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2001 DIGILAW 330 (JK)

Public Service Commission J&K v. Rimpi Ohri

2001-12-18

H.K.SEMA, S.K.GUPTA

body2001
Per H.K. Sema, Chief Justice: 1. We have heard Mr. DC. Raina, learned counsel for the appellant in LPS No. 3567 2001, Mr. P. Kohli, Sr. Advocate for the appellant in LPA No. 477/2001 and Mr. U.K. Jalali, Sr. Advocate for the respondent No.1 in both the appeals. LPA No. 356/2001 has been preferred by the Jammu and Kashmir Public Service Commission, LPA No. 477/2001 has been preferred by Shri Suram Chand Sharma, who was not arrayed as party respondent in the writ proceedings. He has, however, felt aggrieved by the order of learned Single Judge impugned in this appeal and this court allowed him to file the appeal. Both the appeals have been preferred against the judgment and order passed by the learned Single Judge, allowing the writ petition of the respondent No.1. Since both the appeals arises out of the same judgment, we propose to dispose of both the appeals by this common order. 2. The facts giving rise to the filing of the present appeal may be briefly recited. 3. Pursuant to the Notification No. PSC/Ex-99/10 dated: 10-02-1999, the respondent applied for Combined Services Competitive Examination. Closing date of application was fixed on 18-03-1999. In the said Notification, reserved category quota under SRO 126 dated: 28-06-1994 has also been indicated. Respondent No.1/writ petitioner being a resident of Line of Actual Control (LAC), she applied under that reserved category. Her application was processed and she was issued admission card under Roll No. 029270. She was passed the Combined Services (Preliminary) Competitive Examination in 1999. Thereafter by another Notification No. PSC/Ex-2000/4f4 dated: 20-04-2000, the Public Service Commission invited application form the candidates who have been declared qualified in the Preliminary Examination for the Main Examination in the prescribed form. She applied for the Main Examination by submitting her application form, enclosing therewith educational certificates and also LAC category certificate. She was allotted Roll No. 029270 and allowed to appear in the Combined Services (Main) Competitive Examination. The result of the Main Competitive Examination was declared vide Notification No. PSC/Ex-2001/17 dated: 07-04-2001. Thereafter vide Notification No. PSC/Ex-99/Int-KAS dated: 14-04-2001, the respondent was directed to appear for the interview/viva-voce test on 06-07-2001. She was allowed to appear in the viva-voce test and according to her she has done excellent by answering all the question put to her. The result of the Main Competitive Examination was declared vide Notification No. PSC/Ex-2001/17 dated: 07-04-2001. Thereafter vide Notification No. PSC/Ex-99/Int-KAS dated: 14-04-2001, the respondent was directed to appear for the interview/viva-voce test on 06-07-2001. She was allowed to appear in the viva-voce test and according to her she has done excellent by answering all the question put to her. However, she was considered as open merit candidate (general category) and not treated as reserved category (LAC) candidate. The result of Main Combined Competitive Examination was published by Notification No. PSC/Ex-99/KAS dated: 26-07-2001, wherein the name of the respondent/writ petitioner has not been included in the select list. 4. Admittedly, the case of the respondent was considered by the Board under open merit category and not as reserved category being resident of LAC. Being aggrieved, the respondent filed SWP No. 1803/2001 seeking inter-alia a writ of mandamus, praying the following reliefs:- (i) to direct the respondents to declare the result of the interview of the petitioner of the J&K Combined Services Examination-1999, under the LAC category and consequently direct the respondents to issue the order of her appointment, (ii) to direct the respondents to keep the list of J&K Combined Services Examination 1999 under LAC category in abeyance. (iii) to pass any other writ, order or direction as is deemed fit and proper in the facts and circumstances of the case.� 5. The writ petitioner/respondent specifically averred in paragraph (1) of the writ petition that the petitioner is resident of village Deeing Tehsil Nowshera, District Rajouri, area adjoining the Line of Actual Control and thus she belongs to reserved category of LAC and a certificate to this effect has been issued by the competent authority. 6. This averment has been answered by the respondent No. 2 (Public Service Commission) in their reply affidavit in the following terms: In reply to contents of para No. 1, it is stated that invitation of applications from eligible candidates for the main examination is not denied but as has been indicated herein above the petitioner was not having revalidated LAC certificate.� 7. The ground of rejection to treat her as reserved category of LAC is taken in para (C) of the preliminary objections of the respondent. The ground of rejection to treat her as reserved category of LAC is taken in para (C) of the preliminary objections of the respondent. Para (C) is extracted:- That upon scrutiny of the documents it transpired that the reserved category certificate relied upon by the petitioner was valid only for two years which stood issued on 27th October 1995 and its validity stood expired after 27the October 1997. In other words when the answering respondents issued notification No. PSC/ Ex-99/10 dated: 10th February 1999, the petitioner had no valid certificate of her belonging to LAC category. Needless to mention that on or before cut off date prescribed in the notification No. PSC/Ex-99/ 10 dated: 10thFebruary 1999. The valid certificate was required to be produced. The petitioner despite intimation of the Commission did not produce any valid certificate and thus now at this stage cannot claim benefit of his belonging to LAC category. In short, the petitioner is not entitled under the stage to claim benefit of LAC category and thus could only have considered under the open merit category where the petitioner has failed to make grade. It may be clarified that even for the Preliminary Examination the petitioner qualified under the open category and similarly she was considered in the main Examination also in the open category. Petitioner failed to satisfy the Commission despite letter No. PSC/Ex-99/KAS/ 29270 dated: 11th September 2000 asking the petitioner to produce the valid certificate of the said category. It was made clear to the petitioner that the certificate relied upon by the petitioner had lost its validity and the same was not considered. Even till the date of-interview the petitioner failed to produce a valid certificate leaving the Commission with no other option than to treat the petitioner in the open category and determining her merit accordingly.� 8. Cursory reading to the objection as referred to above would reveal that two reasons have been assigned for not considering her case under LAC category; firstly the resident category certificate produced by the respondent/ writ petitioner was only valid for two years which was issued on 27-10-1995 and its validity expired on 27-10-1997; and secondly that despite of Commission letter dated: 11-09-2000, asking the respondent to produce valid certificate, she could not produce the same as required. 9. With regard to the first reason, it is belied by the record. 9. With regard to the first reason, it is belied by the record. The respondent No. 1 submitted the certificate of resident of area adjoining the Line Actual Control at the time of submission of her form. The certificate is in form "X" to SRO 126 dated: 28-04-1994. A Photostat copy of the certificate is annexed as part of judgment. 10. The certificate as annexed, there is no stipulation that it is valid only for a period of two years. 11. The official respondents did not deny the factum of respondent No. 1 being a resident of LAC at the time of respondent applied for appearing in the Combined Competitive Examination. It is nobodys case that the respondent obtained the resident certificate by misrepresentation, fraud or concealment of material fact or impersonation. 12. The second reason that despite Commissions letter dated: 11-09-2000, asking her to produce valid certificate, she could not produce the same is also belied by the factual position. In fact she had obtained the certificate, subsequently. The subsequent certificate is dated: 24-10-2001, certifying that she is the resident of LAC. It is placed on record. 13. At the time of hearing of this appeal, two contentions have been raised by Mr. D.C. Raina, counsel for the appellant: a) That under Rule 34 of SRO 126 of 1994, the certificate issued in Form X is valid for a period of two years from the date of issue unless it is renewed for a further period of two years under Sub-Rule (2) of Rule 34. b) That the respondent was not possessing the requisite qualification on the closing date of the application i.e., 16-03-1999, in as much as, the resident certificate issued to her on 26-10-1995 was only for a period of two years and expired on 27-10-1997. 14. In the backdrop of the contentions raised by the appellant, we are now called upon to interpret Rule 34 of the Rules. 15. By a notification dated: 28-06-1994, the Governor of Jammu and Kashmir in exercise of the powers conferred by section 124 of the Constitution of Jammu and Kashmir read with Article 15(4) and 16(4) framed the rules called "The Jammu and Kashmir Reservation Rules, 1994, (hereinafter the Rules), vide SRO 126 of 1994. Rule 7 of the Rules deals with the areas adjoining the Actual Line of Control as included in the reserved category. Rule 7 of the Rules deals with the areas adjoining the Actual Line of Control as included in the reserved category. Rule 10 of the Rules deals with the reservation for appointment by direct recruitment." 16. Rule 10 (c) which is relevant for the present purpose reads: (c) Socially and educationally backward class (other than scheduled castes and scheduled tribes) i) Weak and under privileged classes (social castes) 2% ii) Resident of areas adjoining Line of Actual Control 3% iii) Residents of backward areas 20%.� 17. We are pointing out to this relevant rule only to show that there is reservation of some post for the resident of area adjoining the Line of Actual Control, violation of quota and rota rule is not disputed before us. Therefore, this point need out be adverted to further. 18. In the facts and circumstances as recited above, precisely the question that calls for determination is whether non-renewal of resident area certificate (LAC) would disentitle the resident of the Line of Actual Control, for consideration under that category if otherwise he or she is actually resident of that area. 19. Rule 34 of the Rule deals with the validity of the certificate. It reads: 34. Validity of the Certificate. (1) The certificate issued under these rule shall remain valid for a period of two years from the date of issuance�. (2) After the expiry of the period of validity under sub-rule (1), the Authorised Officer, shall, on the request of the certificate holder, renew the same for a further period of two years following the same procedure as laid down for obtaining the certificate; (provided that nothing in the above rule shall apply to the persons belonging to the Scheduled Caste, Scheduled Tribes, Ex-serviceman, Handicapped and candidates possessing outstanding proficiency in sports).� 20. The rule consists of two parts. The first part deal with the validity of the certificate i.e. that the certificate is valid for a period of two years from the date of issue and the second part deal with the renewal of the same for a further period of two years. 21. The rule read as it is, is adequately elastic. The first part deal with the validity of the certificate i.e. that the certificate is valid for a period of two years from the date of issue and the second part deal with the renewal of the same for a further period of two years. 21. The rule read as it is, is adequately elastic. The rule is intended to take care of a situation where a resident after obtaining resident certificate migrated to other place and claim benefit of the resident of that area even after the validity of the certificate issued has been expired. In our view, even after the expiry of the validity period of two years as contemplated in sub-rule (1) of the rule 34, if he or she continues to reside in the area, non-renewal of the certificate as contemplated under sub-rule (2) of the rules would not disentitle him or her provided it is established that he or she is still a resident of the area for which a certificate has been issued. Non renewal of such certificate would not disentitle him or her of the reservation benefit for considering his/ her case under the reserve category of resident of Line of Actual Control. We have taken this view because a certificate is issued on the basis that a particular person is resident of particular area which has been reserved as a reserved category. Non-renewal of certificate does not change the status of the applicant if he or she is actually residing in the area for which the certificate has been issued, originally. 22. In the instant case the factum of respondent no.1/writ petitioner being resident of Line of Actual Control is not disputed either at the time of submitting the application or even today. In fact, the respondents was a resident of Line of Actual Control at the time of submission of the application and continue to be in the resident of that area has been fortified by a subsequent certificate issued by the Authority dated: 24-10-2001, which has been produced by the counsel for the respondent and not disputed by the appellants counsel. 23. The object sought to be achieved by SRO 126 of 14 is to confer certain benefit to the resident of Line of Actual Control by virtue of being a resident of that area. No other qualification is prescribed. 23. The object sought to be achieved by SRO 126 of 14 is to confer certain benefit to the resident of Line of Actual Control by virtue of being a resident of that area. No other qualification is prescribed. The rule intended to serve a boon to the residents to area and not as a ban to them. A certificate is issued to them as an identity so that they are entitled to claim benefit as a resident of that area. 24. It will be noticed that in the form "X" on which a certificate of resident is required to be issued does not prescribe any validity period. It is only under rule 34 that the period of validity of such certificate is prescribed as two years and renewable for another two years. We are, therefore, clearly of the view that rule 34 is intended to check an applicant who after obtaining a resident certificate and migrated to other place of non-line of Actual Control and still claim benefit under the same resident certificate. 25. Ordinarily a person claiming benefit under a certificate of Line of Actual Control would renew such certificate as contemplated under sub-rule (2) of rule 34, however, non-renewal of certificate though inadvertent would no disentitle such person who are otherwise resident of the same area for which a certificate has been issued originally. This, in our view, would be harmonious construction of rule 34, so as to advance the cause of the rules. Conversely, if the actual resident of the area is denied the benefit of SRO 126 for non-renewal of the resident certificate, though factually residing in the area, would produce perilous result and in such event it would defeat the object and purpose of the rule. Even otherwise looking at the form "X" on which a certificate is issued, there is no period prescribed in the form. In such an event, a resident of Line of Actual Control, most of them being unexpose to the outside, is not expected to know that there is a rule which prescribes that the certificate issued under Form X is valid for a period of two year only and is liable to be renewed after the expiry of two years period, especially when such condition is not stipulated in FormX. 26. 26. Reverting to the facts of the present case, admittedly, a resident certificate was issued on26-10-1995 under the provisions of SRO 126. There is no mention in the certificate of the validity period. However, taking into consideration the provisions of rule 34 as discussed above, the certificate expired with effect from 27-10-1997. Despite of the expiry of the certificate, factually she was resident of that area continuously throughout from the date of the application till publication of the result. The Commission vide its letters dated: 11-09-2000 also asked her to furnish valid resident certificate. She has submitted valid certificate dated: 24-10-2001. It is in these circumstances that we are clearly of the view that she was factually resident of Line of Actual Control and she could not be denied the benefit of SRO 126 of 1994 under the reserved category of resident of LAC and her case should have been considered under the reserved category of resident of actual line of control. We accordingly hold that the respondent No. 1 is factually the resident of LAC. 27. The next contention of Mr. D.C. Raina that the respondent did not possess requisite qualification on the closing date of submission of application form i.e. 16-03-1999 has no substance and it deserves to be rejected. The requisite qualification on the last date of application is relatable to educational qualification. In the case of respondent, we have already held that she was a resident of LAC, at the time of submission of the application and continue to be so even today. If that is so, she was definitely possessing the qualification with regard to the resident of LAC, at the time of closing date of the application i.e. 16-03-1999. Non-renewal of certificate would not alter the status of her residence if otherwise she was factually resident of Line of Actual Control. The factum of the respondent/ writ petitioner being the resident of Line of Actual Control is not denied by the applicant. 28. We now proceed to say something about LPA(SW)No. 477/2001 filed by Suram Chand Sharma. As already said, Suram Chand Sharma was not arrayed as party-respondent. His case has been considered under the category of resident of LAC. In this appeal Mr. Kohli sought to convince us by stating that the resident certificate issued to the respondent on 26-10-1995 has been illegally obtained although she was not entitled to get such certificate. As already said, Suram Chand Sharma was not arrayed as party-respondent. His case has been considered under the category of resident of LAC. In this appeal Mr. Kohli sought to convince us by stating that the resident certificate issued to the respondent on 26-10-1995 has been illegally obtained although she was not entitled to get such certificate. It is nobodys case throughout. For the first time this version is sought to be introduced in this LPA. At the same time, this submission is belied by the record that the respondent No. 1 also obtained subsequent resident certificate dated: 24-10-2001. 29. We have already held that the case of respondent No. 1 Ms. Rimpi Ohri alias Rimpi Singh shall be considered under reserved category of resident of Line of Actual Control. If that is so, her case has to be considered according to her own merit and grading. Counsel for the respondent Mr. U.K. Jalali has produced result sheet showing marks obtained by the appellant and respondent Ms. Rimpi Ohri, which has not been disputed by the counsel for the appellant. The said result sheet available on the record shows that respondent Ms. Rimpi Ohri secured total 1179 marks (LAC) category and the appellant Suram Chand Sharma obtained total 1022 marks (LAC) category. The marks secured by respondent Ms. Rimpi Ohri are higher than the appellant Suram Chand Sharma. Even on merit, thus the appellant has no case. 30. Mr. D.C. Raina has also brought to out notice provisions of rule 7 of SRO 161 which provided that the candidate shall ensure eligibility criteria for admission to the preliminary examination on the last date fixed by the Commission for receipt of applications. This question has already been answered while dealing with rule 34 of the Rules. For the present purpose Rule 7 of SRO 161 not be adverted to. 31. In the result, both the appeals are dismissed. Judgment of the learned Single Judge is affirmed. Pursuant to the interim order passed by this Court, one post has been kept unfilled under the reserved category of LAC. The Official respondents are directed to issue appointment letter within a week from the date of receipt of this order. 32. 31. In the result, both the appeals are dismissed. Judgment of the learned Single Judge is affirmed. Pursuant to the interim order passed by this Court, one post has been kept unfilled under the reserved category of LAC. The Official respondents are directed to issue appointment letter within a week from the date of receipt of this order. 32. Before parting with the records, we may observe that in order to thwart the confusion of the present nature in future, it is desirable that the appropriate authority should consider insertion of validity period of certificate in form "X", apart from provisions of Rule 34 of SRO 126 of 1994.