J&K HC | Statutory rules or executive orders would override an advertisement by Service Selection Board
Published on June 18, 2019By Devika Sharma
Jammu & Kashmir High Court: Ali Mohammad Magrey, J. while dismissing the present writ petition directed the respondent Service Selection Board to proceed ahead with the selection process in accordance with a communication dated 03-08-2018.
The facts of the case are that in the year 2015, a requisition was sent by the Director for direct recruitment of vacancies to the Service Selection Board (the Board) for the post of Junior Anesthesia Assistant, for which qualification was “10+2 with Science and Diploma in Anesthesia Technology from SMF or any other recognized Institute” for the districts Baramulla, Pulwama, Budgam and Kupwara. On the basis of these requisitions, the Service Selection Board advertised the posts of Junior Anesthesia Assistant on 02-12-2015.
On 18-12-2015, the Directorate of Health Services informed the Secretary to Government, Health & Medical Education Department that due to an error the qualification for the post of Jr Anesthesia Assistant was incorrectly mentioned. On 26-03-2012, by a Government Order (GO), it was communicated that the correct qualification is 10+2 with Diploma in Anesthesia/ Operation Theatre Technology; however, degree holders in Anesthesia/ Operation Theatre Technology would be preferred. Thereafter, by this order Board allowed the candidates to participate in the selection process. Years later, on 30-12-2018, a provisional selection list was notified on the basis of the Government Order dated 26-03-2012. Aggrieved by this notification, petitioners filed a representation before the Government which was forwarded to the Board. For clarification, the Director-General, Health services informed the Government that the qualification as per the GO dated 26-03-2012 be taken as the qualification for the said post. The Board was instructed/communicated dated 29-06-2018 to first appoint applicants who hold Diploma in “Anesthesia Assistant Technology” and if seats are not filled then the ones who have Diploma in “Operation Theatre Technology”. This communication was stayed by an order of the Court dated 04-07-2018. The Government withdrew its communication dated 29-06-2019 and instructed the Board on 03-08-2018 to start making selections by Government Order dated 26-03-2019. It is the last communication dated 03-08-2018 which has been questioned by the petitioners and seek a ‘Writ of Mandamus’ commanding the respondent Board to give effect to the notice dated 30-12-2017.
The respondent/Service Selection Board after stating the facts pleaded that the power to make selections is conferred to them by law. It was also contended by the Board that its sole work is to recruit therefore it cannot add or subtract any qualification and that a list of qualifications for a post is the prerogative of the concerned department/State and the Board has no role in laying down of qualification for a post.
It is well settled that prescribing qualifications is regulated by rules and regulations governing the field, however, in absence of such recruitment rules, the Government has the powers to notify the qualification by virtue of executive orders.
The post of Junior Anesthesia Assistant has no place in the J&K Non-Gazetted (Sub-Ordinate) Service Recruitment Rules, 1992, therefore, the Government came up with the notification through an executive order.
In the cases Malik Mazhar Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 and Ashish Kumar v. State of UP, (2018) 3 SCC 55 it was declared that in case variation between advertisement and statutory rules occurs, statutory rules would take precedence.
After taking note of the above facts and law laid down in the above cases, the health department directed the Board to make the selection as per the GO dated 26-03-2012.
The Court dismissed the petition for having no merit. [Javid Ahmad Mir v. State of JK, 2019 SCC OnLine J&K 542, decided on 03-06-2019]
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