# TAJVIR SINGH SODHI & ORS v. THE STATE OF JAMMU AND KASHMIR & ORS

- **Citation:** [2023] 3 S.C.R. 714
- **Court:** Supreme Court of India
- **Decided:** 2023-03-28
- **Case number:** Civil Appeal Nos. 2164-2172 of 2023
- **Bench:** K. M. Joseph, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tajvir-singh-sodhi-ors-v-the-state-of-jammu-and-kashmir-ors-36993
- **Pages:** 52

## Headnote

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
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,
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
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
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
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.
[2023] 3 S.C.R. 714
714
A
B
C
D
E
F
G
H
715
Selection process for public employment - Scope of judicial
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
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
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
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
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
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 Comm

## Text

_Characters 0–39,449 of 110,218. This is a partial read: ask again with offset=39449 for what follows._

A
B
C
D
E
F
G
H
714
SUPREME COURT REPORTS
[2023] 3 S.C.R.
TAJVIR SINGH SODHI & ORS.
v.
THE STATE OF JAMMU AND KASHMIR & ORS.
(Civil Appeal Nos. 2164-2172 of 2023)
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
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,
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
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
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
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.
[2023] 3 S.C.R. 714
714
A
B
C
D
E
F
G
H
715
Selection process for public employment - Scope of judicial
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
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
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
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
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
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
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
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU
AND KASHMIR & ORS.
A
B
C
D
E
F
G
H
716
SUPREME COURT REPORTS
[2023] 3 S.C.R.
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
an arbitrary manner while carrying out the selection process,
would not hold any water. [Para 12, 12.1][748-C-D; 750-G-H; 751A-C]
1.2. It is 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 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
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
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
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
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]
A
B
C
D
E
F
G
H
717
1.4. In light of the pertinent selection procedure that was
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
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;
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
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]
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
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.
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
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU
AND KASHMIR & ORS.
A
B
C
D
E
F
G
H
718
SUPREME COURT REPORTS
[2023] 3 S.C.R.
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
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
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
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
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
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
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
A
B
C
D
E
F
G
H
719
would 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 unsuccessful.
[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
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
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 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
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
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]
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU
AND KASHMIR & ORS.
A
B
C
D
E
F
G
H
720
SUPREME COURT REPORTS
[2023] 3 S.C.R.
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:
[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.
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;
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
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;
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]
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)
6 SCC 282 : [1996] 5 Suppl. SCR 361; M. V. Thimmaiah
A
B
C
D
E
F
G
H
721
v. Union Public Service Commission (2008) 2 SCC 119
: [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
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.
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.
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
(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
[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
[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
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU
AND KASHMIR & ORS.
A
B
C
D
E
F
G
H
722
SUPREME COURT REPORTS
[2023] 3 S.C.R.
(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
[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
[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
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)
(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)
[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
[1982] 1 SCR 320
referred to
Para 16.1
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 21642172 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
2015, 278, 279, 12, 97, 98, 105, 134 and 135 of 2016.
A
B
C
D
E
F
G
H
723
With
Civil Appeal Nos.2182-2190, 2191-2199, 2200, 2173-2181, 22012203, 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
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,
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
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
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
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. 2079020798 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
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
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU
AND KASHMIR & ORS.
A
B
C
D
E
F
G
H
724
SUPREME COURT REPORTS
[2023] 3 S.C.R.
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
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.
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
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.
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").
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
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
A
B
C
D
E
F
G
H
725
(b) The candidate must be a graduate in Medicine or Science
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
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:
5.3. After receipt of application forms for the post of drug inspector
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
selection as under:
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
726
SUPREME COURT REPORTS
[2023] 3 S.C.R.
5.4. On 8th September, 2009, the Board published the Select List
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
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
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
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:
A
B
C
D
E
F
G
H
727
a)
That the candidates appointed as drug inspectors had acquired
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
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
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
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
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.
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:
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
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
728
SUPREME COURT REPORTS
[2023] 3 S.C.R.
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.
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
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
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.
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:
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)
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
A
B
C
D
E
F
G
H
729
the effects of the medicine as well as the ways in which
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
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
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
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
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
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
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
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
730
SUPREME COURT REPORTS
[2023] 3 S.C.R.
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
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
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
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
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,
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.
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
A
B
C
D
E
F
G
H
731
required constitute a Selection Committee to conduct fresh
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
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
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
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
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
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
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.
TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU
AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
732
SUPREME COURT REPORTS
[2023] 3 S.C.R.
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:
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.
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
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
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
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
is to be made" was omitted by the Division Bench.