Holding

The Supreme Court held that the Division Bench erred in interfering with the selection process; the Rules were to be applied as written and the High Court’s re‑framing of criteria was unjustified.

Summary

The Jammu & Kashmir Power Development Department recruited Junior Engineers (Electrical) under its 1981 Service Rules, which required either a degree or a diploma and made no distinction between the two at the recruitment stage. Unsuccessful degree‑holder candidates challenged the selection list, but the High Court Single Judge dismissed the writs, holding the criteria (80 points for education, 20 for viva) were uniformly applied. A Division Bench of the High Court set aside that judgment, directing the Board to re‑frame criteria giving greater weightage to degree holders, reasoning that degrees are a higher qualification. The Supreme Court held that the High Court had no authority to alter the selection criteria because the Rules themselves were unchallenged and already provided a balance, including higher post‑recruitment pay for degree holders. Consequently, the Court allowed the appeals, set aside the Division Bench’s order, and affirmed the Single Judge’s dismissal of the writ petitions.

Issues considered

Whether the High Court Division Bench was justified in interfering with the selection criteria not prescribed in the Service Rules.
Whether degree holders can be given higher weightage than diploma holders in recruitment when the Rules make no distinction at that stage.
Whether candidates who participated in and failed the selection process are estopped from challenging the selection criteria thereafter.
Whether the Service Rules are discriminatory and can be read down or struck down by the court.
Whether the executive's discretion under the Rules can be overridden by judicial fiat.

Subjects

service lawrecruitmentmerit selectiondegree versus diplomaselection criteriaestoppeljudicial reviewexecutive discretionequalitydisability act

Judgment

j> SANJA Y KUMAR AND ORS. A
v.
NARINDER VERMA AND ORS.

MAY 8, 2006

[B.N. SRIKRISHNA AND LOKESHWAR SINGH PANTA, JJ.] B
Service Law: Jammu and Kashmir Power Development Department
(Subordinate) Service Rules, 1981-Recruitmentfor post ofJunior Engineer
(Electrical)-Eligible candidate required to possess either a Degree or
Diploma in Electric/Electronic Engineering-Ru/es not providing for any
preferential treatment for either category ofcandidates-High Court holding c
that degree holders being higher in qualification, they could not be equated
with Diploma holders-Correctness of-Held-Interference with selection
process on basis ofcriteria which were not laid down in Rules was unjustified
especially as there was no challenge to Rules-What executive did not think
fit to do by prescription in Rules, could not be done by a judicial fiat. D
Service Selection Recruitment Board of State conducted recruitment
for the post of Junior Engineer (Electrical) in accordance with Jammu
and Kashmir Power Development Department (Subordinate) Service
Rules, 1981. These Rules required that eligible candidate should possess
t>ither a Degree or Diploma in Electric/Electronic Engineering, and did E
not provide for any preferential treatment for either category of
candidates. The selected candidates included Degree holders as well as
Diploma holders. Some of the unsuccessful Degree holders challenged the
selection list by their writ petitions. A Single Judge of High Court held
that the writ petitioners having participated in the selection process and
F
failed, were estopped from challenging the criteria adopted for the
selection. It was also held that the criteria adopted had been made
available uniformly to all the candidates; 80 points had been given for
~ educational qualifications and 20 marks had been assigned for the viva
'
voce which was a proper method of selection and no objection could be
taken thereto. However, Division Bench held that the Degree holders G
being higher in qualification and that the executive while prescribing the
eligibility qualification had not prescribed the method and procedure to
assess the suitability and merit of the candidates possessing un-equal or
superior qualification to that which can make the post functional. It held
that the Degree holders cannot thus be equated with Diploma holders,
H
59
60 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A and criteria of 80 points cannot be applied uniformly to both differently
situated. Therefore, the selection to the extent was not maintainable.
Hence the present appeal.

Disposing of the appeals, the Court

B HELD : There was no challenge to the Rules in the writ petition.
The Single Judge was therefore, justified in applying the Rules and
upholding the selection process made by the State authorities. It was
wholly unjustified on the part of the Division Bench to have interfered
with the selection process on the basis of the criteria which were not laid

c down in the Rules and that too on an erroneous appreciation of the Rules.
The High Court failed to see that the Rules made no distinction,
whatsoever, between the Degree Holders and Diploma holders at the
stage ofrecruitment for the purpose of minimum qualifications. In others
words, no distinction was made between the two categories at the stage
of recruitment, but a greater weightage was given to the Degree holders
D in the post-recruitment period in the form of higher starting pay and also
lesser number of years service requirement for qualifying for promotion
to the higher post. (67-E-G)

University uf Cochin v. NS. Kanjoonjamrna and Ors., ( 1997] 4 SCC
426 and Uniun uf InJia and Anr. v. N. Chandrusekhurun and Ors., (1998)
E 3 sec 694. relied on.

Umesh Chandra Shukla v. Union of India and Ors.. (1995) 3 SCC 721,
distinguished.

f 2. There was sufficient inbuilt balance maintained between the two
categories of candidates and the impugned judgment of the High Court
completely throws the Rules out of balance. What the Executive did not
think fit to do by prescription in the Rules, could not have been done by
a judicial fiat. (67-G-H, 68-A]

G CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5430-5434
of 2004.

From the Judgment!Order dated 29.5.2000 of the High Court of Jam mu
and Kashmir at Jammu/Srinagar in L.PA Nos. 18511999, 194i99, 289199.
290/99 and 626/99.
H
SANJA Y KUMAR v. NARINDER VERMA [SRIKRISHNA, J.] 61

WITH A
Civil Appeal Nos. 5435-5439/2004, 5440-5444/2004, 5445/2004, 5446-
5450/2004 and 5451/2004.

V.R. Reddy, R.L. Khurana, Raju Ramachandran, M.L. Bhat, Sr. Advs.,
Sunil Murarka, M.C. Dhingra, Gaurav Dhingra, Anis Suhrawardy, Naresh B
Kaushik, Mrs. Lalita, Kaushik Parmanand Gaur, E.C. Agrawala, Mahesh
Agrawala, Rishi Agrawala, Mrs. K. Sharda Devi, P.D. Sharma, P.P. Singh,
Ms. Pumima Bhat Kak, G.M. Kawoosa, N. Ganapathy, Tanveer Ahmed Mir,
Arvind Kumar Gupta, Advs., with them for the appearing parties.

The Judgment of the Court was delivered by c
SRIKRISHNA, J. : This group of appeals arises from the same set of
facts and from the same impugned judgment of the Division Bench of the
High Court of Jammu & Kashmir, hence, it w·ould be convenient to decide
all these appeals by a common judgment.
D
On 12.6.1997 the Government of Jammu & Kashmir, Power
Development Department, by a notification amended the Jammu & Kashmir
Power Development Department (Subordinate) Service Recruitment Rules,
1981 (hereinafter referred to as "the Rules"). The amendment was as under:
E
"(A) In part 'A' of Schedule II (Executive), for class-I, the following
shall be substituted, namely :-

'l"A' Junior Engineer (Elect) 100% by promotion from
Grade-I (Selection category 'B' provided that :-
Category) 2125-3600 F

(a) Degree Holders possess at
least 5 years service as such;
and

(b) Diploma Holders possess at G
least I0 years service as such

'B' Junior Engineer (Elect) Bachelors Degree in Electric/Electronic
Grade-II 1400-2300 Engineering or three years Diploma
in Electric/Electronic Engineering. H
62 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
,.
A (a) 85% direct recruitment; and

(b) 15% by promotion from amongst
three years Diploma Holders in
Electric/Electronic Engineering
from Recognised Polytechnic
B Institution having at least 5 years
service in Class-III category 'A'.

B. The following Notes shall be added after note (2) at the end of '
the Part (A) of the schedule :-
c
(3) 'The existing Junior Engineers (Degree Holders) in the pay scale
of 2000-3400 (revised) shall, however, retain their own pay scale
till they are promoted as Assistant Engineers (Elect). The posts thus
vacated by them on their promotions shall be automically (sic)
converted into the scale of Junior Engineer Grade-II.
D
(4) Degree Holders in Electric/Electronic Engineering on recruitment
as Junior Engineer Grade-II shall be given a higher start on Rs. 1720
per month in the pay scale of Rs. 1400-2300.

E (5) The Diploma Holders having acquired AMIE (Section 'A'&
'B') qualification shall also on appointment as Junior Engineers
Grade-II be entitled to a higher start of Rs. 1720 per month.

(6) Similarly, a Diploma Holder functioning As (sic) Junior Engineer
Grade-II and drawing pay at a stage lower then Rs. 1720 per month
F
shall be entitled to refixation of his pay at the stage of Rs. 1720 per
month on acquiring AMIE (section A&B) qualification'."

The amended Rules require that for being eligible as a Junior Engineer
(Electrical) a candidate must possess either a Degree or Diploma in Electric/
G Electronic Engineering. The Rules nowhere provide for any preferential
treatment for either category of candidates. The Power Development
Department made a requisition to the Service Selection Recruitment Board
(hereinafter referred to as "the Board") for selecting Junior Engineers
(Electrical) Grade-II. On a query raised by the Board the Power Development
H Department clarified on 19.9 .1997 that "there is no net:dljustification for any
SANJAY KUMAR v. NARINDER VERMA [SRIKRISHNA, J.] 63

quota to be laid down for intake of Diploma holders or Degree holders A
through direct recruitment as Junior Engineers (Electrical/Electronic)" and,
further that, selection for Junior Engineers had to be entirely on the basis
of merit. It was further clarified that "The methodology of determining merit
amongst candidates having different educational qualification should be
decided by the SSRB, to whom these posts have been referred."
B
An advertisement was issued inviting applications for the post of Junior
Engineers (Elect) Grade-II in the grade of Rs. 1400-2300 (pre-revised). The
prescribed qualification for the said post was indicated in the advertisement
as "BE/AMIE (A&B) India/ Diploma in Electric/Electronic Engg." Several
candidates holding either a Diploma or a Degree, as prescribed, applied for
the post. They were called for interviews for selection. Out of the 2229
c
candidates, who had applied, about 300 were selected and put on the
Selection List and some more candidates were maintained on a waiting list.
The result of the selection process was published on December 25, 1998. The
selected candidates joined their duties some time in 1999. Out of the 300
selected candidates, 153 were Degree holders and 147 were Diploma holders. D
Some of the unsuccessful Degree holders challenged the Selection List by
their writ petitions. The learned Single Judge who heard the writ petitions
took the view that the writ petitioners having participated in the selection
process and failed, were estopped from challenging the criteria adopted for
the selection. The learned Single Judge also held that the criteria adopted
E
had been made applicable uniformly to all the candidates; 80 points had been
given for educational qualifications and 20 marks had been assigned for the
viva voce, which was a proper method of selection and no objection could
be taken thereto. In this view of the matter, by a judgment dated 30.4.1999
the learned Single Judge dismissed the writ petitions.
F
A number of Letters Patent Appeals were carried against the dismissal
of the writ petitions. The Division Bench of the High Court by the common
impugned judgment set aside the judgment of the learned Single Judge,
allowed the Letters Patent Appeals and directed re-framing of the criteria for
selection for assessment of the candidates on the basis of re-framed criteria.
Being aggrieved thereby, the present appeals have been filed. Some are by
G
the selected candidates, some by the unselected candidates and some by the
Selection Board.

The Division Bench observed, "The Degree holders being higher in
qualification and that the Executive while prescribing the eligibility H
64 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A qualification has not prescribt:d the method and procedure to assess the
suitability and merit of the candidates possessing un-equal or superior
qualification to that which can make the post functional. The Degree holders
cannot thus be equated with Diploma holders. Criterian of80% marks cannot
be applied uniformally to both differently situated. Therefore, the selection
to the extent cannot be maintained and the judgment of the learned Single
B Judge needs interference. "In this view of the matter, while allowing the
Letters Patent Appeals, th~ High Court gave the following directio~s. :

"I. Criteria, reserving 80 marks for eligibility qualification and
applying these marks uniformally. proportionate to the marks
C secured in Diploma and Degree Courses, to assess the merit
and suitability of the Degree holders vis-a-vis Diploma holders
is set aside.

II. 20 marks for Viva-voce are maintained. The Viva-voce test
and its award by the Selection Committee, as a consequence
D of the Vica-voce, is also maintained.

III. The Board shall re-frame the criteria within 80 marks, reserved
for eligibility qualification, giving adequate weightage to the
higher qualification of Degree; and

E IV. The candidates shall be re-assessed by the Board according to
the re-framed criteria for determining their merit and suitability
and issue the Select List before August 31. 2000.''

The grievance of the Diploma holders-appellants in these appeals is that
F the High Court was wholly. unjustified in interfering the process of selection
and directing the State to grant higher weightage to Degree holders, although
there is no such weightage given to Degree holders under the Rules. Learned
senior counsel appearing for the appellants pointed out that the Rules, as .,_
framed, had never been challenged in the writ petitions. He urged that once
the rules are to be followed, it is not open to the High Court to ignore the •,
G rules and introduce a criterion which is not even contemplated by the
applicable rules.

Our attention was invited to the amended Rules. which do not make
a distinction between Degree holders and Diploma holders at the stage of
H direct recruitment. However, at the stage of promotion, such a distinction is
SANJA Y KUMAR v. NARINDER VERMA [SRI KRISHNA, J.] 65

maintained. The post of Junior Engineer (Elect) Grade-I is a promotional A
post, which is to be filled only by promotion from the category of Junior
Engineer (Elect) Grade-IL While the appointment to the latter feeder
category was equally open to Degree holders or Diploma holders without
distinction : For the purposes of promotion to higher post of Junior Engineer
(Electrical) Grade-I, Degree holders need to possess only a minimum of 5
years service while Diploma holders require at least I 0 years service. Further,
B
the Rules also make a distinction between Degree holders and Diploma
holders, in that the Degree holders on recruitment as Junior Engineer (Elect)
Grade-II are given a higher start in the pay scale. Learned counsel, therefore,
contended that where the Executive thought it necessary to make a distinction
between degree holders and Diploma holders by according higher weightage c
to Degree holders, the Rules had been so framed. As indicated in the Rules,
·the higher weightage to Decree holders was available by way of a higher
start and at the time of promotion to the higher category. Such differentiation
or difference in weightage was not available under the Rules at the time of
direct recruitment to the lower post of Junior Engineer (Elect) Grade-II. It D
was, therefore, submitted on behalf of the appellants that, the High Court
was not justified in making a departure from the Rules and introducing its
own criteria of higher weightage in favour of Degree holders in the manner
of recruitment.

Learned counsel further contended that, once that Rules had been E
framed in exercise of the Constitutional powers by the Executive (which
were not even challenged in the writ petitions), it was not open to the High
Court to depart therefrom. It is, therefore, contended that the Rules have an
inbuilt system of higher weightage in favour of Degree holders, as already
indicated, and if further weightage were to be given, as directed by the High F
Court, then the Diploma holders, would be totally out of the fray. Any such
additional weightage given by the High Court would be unjust and inequitable.
The plea of the Diploma holder is supported by the learned counsel appearing
for the Board in Civil Appeal Nos. 5446-5450/2004. The learned counsel
also urged that there was no challenge made to the Rules and, therefore, it
was impermissible for the High Court to depart from the Rules. G
Reliance was also placed by the learned counsel for the appellants on
the judgment of this Court in University of Cochin v. N.S. Kanjoonjamma
and Ors., (1997] 4 SCC 426 to canvass that where the concerned rules are
not challenged and the candidates participate in the selection process and H
66 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A become unsuccessful, such candidates are estopped from challenging the
procedure thereafter. The reliance on the judgment appears to be justified.

Our attention was also drawn to the observations of this Court made
in Union vf India and Anr. v. N. Chandrasekharan and Ors., [ 1998] 3 SCC
694 (Vide paragraph 13) in support of the same proposition.
B
Mr. Raju Ramachandran, learned senior counsel appearing for the
Third Respondent in Civil Appeal Nos. 5430-34.'2004, however, urged that
one of the grounds of challenge before the Division Bench was that the
statutory qualification was discriminatory. He, therefore, contended that in
view of the said contention it was open to the High Court to read down the
c offending rule instead of striking it down. Having read the portion of the
impugned judgment on which this argument is based, we are not satisfied
that such a contention was really urged. It is not in dispute that the writ
petitions were not directed towards challenge to the applicable Rules. Merely
because an argument was made in the Letters Patent Appeal that the Rules
D were discriminatory, it was not open to the High Court to have struck down
the Rules. The Letters patent Appeals could have proceeded only on the basis
of the writ petitions and the judgment of the learned Single Judge, which
wa; being challenged. There being no substantive challenge to the Rules,
there was no question of striking down the Rules, nor was there any situation
,,f reading down the Rules. Reliance placed by Mr. Raju Ramachandran un
E the judgment of this Court in Umesh Chandra Shukla v. Union of India and
Ors . [ 1985] 3 SCC 721 is of no avail. That was entirely a different situation
where this Court was of the view that the applicable Rules had not been
followed as the select list had been interfered with by exercising a power
which did not anse from Rule 18 of the applicable Rules to fix the minimum
F marks in order to include candidates in the final select list. Such is not the
situation before us and, therefore, this authority is of no help to us.

The contention uf Mr. Kaushik, learned counsel appearing in Civil
Appeal No. 5451 /04 for the selected Degree holder candidates also echoes
the argument of Mr. Ramachandran. He further contended that one of the
G appellants in Civil Appeal No. 5451104 is a disabled person, who has not
been given his right under the provisions of the Jammu &Kashmir Persons
with Disabilities (Equal Opportunities, Protection of Right & Full Participation)
Act, 1998 (hereinafter referred to as the "1998 Act"). He, therefore,
contended that the appellant who has been appointed and continues to be in
H service since 2002 ought not to be disturbed. We express no opinion on this
SANJA Y KUMAR v. NARINDER VERMA [SRIKRISHNA, J.] 67

issue. If it is found by the concerned authority that the appellant is a disabled A
person entitled to be appointed by reason of the provisions of the 1998 Act,
then his service may not be disturbed.

The respondents in Civil Appeal Nos. 5435-5439/04, and the interveners
who are now in the Select List as a result of the new criteria imposed by
the impugned judgment of the High Court, contended that the new criteria B
formulated by the State pursuant to the direction of the High Court are more
sophisticated and enable better appreciation of merit than the ones which
were there under the Rules. It is contended that since the new criteria are
more rational, this Court should refrain from interfering with the judgment
of the High Court Learned counsel for the respondents also claimed that C
since these screening and selection of the candidates had already been taken
place in accordance with the new criteria, we should direct their retention
in service.

Conclusion :
D
Civil Appeal Nos. 5430-543412004, 5435-543912004, 5440-544412004. 5446-
545012004 and 545112004 :

Having heard the learned counsel on both sides for the different
contending parties, we are of the view that the impugned judgment of the E
High Court needs to be interfered with. As already observed, there was no
challenge to the Rules in the writ petition. The learned Single Judge was,
therefore, justified in applying the Rules and upholding the selection process
made by the State authorities. It was wholly unjustified on the part of the
Division Bench to have interfered with the selection process on the basis of
the criteria which were not laid down in the Rules and that too on an F
erroneous appreciation of the Rules. The High Court failed to see that the
Rules made no distinction, whatsoever, between Degree holders and Diploma
holders at the stage of recruitment for the purpose of minimum qualifications.
In other words, no distinction was made between the two categories at the
stage of recruitment, but a greater weightage was given to the Degree holders G
in the post-recruitment period in the form of a higher starting pay and also
lesser number of years service requirement for qualifying for promotion to
the higher post. We agree with the contention expressed by the learned
counsel for the appellants that there was sufficient inbuilt balance maintained
between the two categories of candidates and the impugned judgment of the
High Court completely throws the Rules out of balance. What the Executive H
68 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A did not think fit to do by prescription in the Rules, could not have been done
by a judicial fiat.

In the result, the appeals are allowed and the impugned judgment of
the Division Bench of the High Court is set aside, and the judgment of the
learned Single Judge dismissing the writ petitions is affirmed.
B
Civil Appeal No. 544512004 :

Consequently, this appeal arising out of the judgment of the Jammu
& Kashmir High Court in Contempt Petitions Nos. 150, 152, 159 and 160
of 2001 is dismissed.
c
No order as to costs.

v.s. Appeal disposed of.