of which, the High Court
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 735
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
quashed the selection and the list published by the Board on 8th September A
2009.
Details of the various appeals filed before this Court, which were
heard and are being disposed of by way of this judgment, have been
presented for easy reference in a tabular form hereinunder:
B
C
D
E
F
G
H
736 SUPREME COURT REPORTS [2023] 3 S.C.R.
A
B
C
D
E
F
6. We have heard learned Senior Counsel, Sri Ranjit Kumar and
learned counsel Sri Shoeb Alam appearing on behalf of the appellants in
SLP (C) Nos. 20781-20789 of 2021, learned Senior Counsel Sri Sanjay
Hegde for the appellants in Diary No. 1194 of 2022, learned Senior
Counsel Sri P.S. Patwalia appearing for the appellants in SLP (C) Nos.
G 20790 – 20798 of 2021, learned Additional Solicitor General Smt. Madhavi
Goradia Divan appearing for the Board and learned counsel Ms. S. Janani
appearing on behalf of the Respondents herein-writ petitioners and other
learned counsel appearing for the respective parties and perused the
material on record.
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 737
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
Submissions: A
7. Learned counsel Sri Shoeb Alam appearing on behalf of some
of the appellants at the outset submitted that the impugned judgment of
the High Court of Jammu and Kashmir and Ladakh at Srinagar dated
29th October, 2021 was based on an incorrect appreciation of the law
and facts and therefore calls for interference by this Court. B
7.1. It was submitted that it was an admitted position that there
was no rule or notification prescribing any procedure or requirement for
the Selection Committee to retain the individual award rolls or have the
final award rolls signed by the members. That the selection records
culminated in the final Select List and the same was approved with the C
signatures of all seven members of the Board, including two members
of the Selection Committee, after perusing the selection records. That
the calculations made on the individual basis of the candidates had been
verified with reference to the records. The consolidated points were fed
into the computer by the Chairman of the Board himself and checked by
another member of the Board. The final Select List prepared on this D
basis was approved by the Board, after perusal of the selection record,
with the signatures of all members of the Board. However, the Single
Judge did not refer to the same. Thus, the Impugned Order and the
Single Judge’s Order setting aside the entire selection of the appellants
on the ground that the prescribed procedure was not followed and that E
the selections made by the Selection Committee were doubtful, is
erroneous and contrary to law.
Reliance was placed on Reserve Bank of India vs. C.L. Toora,
(2004) 4 SCC 657, to contend that where no procedure is prescribed
for a Selection Committee, it can formulate its own procedure which is F
reasonable and not arbitrary in nature.
7.2. It was further submitted that it is a settled position of law that
when a Selection Committee recommends the selection of a person, the
same cannot be presumed to have been done in an erroneous or
mechanical manner in the absence of any allegation of favoritism or G
bias. That a presumption arises as regards the correctness of the decision
of a Selection Committee and the party who makes the allegation of bias
or favoritism is required to prove the same. Thus, in the absence of
mala fides against the members, selection by a Selection Committee
cannot be doubted. To buttress his argument, learned counsel placed
H
738 SUPREME COURT REPORTS [2023] 3 S.C.R.
A reliance on Union of India vs. Bikash Kuanar, (2006) 8 SCC 192;
Sadananda Halo vs. Momtaz Ali Sheikh, (2008) 4 SCC 619
(Sadananda Halo) and University of Mysore vs. C.D. Govinda Rao,
(1964) 4 SCR 575.
7.3. It was contended that this Court in the context of non-
B availability of any part of selection records has, in Trivedi Himanshu
Ghanshyambhai vs. Ahmedabad Municipal Corporation, (2007) 8
SCC 644 (Trivedi Himanshu Ghanshyambhai) held that only because
the records could not be produced in view of the fact that they were not
available, no inference as to mala fides can be drawn against the members
of a Selection Committee and the selection cannot be cancelled. In this
C regard it was submitted that the impugned judgment and the judgment of
the Single Judge, setting aside the entire selection of the appellants herein
due to the non-availability of individual award rolls, despite, signed
approval of the final Select List by the Board, is contrary to law. That
the burden of establishing mala fides is heavily on the person who alleges
D it and the allegations of mala fides are more than often easily made than
proved, and the very seriousness of such allegations demands proof of a
high order of credibility, vide Indian Railway Construction Co. Ltd.
vs. Ajay Kumar, (2003) 4 SCC 579; State of Bihar vs. P.P. Sharma,
(1992 Supp. (1) SCC 222); Ajit Kumar Nag vs. Indian Oil
Corporation Ltd., (2005) 7 SCC 764; Union of India vs. Ashok
E Kumar, (2005) 8 SCC 760.
7.4. It was further contended on behalf of the appellants that in
the absence of any rule or regulation requiring a Selection Committee or
Board to record reasons for selection and appointment, no fault can be
found with the selection process due to the lack of individual award
F rolls. Reliance in this regard was placed on National Institute of Mental
Health and Neuro Sciences vs. Dr. K. Kalyana Raman, 1992 Supp.
(2) SCC 481; B.C. Mylarappa vs. Dr. R. Venkatasubbaiah, (2008)
14 SCC 306; Baidyanath Yadav vs. Aditya Narayan Roy, (2020)
16 SCC 799; Mohd. Mustafa vs. Union of India, (2022) 1 SCC 294
G (Mohd. Mustafa).
7.5. It was asserted that the power of judicial review does not
extend to conducting a microscopic inquiry beyond the pleadings in the
writ petition. Reliance was placed on Sadananda Halo to contend that
this Court has held that a roving and microscopic inquiry on factual aspects
H is not permissible in a writ petition. That a Writ Court cannot place itself
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 739
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
as a fact-finding commission and cannot go all the way into the facts A
and microscopic details, which are revealed not via the pleadings but on
the basis of an unnecessary investigation. That in the present case, the
High Court had called for the selection records, gone through the same,
undertaken a fact-finding exercise and rendered microscopic findings
for specific individuals, and all of it, not on the basis of pleadings. Thus,
B
the present case is a perfect example of what a writ court ought not do
in the exercise of its powers under Article 226 of the Constitution.
7.6. It was thus contended that the High Court cannot act as an
appellate authority over the choice of candidates/selection process under
Article 226. To buttress his submission, learned counsel cited Madan
Lal vs. State of J&K, (1995) 3 SCC 486 (Madan Lal) wherein this C
Court held that it was in the exclusive domain of the expert committee to
decide whether more marks should be assigned and the Court cannot sit
as a Court of appeal over the assessment made by the Committee.
Reliance was also placed on Union of India vs. Bilash Chand Jain,
(2009) 16 SCC 601 to submit that it is settled law that a Writ Court is D
not an Appellate Court. Thus, the High Court exceeded the Writ
Jurisdiction while setting aside the selection of the appellants herein.
7.7. It was averred that persons who participated in the selection
process and interview cannot challenge the same upon being unsuccessful
since they do not have a cause to challenge the same and a writ petition E
filed by them is not maintainable, vide Madan Lal; Anupal Singh vs.
State of Uttar Pradesh, (2020) 2 SCC 173; Sadananda Halo and
Mohd. Mustafa. Reliance was also placed on D. Sarojakumari vs. R.
Helen Thilakom, (2017) 9 SCC 478. That in the present case, none of
the writ petitioners was selected on merit and they were not even on the
waiting list, therefore, the writ petitions filed by them were not F
maintainable on the ground of the same being devoid of any locus.
7.8. Learned counsel Sri Shoeb Alam submitted that in the absence
of a large-scale systematic irregularity that denudes the legitimacy of
the selection exercise, the entire selection cannot be set aside. That this
Court in Sachin Kumar vs. Delhi Subordinate Service Selection G
Board, (2021) 4 SCC 631; Inderpreet Singh Kahlon vs. State of
Punjab, (2006) 11 SCC 356; Union of India vs. Rajesh P.U., (2003)
7 SCC 285 (Rajesh P.U.) has held that those who are innocent of
wrongdoing should not pay a price for those who are actually found to
be involved in irregularities and therefore, the selection as a whole cannot H
740 SUPREME COURT REPORTS [2023] 3 S.C.R.
A be set aside for specific instances of irregularities. It was submitted that
unless there is a systematic malaise affecting the integrity of the selection
and denying equal opportunity, the entire selection cannot be set aside
by taking away the appointment of innocent and meritorious candidates.
7.9. That it was within the exclusive domain of the expert
B committee to decide whether more marks should be assigned to the
candidates and hence, it cannot be a subject-matter of an attack before
a Writ Court, as it does not sit as a Court of appeal over the assessment
made by the Committee so far as the candidates interviewed by them
are concerned. To buttress this submission, the learned counsel cited the
decisions of this Court in Madan Lal and Ashok Kumar Yadav vs.
C State of Haryana, (1985) 4 SCC 417.
7.10. It was next submitted that appellants have been working as
drug inspectors since their appointment on 12 th November, 2009, i.e., for
a period of over 13 years, without any complaint against them and no
fault on their part has been attributed at any point. Thus, their appointment
D should not be set aside due to the long period of service rendered. Further,
the petitioners are now at an age where they will not be able to secure
any alternate employment, vide Buddhi Nath Chaudhary vs. Abahi
Kumar, (2001) 3 SCC 328.
7.11. That the writ petitions filed challenging the selection process
E were not maintainable, the same being defective as all the appointees
were not impleaded as parties.
7.12. Specific submissions were made by learned Senior Counsel
Mr. Patwalia as regards the selection of Mr. Pankaj Malhotra, Mr. Ashish
Gupta and Ms. Rumeesa Mohammad. It was submitted that that there
F is no discrepancy in the selection of the aforesaid three individuals as
doubted by the High Court as all three individuals comfortably find a
place in the Select List even if no weightage for the M. Pharma degree
is added to their score. As to the alleged discrepancies in the selection of
the aforesaid three individuals as pointed out by the Writ Court, the learned
G Senior Counsel for the petitioners submitted as under:
i) Rumeesa Mohammad: That her M. Pharma degree was
not given weightage at the time of her selection as grades
were allotted to her by her University for the said degree
and the formula for conversion of such grades into
percentage was not known. That even without such
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 741
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
weightage, she was selected at rank 17. Subsequently, she A
made a representation to the Board along with the
conversion formula, pursuant to which weightage was given
to her M. Pharma degree vide Order dated 30th November,
2010, revising her rank from 17 to 4.
ii) Ashish Gupta: That the final award roll records a remark B
that his M. Pharma degree was from Baba Mast Nath
University and Vanika Mission. The Committee had his
degree but it required a clarification about the institute that
issued the degree as Baba Mast Nath University was
derecognized and he was shifted to Vinayaka Mission under
Court Orders. It was submitted that he got his degree from C
Vinayaka Mission and even if no weightage was given to
his M. Pharma degree, his rank in the Select List would
shift from 14 to 29 whereas the cutoff rank was 42.
iii) Pankaj Malhotra: It was submitted that he could not enclose
his marksheet along with his application as he had obtained D
the final marksheet only after submitting his application,
however, he produced his final marksheet for the M. Pharma
course at the time of the interview. He could not produce
the original degree as it had not been issued by then, although
he had passed the course. Thus, he had “acquired” the E
qualification of M. Pharma at the time of the interview.
That even if no weightage was given to his M. Pharma
degree, his rank in the Select List would shift from 2 to 14
and the cutoff rank was 42.
8. Sri Sanjay Hegde, learned Senior Counsel for the appellants in F
Diary No. 1194 of 2022, i.e., persons who were appointed as drug
inspectors in the Scheduled Caste, Scheduled Tribe and residents of the
Actual Line of Control (A.L.C.) categories submitted that the Division
Bench of the High Court erred in setting aside and quashing the Select
List published by the respondent board on 8th September, 2009, thereby
quashing all the appointments made pursuant thereto. That the selection G
list was correct as the same was published by the Board after following
lawful procedure and that the selection list has attained finality by efflux
of time.
8.1. It was further submitted that denial of opportunity of being
heard before the Writ Court and the cancellation of their appointments, H
742 SUPREME COURT REPORTS [2023] 3 S.C.R.
A on the ground of non-joinder of parties, warrants setting aside of the
impugned judgment. That the High Court was not justified in quashing
the whole selection list and appointments thereof as no such prayer qua
the appellants in Diary No. 1194 of 2022 was maintainable as there was
no grievance against such persons. That such appellants’ selection/
appointment was at no point of time ever challenged by the respondents/
B
unsuccessful candidates and they did not figure as parties in any of the
Writ Petitions, thus, violating the principles of natural justice and the Writ
Petitions were hit by non-joinder of necessary parties.
8.2. It was next submitted that there was no candidate from among
the non-selectees, who could have challenged the selection of these
C petitioners, because they belong to the Scheduled Tribe, Scheduled Caste
and residents of Actual Line of Control (A.L.C.) category and vide the
Advertisement Notice dated 5th May, 2008, seven posts of Scheduled
Tribe category, six posts of Scheduled Caste category and two posts of
candidates belonging to and residing within or near the A.L.C. were
D advertised and there were fewer candidates available than the number
of posts advertised under Scheduled Tribe and Scheduled Caste category.
In so far as the A.L.C. category posts are concerned, it was submitted
that only three candidates applied against the two posts and the one
unsuccessful candidate under ALC never challenged the selection of
the petitioners belonging to ALC and this factum was evident from the
E Select List issued by the Board while recommending the sixty-four
candidates for appointment as drug inspectors. Four posts out of seven
posts belonging to Scheduled Tribe, and three posts out of six posts
belonging to Scheduled Caste remained vacant due to the non-availability
of candidates.
F 8.3. It was contended that the fact that such appellants were
never made parties and yet the entire selection was set aside, was itself
a stand alone reason and ground for setting aside the impugned judgment,
qua the appellants in Diary No. 1194 of 2022. That the impugned judgment
decided the fate of such appellants despite non-joinder as necessary
G parties.
With the aforesaid submissions, it was prayed that the present
appeals be allowed and the impugned judgment of the High Court dated
29th October, 2021 and the judgment of the learned Single Judge dated
18th December 2015 be set aside.
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 743
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
9. Ms. Madhavi Goradia Divan, learned ASG appearing for the A
Board submitted that neither the learned Single Judge nor the Division
Bench found any mala fides against the members of the Selection
Committee and the Division Bench concurrently found that a court cannot
step into the shoes of the Selection Committee or assume an appellate
role to examine whether the marks awarded by the Selection Committee
B
in the viva-voce test were excessive and not corresponding to the
performance in such test. Therefore, quashing the selection process, de
hors any finding as to mala fides against the members of the Selection
Committee, would not be sustainable.
9.1. It was further submitted that the Selection Committee was
formed as per Rule 9 of the 1992 Rules. Rule 9(1) clearly stipulates that C
the Chairman of the Board may nominate a Committee which shall consist
of one or more members of the Board for the purpose of conducting
examinations and holding interviews and tests for the purposes of selection
of candidates to be appointed to the State Cadre. Further, Rule 9(iii)
empowers the Chairman to associate with the Selection Committee, an D
Expert/Specialist with the Board if he feels necessary, in the discipline in
which recruitment is sought to be made.
Thus, to ensure the selection of meritorious candidates was carried
out with all fairness and transparency the Selection Committee comprised
of (i) the Chairman of the Board (an IAS officer); (ii) a Member of the E
Board (Kashmir Administrative Officer); and (iii) an Expert/Specialist
who was employed as an Assistant Professor in the Government Medical
College at Srinagar. It was contended that if there was any ulterior motive
to manipulate the scores in the viva-voce to benefit certain candidates,
the Chairman of the Board could have just constituted a one-member
Committee comprising of only himself to conduct the viva-voce for the F
selection of candidates.
9.2. It was further contended that each member of the three-
member Selection Committee individually assessed each candidate and
awarded points in the viva-voce which were averaged by dividing by
the number three and the same could be evidenced from the marks G
awarded to the candidates in the viva-voce such as 11.67, 13.67, 11.33
etc.;
9.3. In so far as the marks awarded by the expert member of the
Selection Committee are concerned, the learned ASG brought to the
H
744 SUPREME COURT REPORTS [2023] 3 S.C.R.
A Court’s notice, Order dated 18th December, 2015 passed by the learned
Single Judge wherein it was categorically held that a Court while
exercising the power of judicial review cannot step into the shoes of the
Selection Committee and neither can it assume an appellate role in
examining whether the marks awarded by the Selection Committee in
the viva-voce were excessive and not corresponding to the performance
B
in such test.
Further, that the respondents chose not to file an appeal/LPA
challenging the above finding and in fact, the aforesaid observation of
the learned Single Judge vis-à-vis the marks allotted by the Selection
Committee was affirmed by the Division Bench.
C
The learned ASG further submitted that no SLP had been filed by
the Respondents challenging the observation of the Division Bench as
regards the discretion exercised by the Selection Committee in awarding
marks in the viva-voce. Thus, the observation that the marks awarded
by the Selection Committee in the viva-voce test cannot be reviewed by
D a Court in the facts and circumstances of the present case, has attained
finality.
9.4. The learned ASG placed reliance on Jasvinder Singh vs.
State of J&K, (2003) 2 SCC 132 wherein it was held that in the absence
of any specific allegations of any mala fides or bias against the Board
E constituted for selection or anyone in the Board, it cannot be held that a
conscious effort was made for bringing some candidates within the
selection zone. It was further held that picking up a negligible few instances
cannot provide the basis for either striking down the method of selection
or the selections ultimately made. In the said case, it was also observed
F that there is no guarantee that a person who fared well in the written
test, will or should be presumed to have fared well in the viva-voce test
also.
9.5. The learned ASG cited Rule 10 of the 1992 Rules which
provides for Recruitment and Selection to contend that there is no
G prescribed procedure for the appointment of drug inspectors. Rule 10(i)
states that the Board shall finalize the selections after holding such tests
or examinations as may be prescribed under rules or if there are no such
rules, as the Board may consider necessary. Thus, it is a matter of record
that no rules have been prescribed for the selection of drug inspectors
and in the absence of prescribed rules, the Selection Committee and the
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 745
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
Board carried out the selection process in a fair and transparent manner. A
That merely because the record of the case was not traceable when it
was called for by the Single Judge in February 2015, i.e., 6 years after
the selection/appointments were made, cannot be a ground to set aside
the entire selection process.
Reliance was placed on Trivedi Himanshu Ghanshyambhai, B
wherein it was held that merely because the records could not be
produced since they were lost and not available, the appointment could
not be cancelled.
9.6. As regards the selection of Pankaj Malhotra, Rumessa
Mohammad and Ashish Gupta, learned ASG submitted that the finding C
of the Single Judge in paragraph 16 of his judgment that the Selection
Committee had given weightage to some candidates for degrees which
they did not possess, was erroneous.
It was submitted that Mr. Pankaj Malhotra produced his M.
Pharma degree before the Selection Committee and the same was D
considered on the date of his interview. Further, the High Court overlooked
the fact that even if the marks awarded by the Selection Committee on
account of M. Pharma degree were excluded in his case, the candidate
would still be selected even though his rank would go down from Serial
No. 2 to Serial No. 14.
E
Secondly, in the case of Ms. Rumessa Mohammad, marks of her
M. Pharma Degree were not added to her final score and the error was
later on rectified by the Board by the issuance of a subsequent notification
dated 30th November, 2010, thereby, revisiting the position of Ms.
Rumessa Mohammad in the selection list from Serial No. 17 to Serial
No. 4. This notification was a part of the record. F
Thirdly, in the case of Mr. Ashish Gupta, marks were rightly
awarded to him on account of possessing an M. Pharma degree which
was filed along with the application form before the cut-off date.
With the said averments, it was contended that the present appeals
G
be allowed and the impugned judgments of the High Court be set-aside.
10. Per contra, learned counsel Ms. S. Janani appearing on behalf
of the Respondents herein-writ petitioners before the High Court,
supported the impugned judgments of the High Court and submitted that
the same do not warrant any interference by this Court as the judgments
H
746 SUPREME COURT REPORTS [2023] 3 S.C.R.
A were passed based on an unimpeachable appreciation of the law and
facts.
10.1. It was averred that the Selection Committee formed was
defective and inadequate as the Chairman opted for an expert and took
on board the Selection Committee, Dr. Samina Farhat who was a doctor
B by profession with M.D. and Ph.D. in Pharmacology to her credit. That
the role of a doctor in Pharmacology is to research, develop, and test
new medications, as well as run clinical trials for new drug discoveries.
On the other hand, the responsibility of a drug inspector is to inspect
whether the medicines maintain legal standards of sanitation, limpidness,
and grading. They are entrusted with the task to ensure that licensing
C conditions are being followed and they also have to obtain and send the
drug for testing or analysis if there is a reason to suspect that the drug is
being sold or stocked in violation of the Act or Rules. Thus, the learned
counsel for the respondents asserted that the expert selected by the
Chairman cannot be said to be an expert or specialist in the discipline in
D which the recruitment was being made.
10.2. It was next contended that the eligibility criteria were
changed midway. That initially, the eligibility criteria required that the
equivalent qualification was to be recognised and notified by the Central
Government. However, in the approved criteria, the same was dropped.
E The respondents contended that the criteria were changed after the
applications had been received pursuant to the advertisement. As a result
of the above, several candidates and brighter people may not have applied
and several persons from unrecognized colleges would have got selected.
Further, the Selection Board had no mechanism to verify the genuineness
of the certificates or whether the universities were recognized or not.
F
10.3. That some of the selected candidates did not produce their
original mark sheet of B. Pharma or M. Pharma at the time of the
interview and some of them did not even produce their birth certificates.
This was contrary to what was laid down in the advertisement as
according to the advertisement, the candidates had to produce the original
G qualification certificates at the time of the interview and any candidate
who failed to produce the same was not to be allowed to appear in the
written or oral test.
10.4. It was contended that the process was tainted by arbitrariness
and casualness with which the Selection Committee had acted. That
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 747
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
this was evidenced by the fact that there were some candidates who A
were not given marks for their M. Pharma Degree and they had to later
approach the Board. That 11 selected candidates were given 20 out of
20 marks and three were given 19 out of 20. Thus, almost 20% of the
selected candidates were given unusually higher marks in the viva-voce
which facilitated their selection.
B
10.5. It was submitted that there was no blanket estoppel to
challenge the selection by the candidates who participated in the selection.
In the instant case, the Petitioners before the High Court were not aware
when they participated in the selection that the Selection Committee
was faulty nor were they aware till the Select List was published that
several selected candidates had not produced their original certificates C
of qualification or birth certificates at the time of the interview. That
even the Selection Board did not have the facility to verify the veracity
of the certificates produced.
10.6. The learned counsel for the respondents placed reliance on
Secretary, State of Karnataka vs. Umadevi, (2006) 4 SCC 1 to D
contend that the petitioners cannot seek the protection of their appointment
on the plea that they had been working for long years, if their initial
selection was held to be illegal and faulty.
10.7. Learned counsel for the respondents concluded the
submissions by stating that the total sanctioned strength of drug inspectors E
is 84 and out of the total strength, 65 are currently working. In fact, out
of the 65 inspectors, 4 had been promoted, thus, there are 25 vacancies
as of now and only 17 candidates are contesting before this Court and
all other petitioners before the High Court have not chosen to contest
the matter even though notice was issued by this Court in ordinary mode F
and also by way of publication in newspapers. Thus, all the petitioners
can be adjusted and appointed in the vacant posts.
With the aforesaid submissions, it was prayed that the impugned
judgments of the High Court be affirmed and the present appeals be
dismissed as being devoid of merit. G
Points for Consideration:
11. Having regard to the submissions of the learned Senior Counsel
and learned counsel for the respective parties, the following points would
arise for our consideration:
H
748 SUPREME COURT REPORTS [2023] 3 S.C.R.
A i) Whether the High Court of Jammu and Kashmir at Srinagar
erred in quashing and setting aside the the selection process
conducted on 8th September, 2009, for appointment of drug
inspectors in the State of Jammu and Kashmir, and the
appointments published on 12th November, 2009?
B ii) What order?
Selection Process for Public Employment: Interference by
Courts:
12. Before proceeding further, it is necessary to preface our
judgment with the view that Courts in India generally avoid interfering in
C the selection process of public employment, recognising the importance
of maintaining the autonomy and integrity of the selection process. The
Courts recognise that the process of selection involves a high degree of
expertise and discretion and that it is not appropriate for Courts to substitute
their judgment for that of a selection committee. It would be indeed,
D treading on thin ice for us if we were to venture into reviewing the
decision of experts who form a part of a selection board. The law on the
scope and extent of judicial review of a selection process and results
thereof, may be understood on consideration of the following case law:
i) In Dalpat Abasaheb Solunke vs. Dr. B.S. Mahajan, AIR
E 1990 SC 434, this Court clarified the scope of judicial review
of a selection process, in the following words:
“9...It is needless to emphasise that it is not the function of the
court to hear appeals over the decisions of the selection
committees and to scrutinise the relative merits of the
F candidates. Whether the candidate is fit for a particular post
or not has to be decided by the duly constituted selection
committee which has the expertise on the subject. The court
has no such expertise. The decision of the selection committee
can be interfered with only on limited grounds, such as illegality
or patent material irregularity in the constitution of the committee
G or its procedure vitiating the selection, or proved malafides
affecting the selection etc…..”
ii) In a similar vein, in Secy. (Health) Deptt. Of Health & F.W.
vs. Dr. Anita Puri, (1996) 6 SCC 282, this Court observed
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 749
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
as under as regards the sanctity of a selection process and the A
grounds on which the results thereof may be interfered with:
“9. ... It is too well settled that when a selection is made by an
expert body like the Public Service Commission which is also
advised by experts having technical experience and high academic
qualification in the field for which the selection is to be made, the B
courts should be slow to interfere with the opinion expressed by
experts unless allegations of mala fide are made and established.
It would be prudent and safe for the courts to leave the decisions
on such matters to the experts who are more familiar with the
problems they face than the courts. If the expert body considers
suitability of a candidate for a specified post after giving due C
consideration to all the relevant factors, then the court should not
ordinarily interfere with such selection and evaluation…….”
iii) This position was reiterated by this Court in M. V. Thimmaiah
vs. Union Public Service Commission, (2008) 2 SCC 119,
in the following words: D
“21. Now, comes the question with regard to the selection of
the candidates. Normally, the recommendations of the Selection
Committee cannot be challenged except on the ground of mala
fides or serious violation of the statutory rules. The courts cannot
sit as an Appellate Authority to examine the recommendations E
of the Selection Committee like the court of appeal. This
discretion has been given to the Selection Committee only and
courts rarely sit as a court of appeal to examine the selection
of the candidates nor is the business of the court to examine
each candidate and record its opinion... F
xxx
30. We fail to understand how the Tribunal can sit as an Appellate
Authority to call for the personal records and constitute Selection
Committee to undertake this exercise. This power is not given to
the Tribunal and it should be clearly understood that the assessment G
of the Selection Committee is not subject to appeal either before
the Tribunal or by the courts. One has to give credit to the Selection
Committee for making their assessment and it is not subject to
appeal. Taking the overall view of ACRs of the candidates, one
may be held to be very good and another may be held to be good.
H
750 SUPREME COURT REPORTS [2023] 3 S.C.R.
A If this type of interference is permitted then it would virtually
amount that the Tribunals and the High Courts have started sitting
as Selection Committee or act as an Appellate Authority over the
selection. It is not their domain, it should be clearly understood, as
has been clearly held by this Court in a number of decisions…..”
B iv) Om Prakash Poplai and Rajesh Kumar Maheshwari vs.
Delhi Stock Exchange Association Ltd., (1994) 2 SCC 117,
was a case where an appeal was filed before this Court
challenging the selection of members to the Delhi Stock
Exchange on the ground that the Selection Committee formed
for the aforesaid purpose, arbitrarily favoured some candidates
C and was thus, against Article 14. This Court rejected the
allegation of favouritism and bias by holding as under:
“5. …the selection of members by the Expert Committee had
to be done on the basis of an objective criteria taking into
consideration experience, professional qualifications and similar
D related factors. In the present cases, we find that certain
percentage of marks were allocated for each of these factors,
namely, educational qualifications, experience, financial
background and knowledge of the relevant laws and procedures
pertaining to public issues etc. Of the total marks allocated
E only 20 per cent were reserved for interviews. Therefore, the
process of selection by the Expert Committee was not left
entirely to the sweet-will of the members of the Committee.
The area of play was limited to 20 per cent and having regard
to the fact that the members of the Expert Committee
comprised of two members nominated by the Central
F Government it is difficult to accept the contention that they
acted in an unreasonable or arbitrary fashion…...”
12.1. Thus, the inexorable conclusion that can be drawn is that it
is not within the domain of the Courts, exercising the power of judicial
review, to enter into the merits of a selection process, a task which is the
G prerogative of and is within the expert domain of a Selection Committee,
subject of course to a caveat that if there are proven allegations of
malfeasance or violations of statutory rules, only in such cases of inherent
arbitrariness, can the Courts intervene.
Thus, Courts while exercising the power of judicial review cannot
H step into the shoes of the Selection Committee or assume an appellate
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 751
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
role to examine whether the marks awarded by the Selection Committee A
in the viva-voce are excessive and not corresponding to their
performance in such test. The assessment and evaluation of the
performance of candidates appearing before the Selection Committee/
Interview Board should be best left to the members of the committee. In
light of the position that a Court cannot sit in appeal against the decision
B
taken pursuant to a reasonably sound selection process, the following
grounds raised by the writ petitioners, which are based on an attack of
subjective criteria employed by the selection board/interview panel in
assessing the suitability of candidates, namely, (i) that the candidates
who had done their post-graduation had been awarded 10 marks and in
the viva-voce, such PG candidates had been granted either 18 marks or C
20 marks out of 20. (ii) that although the writ petitioners had performed
exceptionally well in the interview, the authorities had acted in an arbitrary
manner while carrying out the selection process, would not hold any
water.
13. The next aspect of the matter which requires consideration is D
the contention of the writ petitioners to the effect that the entire selection
process was vitiated as the eligibility criteria enshrined in the
Advertisement Notice dated 5th May, 2008 was recast vide a corrigendum
dated 12th June, 2009, without any justifiable reason. In order to consider
this contention, regard may be had to the following case law:
E
i) In Manish Kumar Shahi vs. State of Bihar, (2010) 12
SCC 576, this Court authoritatively declared that having
participated in a selection process without any protest, it
would not be open to an unsuccessful candidate to challenge
the selection criteria subsequently.
F
ii) In Ramesh Chandra Shah vs. Anil Joshi, (2013) 11 SCC
309, an advertisement was issued inviting applications for
appointment for the post of physiotherapist. Candidates who
failed to clear the written test presented a writ petition and
prayed for quashing the advertisement and the process of
selection. They pleaded that the advertisement and the test G
were ultra vires the provisions of the Uttar Pradesh Medical
Health and Family Welfare Department Physiotherapist and
Occupational Therapist Service Rules, 1998. After referring
to a catena of judgments on the principle of waiver and
estoppel, this Court did not entertain the challenge for the H
752 SUPREME COURT REPORTS [2023] 3 S.C.R.
A reason that the same would not be maintainable after
participation in the selection process. The pertinent
observations of this Court are as under:
“24. In view of the propositions laid down in the above
noted judgments, it must be held that by having taken
B part in the process of selection with full knowledge that
the recruitment was being made under the General Rules,
the respondents had waived their right to question the
advertisement or the methodology adopted by the Board
for making selection and the learned Single Judge and
the Division Bench of the High Court committed grave
C error by entertaining the grievance made by the
respondents.”
iii) Similarly, in Ashok Kumar vs. State of Bihar, (2017) 4 SCC
357, a process was initiated for promotion to Class-III posts
from amongst Class-IV employees of a civil court. In the said
D case, the selection was to be made on the basis of a written
test and interview, for which 85% and 15% marks were
earmarked respectively as per norms. Out of 27 (twenty-seven)
candidates who appeared in the written examination, 14
(fourteen) qualified. They were interviewed. The committee
E selected candidates on the basis of merit and prepared a list.
The High Court declined to approve the Select List on the
ground that the ratio of full marks for the written examination
and the interview ought to have been 90:10 and 45 ought to be
the qualifying marks in the written examination. A fresh process
followed comprising of a written examination (full marks - 90
F and qualifying marks - 45) and an interview (carrying 10 marks).
On the basis of the performance of the candidates, results
were declared and 6 (six) persons were appointed on Class-
III posts. It was thereafter that the appellants along with 4
(four) other unsuccessful candidates filed a writ petition before
G the High Court challenging the order of the High Court on the
administrative side declining to approve the initial Select List.
The primary ground was that the appointment process was
vitiated, since under the relevant rules, the written test was
required to carry 85 marks and the interview 15 marks. This
Court dismissed the appeals on the grounds that the appellants
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 753
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
were clearly put on notice when the fresh selection process A
took place that the written examination would carry 90 marks
and the interview 10 marks. The Court was of the view that
the appellants having participated in the selection process
without objection and subsequently found to be not successful,
a challenge to the process at their instance was precluded.
B
The relevant observations are as under:
“13. The law on the subject has been crystalized in several
decisions of this Court. In Chandra Prakash Tiwari v.
Shakuntala Shukla, this Court laid down the principle that
when a candidate appears at an examination without
objection and is subsequently found to be not successful, a C
challenge to the process is precluded. The question of
entertaining a petition challenging an examination would not
arise where a candidate has appeared and participated. He
or she cannot subsequently turn around and contend that
the process was unfair or that there was a lacuna therein, D
merely because the result is not palatable. In Union of India
v. S. Vinodh Kumar (2007) 8 SCC 100, this Court held that:
“18. It is also well settled that those candidates who had
taken part in the selection process knowing fully well the
procedure laid down therein were not entitled to question
the same (See also Munindra Kumar v. Rajiv Govil (1991) E
3 SCC 368 and Rashmi Mishra v. M.P. Public Service
Commission (2006) 12 SCC 724)”.
13.1. It is therefore trite that candidates, having taken part in the
selection process without any demur or protest, cannot challenge the
same after having been declared unsuccessful. The candidates cannot F
approbate and reprobate at the same time. In other words, simply because
the result of the selection process is not palatable to a candidate, he
cannot allege that the process of interview was unfair or that there was
some lacuna in the process. Therefore, we find that the writ petitioners
in these cases, could not have questioned before a Court of law, the G
rationale behind recasting the selection criteria, as they willingly took
part in the selection process even after the criteria had been so recast.
Their candidature was not withdrawn in light of the amended criteria. A
challenge was thrown against the same only after they had been declared
unsuccessful in the selection process, at which stage, the challenge ought
H
754 SUPREME COURT REPORTS [2023] 3 S.C.R.
A not to have been entertained in light of the principle of waiver and
acquiescence.
13.2. This Court in Sadananda Halo has noted that the only
exception to the rule of waiver is the existence of mala fides on the part
of the Selection Board. In the present case, we are unable to find any
B mala fide or arbitrariness in the selection process and therefore the said
exception cannot be invoked.
Cancellation of the entire selection process: Whether justified?
14. In the present case, the entire selection of the appellants has
been quashed by the High Court primarily on the ground of non-availability
C of individual award rolls or marksheets awarding marks individually.
Whether such an irregularity would vitiate the entire selection process
and set it at naught is the next aspect of the matter that requires
consideration.
14.1. The decision of a three-judge Bench of this Court in Kumari
D Anamica Mishra vs. UP Public Service Commission, Allahabad,
AIR 1990 SC 461 involved recruitment to various posts in the educational
services of the State of Uttar Pradesh. There was a two-stage recruitment
involving a written test and an interview therein. It was found that after
the written examination, due to the improper feeding of data into the
E computer, some candidates who had a better performance in the written
examination were not called for interview and candidates who secured
lesser marks were not only called for the interview but were finally
selected. The entire process was cancelled by the Public Service
Commission. In the said context, this Court observed as under:
F “4. We have heard counsel for the parties and are of the view
that when no defect was pointed out in regard to the written
examination and the sole objection was confined to exclusion of a
group of successful candidates in the written examination from
the interview, there was no justification for cancelling the written
part of the recruitment examination.”
G
The aforesaid case is therefore representative of a situation where
the cancellation of the entire recruitment process was held to be not
justified since there was no systemic flaw in the written test, and the
issue was only with regard to award of marks to the candidates in the
interview. The situation could have been remedied by setting aside the
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 755
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
selection made after the interview stage and calling for a fresh interview A
of all eligible candidates if the case so warranted which is also not so in
the instant case.
14.2. In Mohinder Sain Garg vs. State of Punjab, (1991) 1
SCC 662, 1200 candidates were called for the interview, for filling up 54
posts. Though not through a proper course to have been adopted it was B
held that it would not vitiate the selection, more particularly when it
could not be said to be tainted with mala fides or ill motive.
14.3. The observations of this Court in Rajesh P.U. are highly
instructive as regards the question, whether, setting aside the entire
selection process would be excessive or disproportionate a remedy in a C
given case. The pertinent findings of this Court in the said case are as
under:
“...Applying a unilaterally rigid and arbitrary standard to cancel
the entirety of the selections despite the firm and positive
information that except 31 of such selected candidates, no infirmity D
could be found with reference to others, is nothing but total
disregard of relevancies and allowing to be carried away by
irrelevancies, giving a complete go-by to contextual considerations
throwing to the winds the principle of proportionality in going farther
than what was strictly and reasonably to meet the situation. In
short, the competent authority completely misdirected itself in taking E
such an extreme and unreasonable decision of cancelling the entire
selections, wholly unwarranted and unnecessary even on the
factual situation found too, and totally in excess of the nature and
gravity of what was at stake, thereby virtually rendering such
decision to be irrational.” F
14.4. In the present case, the entire selection of the appellants
was set aside due to the non-availability of individual award rolls, despite,
signed approval of the final Select List by the members of the Board.
Whether quashing the entire selection process was excessive or justified,
would depend on the selection procedure adopted and whether the same G
is arbitrary or reveals any mala fides on the part of the selection board.
14.5. The selection process adopted in the instant case may be
summarized as under:
H
756 SUPREME COURT REPORTS [2023] 3 S.C.R.
A i) The process of selection was governed by the 1992 Rules
made by the General Administration Department of the
Government of Jammu and Kashmir.
Rule 9 (i) of the said Rules provided that the Chairman
of the Board may nominate a committee of “one or more
B members” of the Board for, inter alia, holding interviews
for the purpose of selecting candidates for being appointed
to the State Cadre.
Under Rule 9 (iii), the Chairman may, if he feels
necessary associate with the Selection Committee an Expert/
C Specialist in the discipline in which recruitment is to be made.
The first proviso to Rule 9 provides that the selection
made by the said Committee shall be approved by the Board
before the same is forwarded to the appointing authority.
For a better appreciation, Rule 9 and 9A of the 1992
D Rules are extracted as under:
“9. Nomination of Committees:
(i) The Chairman may nominate a Committee “which shall
consist of one or more members” of the Board for
conducting examination and for holding interviews and tests
E
for purposes of selection of candidates for being appointed
to the State Cadre;
(ii) Every such Committee shall be chaired by the Chairman
and where the Chairman is not a member of the Committee,
by a member to be nominated by the Chairman, and
F
(iii) Chairman may, if he feels necessary associate with the
selection committee expert/specialist in the discipline in
which recruitment is to be made.
(iv) The Chairman may nominate a Committee of not less than
G three persons for conducting and holding examinations,
interviews and tests for purposes of making selection of
candidates for being appointed to divisional and District
Cadre;
Provided that the said Committee shall be presided over
H by a member of the Board nominated by the Chairman and
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 757
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
the other members of the Committee shall be nominated by A
the Chairman out of the panel or names drawn up and
approved by the Board from time to time in this behalf. The
selection made by the said Committee shall be approved by
the Board before the same is forwarded to the appointing
authority.
B
Provided further that in respect of selection for the posts
falling in the District cadre, the District Officer of the
discipline in which selection is required to be made, may
also be accepted as member in the said Committee.
Provided also that the Chairman of the Board may C
constitute District Level Selection Committees for each
district with Deputy Commissioner as Convenor/ Chairman
for selection of Patwaris, as one time exception, for the
year 1995 – 96.
“9-A. Notwithstanding anything contained in these rules, D
the Government may for any special employment drive
authorize the chairman to constitute following committees
for the conduct of examination/tests and for holding
interviews or both, as the case may be, for purposes of
selection of candidates for being appointed to the State/
Divisional/District cadre posts: E
I. State Cadre posts
1. Chairman or any other Member of the Board to be
nominated by the Chairman.
2. Head of the indenting Department or the Secretary of F
concerned Administrative Department.
3. Any other officer to be nominated by the Chairman.
II. Divisional Cadre posts
1. Member of the Board to be nominated by the Chairman, G
who shall be Convenor of the Committee.
2. Additional Commissioner of the concerned Division.
3. Head of the indenting Department.
H
758 SUPREME COURT REPORTS [2023] 3 S.C.R.
A 4. Any other person to be nominated by the Member of
the Board chairing the Committee.
III. District Cadre Posts.
1. Member of the Board to be nominated by the Chairman
who shall be the Convenor of the Committee.
B
2. District Employment Officer of the district.
3. District Head of the indenting office/Department.
4. Any other person to be nominated by the Member of
the Board chairing the Committee.
C
Provided that: -
(a) the Chairman may if he feels necessary coopt an expert,
specialist in the discipline in which appointment is to
be made in respect of the State Cadre post;
D (b) the Member presiding over the Divisional level Selection
Committee/district level Selection Committee may if
he feels necessary coopt an expert, specialist in the
discipline in which recruitment is to be made in respect
of Divisional/District cadre posts as the case may be;
E (c) The above Committees shall be presided over by the
Chairman/Member of the Board as the case may be;
(d) In case of special circumstances, the Board may
authorize the aforesaid Committee/Committees to
forward the select list to the appointing authority and
F this action shall be deemed to have the approval of the
Board;
(e) The District Employment Officers shall be responsible
to receive, compile and short-list applications for district
cadre posts;”
G ii) In June 2009, a three-member Selection Committee
constituted by the Chairman of the Board conducted
Interviews. The Committee comprised of Chairman of the
Board, Ms. Salma Hamid and Dr. Samina Farhat.
Thereafter, the marks awarded by the said Selection
Committee in the viva-voce/interview and the marks
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 759
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
awarded for the academic qualifications were tabulated for A
all candidates by way of a Final Award Roll. The Final Award
Roll was produced by the Board before the High Court and
was also secured by the petitioners through RTI.
iii) On 07th September, 2009, the Board approved the Select
List prepared by the Selection Committee. The approval B
letter enclosing the final Select List was signed by all seven
members of the Board. Two out of these seven members
were members of the Selection Committee along with a
subject expert who was appointed under Rule 9(iii). The
process of preparing the Select List was as under:
C
a. Interviews of short-listed candidates were held in a ratio of
1:5.
b. On completion of the interview, the award was sealed by
each member in an envelope and handed over to the Board
through the Convenor for further process. D
c. At the time of initiation of the selection process, the sealed
envelopes of the Convenor and Members of the Committee
were opened and fed into the computer for calculation and
addition of marks, obtained in the interview with the
weightage of academic marks as per the criteria framed E
for the purpose.
d. The basic data input of interview awards and correction in
academic merit was received through a pen drive for
consolidation and had been fed into the computer by the
Chairman himself, and checked by another member of the F
Board.
e. The entire record of selection had been perused by the
Board and was accordingly approved.
f. Select List was prepared on the basis of total marks
allocated for academic qualifications as well as marks G
secured in the interview.
14.6. In light of the pertinent selection procedure that was followed,
we are unable to hold that the same was mechanical or casual or suffered
from irregularities which were so grave or arbitrary in nature so as to
justify quashing the entire selection process. Further, we are unable to H
760 SUPREME COURT REPORTS [2023] 3 S.C.R.
A trace the requirement of individual rolls being signed and verified by the
members of the Selection Board, to any statute or rule. Therefore, we
cannot sustain the finding of the High Court that the entire selection
process was vitiated by such irregularity. The High Court was not justified
in quashing and setting aside the entire selection process, more so when
sixty-four candidates including the appellants had been serving on the
B
said post for over a decade.
Reliance in this regard may be placed on Trivedi Himanshu
Ghanshyambhai, wherein it was held that merely because the records
could not be produced since they were lost and not available, the
appointment could not be cancelled.
C
15. The next prong of the challenge relates to the competence of
the expert in the Selection Board, Dr. Samina Farhat, Assistant Professor,
Department of Pharmacology. The expert was a doctor by profession
with a Post Graduate degree (MD) and Ph.D. in Pharmacology to her
credit. Rule 9A of the 1992 Rules provides that the Chairman may if he
D feels necessary appoint a specialist in the discipline in which appointment
is to be made, as a member of the selection board. In the present case,
it is the contention of the writ petitioners that a person with a qualification
in the field of pharmacy would have been better suited on the panel. In
order to consider if there is any merit in this contention, it is necessary to
E discuss the meaning of ‘pharmacology’ as juxtaposed with ‘pharmacy.’
15.1. According to P. Ramanatha Aiyar’s Advanced Law Lexicon,
th
6 Edition, Vol. 3, ‘pharmacology’ is defined as, “the study of drugs.
Applied in analyzing and identifying drugs submitted as evidence.”
‘Pharmacy’ is defined as “a branch of knowledge or trade;
F the preparation and dispensing of drugs.”
As per the Oxford Concise Medical Dictionary, 7th Edition,
pharmacology is the science of the properties of drugs and their effects
on the body. Pharmacy on the other hand is the preparation and dispensing
of drugs. It defines a pharmacist to mean a person who is qualified by
G examination and registered and authorized to dispense medicines or to
keep open a shop for the sale and dispensing of medicines.
15.2. What emerges on a consideration of the said definitions is
as under:
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 761
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
i) The science of pharmacology and the practice of pharmacy A
are both concerned with a study of chemical substances
and how they affect the functioning of the body.
ii) In a nutshell, the main difference between pharmacology
and pharmacy is that pharmacology is the science of
developing and understanding the effects of drugs and other B
substances, while pharmacy is the science and practice of
collecting, preparing, standardizing, and distributing drugs
to patients after a medical professional orders a prescription
for a drug.
iii) Despite their differences, pharmacology and pharmacy have C
some similarities. Both fields are concerned with the use of
drugs in healthcare, and both require an understanding of
drug action, dosage, and potential side effects.
Pharmacology and Pharmacy are both important fields in
healthcare, but they differ in their focus and level of
advancement. Pharmacology is generally considered more D
advanced than pharmacy because it involves more complex
research into the mechanisms of drug action and the
development of new drugs.
15.3. We therefore, cannot hold that a doctor by profession with a
Post Graduate degree (MD) and Ph.D. in Pharmacology was in any E
way underqualified or unsuitable for her role on the Selection Board. In
fact, we think that a pharmacologist is more appropriate to interview the
candidates for the post of drug inspector. Further, it is to be noted that
Rule 9 A provides that the Chairman may if he feels necessary appoint
a specialist in the discipline in which appointment is to be made, as a F
member of the selection board. Similarly Rule 9 (iii) provides that the
Chairman may, if he feels necessary associate with the Selection
Committee expert/specialist in the discipline in which recruitment is to
be made. The use of the word ‘may’ would indicate that the Chairman
of the Board has discretion in this regard and there is no mandatory
requirement to appoint on the selection panel a person having a G
qualification in pharmacy. To this extent, we affirm the findings of the
learned Single Judge and the Division Bench of the High Court. We do
not find any substance in the arguments of learned counsel for the
respondent/writ petitioners in this regard.
H
762 SUPREME COURT REPORTS [2023] 3 S.C.R.
A 16. This Court has upheld the legitimacy of conducting interviews
as a part of a selection process, even where marks earmarked for the
same has been found to be prima-facie excessive, vide Minor A.
Peeriakaruppan etc. vs. State of Tamil Nadu, (1971) 1 SCC 38;
Miss Nishi Maghu vs. State of J & K, (1980) 4 SCC 95.
B 16.1. This Court in Lila Dhar vs. State of Rajasthan, AIR 1981
SC 1777 made the following pertinent observations as to the importance
of a viva-voce or interview in a selection process:
“It is now well recognised that while a written examination
assesses a candidate’s knowledge and intellectual ability, an
C interview test is valuable to assess a candidate’s overall intellectual
and personal qualities. While a written examination has certain
distinct advantage over the interview test there are yet no written
tests which can evaluate a candidate’s initiative, alertness,
resourcefulness, dependableness, cooperativeness, capacity for
clear and logical presentation, effectiveness, in discussion,
D effectiveness in meeting and dealing with others, adaptability,
judgment, ability to make decision, ability to lead, intellectual and
moral integrity. Some of these qualities may be evaluated, perhaps
with some degree of error, by an interview test, much depending
on the Constitution of the interview Board.”
E 16.2. The criteria for evaluation of a candidate’s performance in
an interview may be diverse and some of it may be subjective. However,
having submitted to the interview process with no demur or protest, the
same cannot be challenged subsequently simply because the candidate’s
personal evaluation of his performance was higher than the marks
F awarded by the panel. In this case the break up of the marks referred to
above is reiterated as under:
G
H
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 763
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
A
B
C
Only 20 out of 100 marks were allocated for interview/viva-voce. D
The same is only 20% of the total marks which cannot be said to be an
excessive proportion out of the total marks. Further Courts cannot sit in
judgment over the award of marks by an interview panel. That is best
left to the judgment and wisdom of the interview panel. In the above
premise, we do not think there is any merit in the contention of the writ
petitioners regarding the award of marks to the candidates who appeared E
for viva-voce before the panel. Moreover, the award of 80% of the
total marks is on objective criteria depending upon the educational
qualification of the individual candidates.
16.3. Further, it appears to us the criteria was recast vide
Corrigendum dated 12th June, 2009, by increasing the weightage accorded F
to candidates possessing a Degree in pharmacy or pharmaceutical
chemistry and advanced qualifications such as post-graduate degrees,
Ph.D etc., with a view to incentivise more qualified persons who had
applied for the said posts. Recasting the criteria was only with regard to
allocation of marks for the respective educational qualification of the G
candidates. In our view, it was with a view to preserve the standards of
the selection process and was not motivated by mala fide or oblique
motive. Higher the qualification a candidate possessed, higher marks
were awarded. In other words, the minimum marks awarded for
educational qualification was 65 and could increase to 80 depending on
H
764 SUPREME COURT REPORTS [2023] 3 S.C.R.
A the higher qualifications of the candidates. Therefore, we are unable to
interfere with the selection process on the ground that the award of
marks was recast unilaterally. The reallocation of marks based on the
educational qualification was in recognition of the higher qualification of
the candidates which cannot be termed to be arbitrary. It is a no brainer
that any candidate who was aggrieved by the recast of marks would
B
either withdraw his candidature or challenge the Corrigendum dated
12th June, 2009 at a preliminary stage in the selection process. However,
the writ petitioners did not do so. Having participated in the selection
process without any demur or protest, the writ petitioners cannot challenge
the same as being tainted with mala fides, merely because they were
C unsuccessful.
17. One of the directions issued by the learned Single Judge in the
Writ Petitions was to retain the successful candidates but, at the same
time, to consider the case of the writ petitioners for appointment in the
available posts. But if it was not possible to accommodate the writ
D petitioners, owing to non-availability of posts, then the entire selection
was quashed and set aside and a fresh Selection Committee was to be
constituted to conduct fresh interviews of all the candidates who had
earlier appeared before it and a fresh Select List was to be prepared.
Further, till the said exercise was to be carried out, the selected candidates
were to be continued. The Division Bench, however, quashed the
E Selection List in its entirety and directed and observed that no further
appointments could be made against the vacancies that may have
occurred subsequent to the appointments already made and that a fresh
selection was to be made by re-advertising the posts. Consequently, the
selection of drug inspectors was quashed in toto and a direction was
F issued to complete the exercise afresh within six months and till then,
the appointed candidates as drug inspectors were to be continued.
We find that the aforesaid directions issued by both the learned
Single Judge as well as by the Division Bench were not in accordance
with law and hence, the said directions have to be quashed.
G 18. In light of the aforesaid discussion, the present appeals are
allowed. The judgment of the learned Single Judge of the High Court of
Jammu and Kashmir at Srinagar, dated 18th December 2015 and the
impugned judgment passed by the Division Bench, dated 29th October,
2021, are set aside. Consequently, the judgment of the High Court of
H Jammu and Kashmir at Jammu dated 6th July, 2017 following the order
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 765
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
of the learned Single Judge of the High Court of Jammu and Kashmir at A
Srinagar, dated 18th December, 2015, is also set aside.
18.1. The candidates who were declared successful in selection
process conducted on 8th September, 2009, for appointment of drug
inspectors in the State of Jammu and Kashmir, and the appointments
published on 12th November, 2009, were permitted to continue in service B
by virtue of stay of the impugned judgment. The stay order is made
absolute.
18.2. All pending applications stand disposed of in the aforesaid
terms.
No order as to costs. C
Nidhi Jain Appeals allowed.
(Assisted by : Tamana, LCRA)
D
E
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "selection process"Sign in to search