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2007 DIGILAW 26 (JK)

Kapil Sharma v. State Of J. &K.

2007-03-16

MANSOOR AHMAD MIR

body2007
1. The grievance projected in this writ petition is that the petitioner applied before respondents and, accordingly, appeared in J&K Combined Competitive examination, 2005 (Preliminary). After he was declared successful, he also filled the Application form for appearing in J&K Combined Competitive Examination. Main, and declared successful. Respondents have cancelled his candidature on the ground that he was not eligible to appear in the Examinations both Preliminary and Main, of the J&K Combined Competitive Examination, on the ground that he was not possessing required eligibility academic qualification. Feeling aggrieved, the petitioner filed this writ petition and has sought indulgence of this Court for quashing Order No.01 -- PSC of 2007 dated 23rd of January, 2007 -- Annexure-K and issuing a command to the respondents to allow the petitioner to participate in vive-voce/interview commencing from 12th of March, 2007 of the said Examination. Along side the main petition, petitioner has filed CMP for grant of ad-interim relief. 2. Respondents have filed reply. 3. Heard. 4. The crucial point involved in this petition is whether the petitioner was eligible. 5. In order to determine this issue, it is necessary to reproduce hereunder the relevant para of Advertisement Notice -- Notification No. PSC/EXM-05/27 dated 1st of April, 2005 (Annexure -C). "5. Eligibility Conditions: The conditions of eligibility and age limits etc., as laid down in the Notification SRO 161 dated 17.07.1995 read with SRO 85 dated 13.03.2001, SRO 156 dated 19.04.2004, SRO 31 of 2003 dated 01.01.2003 and SRO 38 of 2005 dated 16.02.2005, shall be as under:- A candidate a: must be permanent resident of the J&K State; and b: must hold a Bachelors Degree in any subject from a recognized University in India or from a foreign University declared by Government in consultation with the Commission to be equivalent to a degree of a recognized University. Provided that candidates who have appeared in Bachelors Degree examination or its equivalent, recognized by the universities of J&K, the passing of which would render them eligible to appear in the examination but the results of their examination have not been declared, shall be allowed to appear in the Preliminary Examination. Provided that candidates who have appeared in Bachelors Degree examination or its equivalent, recognized by the universities of J&K, the passing of which would render them eligible to appear in the examination but the results of their examination have not been declared, shall be allowed to appear in the Preliminary Examination. Such candidates, as are declared by the Commission to have qualified for taking the Combined Competitive (Main) Examination, will be required to produce proof of passing the Bachelors Degree examination with their Application Form for the Main Examination, failing which such candidates shall not be admitted to the Main Examination......." 6. While going through this Notification, it is crystal clear that candidate/candidates must have possessed Bachelor Degree in order to compete in the Examination. However, proviso provides that a candidate, who has appeared in Bachelor Degree Examination or its equivalent, recognized by the Universities of J&K, the passing of which would render him/them eligible to appear in the examination, but the results of the examination have not been declared, they/he can be allowed to appear in the Preliminary Examination. If he/they qualified the Preliminary Examination, they have to produce mandatorily proof passing of the bachelors Degree Examination with his/their application Form for the Main Examination. In default, such candidate/candidates are not to be admitted to the Examination Rule 7 of SRO-161 of 1995 permits a candidate, who appeared in the Bachelor Degree Examination, to sit in the Preliminary Examination of J&K Combined Competitive Examination. It also provides that admission to the Preliminary Examination is purely provisional and could be cancelled by the respondents if, on verification, it is found that candidate/candidates lack eligibility. It is profitable to reproduce Rule 7 of the said SRO-161 herein: "Rule 7. Candidates for the preliminary examination shall submit alongwith their applications prescribed fee and attested copies of certificates in support of their claims regarding age, educational qualifications. Scheduled Castes and Scheduled Tribes, other Backward Classes and holding of a civil post in the State which will be verified by the Commission at the time of main examination only. They shall ensure that they fulfill all the eligibility conditions for admission to the preliminary examination on the last date fixed by the Commission for receipt of applications. Scheduled Castes and Scheduled Tribes, other Backward Classes and holding of a civil post in the State which will be verified by the Commission at the time of main examination only. They shall ensure that they fulfill all the eligibility conditions for admission to the preliminary examination on the last date fixed by the Commission for receipt of applications. The admission to the preliminary examination shall be purely provisional and if on verification at any later date, it is found that the candidate had claimed eligibility for such examination by mis-representation, fraud or concealment of material fact or impersonation, his candidature shall be cancelled and he will be liable to prosecution/disciplinary action by the Commission. The candidates who are declared by the Commission to have qualified for admission to the main examination will have to apply again alongwith prescribed application form, which would be available in the Commission." 7. In the year 2002, a proviso came to be added to Rule 7 of SRO-161 (supra) vide SRO-156 of 2002 dated 19th of April, 2002, which reads as under: "Condition 5 In rule 7- (i) for words, "verified by the Commission at the time of Main Examination only" the words "verified by the Commission at the time of Preliminary Examination only" shall be substituted. (ii) At the end, the following proviso shall be added: "Provided that candidates who have appeared in Bachelor of Degree examination or its equivalent recognized by the universities of J&K the passing of which would render them eligible to appear in the examination but the results of their examination not declared shall be allowed to appear in the preliminary examination. All candidates who are declared qualified by the commission for taking the Combined Competitive (Main) Examination will be required to produce proof of passing the requisite examination with their application for the Main Examination failing which such candidates shall not be admitted to the Main Examination." 8. It appears that condition 5, i.e., eligibility condition, containing Annexure-C referred hereinabove, is in compliance to the proviso. Now question is whether the petitioner had academic qualification, i.e., Bachelors Degree at the relevant period. 9. It appears that condition 5, i.e., eligibility condition, containing Annexure-C referred hereinabove, is in compliance to the proviso. Now question is whether the petitioner had academic qualification, i.e., Bachelors Degree at the relevant period. 9. Petitioner has admitted in his writ petition at para 3 that at the time of filing of the application Form in terms of Advertisement Notice (Annexure-C), he had appeared in 8th Semester of four years of Bachelors Degree Course (Computer Science) as a regular student and a certificate to that effect was issued by the concerned Principal (Annexure-B) to the writ petitioner and on the basis of Annexure-B, petitioner was allowed to appear in the Preliminary Examination. After he made the grade, he was required to file an application for appearing in the Main Examination. It appears that he has not obtained the said Bachelors Degree on the said date, but he filed an affidavit with the application Form that he will produce the required certificate and, accordingly, he appeared in the Main Examination and was declared successful. Respondents examined his documents and detected that he had not filed his Degree Certificate and was not eligible at the relevant time, i.e., at the time of appearing in the Main Examination and, accordingly, a notice came to be issued by respondent-3 to petitioner whereby he was asked to produce the Degree Certificate indicating/disclosing that applicant/writ petitioner had obtained the requisite qualification on 20th of January, 2006, within ten days, failing which his candidature would be cancelled. It appears that he caused his appearance before respondent-3 and failed to produce the requisite Certificate and, ultimately, respondent-3 was constrained to pass impugned order contained in Annexure-K. Respondent-3, thereafter, also passed another Notification No.-PSC/EXM-0706 dated 31st of January, 2007 contained in Annexure-L, which is not impugned in this writ petition and candidates, who have been called for interview, due to cancellation of candidature of petitioner, have not been arrayed parties in this writ petition. 10. 10. Admittedly, petitioner was not declared successful in Bachelor of Degree Examination and was declared as "Re-appear" and had to re-appear in one paper, i.e., Electronic-II, meaning thereby that he had not obtained requisite qualification of bachelors Degree, at the time of filing the application in order to compete in the Preliminary Examination and had also not obtained the Degree on 20th of January, 2006, which was the last date for filing of application for Main Examination. 11. Proviso to Rule 7 to SRO 161 (supra) specifically provides that a candidate can be allowed to appear in Preliminary Examination if he has appeared in Bachelor of Degree Examination the passing of which renders him eligible. Here the case of the petitioner is different. He has appeared but could not pass the examination, thus has rendered him ineligible. 12. It appears that petitioner had obtained Bachelors Degree on 9th of June, 2006, i.e., it is clear cut case that the petitioner was ineligible to appear in the Examinations. Now question whether he can be allowed to compete in the interview? The answer is in negative for the following reasons. 13. It is now beaten law of the land that eligibility must be possessed at the relevant time. i.e., the date which is the last, date of filing an application in terms of Advertisement Notice and Rules referred hereinabove. 14. Apex Court in a recent case titled Dolly Chhanda v. Chairman, JEE and others, reported as 2004 AIR SCW 5699, held that a person/candidate must possess the eligibility qualification on the last date fixed for such purpose either in the Admission Brochure or in the Application Form. There can be no relaxation in this regard. It is apt to reproduce para 7 of the judgment: "7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature. 15. Apex Court also in another case titled Bhupinderpal Singh and others v. State of Punjab and others, reported as AIR 2000 SC 2011, wherein their Lordships held that petitioner must be eligible at the time as prescribed by the Rules and the Notice. It is apt to reproduce para 13 of the judgment: "13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar (1997) 4 JT (SC) 99; A.P. Public Service Commission v. B. Sarat Chandra, (1990) 4 Serv LR 235 (SC); Dist. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram v. M. Tripura Sundari Devi, (1990) 4 Serv LR 237 (SC); Mrs. Rekha Chaturvedi v. University of Rajasthan, (1993 I JT (SC) 220: 1993 AIR SCW 1488: 1993 Lab IC 1250); Dr. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram v. M. Tripura Sundari Devi, (1990) 4 Serv LR 237 (SC); Mrs. Rekha Chaturvedi v. University of Rajasthan, (1993 I JT (SC) 220: 1993 AIR SCW 1488: 1993 Lab IC 1250); Dr. M.V. Nair v. Union of India, (1993) 2 SCC 429 : (1993 AIR SCW 1412 : 1993 Lab IC 1111); and U.P. Public Service Commission, U.P., Allahabad v. Alpana, (1994)1 JT (SC) 94 : (1994 AIR SCW 2861), the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore, well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice." 16. Looking to this case from another angle also, if the petitioner will be allowed to appear in the interview, this will cause serious injustice to those candidates, who would have also appeared in the Examination, but had not obtained required Certificate at the relevant time and that will also amount to defeat the set procedure for conducting Examinations. Sympathetic view cannot he taken into consideration because that would cause injustice to those who had not applied because of cut-off date. 17. The Apex Court in case titled State of Rajasthan v. Jitendra Kumar Bhatt, reported as AIR 1998 SC 91, held that a candidate, who is not holding the requisite qualification on cut off date, should not be allowed to sit in the Examination. It is profitable to reproduce para 6 of the said judgment: "6. 17. The Apex Court in case titled State of Rajasthan v. Jitendra Kumar Bhatt, reported as AIR 1998 SC 91, held that a candidate, who is not holding the requisite qualification on cut off date, should not be allowed to sit in the Examination. It is profitable to reproduce para 6 of the said judgment: "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 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 cut-off 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." 18. Apply the above principle to the writ petition in hand, I am of the considered view that the petitioner was ineligible on his own showing, because he obtained Bachelors Degree on 20th of June, 2006. The Rules, as prescribed mandatorily, and it is specifically provide that application shall be accompanied by the Bachelors Degree and in default, application is to be rejected. Respondents have rightly invoked their powers in terms of Rule 7 of SRO-161, referred to hereinabove and cancelled his candidature. 19. The petition is also liable to be dismissed on another count also that the petitioner has not challenged second Notification dated 21st of January, 2007 (Annexure-L), wherein three candidates are to be interviewed because of the cancellation of the candidature of the petitioner. 19. The petition is also liable to be dismissed on another count also that the petitioner has not challenged second Notification dated 21st of January, 2007 (Annexure-L), wherein three candidates are to be interviewed because of the cancellation of the candidature of the petitioner. Those persons were necessary parties and have not been arrayed as party respondents to the writ petition, though petitioner had annexed Annexure-L to the writ petition. 20. For what has been stated above, the petitioner has not been able to make out a case for admission of this writ petition, which is dismissed along with the CMP.