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2010 DIGILAW 340 (JK)

Neelam Kiranjeet Kour v. State

2010-06-05

MANSOOR AHMAD MIR

body2010
1. Public Service Commission-respondents 2 & 3 issued Notification No.2 of 2008 dated 18.2.2008 for filling up the posts of Dental Surgeon in the Health Department of Jammu & Kashmir State. The petitioner having requisite qualification applied for the same under the Category of Resident of Backward Area (for short RBA). The form of petitioner was entertained and was called for interview on 18.11.2008. Thereafter Commission-respondents 2 & 3 issued a Notification in Kashmir Times containing the list of candidates whose documents were deficient. The name of petitioner was also figuring at Sr. No.11 in the said list and it was shown that she had not appended the RBA Category Certificate. 2. The petitioner had applied for issuance of requisite certificate in the year 2008 before the competent authority-Tehsildar, but for the reasons best known to the authorities the same was not issued within time. After noticing the said notification-Annexure "E", the petitioner again approached the Tehsildar for issuance of said certificate as early as possible, but the said authority delayed the matter. On 8.1.2010 Commission-respondents 2 & 3 issued another notification-Annexure "F" which contained the list of selected candidates and the petitioner was shown to have deficiency of RBA Certificate. In the said notification it was made clear that if the candidates, whose documents were still awaiting, failed to produce the same by or before 20.1.2010, their selection shall be deemed to have been cancelled without notice. After noticing that the competent authority was causing delay in issuance of the said certificate, the petitioner was constrained to file the writ petition in hand on 18.1.2010 questioning the said notice so far as it relates to the cancellation of selection of petitioner in default. 3. This Court after considering the matter vide order dated 19.1.2010 directed the respondents not to cancel the selection of petitioner. 4. Respondents have filed the reply. It is contended that petitioner was not having the requisite category certificate on the cut-off date, i.e., 30.4.2008. The respondents have admitted that the petitioner appeared, made the grade and was shown to have been selected under the RBA Category and thereafter list of those candidates came to be published who were having deficient documents. Again another notification came to be issued, but the petitioner failed to produce the certificate. 5. The respondents have admitted that the petitioner appeared, made the grade and was shown to have been selected under the RBA Category and thereafter list of those candidates came to be published who were having deficient documents. Again another notification came to be issued, but the petitioner failed to produce the certificate. 5. The crux of the matter is whether a candidate belonging to a reserved category can be said to be ineligible merely because he/she has failed to produce the reserved category certificate within time. The answer is negative for the following reasons. 6. The petitioner has specifically averred that she is the resident of Village Narsingpora, Beerwa, District Budgam, which is declared to be a backward area. The respondents have not denied the said fact, but have asked her to produce the RBA Certificate, thus cannot be deprived of the benefit of SRO 126 of 1994, which is her legitimate and legal right. 7. The eligibility is not the category certificate. The eligibility is academic qualification. A candidate having the requisite qualification as on cut-off date is eligible. A candidate who fails to produce the category certificate within time cannot be said to be ineligible. 8. RBA status is conferred by residence/domicile. A person who resides in a village, declared to be a backward area, cannot be denied the said status or benefit for the simple reason that he/she has failed to produce the certificate within time due to the fault of competent authority. The said certificate is not the academic qualification and can be produced later on. 9. The same issue came up for consideration before a Division Bench of this Court in Public Service Commission v. Rimpi Ohri, 2002 (1) SLJ 234. It is apt to reproduce para 27 as under : "27. The next contention of Mr. D. C. Raina that the respondent did not possess requisite qualification on the closing date of submission of application form i.e. 16.03.1999 has no substance and it deserves to be rejected. The requisite qualification on the last date of application is relatable to educational qualification. In the case of respondent, we have already held that she was a resident of LAC, at the time of submission of the application and continue to be so even today. The requisite qualification on the last date of application is relatable to educational qualification. In the case of respondent, we have already held that she was a resident of LAC, at the time of submission of the application and continue to be so even today. If that is so, she was definitely possessing the qualification with regard to the resident of LAC, at the time of closing date of the application i.e. 16.03.1999. Non-renewal of certificate would not alter the status of her residence if otherwise she was factually resident of Line of Actual Control. The factum of the respondent/writ petitioner being the resident of Line of Actual Control is not denied by the applicant." 10. A Division Bench of this Court also in Surjeet Singh Bali v. State of J&K, LPA(SW) No.649/1999, decided on 14.03.2007, reported in 2007 (1) SLJ 18, laid down the same principle. It is apt to reproduce the relevant portion of paras 11 and 12 of the said judgment. "11. The RBA status is conferred by residence/domicile. The private respondents were having this status even at the time of submission of application forms but were not in possession of the certificates concerned, which came to be issued in their favour after filing of the application forms and before the examination came to be held. They have mentioned in the application forms that they belong to RBA category.." 12. It is to be taken into consideration as to what is the purpose, object, aim and ambit of SRO 126/94. The Constitutional guarantees that socially backward be uplifted and upgraded and some benefits be given to them in terms of the Constitutional mandate. The Government of Jammu and Kahsmir formulated the Reservations Rule -- SRO 126/94. The purpose of SRO is to confer certain benefits to the members belonging to the categories of RBA. Line of Actual Control, Scheduled Castes and Scheduled Tribes and no qualification is prescribed except that a candidate seeking the benefit of any such category should be a resident of a particular area at a particular point of time." 11. Admittedly, the petitioner came to be selected under the RBA Category, but the selection order was with held for production of RBA Certificate. Admittedly, the petitioner came to be selected under the RBA Category, but the selection order was with held for production of RBA Certificate. Thereafter a notification came to be issued commanding the petitioner to produce the certificate by or before 20.1.2010, in default it was provided that her selection shall be deemed to have been cancelled. This Court granted the interim direction in favour of petitioner. 12. During the pendency of the writ petition, the petitioner filed CMP No.180/2010 for taking on record the RBA Certificate. The said application is granted and the certificate is taken on the record of writ petition. 13. Keeping in view all the facts I am of the considered view that the petitioner has made out a case. 14. In the given circumstances, the writ petition is allowed, the notification, impugned in the writ petition, so far as it relates to the petitioner is quashed and the selection of petitioner against the post of Dental Surgeon under the RBA Category is maintained. Respondents are, accordingly, directed to pass necessary orders as follow-up action in terms of the judgment. Disposed of along with all CMPs.