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2001 DIGILAW 9 (JK)

Parmodh Kumar v. Public Service Commission, J&K

2001-01-23

A.K.GOEL

body2001
1. Facts which are not in dispute in this case may be briefly stated. 2. Petitioner applied in response to Notification No: 17-PSC of 1997 dated: 01.09.1997, for the post of Horticulture Development Officer. He holds Bachelors Degree in Agriculture as also Masters Degree in Agricultural Chemistry. 3. J&K Public Service Commission decided to hold screening test as such petitioner was called for the said purpose. Such test was held on 30.04.2000. He secured 43 marks. According to petitioner, last candidate in Social Caste Category obtained 42 marks. Thus according to him, he was entitled to be included in the list on the basis of his performance. 4. It is further not in dispute that vide Government of Jammu & Kashmir General Administration Department Notification Srinagar, the 10th June, 1999, No: GAD(MTG) Sts, 6/93 in "Annexure-E� to the Jammu & Kashmir Reservation Rules, 1994, after serial No:21, following were ordered to be added:- "22. Lohars. 23.Tarkhans." Petitioner belongs to Tarkharf Caste. It is on this basis that he is claiming reservation and thus seeks a direction to the respondent No.1-Public Service Commission, to call him for interview in the category of Social Caste and if found suitable to select him. 5. The narration of the above clearly shows that admittedly on the date of Notification as well as on the date of submission of application by the petitioner/Tarkhan caste was not included in Schedule-E of the J&K Reservation Rules, 1994. This was added alongwith Lohar caste vide SRO 208 of 1999. Thus the sole question that needs consideration is whether the applicant like petitioner must fulfil the eligibility criteria on the last date of application or on the date of interview/declaration of the result. In case of former this writ petition must fail and in case of latter there is no option but for allowing this writ petition, directing the Public Service Commission to call the petitioner for interview in Social Caste category on the basis of his performance in screening test. 6. Shri Raghu Mehta, learned counsel appearing for the petitioner, submitted that this is a beneficial provision of law as such it should be interpreted in a manner whereby the object sought to be achieved is fulfilled. 6. Shri Raghu Mehta, learned counsel appearing for the petitioner, submitted that this is a beneficial provision of law as such it should be interpreted in a manner whereby the object sought to be achieved is fulfilled. Thus according to him, this provision is retrospectively applicable governing the pending cases of selection like the present one in case selections have not taken place on the date of promulgamation of SRO 208 of 1999 (Supra). He further pointed out that by taking a narrow view of this provision the very object of it will be defeated and such an interpretation would be contrary to the spirit, intention as well as purpose of Articles 15(4) and 16(4) of the Constitution of India, as well as the provisions of the Constitution of Jammu & Kashmir so far those relate to reservation for socially backward and other castes like scheduled caste/scheduled Tribe etc.etc. Thus he has prayed for allowing this writ petition. 7. On the other hand, Shri, D.C.Raina, learned counsel appearing for the Public Service Commission, submitted that the argument put forth by Mr.Raghu Mehta, learned counsel for the petitioner, will lead to disastrous consequences. According to him, a candidate must always fulfill the requisite qualification and is entitled for the benefit of reservation etc. on the cut off date. According to him, unless it was intended to make SRO 208 of 1999 retrospectively applicable, by no rule of interpretation and howsoever liberal construction may be put, this provision cannot be made applicable in the manner prayed for on behalf of the petitioner to the selection in question. 8. On examination of SRO 208 of 1999 (Supra) it is clear that it does not relate to procedure as it confers substantial rights on certain specific castes named in it viz. Tarkan and Lohars. It is cardinal principle of interpretation that procedural law can be made retrospectively applicable but not a provision affecting substantial rights of the parties as in the present case. Petitioner was well aware when he applied in response to Notification in the year 1997 that the caste to which he belongs (which has been included in Annexure-E to the J&K Reservation Rules 1994) was not a reserved prior to 10.06.1999. As such he did not and in fact could not have applied claiming reservation belonging to Lohar caste. Petitioner was well aware when he applied in response to Notification in the year 1997 that the caste to which he belongs (which has been included in Annexure-E to the J&K Reservation Rules 1994) was not a reserved prior to 10.06.1999. As such he did not and in fact could not have applied claiming reservation belonging to Lohar caste. Thus on the cut off date he was not entitled to the benefit of his belonging to Lohar caste. In support of his plea Shri Raghu Mehta has placed reliance on a decision of the Supreme Court of India in the case of Ashok Kumar vs. Chander Shekhar and another and State of J&K vs. Chander Shekhar & others, 1993 Supp(2) Supreme Court Cases 611. In this decision given by three Judge Bench minority view as per Sahai J, was in the following terms:- "In legal terminology, when something is required to be done and the consequences of failure to do so are also provided then it is known as mandatory. Mandatory character of the condition stipulated in the advertisement is further strengthened from the fact that the candidates were prohibited from applying if they did not possess the requisite qualifications. The expression "shall be possessed of such qualifications" is indicative of both mandatory character of the requirement and its operation in presently. Acceptance of the view that the appellants had frequisite qualification on the date of interview would have the effect of altering condition of eligibility on the date of application as being extended to the date of interview. The condition that incomplete applications would not be accepted, will also become meaningless. 9. On the other hand majority view of Dr. T.K. Thommen and in this case V.Ramaswami J. was in the following terms:- "..............Rule 37 is certainly an efficacious rule for having broad based selection but its extension to the present case dwill result in unfairness discussed above. Rules are framed under a statute to carry out the objective of enactment. If the rule making authority goes beyond the power conferred on it, the rule is rendered invalid. A rule framed under one statute therefore cannot be invoked for carrying out the objective of another. It is therefore doubtful whether rules framed by the Public Service Commission could be utilised for construing notification issued by a department of Government, which has a separate set of rules. A rule framed under one statute therefore cannot be invoked for carrying out the objective of another. It is therefore doubtful whether rules framed by the Public Service Commission could be utilised for construing notification issued by a department of Government, which has a separate set of rules. It is, however, unfair to quash appointments after a period of more than ten years. The High Court tried to adjust the equities amongst the parties by placing the appellants junior to the respondents but equity does not know half way. Once the eligibility bar was lifted for whatever reason, the appellants must get the seniority because they were subjected to same interview and secured higher merit. The appellants cannot therefore be placed junior to respondents. The appellants did pass the B.E.(Civil) Examination and were fully qualified for being selected prior to the date of interview. By allowing the appellants to appear in interview and by their selection on the basis of their comparative merits, the recruiting authority was able to get the best talents available. It was certainly in public interest that the interview was made as broad based as was possible" on the basis of qualification. It was in public interest that better candidates who were fully qualified on the dates of selection were not rejected, notwithstanding that the results of the examination in which they had appeared had been delayed for no fault of theirs. The appellants were fully qualified on the dates of interview and taking into account the generally followed principle of Rule 37 in the State of Jammu & Kashmir, too much technical view cannot be taken. Results announced by the recruiting authority have therefore to be upheld." No benefit can be taken by the petitioner from this judgment, reason being that when this matter came up for consideration in review before the Supreme Court again in the year 1997 in case titled Ashok Kumar Sharma & others vs. Chander Shekhar (1997) 4 Supreme Court cases 18, amongst others, question No. 1 was in the following terms:- "(1) Whether the view taken by the majority (Honble Dr.Thommen and V.Ramaswami. JJ.) that it is enough for a candidate to be qualified by the date of interview even if he was not qualified by the last date prescribed for receiving the applications, is correct in law and whether the majority was right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy?" What was held on this aspect was as under:- "(6) The review petitions came up for final hearing on 03.03.1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our order dated: 01.09.1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr. T.K. Thommen and V.Ramaswami, JJ) is unsustainable in law. 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 alone, is a well established one. A person who acquired the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement for notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi vs. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33 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. This is also the proposition affirmed in Rekha Chaturvedi vs. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33 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. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M.Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview. 7. Mr.Rakesh Dwivedi, learned counsel for the 33 candidates, submitted that these 33 candidates had appeared for the B.E. Examination prior to their applying for the post and that there was some delay in publishing the results and that these respondents cannot be punished for the delay on the part of the authorities concerned in publishing the results. In our opinion, the said contention is beside the point. In these proceedings, we cannot examine the reasons for delay-assuming that there was delay in publishing the results. That issue is outside the purview of the writ petition. Whatever may be the reason, the 33 persons were not qualified as on the prescribed date and, therefore, could not have been allowed to appear for the interview. On the first issue (mentioned in the order dated 01.09.1995), therefore, we hold in favour of the review petitioners, affirming the opinion of Sahai, J." And finally while dismissing the review petition it was held as under:- "10. For the above reasons, these review petitions are dismissed subject to the clarification on the legal issue, viz. Issue 1 mentioned in our order dated: 01.09.1995. There shall be no order as to costs." In State of Haryana & others vs. Anurag Srivastava and another (1998) 8 Supreme Court cases 399 it was held as under:- "2. On the last date for receipt of applications, namely, 07.01.1981, respondent 2 did not possess a Masters degree in History, but in Group A i.e. Medieval India. The marks sheet which was annexed by her showed that the four papers which she had appeared in were in the group "Medieval India". On the last date for receipt of applications, namely, 07.01.1981, respondent 2 did not possess a Masters degree in History, but in Group A i.e. Medieval India. The marks sheet which was annexed by her showed that the four papers which she had appeared in were in the group "Medieval India". The 2nd respondent herself has stated in her letter dated: 03.07.1981, addressed to the Director, Haryana State Archieves, Chandigarh, that she had passed M.A Examination in Histor (1200 AD-1787 AD) from Kurukshetra University in 1978. One paper was for period 1627 AD-1761AD. Apart from this, she had already appeared in MA examination in Modern Indian History (1707-AD-1947-AD) for obtaining additional qualifications and the result was awaited. 3. She subsequently obtained an M.A in History in Group B Modern Indian History on 16.07.1981. The High Court has rightly held that on 07.01.1981, the last date for submitting the application, the 2nd respondent did not possess a Masters degree with Modern Indian History as her subject. She obtained this qualification on 16.07,1981 subsequent to her interview and selection. 4. Learned counsel for the 2nd respondent has relied upon two decisions of this Court in Ashok Kumar Sharma vs. Chander Shekhar and Reklia Chaturvedi vs. University of Rajasthan. Both these judgments hold that the qualifications which have to be considered are those possessed as on the last date of filing applications. The High Court has, therefore, rightly held that the 2nd respondent did not possess the requisite qualifications at the material time and was not entitled to be selected under the advertisement of 07.12.1980. The appeal is, therefore, dismissed. There will be no order of costs." In State of Rajasthan vs. Hitendra Kumar Bhatt, AIR 1998 Supreme Court, 91, it was held as under:- "6. Looking to the clear terms of the advertisement which we have referred to above, the respondent was not eligible for consideration. It is submitted by the respondent before us that since he has been continued and has now been confirmed we should not disturb his appointment. He has requested that his case should be considered sympathetically. The fact, however, remains that the appellants have taken the correct stand right from the beginning. The respondents application was not considered and he was not called for an interview. It was on account of interim orders which were obtained by the respondent that he was given appointment and continued. He has requested that his case should be considered sympathetically. The fact, however, remains that the appellants have taken the correct stand right from the beginning. The respondents application was not considered and he was not called for an interview. It was on account of interim orders which were obtained by the respondent that he was given appointment and continued. He was aware that his appointment was subject to the outcome of his petition. One cannot, therefore, take to sympathetic a view of the situation in which the respondent finds himself. A cutoff date by which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would have applied had they known that the date of acquiring qualifications was flexible. They may not have applied because they did not possess the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to others. 7. In the premises, the respondent was not eligible for consideration. We, therefore, allow the appeal, set aside the impugned order of the High Court and dis-miss the writ petition filed by the respondent. There shall be no order as to costs." 10. In case submission of Shri Raghu Mehta, learned counsel for the petitioner, is accepted its drastic result would be that it will tantamount to deny equality of opportunity to all those candidates who became eligible like petitioner after the issuance of aforesaid SRO 208 of 1999. It would be contrary to mandate of the Supreme Court in the case of Ramana Dayaram Shetty vs. International Airport Authority of India & others, (1979) 3 Supreme Court Cases 489. Reason being that those candidates who belong to Tarkhan caste may have applied in general category because benefit of social caste category was not available on the date of application, which became available after 1999. SRO 208 of 1999 is in the nature of subordinate legislation. Appropriate authority was well aware that many cases may be in the pipe line on the date of its issuance. If it was intended to make it retrospectively applicable they would have made a provision in the SRO itself by making appropriate provision in it. This has admittedly not been done. Appropriate authority was well aware that many cases may be in the pipe line on the date of its issuance. If it was intended to make it retrospectively applicable they would have made a provision in the SRO itself by making appropriate provision in it. This has admittedly not been done. Thus it can be inferred that it was never intended to be made retrospectively applicable as was urged by Shri Mehta. As already noticed, rights of the petitioner were fructified on the last date of application in the year 1997, therefore, he cannot derive any benefit from the issuance of SRO 208 of 1999. Whatever benefit or advantage was available on account of reservation are notified in SRO 126 of 1994 in Schedule-E whereof castes Lohar and Tarkhan have been added at entry No.22 and 23 by SRO in question in the year 1999. No other point is urged. As a result of the aforesaid discussion, there is no merit in this writ petition which is accordingly dismissed.