NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3137 OF 2011  [ARISING OUT OF SLP (CIVIL) NO.18128 OF 2009]

University of Jammu … Appellant

Versus

T.S. Khan & Others … Respondents

J U D G M E N T  

Aftab Alam,J.

1. Leave granted.

2. This appeal is directed against the judgment  

passed by a Division Bench of the Jammu & Kashmir  

High Court by which it has allowed the intra-court  

appeal  filed  by  respondent  No.1,  set  aside  the  

judgment and order passed by a single Judge of the  

High  Court  dismissing  his  Writ  Petition  and  

directed the appellant-University to give seniority  

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to  respondent  No.1  on  the  post  of  Assistant  

Registrar and to pay him the salary for that post  

from the date respondents 4 and 5 were appointed to  

the post of Assistant Registrar.  

3. The recruitment to the post of Deputy Registrar  

is  to  be  made  in  the  ratio  of  75%  by  direct  

recruitment and 25% by promotion and for the post  

of  Assistant  Registrar  in  the  ratio  of  50%  by  

direct  recruitment  and  50%  by  promotion  on  the  

basis of merit-cum-seniority from amongst eligible  

Section Officers and P.A.1-cum-Stenographers in the  

ratio  of  2:1  respectively.   The  appellant-

University on March 1, 1996 issued an advertisement  

for filling up the posts of Deputy Registrar and  

Assistant  Registrar  by  direct  recruitment.   The  

minimum qualification prescribed for appointment as  

Assistant Registrar was as under:-

“Assistant Registrar

A post-graduate Degree with at least  55% marks or its equivalent grade.  Other  things  being  equal,  preference  may  be  given  to  candidate  having  knowledge  of  computer applications.

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Note:- In  service  employees  of  the  University  holding  Bachelor’s  Degree  in  any  discipline  and  fulfilling  other  prescribed conditions shall be eligible to  compete  for  appointment  to  the  post  of  Assistant Deputy Registrar.”

4. Respondent No.1, who was an employee of the  

University, made applications both for the posts of  

Deputy  Registrar  and  Assistant  Registrar.   The  

Selection Committee, constituted for the purpose,  

on  a  consideration  of  the  merit,  suitability,  

academic qualification, experience and performance  

of  the  candidates  in  the  interview  prepared  a  

select list on May 26, 1996 in which respondent  

No.1 was placed at rank XIII.  Respondents 4 and 5  

were placed in the select list at ranks IV and V  

respectively.  On the basis of the select list,  

prepared  by  the  Selection  Committee,  respondent  

Nos.  4  and  5  were  appointed  as  Assistant  

Registrars.  About two years later, respondent No.1  

filed  a  Writ  Petition  (Writ  Petition  No.1094  of  

1998) seeking to challenge the appointments made in  

pursuance of the advertisement and claiming that  

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persons inferior to him in qualification and merit  

were appointed on the two posts.   

5. The  Writ  Petition  was  opposed  by  the  

University.   The  University  took  the  stand  that  

under the University statute the eligibility for  

appointment  as  Assistant  Registrar  for  an  in-

service employee was that he should either be a  

Section Officer or P.A.-cum-Stenographer and hold a  

Bachelor’s  degree  in  any  discipline.   It  was  

pointed  out  that  respondent  No.1  was  neither  a  

Section  Officer  nor  a  P.A.-cum-Steno.   He  was  

working only as Head Assistant which post was one  

step lower to the post of Section Officer in the  

University.  It was, accordingly, submitted that  

respondent No.1 was ineligible for appointment to  

the post of Assistant Registrar.  It was further  

pointed out that respondent No.1 had only 54.03%  

marks in the post-graduation degree and for that  

reason too he was not eligible.  

6. On a consideration of all the material facts  

and circumstances, a single Judge of the High Court  

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dismissed the Writ Petition by judgment and order  

dated May 31, 2001.  

7. Against  the  judgment  passed  by  the  single  

Judge, respondent no.1 filed an intra-court appeal  

(LPASW  No.202/2001)  which  was  allowed  by  the  

judgment  and  order  dated  April  24,  2009  by  the  

Division Bench.  The Division Bench found and held  

that  respondent  No.1  was  not  eligible  to  be  

considered for the post of Deputy Registrar and,  

hence, rejected his case in so far that post is  

concerned.   Coming,  however,  to  the  post  of  

Assistant Registrar, the Division Bench took the  

view that Selection Committee had not assigned any  

reason for putting respondent nos. 4 and 5 above  

respondent No.1 in the select list.  It seems to  

have  called  for  the  documents  relating  to  the  

selection process and, making its own assessment on  

going  through  the  records,  made  the  impugned  

direction.   In  this  regard,  the  Division  Bench  

stated as follows:-

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“In  the  background  of  what  we  have  stated, i.e. the appellant was entitled,  in terms of the notice, to be considered  for  appointment  as  Assistant  Registrar  since  he  was  holder  of  Bachelors  Degree  and  an  in-service  employee  of  the  University, the appellant was entitled to  compete  for  the  post  of  Assistant  Registrar.   The  only  thing  that  was  required  to  be  seen  was  whether  the  selection committee assessed the merit of  the appellant higher than respondent Nos.4  and 5.  We, accordingly, called for the  records and the same were produced, which  only  suggested  preparation  of  a  select  list where the position of the appellant  is  below  the  respondents  4  and  5.   No  material  has  been  produced  before  us  to  show  that  it  is  the  selection  committee  which  upon  assessment  of  merit  of  the  appellant  and  respondent  Nos.  4  and  5,  found appellant was less meritorious than  the respondent Nos. 4 and 5.  We wanted to  know whether, apart from the select list,  is  there  any  other  record  which  would  suggest assessment of such merit.  There  answer to our query was a clear no.  In  the circumstances, the logical conclusion  would be that there is nothing to suggest  that  the  merit  of  the  appellant  was  assessed less better than the respondent  Nos. 4 and 5.”

8. It  appears  to  us  that  the  Division  Bench  

followed a procedure for which there is no sanction  

in law.  In the first place the Division Bench  

overlooked  that  according  to  the  statutory  

eligibility criterion only a Section Officer or a  

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P.A.-cum-Stenographer was eligible to be considered  

for  appointment  as  Assistant  Registrar  and  

respondent No.1 was a Head Assistant.  Moreover,  

the Division Bench was in error in sitting over the  

select list prepared by the Selection Committee as  

an Appellate Authority and re-arranging the select  

list  prepared  by  a  Committee  of  experts  on  the  

basis of its own valuation.  The Division Bench  

seems to have overlooked that while respondent Nos.  

4 and 5 were at ranks IV and V in the select list,  

respondent No.1 was at rank XIII and by brining him  

at par with respondent nos. 4 and 5, the Division  

Bench  clearly  ignored  the  claims  of  the  seven  

candidates who figured in between from rank VI to  

XII and who were above respondent No.1.   

9. On hearing counsel for the parties and on going  

through the materials on record, we are satisfied  

that  the  impugned  order  passed  by  the  Division  

Bench is wholly unsustainable.  It is, accordingly,  

set aside.  The appeal is allowed but with no order  

as to costs.  

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…………………………………J. (Aftab Alam)

…………………………………J. (R.M. Lodha)

New Delhi; April 8, 2011.

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