Sunil Hali, J.

1. The public employment is a scarce commodity in economic terms. As supply is scarce demand is chasing that commodity.

2. Undoubtedly right to provide employment is sacred function of the State and desirable under the direct principle of State policy. The limitations are always economical. The story in the present case also falls in this backdrop.

3. State being model employer has to provide opportunities to all the eligible candidates who seek employment and the process of selection has to be fair and in accordance with the rules. It is in this process of providing fairness in the selection where State is invariably found, deficient and resultant effect is endless litigation.

4. The Excise Commissioner had ordered appointments against the available vacancies in respective departments which included Orderlies, Process Servers and Guards etc. in the year 1998-99 by taking benefit of order which empowered him to make appointments to the said posts. The appointments in pursuance to the direction of the Excise Commissioner were made to the said posts. The challenge was thrown to the said appointments in this court in a batch of writ petitions and all the appointments came to be quashed by this Court vide judgment dated 05.07.2000. State being aggrieved filed Letters Patent Appeal before this Court and ultimately the matter went upto the Apex Court who after hearing the parties dismissed the appeal on 16.09.2004 by passing the following directions:-

"No person illegally appointed or appointed without following the procedure prescribed under the law, is entitled to claim that he should be continued in service. In this situation, we see no reason to interfere with the impugned order. The appointees have no right for regularisation in the service because of the erroneous procedure adopted by the concerned authority in appointing such persons. Hence, the reliefs are required to be molded especially in view of the fact that the appellants were appointed as early as in the year 1997 and ever since they have been working as Orderlies, Process Servers, Guards etc. Moreover, the appointments of the appellants were made on the basis of the recommendations of the members of the Legislative Assembly and Legislative Council and on the basis of the decision made by the State of Jammu and Kashmir pursuant to a detailed discussion on the floor of the Legislative Assembly regarding lack of proper representation of rural masses as compared to urban candidates in Government jobs. Hence we, issue the following directions:-

1. All the vacant posts shall be notified for appointment and applications called for in accordance with the Rules within six months from the date of the receipt of the judgment.

2. All the appellants herein may be permitted to submit application for appointment against such notification.

3. As regards the upper age limit, these appellants shall be given relaxation but there shall not be any relaxation in the matter of the basic qualification for appointment to Class IV posts.

4. The appellants may be allowed to continue in service till such regular recruitments are made and these posts are filled up by a regular process of appointment."

5. In terms of the directions issued by the Apex Court, the posts were to be advertised afresh and all the eligible candidates were permitted to apply for the same. In case of persons who were beneficiaries of the earlier appointments, the relaxation was required to be given to them in the event they had crossed the upper age limit. Their continuance in the service was permitted till the regular appointments were made.

6. In pursuance to the directions (supra) respondents vide Order No.201 of 2005 dated 11.10.2005 constituted a State Level Selection Committee to fix the criteria for selection, which was to be given wide publicity to make the process transparent. It is stated that more than 47000 applications were received for the said posts. Since number of applications received were large in number in the proportion of 1:120 to the posts advertised, the short-listing procedure was adopted to a manageable ratio for the purpose of interview.

7. In respect of Chowkidars, Orderlies, Packers, the academic qualification upto 10+2 was allowed when basic qualification for the said post was only middle pass. It was done only to call the candidates in the ratio of 1:5 on the basis of the availability of the vacancies. In respect of Guards, the short listing was done on the basis of height and the basic qualification continued to remain as middle pass.

8. Aggrieved of short-listing for the posts of Excise Guards, some writ petitions came to be filed in this Court challenging the criteria of short-listing. It seems that this Honble Court vide its interim order passed in various writ petitions directed the respondents to interview the petitioners at their own risk and responsibility. In pursuance to the direction of the court, the petitioners numbering 117 were interviewed by the respondents. The said writ petitions came to be dismissed on 29.09.2006 as being infructuous after the learned Advocate General made a statement that all those candidates who had filed the writ petitions have been permitted to appear in the interview under the orders of the Court. The direction was passed in SWP 1241/2006 by virtue of which a batch of writ petitions were decided. The effect of this order is that the grievance of the petitioners regarding short listing was addressed.

9. In compliance to the direction of the Apex Court, an advertisement notice No.0l/ADM of 2005 dated 02.04.2005 came to be made public where under posts came to be advertised. The break up of the same was duly mentioned in the advertisement notice. In Jammu Division and Kashmir Division, the number of posts advertised along with break up is given hereunder below: -

Jammu Division:

Guards151

Orderlies73

Chowkidars04

Packers01

Kashmir Division:

Guards86

Orderlies68

Chowkidars05

Packers01





The following eligibility criteria was provided:-

V (i) Educational Qualification: The candidate should at least be middle pass,

(ii) Physical Standards (in case of Guards only): Height: Not les than 5 feet 4 inches.

Chest measurement:-

-Without expansion not less than 32 inches

-With expansion not less than 34 inches.

10. Vide Government Order No.201-F of 2005 dated 11.10.2005, the State Level Committee was constituted by the Finance Department in pursuance to the direction of the Supreme Court. The Committee was empowered to fix the criteria for selection and it was headed by the Commissioner Commercial Tax who was the Chairman and it consisted of five members. Vide Government Order No.119-F of 2006 dated 29.03.2006 in partial modification of Government Order No.201-F of 2005 dated 11.10.2005, three selection committees were constituted i.e. State Level Selection Committee, Divisional Level Selection Committee for Jammu Division and Divisional Level Selection Committee for Kashmir Division. The Divisional Level, Selection Committee for Jammu Division was headed by the Additional Commissioner Commercial Taxes (Adm.), Jammu and its four members.

11. The State Level Selection Committee in its meeting held on 27.04.2006, whereby entire process with regard to the mode and manner of making selection was enumerated. It was decided in the said meeting that in-service candidates whose selection was quashed by the Honble Supreme Court but were working in the Department would not be asked to go through the process of short-listing and all of them would be called for interview. This decision seems to have been taken in pursuant to the directions of the Supreme Court. The said decision was approved by the Administrative Department vide its order No. ET/ST/45/99-III dated 09.06.2006.

12. The following criterion was adopted by the Selection Committee:-

"During the interview aptitude/ personality will be tested. Each member shall have ten points at his disposal. Marks will be allotted out of these ten on the basis of performance, separately by each member of the committee. Marks awarded by individual members shall be consolidated finally for arranging the order of merit. In case a member is absent during a particular sitting the marks awarded by other members shall be concerted on the 50 points scale on proportionate basis. In case of tie the date of birth shall be taken into account and the elder candidate shall be given preference over the younger one."

13. The committee also decided the following:-

(a) The matter regarding short-listing for the posts of Orderly, Chowkidar and Packer, it was decided that number of candidates for these posts who needed to be interviewed i.e five times the number of posts, shall be picked up by draw of lots. This decision was subject to approval of the Administrative Department, and

(b) That in service candidates would not be required to go through the process of short-listing and all of them would be called for interview.

14. It emerges from the objections filed by the respondents that vide notification dated 04.07.2006, the short-listing of candidates by draw of lots for recruitment to class-IV posts in Excise and Taxation Department was dispensed with in pursuance to the directions issued by this Court in SWP 840 of 2006 titled Abdul Rashid Beigh and others v. State and others and height of 5ft 11 inches was fixed as basic requirement in respect of the candidates other than the in service candidates.

15. It seems that this notification was subject, matter of challenge in various writ petitions and the court vide its order dated 29.09.2006 on the statement of the learned Advocate General, who stated that all those candidates who were aggrieved of this notification have been interviewed in pursuance to the directions of this court, dismissed the writ petition as having been rendered infructuous.

16. What emerges from the aforesaid discussions is as under:-

(a) That short-listing of candidates by draw of lots in respect of Orderlies, Packers and Chowkidars was dispensed with,

(b) That all those persons who were aggrieved of short-listing in the matter of height for posts of Guards were also interviewed thereby rendering the short-listing criteria in respect of height ineffective.

17. It is important to mention that 117 candidates were interviewed in pursuance to the directions of the court on 12.08.2006.

18. Interviews in Jammu Province commenced on 24.07.2006 and were concluded on 11.08.2006. The in-service candidates were interviewed on 10th and 11th of August, 2006, whereas candidates who obtained direction from this Court were interviewed on 12.08.2006. The interviews were conducted by the Divisional Level Selection Committee and the award list prepared was sent to the Chairman of the State Level Selection Committee i.e. Excise Commissioner on 14.08.2006 in case of Guards. The award list in case of Orderlies, Chowkidars and Packers was sent by the Divisional Level Selection Committee to the Excise Commissioner on 31.08.2006 and the selection process concluded on 31.08.2006 and the select list was published in the daily English newspaper in its issue dated 10.02.2007.

19. It is this selection which is subject matter of challenge in this Court in various writ petitions.

20. I have heard learned counsel for the parties and perused the record. The challenge to the present selection list is on the following grounds:-

(i) That the persons who did not figure in the short-listing in respect of Guards have been selected,

(ii) That the persons with higher qualification have been ignored and no weight age has been given for higher qualification in the criteria set out by the respondents,

(iii) That the interview being the only method for selection, the bias of arbitrariness is inherent in such method.

21. On the other hand, the case of the respondents is that petitioners along with selected candidates were interviewed by the duly constituted selection committee on the basis of the criteria set out therein. The persons were selected on the basis of their merit. The perusal of the record reveals that a number of candidates interviewed are as below:-

1. Open category898

2. Scheduled Caste105

3. Scheduled Tribe108

4. OSC104

5. LAC35

6. RBA260

7. Candidates interviewed through the intervention of this Court117





22. It is further stated by the respondents that the last cut of was 12 in case of Class-IV posts and for Guards it was 15. It is important to note that 50% marks were reserved for interview and every member was given 10 marks each.

23. The first contention raised by the petitioners is that the persons who did not figure in the short listing criteria, find their names in the select list. This argument is advanced on the assumption that the persons whose selection was quashed and were allowed to continue in terms of the order of the court were not subject to the rigors of the short listing procedure. This according to the petitioners could not have been done as it was in violation of the advertisement notice. Their case in nutshell is that relaxation in respect of in-service candidates was only to the extent of relaxation in age and not for any other purpose.

24. The contention of the respondents on the other hand was that the Apex court after having moulded the relief had assured consideration of the appellants in the selection process, they could not be denied consideration in short listing. If they were knocked out at the short listing stage, same would contravene the direction of the Apex Court. It is further contended that the present petitioners were accorded consideration along with in-service candidates, now they cannot turn around and question the illegality in the selection process.

25. The question as to whether the Supreme Courts direction permitted that in-service candidates should not be subject to the test of rigors of short listing may not detain this court. It is not the case of the petitioners that they were knocked out at the short listing stage. Their only grievance is that in-service candidates have not been put to rigors of short listing criteria which was in contravention of the advertisement notice.

26. There is no dispute that the present petitioners participated in the selection process without any demur. They were subjected to the process of selection but could not make the grade. Otherwise also, all they were entitled to was right of consideration and sense of participation. The petitioners have been considered for appointment along with in-service candidates and were not knocked out at the short listing stage. They cannot complain that in-service candidates have been considered without putting them to the rigors of the short listing criteria. Those who were aggrieved of the short listing approached this court for being interviewed. Their plea was accepted and the court issued direction to the respondents to consider their case for appointments by allowing them to sit in the interview. 117 candidates were interviewed who had approached the court. Thus in my view, this plea of the petitioners is misplaced.

27. The Apex Court in various pronouncements held that if a candidate without any demur participates in the selection process, he is estopped from complaining that the advertisement and selection process were not in accordance with the Rules.

28. In AIR 2008 SC 1913 titled Dhananjay Malik and others v. State of Uttaranchal and others, the Apex Court held as under:-

"8...... This court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the selection committee was not properly constituted. In the present case, as already pointed out, the writ petitioners-respondents herein participated in the selection process without any demur they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done."

29. In another judgment reported in AIR 1991 SC 2248 titled as Sardara Singh and others v. State of Punjab and others, their lordship held as under:-

"4.......... It was next contended that instead of calling the applications by publication in the newspapers, only notice was put on the Notice Board of the Collectors office and some candidates submitted their applications in pursuance thereof and that is not a proper notification. Though we find that the procedure adopted by the Collector, in inviting applications is not commendable, but the grievance would be voiced only by the persons who did not have the opportunity to make applications within the prescribed period. But no such grievance could be raised by persons like the appellants. Under those circumstances, the procedure adopted, though irregular, does not vitiate the selection of candidates, ultimately made by the Committee.

30. The import of this judgment clearly reveals that the grievance can be raised by those persons who could have been denied the opportunities of participating in the selection process, but those persons who in pursuance of advertisement notice have participated in the selection process, which may even be in violation of the some of the conditions of the advertisement notice, cannot complain at a later stage that the same was not in consonance with law. Once they participate in the selection process, they cannot be permitted to raise such pleas.

31. In another case reported in 2005 SLJ (II) 423 titled as Dr. Irfan Rasool Gadda v. State and others along with connected matters, their lordships in head note have held as under :-

"Constitution of India Articles 14, 16 and 226:- Service law: Appointment/ Selection made in excess of post advertised-candidates who had already participated in selection process cannot challenge the selection on the ground that the selection has been made in excess of posts advertised."

32. The second contention raised is that the persons with higher qualification have been ignored and no weight age has been given for higher qualification in the criteria set out by the respondents. This again is a question which relates to the questioning criteria set out by the respondents. Once the petitioners have participated in the selection process, they cannot complain about it after they failed to make the grade. With their open eyes they participated in the selection process and after having failed to make the grade, cannot turn around in questioning the criteria.

33. The third contention raised by the petitioner is that the interview being the only method for selection, the bias of arbitrariness is inherent in such method. It be noted that selection was to be made for the posts of Class-IV. The respondents have adopted the short listing process, by virtue of which number of candidates were put on interview and brought down in the ratio of 1:5. It is not in dispute that the interview is also one of the methods for making selection. Where Rules did not provide for holding of a written test along with interview, it is not necessary that while making selection the selecting body must hold a written test and if such test is not held, the selection made on the basis of interview would not be bad in the eyes of law.

34. In another case reported in (1994) 6 SCC 293 , titled as Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar and another along with connected matters, their lordship held as under :-

"Where the selection is to be made purely on the basis of interview. If the applications for such posts are enormous in number with reference to the number of posts available to be filled up, then the Commission or the Selection Board has no option but to short-list such applicants on some rational and reasonable basis. Where selections are to be made only on the basis of interview, then such interviews/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate. The sole purpose of holding interview is to search and select the best among the applicants. It would be impossible to carry out a satisfactory viva voce test if large number of candidates are interviewed each day till all the applicants who had been found to be eligible on basis of the criteria and qualifications prescribed are interviewed. If large number of applicants are called for interview in respect of four posts, the interview is then bound to be casual and superficial because of the time constraint..."

35. The import of the judgment clearly reveals that when number of candidates are there and short listing procedure is adopted, then selection by interview is not bad provided such interviews are conducted scientifically. In the present case, there is no allegation that the interview was not conducted fairly. The vague allegation in some of the petitions would not cause any cloud on the manner in which the interview was conducted.

36. From the above discussion, I find no force in all these petitions, the same are, accordingly, dismissed along with connected CMP(s).

37. The Bench Secretary of this court is directed to return the record to the concerned counsel for the respondents against receipt.