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2001 DIGILAW 342 (JK)

Riaz Ahmad v. State

2001-12-27

NISAR AHMAD KAKRU

body2001
1. The petitioner responding to the advertisement notice dated: 25-05-2001 inviting applications for the posts of ad hoc munsiffs issued by the Registrar General Jammu & Kashmir High Court applied for the post. He was called for interview but was not allowed to appear, consequently, this writ petition. To appreciate the controversy in-its right perspective reference to rule 42-A of the Jammu & Kashmir Civil Service (Judicial) Recruitment Rules its proviso and the amendment made thereto vide SRO 63 issued under notification No. LA (A) 73/131 dated: 16-02-1973 becomes imperative which may be noticed: 42-A. (1) when there is no candidate left from the select list mentioned in rule 39 or such candidate, though available, declines or is unable to take up the appointment and the Court is of the opinion that a fresh list of select candidates cannot be procured under these rules without any amount of delay which is not desirable in the public interest, the Governor on the recommendation of the High Court may, notwithstanding any thing contained in these rules, sanction a list to be called an ad hoc list of candidates for appointment as Munsiffs: Provided that no person shall be included in the adhoc list who is more than 32 years of age on the first day of January of the year in which list is sanctioned and does not fulfill other conditions laid down in rules 6, 8 and 9 of these rules: SRO 63 of l973: In exercise of the powers conferred by Section 110 of the Constitution of Jammu and Kashmir, the Governor after consultation with the High Court and the Public Service Commission direct that the following amendments shall be made in the Jammu and Kashmir Civil Service (Judicial) Recruitment Rules, 1967, namely:- In the rule 7 and proviso to rule 42-A for the figure 32™ the figure 35 shall be substituted. By order of the Governor� 2. It is clear from a plain reading of the rule aforementioned that no person is eligible to be included in the ad hoc list who is more than 35 years of age on the first day of January of the year in which the list is sanctioned. There is no dispute that the petitioner had applied and his application was entertained but was not allowed to appear in the interview. There is no dispute that the petitioner had applied and his application was entertained but was not allowed to appear in the interview. Cause for refusal as gathered from the averments made in the writ petition is traceable to the scrutiny of the petitioners application which revealed that he had crossed the upper age limit of 35 years on the cut off date i.e. 01-01-2001, resultantly; he was declined appearance in the interview. The fall out being denial of consideration for appointment, the petitioner pleads violation of his constitutional and legal rights. His main thrust is on the expectancy of relaxation of the age bar. Although no documentary proof has been brought to the notice of the court to show that representation is under consideration before the Government yet I proceed on the assumption that the Government is seized of it but does it help him, certainly not because fact remains that there was no relaxation in his favour on or before the last date appointed for receipt of the application viz. 01-01-2001. The contention is otherwise also unsustainable in law in view of the fact that the process of ad hoc appointments to the posts of Munsiffs has been initiated in accordance with the statutory rules. This being the admitted position, the requirement relating to eligibility has to be met by a candidate before he can be accorded consideration. The eligibility being an essential pre-requisite condition, it is not open a candidate to stake claim to appear in the interview merely on the basis of a probability of relaxation of age. This, in my opinion, is the only view which this court can take to be in-line with the mandate of judicial pronouncement handed down by apex court in Ashok Kumar Sharma and others Vs. Chander Shekhar reported in 1997 (4) SCC 18 para 6 which reads: ....The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to" that date and that date alone, is a well established one.....The reasoning in the majority opinion that by allowing the thirty three respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification....� 3. To controvert the aforementioned legal position the petitioner has made reference to a judgment of the apex court in Syed Khalid Rizvi and others Vs. Union of India and others reported in 1993 Supp (3) Supreme Court Cases 575. This is a case where Court has examined the scope of power-of relaxation of the Central Government under IPS (Recruitment) (Regulation of Seniority) (Appointment by promotion) and (Residuary Rules). These rules have no relevance to the case on hand and ration does not have any bearing on the point in issue. 4. It brings me to the averment made by the petitioner in the supplementary affidavit. In spite of the fact that it has been filed without permission of the Court yet I choose to take it into consideration so as to do substantial justice between the parties. Its perusal suggests appearance of ineligible candidates in the interview. Who are those candidates? Particulars are wanting, therefore, a bald assertion devoid of foundation much less firm one. "Needless to say that the respondents being under statutory obligation to ensure adherence to the rules governing the eligibility, their power to adjudge eligibility is in no way impaired by having allowed a candidate to appear in the interview. That apart since prescribed age is 35 years as a condition for appointment to the post of munsiff, therefore, selection in absence of a valid relaxation is per se illegal. Thus appointment of such selectee being in violation of statutory rules is bound to be struck down. 5. Before parting with it needs a mention that much controversy was raised by learned counsel for the petitioner about the inordinate delay caused in disposal of the petitioners representation pending before the Government. It is not understandable why so much of leisure. Had the Government decided it one way or the other this litigation perhaps would not have landed in the court. Be that as it may let it be dealt with now with promptitude. However, it needs to be observed that if such consideration results in valid relaxation in favour of the petitioner, yet it cannot entitle him to consideration in pursuance of the notification which has become subject matter of this writ petition because of his ineligibility at the relevant point of time. However, it needs to be observed that if such consideration results in valid relaxation in favour of the petitioner, yet it cannot entitle him to consideration in pursuance of the notification which has become subject matter of this writ petition because of his ineligibility at the relevant point of time. Nonetheless it will definitely create and counter in and upon him a right of consideration prospectively, of course subject to fulfillment of other conditions of criteria envisaged by the rules. 6. Disposed of in the light of aforementioned observations.