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2004 DIGILAW 361 (JK)

Bashir Ahmad Magray v. State Of J. &K.

2004-12-23

R.C.GANDHI

body2004
R.C Gandhi J (Oral) 1. By means of this writ petition, Petitioner seeks issuance of writ of Mandamus commanding the Respondents No. 2 and 3 to discharge and perform statutory functions in terms of Rule 10 of the J & K Subordinate Service Recruitment Rules, 1992 (hereinafter called -- "the Rules") to publish the result of selection carried out by respondent No. 2 pursuant to Advertisement Notice No. 01 of 2001 dated 11.1.2001 for the post of X-Ray Assistant (District Cadre, Baramulla) against available vacancy to be filled up by a candidate belonging to RBA category. Similar direction or order has been prayed for in other two reliefs. 2. Respondents have advertised number of posts including the post of X-Ray Assistant, vide Advertisement Notice No. 01 of 2001 dated 11.01.2001 for selection of suitable candidates. Petitioner seeks extension of benefit of reservation being belonging to RBA category. He was called and interviewed. Petitioner was not found eligible. He was not selected. 3. Petitioner has challenged the selection on the ground that the respondents have not concluded the selection in terms of Rule 10 of the Rules. It is stated that the petitioner was having valid certificate which was not renewed by the authorities and was pending before them on the date of interview. Therefore, rejection of the petitioner on the ground that he is not holding the valid certificate is not justified. 4. Respondents have filed reply stating therein that petitioner could not be considered under RBA category as he was not possessing valid RBA certificate and thus declared ineligible. It is also stated in para 10 of the reply that the post could not be filled up pursuant to Advertisement Notice No. 1/2001 dated O1.11.2001. It was re-advertised on 26.04.2002 vide Notification No. 1/2002 and on completion of this process of selection, the post was filled up by a selected candidate namely, Jalal-ud-din. The petitioner did not apply in the second round of selection. 5. Heard learned counsel for the parties and perused the record. Learned Counsel for the petitioner has submitted that the petitioner was holding the valid certificate issued on 21.11.1995, being belonging to RBA category. Perusal of the certificate and the law shows that it was valid for two years i.e. upto 20.11.1997. The post was advertised on 11.01.2001. Admittedly on the last date for submission of application forms was 11.02.2001. Learned Counsel for the petitioner has submitted that the petitioner was holding the valid certificate issued on 21.11.1995, being belonging to RBA category. Perusal of the certificate and the law shows that it was valid for two years i.e. upto 20.11.1997. The post was advertised on 11.01.2001. Admittedly on the last date for submission of application forms was 11.02.2001. Admittedly on the last date of submission of application form, the petitioner was not having the valid certificate. The interview of the petitioner was conducted in June, 2001 which is evident from the interview card of the petitioner annexed with the petitioner as Annexure "I" Considering the pleadings, points in issue before the Court are; (i) to determine as to whether the petitioner is having valid certificate on the requisite date? (ii) Whether the process has been conducted by the respondents in terms of Rule 10 of the Rules? The plea of Mr. Jan learned counsel for the petitioner that since the interview of the petitioner was conducted by the selection authority in June 2001, he was having the requisite certificate issued to the petitioner on 27.03.2001, therefore, petitioner could not have been declared ineligible, cannot be accepted. The Advertisement Notice contains Note (B) which stipulates that; "Certificates issued by the competent authority in favor of the candidates belonging to reserved categories viz. RBA, Social Castes and LAC, should be valid on the last date prescribed for the applications." 6. According to the aforesaid stipulation, the candidates eligibility is to be ascertained and should possess on the last date of submission of application form. On appreciation of this condition of the Advertisement Notice, it can be safely observed that the petitioner was not having the requisite certificate on the last date prescribed for submission of application forms. This proposition of law has been settled by the Supreme Court in case titled State of Rajasthan v. Hitendra Kumar Bhatt reported in AIR 1998 SC (1) 91 observing as under: -- "The writ petition was dismissed by a Single Judge of the High Court by his order dated 17.7.95, holding that the cut-off date for ascertaining the eligibility of the respondent under the said advertisement was the last date prescribed for submission of the application i.e. 29.6.1992. On 5.2.1996 the services of the respondent were discontinued. The respondent filed an appeal before the Division Bench of the High Court which has been allowed. On 5.2.1996 the services of the respondent were discontinued. The respondent filed an appeal before the Division Bench of the High Court which has been allowed. The present appeal is from the decision of the Division Bench. 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 dismiss the writ petition filed by the respondent." 7. The candidate must possess the valid certificate as required by the employer on the last date prescribed for submission of application forms and if the candidate does not possess such a certificate, the selection authorities are within their right to reject the candidature. 8. Another plea of learned counsel for the petitioner is that the selection has been kept half way in defiance of Rule 10 Sub-Rule (iii) of the Rules. Sub-Rule (iii) reads as under:- "(iii) The Board shall finalize the select list which shall be equal to the number of vacancies for which requisition was made and recommended it to the appointing authority." 9. Respondents have issued the list of selected candidates in the open merit category and recommended their appointment. Against the post reserved, to be filled up by a candidate belonging to RBA category, selection could not be made due to the reason that the candidate of this category was not available. The petitioners candidature was rejected, therefore, the post was re-advertised and filled up. There is no substance in the plea of the learned counsel for the petitioner, that the selection has been kept in half way. Learned counsel for the petitioner relying upon AIR 1976 SC 789 has submitted that selection has to be made in accordance with law. This judgement is of no help to the learned counsel for the petitioner. 10. It is also seen from the record that Jalal-ud-din has been appointed against this post in second exercise of selection process. He has not been arrayed as party respondent by the petitioner despite the fact, he was aware that Jalal-ud-din has been appointed against the post which fact is stated by the respondents in their objections. In his absence, no order can be passed which may affect his rights. The petition on this legal point also merits dismissal. 11. He has not been arrayed as party respondent by the petitioner despite the fact, he was aware that Jalal-ud-din has been appointed against the post which fact is stated by the respondents in their objections. In his absence, no order can be passed which may affect his rights. The petition on this legal point also merits dismissal. 11. Another submission of learned counsel for the petitioner that the petitioner was called for interview being eligible for the post is not tenable. Issuance of interview card does not determine eligibility. Eligibility has to be determined as per the Advertisement Notice and the rules governing the service. 12. For the aforesaid reasons, the writ petition being devoid of merit is dismissed.