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J&K High Court · body

2008 DIGILAW 298 (JK)

Ajay Gupta v. State

2008-07-17

NIRMAL SINGH

body2008
1. The brief facts for the disposal of this case are that the petitioner presently working as Junior Engineer in the MES (Military Engineering Service), responded to a notification No.06-PSC of 2005 dt. 31st of May05, issued by the respondent Public Service Commission (hereinafter called the Commission) inviting applications from the permanent residents of J&K State for appointment to the post of Assistant Engineer (Civil). The qualification prescribed for the said post was Bachelors Degree in Civil Engineering or AMIE (Sec.A&B), India, in the appropriate branch of engineering. So far as the age criteria is concerned, this was prescribed as minimum 18 years and maximum 35 years on the cut off date i.e. 1st of Jan05. The maximum age so far as Physically handicapped category is concerned was fixed at 37 years and 38 years for SC/ST category, those already in Government service and belonging to Ex-servicemen category. 2. The petitioner had applied for the post in question as a candidate already in Government service. His application was routed through proper channel by the MES department. The further fact is that respondent Commission in supercession to aforesaid notification issued another notification bearing No.12-PSC of 2005 dt. 20th of Sept05, inviting applications on prescribed proforma for various posts under the State including the post of Assistant Engineer (Civil). The candidates who had applied in pursuance to the earlier notification had to apply afresh. The age criteria was re-fixed. So far as the category of `in service i.e. candidates already in Government service is concerned, the maximum age prescribed as on Ist of Jan05 was increased from 38 to 40 years. Petitioner being eligible responded to the second notification also. He was issued an admit card and put to a screening test along with other eligible candidates. The result of the screening test conducted by the respondent Commission was declared vide notification No.PSC/EXAM-06/41 dt. 2nd of Aug06 (Annexure G). 3. The grievance projected by the petitioner is that even though, he stood third in the merit list prepared by the Commission after the result of the screening test was declared, he was not interviewed by the Commission on the ground that the application of the petitioner stands rejected due to the reason that he is over-aged. 3. The grievance projected by the petitioner is that even though, he stood third in the merit list prepared by the Commission after the result of the screening test was declared, he was not interviewed by the Commission on the ground that the application of the petitioner stands rejected due to the reason that he is over-aged. It is stated that petitioners age on the cut off date was 37 years, 2 months and 27 days i.e. well within the prescribed age limit of 40 years but the respondent Commission treating the candidature of the petitioner in open category denied him the benefit of upper age limit as fixed for the candidates who had applied under the category of already in Government service. It is stated that the petitioner had submitted his application through proper channel and had not suppressed any fact. It is stated that while filling up the application form, the petitioner had clearly shown that he is not a State Government employee. It is stated that in the advertisement notice, it was nowhere mentioned that only State Government employees are eligible to apply under the category of "Candidates already in Government Service". It is stated that in the advertisement notice word "Government Service" has been mentioned which would include both Central as well as State Government and the petitioner whose services are under the Central Government cannot be denied the benefit of consideration on the ground that he is not a State Government employee. It is thus stated that the action of respondents in rejecting the candidature of the petitioner by non accepting his application form under the category of "Candidates already in Government Service" is not in accordance with the law. 4. On notice, respondents have filed objections stating therein that petitioner who is an employee of the Central Government cannot be treated as an in-service candidate and thus not entitled to the benefit of upper age limit of 40 years as prescribed in the advertisement notice. It is stated that word "Government" as mentioned in the advertisement notice would mean only the "Government of Jammu and Kashmir" and not the "Government of India" and as the services of the petitioner are governed by the Central Government, his candidature, as indicated above, cannot be considered under the category of in-service candidate. It is stated that word "Government" as mentioned in the advertisement notice would mean only the "Government of Jammu and Kashmir" and not the "Government of India" and as the services of the petitioner are governed by the Central Government, his candidature, as indicated above, cannot be considered under the category of in-service candidate. It is thus stated that the respondent Commission has rightly rejected the application of the petitioner. 5. Admitted. After hearing learned counsel for the parties and perusing the record, I am of the opinion that this petition has merit and deserves to succeed. 6. A perusal of the advertisement notice issued by the Commission shows that nowhere it is prescribed that only those candidates serving in State Government departments of J&K State should apply and would be eligible to be considered under the category of "already in Government Service". It has only been mentioned in the advertisement notice that the candidates already in Government Service should be 40 years of age as on 1st of Jan05. The advertisement notice only prescribes that a candidate applying for the post in question should be permanent resident of the J&K State, which condition is fulfilled by the petitioner. So far as the stand of the respondents that "Government service" would include only the J&K State Government service is concerned, the same cannot be accepted. This is because if such a contention is accepted, then, no candidate serving in any department under the Central Government would be eligible to apply for any post under the State Government as an in-service candidate and vice versa. When an advertisement notification is issued for filling up any post under the State, the common policy which as per law should be and is being adopted by almost all the States and Union Territories is that applications are invited from all eligible candidates subject to fulfilling some essential qualifications, which includes the academic qualification in a particular field, technical qualification, experience, age qualification etc. So far as reservation of posts in different categories i.e. Open merit, Residents of Backward Area, SC/ST, Physically Handicapped, Ex-servicemen, is concerned, it depends upon the number of posts available in this regard to be filled in each category in a particular department. So far as reservation of posts in different categories i.e. Open merit, Residents of Backward Area, SC/ST, Physically Handicapped, Ex-servicemen, is concerned, it depends upon the number of posts available in this regard to be filled in each category in a particular department. So far as the acceptance of the applications from the candidates already in Government Service is concerned, this cannot be deemed to be a different category and anyone who is serving in any Government department either Central or State or in any Public Sector Undertaking is eligible to apply for a post under the Central/State Government subject to his/her fulfilling the requisite qualification as prescribed in the advertisement notice including the age qualification irrespective of his/her serving in a particular State/Central government department. It be further seen that sometimes when the advertisement notices are issued for filling up some posts, some reservation is there for Ex-servicemen category subject to availability of posts in the said category as is the case herein also and in case, the contention as raised by the respondents in the present case is accepted, then no Indian citizen who has retired from service after serving in any Central Government department would be eligible to apply under this category for a post to be filled in by the State of J&K. No doubt, under the State Constitution, a bar is created so far as the employment under the State is concerned. A candidate seeking employment in this State has to be a permanent resident of the State of J&K but there is no such bar so far as seeking employment by a permanent resident of State of J&K, serving in any Central Government Department is concerned. Any candidate who is a permanent resident of the State and serving in any department under the Central Government is eligible to apply for a post under the State through proper channel in the category of "already in Government service" in case, such a candidate is fulfilling the other requisite qualifications as prescribed in the advertisement notification. Rejecting the candidature of a candidate who even though is a permanent resident of the State of J&K but serving in a department under the Central Government, as has been done by the respondents in the present case, would not be in accordance with the law. Rejecting the candidature of a candidate who even though is a permanent resident of the State of J&K but serving in a department under the Central Government, as has been done by the respondents in the present case, would not be in accordance with the law. The action of respondents in non accepting the application form of the petitioner on the ground that he cannot be treated to be a candidate "already in Government service" as he is not serving in any department under the State Government, even though he is a permanent resident of the State, is thus held to be bad and illegal. 7. This petition, as such, is allowed. Impugned communication No. PSC/DR/AE/Civil/2005 dt. 18th of April07, issued by respondent No.3, whereby the application of the petitioner for the post of Assistant Engineer (Civil), Public Works Department, has been rejected, is quashed. As the petitioner has already been allowed to participate in the selection process and his interview has been conducted in terms of interim order passed on 26th of April07, the respondent Commission is directed to declare the result of the petitioner within a period of ten days from the date a copy of this order is made available to the said respondent by the petitioner. In case, the petitioner is found successful, then further appropriate action regarding issuance of appointment order in his favour shall be issued by the competent authority within one month thereafter. The petitioner in that eventuality would be entitled to all consequential benefits minus monetary benefits. Disposed of accordingly.