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

A trace the requirement of individual rolls being signed and verified by the members of the Selection Board, to any statute or rule. Therefore, we 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 B said post for over a decade. Reliance in this regard may be placed on Trivedi Himanshu Ghanshyambhai, wherein it was held that merely because the records could not be produced since they were lost and not available, the appointment could not be cancelled. C

15Copy pinpoint15. The next prong of the challenge relates to the competence of the expert in the Selection Board, Dr. Samina Farhat, Assistant Professor, Department of Pharmacology. The expert 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 present case, it is the contention of the writ petitioners that a person with a qualification in the field of pharmacy would have been better suited on the panel. In order to consider if there is any merit in this contention, it is necessary to discuss the meaning of ‘pharmacology’ as juxtaposed with ‘pharmacy.’ 15.1. According to P. Ramanatha Aiyar’s Advanced Law Lexicon, th 6 Edition, Vol. 3, ‘pharmacology’ is defined as, “the study of drugs. Applied in analyzing and identifying drugs submitted as evidence.” ‘Pharmacy’ is defined as “a branch of knowledge or trade; the preparation and dispensing of drugs.” As per the Oxford Concise Medical Dictionary, 7th Edition, pharmacology is the science of the properties of drugs and their effects on the body. Pharmacy on the other hand is the preparation and dispensing of drugs. It defines a pharmacist to mean a person who is qualified by examination and registered and authorized to dispense medicines or to keep open a shop for the sale and dispensing of medicines. 15.2. What emerges on a consideration of the said definitions is as under:

TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 761 AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]

i) The science of pharmacology and the practice of pharmacy are both concerned with a study of chemical substances and how they affect the functioning of the body. ii) In a nutshell, the main difference between pharmacology and pharmacy is that pharmacology is the science of developing and understanding the effects of drugs and other substances, while pharmacy is the science and practice of collecting, preparing, standardizing, and distributing drugs to patients after a medical professional orders a prescription for a drug. iii) Despite their differences, pharmacology and pharmacy have some similarities. Both fields are concerned with the use of drugs in healthcare, and both require an understanding of drug action, dosage, and potential side effects. Pharmacology and Pharmacy are both important fields in healthcare, but they differ in their focus and level of advancement. Pharmacology is generally considered more advanced than pharmacy because it involves more complex research into the mechanisms of drug action and the development of new drugs. 15.3. We therefore, cannot hold 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, we think that 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 F 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 G qualification in pharmacy. To this extent, we affirm the findings of the learned Single Judge and the Division Bench of the High Court. We do not find any substance in the arguments of learned counsel for the respondent/writ petitioners in this regard. H

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16Copy pinpoint16. This Court has upheld the legitimacy of conducting interviews as a part of a selection process, even where marks earmarked for the same has been found to be prima-facie excessive, vide Minor A. Peeriakaruppan etc. vs. State of Tamil Nadu, (1971) 1 SCC 38; Miss Nishi Maghu vs. State of J & K, (1980) 4 SCC 95. B 16.1. This Court in Lila Dhar vs. State of Rajasthan, AIR 1981 SC 1777 made the following pertinent observations as to the importance of a viva-voce or interview in a selection process: “It is now well recognised that while a written examination assesses a candidate’s knowledge and intellectual ability, an interview test is valuable to assess a candidate’s overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview test there are yet no written tests which can evaluate a candidate’s initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness, in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities may be evaluated, perhaps with some degree of error, by an interview test, much depending on the Constitution of the interview Board.” E 16.2. 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 F awarded by the panel. In this case the break up of the marks referred to above is reiterated as under:

TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 763 AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]

Only 20 out of 100 marks were allocated for interview/viva-voce. D 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. In the above premise, we do not think there is any 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. 16.3. Further, it appears to us 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. In our view, 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 H

p. 764 Copy page pinpoint

A the higher qualifications of the candidates. Therefore, we are unable to interfere with the selection process 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 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.

17Copy pinpoint17. One of the directions issued by the learned 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 E 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 F issued to complete the exercise afresh within six months and till then, the appointed candidates as drug inspectors were to be continued. We find that the aforesaid directions issued by both the learned Single Judge as well as by the Division Bench were not in accordance with law and hence, the said directions have to be quashed.

18Copy pinpoint18. In light of the aforesaid discussion, the present appeals are allowed. The judgment of the learned 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 H Jammu and Kashmir at Jammu dated 6th July, 2017 following the order

TAJVIR SINGH SODHI & ORS. v. THE STATE OF JAMMU 765 AND KASHMIR & ORS. [B. V. NAGARATHNA, J.]

of the learned Single Judge of the High Court of Jammu and Kashmir at A Srinagar, dated 18th December, 2015, is also set aside. 18.1. The candidates who were declared successful in selection process conducted on 8th September, 2009, for appointment of drug inspectors in the State of Jammu and Kashmir, and the appointments published on 12th November, 2009, were permitted to continue in service B by virtue of stay of the impugned judgment. The stay order is made absolute. 18.2. All pending applications stand disposed of in the aforesaid terms. No order as to costs. C

Nidhi Jain Appeals allowed. (Assisted by : Tamana, LCRA)