Mr. Alok Aradhe, J.In this writ petition preferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of the State of Jammu and Kashmir, the petitioner inter alia seeks quashment of selection of Respondent No.6 on the post of Junior Engineer (Mechanical), State Cadre which was advertised pursuant to Advertisement Notice No.02 of 2014 dated 30.12.2014. The petitioner also seeks direction to the respondents to consider the case of the petitioner for selection/appointment to the post of Junior Engineer (Mechanical) State Cadre of Public Works (R & B) Department.

2. Facts giving rise to the filing of this writ petition briefly stated are that Services Selection Board issued an advertisement Notice dated 30.12.2014 inviting applications for filling up 80 posts of Junior Engineer (Mechanical) State Cadre in Public Works ( R & B) Department. Out of the aforesaid 80 advertised posts, 02 posts were advertised for Other Social Caste Category. The petitioner has obtained Masters Degree in Engineering (Mechanical) whereas respondent no.6 has admittedly Bachelor Degree in Engineering (Mechanical). The petitioner as well as respondent No.6 submitted their applications, pursuant to the aforesaid advertisement. All the candidates including petitioner and respondent no.6 were subjected to written test on 17.10.2015 which was followed by interview which was held on 24.02.2016. Thereafter select list dated 30.03.2016 was issued in which 46 candidates were selected for appointment in Open Merit Category and 15 candidates were kept in Wait List in the aforesaid category. The petitioner as well as respondent No.6 who belong to Other Social Caste Category secured 73 marks each. Admittedly the petitioner was given the weightage of 5 marks on account of his having higher qualification. It is also not in dispute that respondent No.6 has secured more marks in the written examination than the petitioner. However, the official respondents have selected respondent No.6 on the post in question. In the aforesaid factual backdrop, the petitioner has approached this Court.

3. Learned Senior Counsel for the petitioner submitted that the regulations framed by Jammu and Kashmir Services Selection Board (Business and Procedure) Regulations 2013 (hereinafter referred to as Regulations 2013) are not in force as the same never been published in the official gazette. It is further submitted that the Board has no power to frame such Regulations. In support of her submissions, learned counsel for the petitioner has referred to order dated 30.12.2015 passed in SWP No.1600/2015. It is further submitted that the selection ought to have been made as per the Jammu and Kashmir Civil Services (De-centralization and Recruitment) Rules 2010 (hereinafter referred to as Rules of 2010). In this connection, learned senior counsel for the petitioner has invited attention of this court to Rule 14 of the Rules of 2010 and has submitted that the petitioner was entitled to be appointed on the post in question as he is elder in age. In support of the aforesaid submissions, reference has been made to decision of Madras High Court in the case of J. Anvar Sathath v. The Tamil Nadu Public Service Commission and anr. It is further submitted that even in the absence of any provision providing for preference to the candidate who is elder in age, the respondent Board has consistently followed the practise of appointing the person who is elder in age. In support of aforesaid submission, reference has been made to various selection lists.

4. On the other hand, learned counsel for respondent No.6 has submitted that Section 15 of Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act 2010 (hereinafter referred to Act of 2010) empowers the State Government to frame rules for carrying out the purposes of the Act of 2010. In pursuance of the Section 15 of the Act of 2010, the State Government has framed Jammu and Kashmir Civil Services (Decentralization and Recruitment) Rules 2010. Attention of this Court has been invited to Rule 15 of the Rules of 2010, which provide that the Board has power to frame the regulations, to provide for the procedure and method for carrying out its functions under the rules. It has further been submitted that only requirement is that the regulations which are framed by the Board have to be approved by the General Administration Department before the issuance of the Regulations. It is also pointed out that by an order dated 17.11.2016, clarification has been issued by the State Government which provides that regulations shall come into force with effect from 15.10.2013 instead of its date of publication. Therefore, 2013 Regulations are in force. It is further submitted that the decision in the case of Puneet Sharma and others (Supra) has no application to the obtaining factual matrix of the case inasmuch as the validity of the aforesaid Regulations was not under challenge in the aforesaid decision. It is also pointed out that petitioner has secured 73 marks after giving due weightage to him as provided under the rules framed under the Act of 2010.

5. Learned counsel for respondent No.6 has also referred to select list dated 24.12.2013 to demonstrate that the Regulations have been consistently followed in case of tie between the two candidates and as per Regulations of 2013, the respondent No.6 has rightly been selected. Learned Deputy Advocate General for Respondents 1 to 5 has adopted the submissions made on behalf of learned counsel for respondent No.6 and has submitted that in fact the approval to the Regulations has been given by the State Government in the year 2013 itself i.e. on 15.10.2013 which has been placed on record was not noticed by a Bench of this Court in the decision of this Court in the case of Puneet Sharma and others (supra).

6. I have considered the submissions made by learned counsel for the parties and have perused the record. Section 15 of the Act reads as under:

"15. Powers to make rule

(1) The Government may, by notification in the Government Gazette, make rules for carrying out the purposes of the Act.

(2) Any rule made under this Act shall as soon as may be after it is made, laid before each House of the State Legislature.

From perusal of Section 15 of the Act of 2010, it is evident that it empowers the State Government to make the rules for carrying out the purposes of the Act in exercise of powers conferred under Section 124 of the Constitution of State of Jammu and Kashmir and Section 15 of the Act, 2010, the State Government has framed the rules under the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Rules, 2010. Rules 15 of the aforesaid Rules reads as under:

"15. Powers to make regulations

The Board may subject to the provisions of the Act and the rules made thereunder, if considered necessary, formulate regulations to provide for the procedure and method for carrying out its functions under these rules:

Provided that such regulations shall be approved by the Government in the General Administration Department before their issuance."

Thus under the Rules, the power to frame the Regulations has been conferred on the Board. It is pertinent to mention that the Act of 2010 does not empower the State Government to frame Regulations but only empowers the State government to frame rules. It is well settled in law that delegate on whom power to make subordinate legislation is conferred cannot further delegate that power (See Ganpati Singh Ji v. State of Ajmar AIR 1955 S C 188, and Arunachala Nadar v. State of Madras, AIR 1959 SC 300 ) Therefore, in exercise of powers under Rule 15 of the 2010 Rules, the Board cannot frame Regulations which in fact tantamount to sub delegation which is unauthorized by the parent statute namely the Act of 2010. Therefore, Regulations of 2013 have no legal sanctity in the eyes of law. The contention made by learned counsel for respondent NO.6 that Regulations of 2013 are still in force therefore is required to be stated to be rejected. Similar view has also been taken by a bench of this court in the case of Puneet Sharma and others (supra).

7. The candidature of the petitioner as well as respondent No.6 has to be tested on the touchstone of criteria laid down in Rules of 2010. Admittedly under Rule 14 of the 2010 Rules, the final selection has to be made by the Board on the basis of marks obtained in viva voce added to the marks obtained in the written test plus weightage which may be provided for any higher/additional/special qualification on pro-rata basis. It is not in dispute that the petitioner has been awarded 5 more marks for his M.Tech. qualification. It is also not in dispute that petitioner as well as respondent No.6 has secured equal marks.

8. There is no provision in Rules of 2010 with regard to selection of a candidate, if two candidates get equal marks. It is well settled legal proposition that if a practise is adopted for considerable time in the past which is neither against law or public policy can be treated as good practise in law. (See Union of India v. Alok Kumar (2010) 5 SCC 349 and State of U.P. v. Santosh Kumar Mishra (2010) 5 SCC 52). In the instant case from perusal of select lists of 2016 issued by the Board it is evident that the Board has followed the practise of appointing the candidate who is elder in age if two candidates secure equal marks.

9. In the absence of any provision in this regard in the Rules and in view of the fact that the past practise which is being followed by the Board which is neither contrary to any law nor against any public policy and in view of rival stand taken by the petitioner as well as respondent No.6 with regard to past practise, I deem it appropriate to direct respondent No.2- Board to consider the issue of appointment of the petitioner as well as respondent No.6 afresh in the light of the Rules of 2010 by a speaking order within a period of two months from the date of receipt of certified copy of the order passed today. Needless to state that the Board shall bear in mind the past practise which has been followed by it while making appointments to the post in question. The aforesaid exercise shall be carried out by the competent authority without being influenced by the fact that respondent No.6 has already been appointed. With the aforesaid directions, the writ petition is disposed of along with connected MPs.