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2009 DIGILAW 168 (JK)

Shazia Masoodi v. State Of J. &K.

2009-04-16

MOHAMMAD YAQOOB MIR

body2009
1. Pursuant to notification no. 17-PSC of 1997 dated 01.09.1997, respondent no. 1 invited applications for the post of Horticulture Development Officer. The qualification for eligibility was prescribed as B.Sc Agriculture with Horticulture as major subject of all subjects or B.Sc. Horticulture. The cut off date for, receipt of the applications was fixed as 16.10.1997. Petitioner has also applied but did not possess the requisite degree upto cut off date, she had taken her examination of B.Sc Agriculture in University of Dr. Yashwant Singh Parmar University of Horticulture and Forestry Solan of which result was declared on 28.12.1997. 2. The admitted position is that the petitioner had passed and obtained the requisite degree on 28.12.1997 when the cut off date pursuant to advertisement notice for the aforesaid post was 16.10.1997, by no stretch of imagination petitioner was eligible to apply. How application has been entertained and then how roll number slip has been issued in her favour and how she has been permitted to take the examination is a million dollar question which has been attempted to be answered with utter prevarication. 3. It is only at the final stage when the results were to be declared the eligibility of the petitioner has been questioned based on which her result has been withheld. 4. Appearing counsel for the petitioner contended that there is acquiescence on the part of the respondents, therefore, withholding of the result is unwarranted. The aberrations on the part of the respondents in entertaining the application, then permitting her to sit in the examination cannot be justified in any manner. The object of fixing the eligibility criteria cannot be permitted to be violated and also cannot be left to the whims and caprice of the respondents. 5. It shall be devastative to permit ineligible person, to take advantage of the folly of the persons who for the reasons best known to them have shut their eyes while processing her application and while issuing the roll number slip for taking the examination. 6. The Public Service Commission, a premier Commission, assigned with the task of selecting the best talent in most transparent manner his fallen in error resultantly has given chance for litigative process. It shall be quite relevant to refer to various rules as embodied in Jammu and Kashmir Public Service Commission (Business and Process) Rules 1980. 7. 6. The Public Service Commission, a premier Commission, assigned with the task of selecting the best talent in most transparent manner his fallen in error resultantly has given chance for litigative process. It shall be quite relevant to refer to various rules as embodied in Jammu and Kashmir Public Service Commission (Business and Process) Rules 1980. 7. As per Rule 27(ii) an application is liable to be rejected on various counts which include Clause (b) which reads as under: - "From persons not possessing the minimum basic qualification and marks as prescribed in the notification on the last date for receipt of applications." 8. It shall be quite apt further to quote Rule 29 and Rule 30 which reads as under: "Scrutiny of applications: The scrutiny of the applications shall be made by the concerned Head Assistant, the Section Officer and the Under Secretary sitting together. They shall prepare a statement of scrutiny in form No. 3 and sign the same before submitting it to the Secretary. This job shall be completed within one week of the last date fixed for the receipt of the applications. The Secretary shall examine the statement alongwith the applications and in case he finds the same in order, he shall pass it on with his views to Eligibility Committee for orders." 9. In terms of Rule 31(b), on scrutiny, it is to be specifically pointed out as to whether a candidate fulfills all the conditions of eligibility and in terms of Rule 33 it is eligibility committee who has finally to decide which of the applicants are eligible for sitting in the examination, in case of any relaxation or condonation, matter is to be placed for decision before the Commission. Further more list of persons declared ineligible has to be submitted by the Secretary to the Commission for its perusal and ineligible candidates are required to be informed about their in eligibility. 10. In the birds eye view the afore referred rules provide as to how in a sacrosanct manner scrutiny is to be conducted and how ineligibility is to be pointed out when for scrutiny there is one Head Assistant, Sectional Officer and the Under Secretary sitting together, how come the petitioner admittedly ineligible candidate has succeeded in getting roll number slip and then succeeded in sitting for examination. It is not clear as to how the eligibility committee has acted in terms of Rule 33, rules framed are meant for adherence not for violation. 11. Petitioner admittedly having been ineligible candidate, by no means can be declared as eligible. The taking of the examination does not confer any special right. Acquiescence in such matters in the given facts and circumstances does not mean that the petitioner has acquired a special right so as to enable her to take advantage of the lapse of the concerned officials/officers while entertaining and scrutinizing her application. 12. The contention of the learned counsel for the petitioner to the effect that principal of promissory estoppel will apply, therefore, in any case, result of the petitioner has to be declared. The contention is only to be rejected as stated above that a person cannot be permitted to take advantage of folly or deliberate attempt of getting selection when the candidate is admittedly ineligible. In this connection, it is quite relevant to quote Para No. 8 of the judgment reported in (2003) I SCC page 156 titled Central Airmen Selection Board vs. Surinder Kumar Das, which reads as under: - "Counsel for the appellants submitted that even in the absence of any misrepresentation, in a, case of this nature where a candidate not eligible for appointment is selected by mistake is detected the authorities are bound to correct the mistake and recall the order of selection. The principle of promissory estoppel cannot be invoked in such cases. He sought to distinguish the decisions relied upon by the High Court. In view of the finding we have recorded earlier in this judgment, it is not necessary for us to express any opinion of this question, and may be, in a appropriate case the aforesaid question may merit consideration." It is again relevant to quote Para no. 13 of the judgment reported in AIR 2000 SC 2015 titled Bhupinderpal Singh v. State of Punjab, which reads as under: "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 vs. M. Tripura Sundari Devi, (1990) 4 Serv LR 237 (SC); Mrs. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram vs. 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 application; (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." It is once again relevant to quote para no. 20 of the judgment reported in 2007 (4) SCC page 65 titled Ashok Kwnar Sonkar v. Union of India and Others, which reads as under: "Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application." 13. A cut off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application." 13. The ratio laid down in the afore stated judgments covers the case of the petitioner, so petitioner does not have any right to get selection simply on the count of having been permitted to take the examination when on the relevant date she was ineligible. 14. Petitioner not possessing the requisite degree upto cut off of date consciously making an calculated attempt to seek selection coupled with the remissness of the officers and officials dealing with process of scrutiny and eligibility does not deserve any concession such ineligible candidate does not deserve selection. 15. It is true that in certain cases equities lean in favour of a person but for that special facts and circumstances coupled with the intervention of the Court orders in hard hit cases is imperative, in the instant case, there are no such facts except for lapses of the officers and officials of the Commission and deliberate attempt of the petitioner to get the selection even after knowing the position of ineligibility. The examination taken by the petitioner and permitted by the Commission being illegal, therefore, withholding of result does not warrant any interference. 16. Noticing the lapses on the part of the scrutiny committee and also of the eligibility committee in entertaining the application of the ineligible petitioner and giving rise to unnecessary litigative process the Chairman Public Service Commissions is expected to look into the lapses and to take action as he may deem fit against the erring officers/ Officials. 17. Petition being devoid of merit, hence dismissed. Copy of the judgment be send to Chairman, Public Service Commission under registered cover for information.