H. Imtiyaz Hussain, J.@mdashSince common issues for determination arise in these appeals, all these cases are for connivance (sic) sake, taken up
for consideration and disposal by this common judgment.
2. These appeals are directed against the judgment of 3rd Additional District Judge, Srinagar in file nos: 10/numberi, 13/Numbri, 22/Numbri,
16/Numbri of 1998 dated 3 1.8.2006,22/Numbri of 1999.
3. The brief facts and the earlier history of the case is that respondent-Bank (J&K Bank Ltd.) notified various posts of cashier-cum-clerk/typist-
cum-clerk in the pay-scale of Rs. 1750-4775 vide advertisement notice No. Per/Rectt/97-1580 dated 2.6.1997. The appellants in CIA Nos:
67,68 & 69 of 2006 and 58 of 2007 alongwith other eligible candidates applied but they have not been selected. Feeling aggrieved of their non-
selection they alongwith some other unsuccessful candidates who have now withdrawn from these cases, filed separate suits before the trial Court
which were heard and disposed of by the Additional District Judge, Srinagar by a common judgment dated 16.7.2003. The Court dismissed the
suits of the petitioners as it found that the selection made was in accordance with the rules. Against the said judgment the appellants filed four
separate appeals bearing CIA Nos. 85/2003, 86/2003, 106/2003 and 113/2003 before this Court which were heard and disposed of by a
common judgment by this Court dated 23.12.2004. This Court remanded the case to the trial court with certain observations. The matter has now
been considered by the trial court (3rd Additional District Judge, Srinagar) and by means of the judgments impugned he has again dismissed the
suit of the appellants in CIA Nos: 67,68,69 of 2006 and 58 of 2007, while as he has allowed the suit in respect of (Plaintiffs) Mushtaq Ahmad
Darzi and Gulshan Mohd. Mugloo.
4. It is against the dismissal of the suits that CIA Nos: 67, 68 & 69 of 2006 and 58 of 2007 have been filed.
5. Respondent Bank has filed separate appeals CIA No. 92 & 93 of 2006 against the judgment and decree of the trial Court in favour of above-
mentioned plaintiffs.
CIA NO: 67,68 & 69 of 2006 and 58 of 2007.
6. Before proceeding further to examine the legality of the judgment and decree under challenge, it may be stated here that in CIA NO: 58 of 2007
a petition for condonation of delay (COD NO: 183 of 2007) has been filed. On the grounds mentioned in the petition the same is allowed and the
main appeal is taken for consideration alongwith CIA NO: 67,68 and 69 of 2006.
7. Selection and appointment made by the respondents, which is impugned in these proceedings has been made by the respondents according to
the procedure notified in clause 3 of the advertisement notice, which reads as under:
3. Selction procedure.
Eligible candidates whose application received complete in all respects and within the stipulated time of 20th June, 1997 will be called for a
written examination to be held at Sgr./Jammu candidates who qualify the written examination on the basis of their merit in the examination will be
called for interview and scrutiny of original testimonials. The decision of the bank regarding selection of the candidates shall be final and binding
upon the candidates.
8. Total marks fixed for the written test and interview were 200 out of which 150 marks were fixed for written examination which was got
conducted through IBPS, Bombay. No objection has been raised by the candidates to this examination. The appellants have also qualified in the
written examination and were, therefore, called for interview for which a Committee comprising the following persons was constituted:
a. Prof. Abdul Wahid Quareshi.... Chairman
b. M.I. Shahdad,.... Member
c. D.S. Rana,.... Member
d. D.V. Gupta,.... Member
9. Out of the total 200 marks fixed 50% marks (i.e. 25%) were fixed for viva-voce. The appellants feel that this was on higher side and excessive
and had been fixed to defeat the merit of successful candidates including the appellants and by fixing such a high percentage for marks the selecting
authority has converted the merit of meritorious candidates into demerit due to which most of such candidates included the appellants got excluded
and have therefore been dropped.
10. The Court framed as many as 14 issues in the suits the main issue relating to the said plea is issue No. 4 which was as under:
In case the issue No. 2 is proved in affirmative then 25% marks allotted for viva-voce is on the higher side and has tilted the merit balance,
therefore, the selection is bad in law? OPP
11. The trial court in the earlier judgment (dated 16.7.2003) referred to various cases of the Apex Court and found that the percentage fixed for
the viva-voce examination was proper. The Court relied on following cases: Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, ,
Ashok Kumar Yadav and Others Vs. State of Haryana and Others, , Lila Dhar Vs. State of Rajasthan and Others, , Anzar Ahmed Vs. State of
Bihar and others, and Madan Lal and Others Vs. State of Jammu and Kashmir and Others, .
12. While considering the appeal this Court vide judgment dated 23.12.2004 found that the court had gone only to the legal aspect of the matter, it
should have considered the evidence on file and also the record to see whether the marks have been awarded in such a manner which converted
merit of the appellants into demerit. This Court directed as under:
The trial court should have, therefore, applied these authorities in light of the peculiar features of the case. The trial Court should have gone to the
factual side besides the legal position to see as to whether in the facts and circumstances of the case fixation of 25% marks for viva-voce is so
arbitrary as capable of being abused and misused in its exercise and whether its application and allocation tilted the merit balance or not. For this,
as said above, the court should have considered the whole record of the selection process particularly of the appellants and the respondents-
selectees. It should have considered the marks obtained by them in the written as well as in the viva-voce and on a comparative assessment should
have seen as to whether the allocation of marks tilted the merit position in such a way which rendered the selection bad in law.
Since the trial court has not gone to the factual side of the case and has not considered these facts at all, I find it just and proper to remand the case
back to the trial court to make assessment of the matter in view of the observations made above and return a finding accordingly. The judgment
and decree of the trial court is, under these circumstances set aside. The matter be reconsidered by the Court below and decided afresh.
13. The Court below has now while considering the matter afresh found that there is no specific allegation of malafidies against the Selection
Committee or any of its member in so far as the mis-use of powers in favour of the selectees was concerned. The Court, therefore, observed that it
cannot be held that the Selection Committee had any bias against the plaintiffs (appellants herein) and that they were interested in selecting any of
the candidates including the defendants. The Court has, therefore, dismissed the suits of the present appellants.
14. I have gone through the well-reasoned and elaborate judgment of the court below. I have perused the pleadings of the parties as also the
evidence on file. I have also gone through the selection record which was produced by the learned Counsel for the Bank. On consideration of the
matter I fully agree with the conclusions arrived at and findings returned by the trial Court.
15. Appellants main plea raised in the memorandum of appeal is that candidates with less merit than the appellants have been selected while as
appellants are candidates who have obtained better marks in the written test but in viva voce test they were given less marks.
No doubt in some cases including the cases of the petitioner less marks have been awarded to the candidates while fairly high marks have been
awarded to the selected candidates but this in itself is no ground to quash the selection and appointment of the private respondents. In Jasvinder
Singh and Others Vs. State of Jammu & Kashmir and Others, , the Apex Court held that few instances as to the award of higher percentage of
marks in viva-voce to those who got lower marks in the written test as compared to some who secured higher marks in the written examination
cannot be made basis for quashing the whole selection process. The Apex Court observed as under:
The learned Single Judge also seems to have been very much carried away by few instances noticed by him us to the award of higher percentage
of marks in viva voce to those who got lower marks in viva voce to those who got lower marks in the written test as compared to some who
scored higher marks in the written examination but could not get as much higher marks in viva voce. Picking up a negligible few instances cannot
provide the basis for either striking down the method of selection or the selections ultimately made. There is no guarantee that a person who fared
well in the written test will or should be presumed to have fared well in the viva voce test also and the expert opinion about as well as experience in
viva voce does not lend credence to any such general assumptions, in all circumstances and for all eventualities. That apart, the variation of written
test marks of those who were found to have been awarded higher marks in viva voce vis-a-vis those who secured higher marks in the written test
but not so in the viva voce cannot be said to be so much (varying from live marks and at any rate below even 10) as to warrant any proof of
inherent vice in the very system of selection or the actual selection in the case. There was no specific allegation of any malafides or bias against the
Board constituted for selection or anyone in the Board nor any such plea could be said to have been substantiated in this case. The observation by
the learned Single Judge that there was a conscious effort made for brining some candidates within the selection zone cannot be said to be justified
from the mere fact of certain instances notices by him on any general principle or even on the merits of those factual instances alone. Further the
course adopted by the learned Single Judge in directing selection from general candidates of all those who have obtained 56 marks in the written
examination cannot be justified at all and it is not given to the Court to alter the very method of selection and totally dispense with viva voce in
respect of a section alone of the candidates, for purposes of selection. On a careful and overall consideration of the judgments of the learned Single
Judge and that of the Division Bench, we are of the view that the decision of the learned Single Judge cannot be sustained for the reasons assigned
by him and the decision of the Division Bench cannot be considered to suffer any such serious infirmity in law to call for our interference.
As has rightly been observed by the trial Court there is no specific allegation of malafides against the selection committee or any of its members. I
have gone through the plaints in all the matters, in two suits even members of the selection committee have not been arrayed as respondents. It is
only in COS No. 10/Numberi that the members of selection committee also have been arrayed as respondents but on going through the averments
in the plaints in all the cases I could not find any allegation much less a sufficient allegation which could point out towards bias or malatidies on the
part of members of the selection committee.
16. In Rajendra Roy Vs. Union of India (UOI) and Another, it was held by the Apex Court that it is possible to draw reasonable inference of
malafide action from the pleadings and antecedents facts and circumstances. But for such inference there must be firm foundation of facts pleaded.
Such inference cannot be drawn on the basis insinuation and vague suggestions.
17. It is pleaded by the appellants that fixing of higher percentage of marks for viva voce which has the capacity of changing merit to demerit is,
enough to hold the selection malafide irrespective of the fact, whether such malafides are pleaded or not. It is further alleged that the trial Court
mixed this aspect of the matter with the malafide intention or allegation of the plaintiff, as such the judgment and decree is bad in law and is liable to
be set aside.
18. I could not find any force in the submissions. Percentage of marks fixed for viva voce can be termed as bad only when it has the capacity to
convert merit into merit and the marks are awarded to indicate a conscious effort on the part of selection committee to favour or disfavour a
particular candidate or group of candidates. This necessarily requires to show bias/malafides on the part of the committee. The Court cannot,
therefore, arrive at a conclusion that a conscious effort has been made to convert merit into demerit unless specific allegations of bias/malafides are
pleaded. In a civil suit mere pleading of such bias may not be sufficient, the plaintiff has to establish by evidence such a bias/malafide. In the present
case there is neither any such pleading nor any evidence on file about the same.
19. Reference was made by Mr. Qureshi to the statement of PW. Prof. Ab. Wahid (Chairman) to show that the interview has not be conducted in
a fair manner. He has referred to the portion of the statement which would show that the Selection Committee used tape recorded during interview
but used to erase the recording at the end of the day. Ld. Counsel submits that the committee has not adopted a fair procedure in awarding the
marks as assessment of a candidate, who appeared in the viva-voce was made by Prof. Ab. Wahid and not by other members and marks too
were allotted only by the expert and not by other member.
20. On going through the evidence on file I could not find any substance in the plea. Statement of P.W. Abdul Wahid on the procedure adopted by
the committee during interview is as under:
Selection committee fixed the criteria interview proceedings were recorded. Candidate was awarded marks at the time of interview which was
consented by selection committee collectively and by the evening recorded interview was monitored by the committee minutely. On the point of
disagreement awarded marks were corrected. Interview was taped. Oral interview continued for various days and after days proceedings were
handed over to him by evening by the selections committee. On completion of interview of all candidates be presented the same to the chairman
J&K Bank. Committee consisted of him (witness) as chairman, (2) Mohd. Ibrahim Shahdad one of the Directors of the Board of Directors J&K
Bank, (3) D.V. Singh member/Director Board of Directors J&K Bank (4) D.V. Gupta General Manager J&K Bank. Proceedings of the day were
kept by him (witness) in his own custody. Days proceedings were complied on the evening of the same day all the members were signing it. In fact,
procedure was adopted i.e. during day rough sheet was prepared, by evening if any candidate was found given more or less marks, marks
recorded on that rough sheet were changed and then due marks were recorded which the candidate deserves. The word collectively as used
herein above means that members of the committee with consensus discussed and thereafter marks were awarded. Tape recording cassette were
erased and then again used therefore, tape recorder or cassette was not presented to the chairman. The tape recorder and Cassettes were
provided to the committee by the J&K bank, Eraser of the cassette was to save the expenditure.
21. From this statement I could not find any such fact which would render the impugned selection as illegal. I could not find an glaring defect in the
procedure adopted while making selection. Even if it is assumed that a proper procedure was not followed by the committee while conducting the
interview that in itself would not effect the process of selection and render it bad unless it is shown that the committee purposely followed a wrong
procedure to accommodate a particular candidate.
22. No doubt the appellants have pleaded that the selection has not been made fairly but that in my view was not sufficient. In order to succeed on
the ground so pleaded, specific allegation of bias/malafidies was required to be taken which they have failed to do as such I do not find any force in
any of the pleas taken in the present appeal.
23. The result is that the present appeals are hereby dismissed. CIA NOs: 92 & 93 of 2006
24. While dismissing the suits, the trial court has directed the respondent-Bank to consider the cases of Mushtaq Ahmed Darzi (Plaintiff No. 14 in
suit titled Mehraj-ud-din Ganai v. Chairman and Gulshan Mohd. Mugloo Plaintiff No. 1 in suit titled Gulshan Mohd. Mugloo and Ors. v.
Chairman) in exceptional cases. The Court in this behalf observed as under:
In view of the findings returned on material issues, the suit in hand is liable to be dismissed. The same is accordingly dismissed. However, to meet
the ends of justice, two of the plaintiffs namely Mushtaq Ahmad Darzi and Gulshan Mohd. Mugloo i.e. Plaintiffs No. 14 in case titled Mehraj-ud-
din Ganai and Ors. v. Chairman J&K. Bank and ors and plaintiff No. 1 in case titled Gulshan Mohd. Mugloo and Ors v. Chairman J&K Bank and
ors who have appeared under Roll Nos. 1174305 and 1178920 respectively and obtained 95 marks each in aggregate shall be considered for
appointment as exceptional cases for having fallen sort of only one marks as of those candidates who came to be appointed during the pendency of
the suit on the strength of having obtained 96 marks.
25. Appellant-Bank is aggrieved of this observation/direction of the trial Court and have preferred two separate appeals (CIA NO: 92 of 2006
and CIA NO: 93 of 2006) to challenge the directions.
26. The only plea raised by Mr. Shah to assail the directions of the Court is that since the Court has dismissed the suit, it should not have passed
the direction asking the appellants to consider the case of the said candidates.
27. Keeping in view nature of the observation impugned I do not find any interference in appeal is warranted.
28. The Court while making the observation has not passed any direction to the Bank to appoint the said candidates. It has only asked the
appellant Bank to consider the cases of the candidates on the ground that they have fallen short of only one mark. In any case it is for the appellant
to consider the case on its own merits take a just decision and pass appropriate orders.
29. No ground is made out. Dismissed.
