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2002 DIGILAW 229 (JK)

Israr Ahmad v. Public Service Commission, J&K

2002-07-26

S.K.GUPTA, T.S.DOABIA

body2002
Per : Doabia The Jammu and Kashmir Public service Commission issued an Advertisement, It was proposed to have a combined services (Main) Examination. The last date for receipt of the application forms was 16.3.1999. The appellant applied by submitting application form for seeking consideration and selection under the open category. As per the appellant examination was conducted by the respondents. After the examination was over the Petitioner was able to obtain a certificate in terms of SRO 126 of 1994. The case of the appellant was that he belongs to the area known as Line of Actual Control Category and his claims be considered on the basis of this qualification. This claim of his was rejected on the plea that he obtained the certificate lateron. The Certificate having been obtained on 19.8.2000 was found to an irrelevant and his claims was rejected. He preferred a writ petition and the same stands dismissed. It is in these circumstances, he challenged this rejection in this appeal preferred under clause 12 of the Letters Patent. 2. The short submission made by the learned counsel for the appellant is that the requirement to file a particular certificate indicating eligibility criteria no doubt is required to be furnished before the date in this regard, but in the present case what is submitted is that he possessed the eligibility for being considered in the reserved category even before the date of advertisement and only proof was required to be furnished. It was this proof which was furnished on a later date. It is accordingly submitted that the principle of law that a candidate must possess all qualifications before the date fixed in the notification stands fulfilled. It is submitted that there is no dispute with the proposition that a person applying for a post must possess all the qualifications and if he acquired the prescribed qualification after the issuance of the notification then that qualification cannot be taken note of. 3. As indicated above there is no dispute with the aforementioned proposition but the question arises as to whether a person belonging to a reserved category can submit a certificate latter on and what is meant by the term `acquired. The dictionary meaning of the term, acquired is to acquire something by effort. Academic qualifications are acquired by effort. However, certain qualifications which a person inherits are acquired without any effort on his part. The dictionary meaning of the term, acquired is to acquire something by effort. Academic qualifications are acquired by effort. However, certain qualifications which a person inherits are acquired without any effort on his part. Thus a candidate having birth in a particular family i.e. if he is claiming benefit of schedule caste/schedule tribe or socially and educationally backward class as defined under SRO 126 of 1994 dated 2.8.6.1994 would have that qualification at the time of his birth as having born in family. He cannot be said to have acquired the qualification by his own efforts. Similarly a person born in a particular area would possess the qualification not on account of his effort but on account of the fact that he is residing in a particular area, District or State. Therefore when a rule spoken of acquiring a qualification that would deal with that qualification which is acquired by effort. Thus when the appellant submitted that his case be considered as being resident of actual line of control and the certificate which had become available to him should be taken note of, then this should have been considered. This was not the case of acquiring the qualification. This was a case where certain facts were required to be taken note of with regard to the eligibility of the candidate for being considered in a particular category. 4. No doubt so far as reserve categories are concerned the requirement of furnishing the certificate was with regard to the candidates belonging to any reserve category as schedule caste/schedule tribe or socially and educationally backward class as indicated in SRO 126 of 1994 dated 28.6.1994. The word used is should and it could not be taken as mandatory, so far as eligibility condition is concerned conditions 3, 4, 5 and 6 are relevant in this regard. These are being reproduced below : "3. Submission of application form Application form duly filled by the candidate complete in all respects together with photostat copy of the same alongwith Attendance Sheet and examination fee for Rs 500/ in respect of General Category and Rs 250/- respect of reserved category candidates in form of Postal Order/Bank Draft payable to the Secretary J&K Public Service Commission or Treasury Receipt under Account. Head 0051-PSC and three attested latest photographs (One each pasted on the application form, attendance sheet and one spare to be pined on photocopy of application from) duly signed, and attested by a Gazetted Officer over his Official seal on the front of the photograph should reach the Commission Office Srinagar/Camp Office Darbargarh Mubarak Mandi Jammu on or before the last date for receipt of application forms, incomplete application forms are liable to rejection without any notice. Fee once paid is non refundable. 4. Last date for submission of application forms Last date for submission of application form is fixed as under : (a) for personal delivery of application forms in the office of Secretary Public Service Commission Srinagar/Jammu 23rd August 2000. (b) for postal delivery of application forms in the office of the Secretary Public Service Commission Srinagar 30th August 2000. In case the last date is declared a public holiday then the last date for receipt of application forms shall be the next working day. Note Candidates should clearly note that the Commission will in no case be responsible for non receipt of their application form or any delay in the receipt thereof on any account whatsoever Application forms received after the prescribed dates will not be entertained under any circumstances and all the late applications will be summarily rejected. The candidates should therefore, ensure that their applications reach the Commissions office on or before the prescribed date. Application forms received through courier services of any type shall be treated as having been received by hand at the Commissions courier. 5. Reserved category benefits Candidates claiming to be persons belonging to any reserved category i.e. Scheduled Caste/Scheduled Tribe or Socially and Educationally Backward class as defined under SRO 126 of 1994 dated 28.06.1994 should furnish alongwith the application form a valid category certificate as issued by the Competent Authority. In service candidates are advised to submit application on the prescribed form complete in all respects alongwith requisite fee to the Commission office on or before the last date duly endorsed by the Head of the office in the format given at the end of application form. However, they will subsequently obtain no objection certificate from the appointing authority and submit the same to the Secretary J&K Public Service Commission Polo Ground Srinagar/camp office Darbargrah Mubarak Mandi Jammu. 6. However, they will subsequently obtain no objection certificate from the appointing authority and submit the same to the Secretary J&K Public Service Commission Polo Ground Srinagar/camp office Darbargrah Mubarak Mandi Jammu. 6. Eligibility Conditions The eligibility conditions for admission to the Main Examination shall be determined in accordance with SRO 161 dated 17.07.1995 read with Notification No PSC/Ex-99/10 dated 10.2.1999. Candidates are advised not to fold pin staple or mutilate and make any stray mark on the application form as specified in the General Instructions. The enclosures i.e. Attendance sheet, examination fee and all other relevant documents should be pined with the photocopy of the application form." There can be no dispute with the proposition which is sought to be canvassed by the learned counsel for the appellant. A candidate must possess the requisite qualification before the date which is indicated acquisition on these qualifications later on would be of no consequences. The position in this case is entirely different. This is not a case where some qualification has been acquired by the appellant lateron. He was the resident of Backward area earlier to the issuance of the notification by the Commission and he continues to be so. As such the eligibility qualification in this regard is not being acquired by the appellant for the first time after the cut off date. It is only proof regarding this is being furnished on a date which is after the cut of date. 5. A person is to be treated as resident of the backward area in terms of notification issued by the state of Jammu and Kashmir i.e. Jammu and Kashmir Reservation Rules 1994 ( Commonly known as SRO 126, of 1994). It would apparent from Rule 6 which defines `Backward Area This provision reads as under : "6. Backward area means that village/areas declared as socially and educationally backward vide SRO 394 dated 05-09-1981 read with notification SRO 272 dated 03.07.1982 and SRO 271 dated 22-08-1988 as amended from time to time. The list of these villages is appended as Annexure `C. Thus any person who is resident of this area, he would be entitled to be treated as resident of `Backward area. This eligibility is to depend upon his residence in the area and in terms of Rule 6. The list of these villages is appended as Annexure `C. Thus any person who is resident of this area, he would be entitled to be treated as resident of `Backward area. This eligibility is to depend upon his residence in the area and in terms of Rule 6. Once a certificate is given by the competent authority then the eligibility would relate back to the date when the person concerned is shown to have been residing in the area. In this view we get support from a decision of the Division Bench of this Court Letters Patent Appeal No.356 of 2001 (J&K Public Service Commission v. Rimpi Ohri) decided on 18th of Dec. 2001. In the above case the Resident of Backward Area certificate was not renewed. This was held to be immaterial. It was observed; "The rule reads as it 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 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 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 benefits for considering his/her case under the reserved 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. 6. Again there are some qualifications which are acquired by effort; there are other qualifications which are conferred upon a person on account of the situation in which he is placed. 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. 6. Again there are some qualifications which are acquired by effort; there are other qualifications which are conferred upon a person on account of the situation in which he is placed. A person who claims to be a member of Scheduled Caste Category is a Scheduled Caste by birth and not an account of certificate having been issued in his favour. There is a distinction between a qualification which is acquired on a later stage and the qualifications which comes to vest on a person by operation of law. The certificate is issued only in proof of his having been a member of a particular category. Similar is the position viz-a-viz a member who belongs to a backward area. In the case of educational qualification, the position would be however, different. The educational qualification are to be acquired by effort and the date of such eligibility is relevant. 7. A distinction has to be made qua a qualification which is acquired i.e., by a positive effort and a qualification, which stands vested by operation of law or by circumstances beyond the human effort such as birth in a family or at a particular place. If this aspect of the matter is taken note of then there is merit in the submission of the learned counsel for the appellant. The appellant did possess the qualification. This he acquired earlier to the issuance of the notification. Only proof was furnished by him afterwards. This could be done in terms of Rule 4 noticed above. 8. We are accordingly of the view that the stipulation that the candidate must possess eligibility by a particular date would relate to that eligibility qualification which is acquired by effort and not to that which a person happens to possess on account of his having taken birth in particular family or at a particular place or on account of his residence at a particular place. Even otherwise the requirement to possess the certificate and his furnishing was not made mandatory. This becomes apparent from conditions stipulated above. 9. The learned counsel appearing for the respondents submits that appellant never appeared in the interview and, therefore, he cannot make any valid challenge. Even otherwise the requirement to possess the certificate and his furnishing was not made mandatory. This becomes apparent from conditions stipulated above. 9. The learned counsel appearing for the respondents submits that appellant never appeared in the interview and, therefore, he cannot make any valid challenge. This is however, a matter if found correct would dis-entitle the appellant from getting any effective relief. Respondents would examine the case of the appellant in the light what has been stated above. In case appellant applied and was called for interview and he did not appear then position would be different. In case appellant was never called for interview then situation would be entirely different and his claim be now examined by the respondents. Respondent are left free to take a decision in this regard. They would do so within a period of three months from the date copy of this order passed by this court is made available by the appellant to the respondents. Disposed of according.