“The selection of only respondents was supposed to be quashed. I haven’t read the copy of the order, but I heard that the entire selection list has been quashed”
K Koushal
Central Administrative Tribunal (CAT) today quashed and set aside the section list of 2016 Sub Inspectors (Executive and Armed) in J&K Police and directed the concerned authorities to prepare the selection list afresh in accordance with law and rules within the earliest period possible.
According to the order, the case of applicants was that vide advertisement dated 30.12.2016, applications were invited for posts of Sub Inspector (Executive/Armed Wings) in J&K police. Applicants seek the quashing of selection and consequential appointment of private respondent No. 4 to 38, who have been ‘illegally, arbitrary and unjustifiably’ selected and consequently appointed against the posts of Sub Inspectors (Executive/Armed) advertised vide advertisement notification No. Pers-A-400/2016/75303-403 dated 30-12-2016 issued by Director General of Police, Jammu & Kashmir Government, at the cost of petitioners by ‘blatantly’ disturbing the category wise breakup of posts as notified in the advertisement notice supra; violating the notified preference cum merit criteria as also Rule 7 of the J&K Special Recruitment Rules, 2015, notified vide SRO 202 of 2015 dated 30-06-2015 made basis of the selection process under reference and thereby ‘illegally’ directing the quota meant for the petitioners to private respondents.
Condition and clause of the advertisement reads, “The candidates shall clearly state their preference for Executive/Armed Wing at the time of filing their online application. This preference-cum-merit obtained in the selection process by the applicant shall form the basis of allocation of Executive/Armed wing to the applicants at the time of final selection,” it further reads, “The selection of the candidates for the post of Sub Inspectors shall be made on their performance in written test and vivavoce/personality assessment test visa-a-vis number of vacancies in their respective categories.”
The preference given by the candidates while applying for post either in Executive or in Armed Police plus merit obtained in the written viva-voce test shall form the basis of allocation of Executive/Armed wing to the applicant at the time of final selection. In case of tie in merit, the preference will be given to the candidate being older in age. The selected candidates shall have to serve in any part of the State as per the order in vogue or as may be issued from time to time.
Rule 5 (2): The Selection Committees referred to in sub-rule (1) shall make the selections as per the provisions of the Jammu and Kashmir Reservation Act, 2004 and rules framed thereunder.
Rule 7 : Mode of Selection:- (1) The selection agency shall invite applications for recruitment under these rules in respect of district, division or State cadre posts. After assessing the merit of the candidates in a fair and transparent manner, the selection agency shall prepare a select list which shall not exceed the number of vacancies so advertised and furnish the same to the appointing authority within a period of three months from the date of reference of the vacancies.
Giving reference of Rajesh Kumar Daria vs. Rajasthan Public Service Commission, (2007) 8 SCC 785 wherein dealing with a similar issue the Hon’ble Apex Court held as under: “The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SCs, STs and OBCs under Article 16(4) are ‘vertical reservations’. Special reservations in favour of physically handicapped, women, etc. under Articles 16(1) or 15(3) are ‘horizontal reservations’.
Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category.”
So, looking to the rules, advertisement etc as noted above, the process of selection can be said to consist of the following steps: A. Prepare a Master list in order of merit irrespective of preference and also marking the category to which the candidate belongs; B. Pick up one by one candidate from the Master list and place them as per their preference into the Executive list or the Armed list.
For example: I. advertised posts are 200 in Executive and 100 in Armed. II. Breakup of 200 is 150 in OM and 50 in other categories iii. Breakup of 100 is 75 in OM and 25 in other categories iv. Make a consolidated master list of all the 300 posts mentioning against each candidate, his preference and category; v. Distribute the candidates from the master list as per their preference into the Executive and Armed list till the list of 200 Executive and 100 Armed is exhausted; vi. Thereafter, from the leftover candidates in the master list, pick out the candidates of other categories and place them in their respective category to the extent of their quota.
The fallacy in the selection procedure adopted by the official respondents can be best demonstrated by the fact that 275 vacancies were advertised in the Executive Wing in open merit whereas 310 persons have been selected. As per the official respondents, the extra selection of 35 candidates belong to the other categories and vacancies in which categories have been correspondingly reduced. The procedure adopted by the official respondents is in violation of the settled law that ‘The entire reservation quota will be intact and available in addition to those selected under open competition category’.
Therefore, without further ado, and indisputably, the selection has not been prepared in accordance with rules and settled law and the validity of the selection list/s prepared in pursuance to advertisement notice No. Pers-A-400/2016/75303-403 dated 30.12.2016 cannot be upheld.
In view of the facts and circumstances of the case, the selection list/s of the Sub Inspector (Executive and Armed) in J&K Police prepared in pursuance to advertisement notice No. Pers-A-400/2016/75303-403 dated 30.12.2016 is quashed and set aside. Official respondents are directed to prepare the selection list afresh in accordance with law and rules within the earliest period possible.
However talking to The Typewriter, counsel of petitioners, Abhinav Sharma said that the selection of only respondents was supposed to be quashed. “I haven’t read the copy of the order, but I heard that the entire selection list has been quashed, ” said Abhinav Sharma, suggesting that ‘selection of only respondents has been quashed’ must be carried in reports.
