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2014 DIGILAW 89 (JK)

Harvinder Singh v. State Of J&K

2014-03-04

M.M.Kumar, MUZAFFAR HUSSAIN ATTAR

body2014
Muzaffar Hussain Attar, J. 1. The Letters Patent Appeal (LPA) is directed against judgment and order dated 31.12.2007 passed by the learned writ Court in SWP No. 2186/2001. Facts necessary for disposal of LPA are summarized as under: (a) The Jammu and Kashmir Services Selection Board, Srinagar issued an advertisement notice No. 06 of 1997 dated 01.07.1997 wherein applications on prescribed form were invited from permanent residents of J&K State for the posts indicated in the annexure `A' to the said notification. The post of Junior Engineers (Electrical) was also notified. The last date for receipt of the applications was provided as 31.07.1997 and through registered postal delivery 07.08.1997; (b) In terms of note 2(V) of the said advertisement notice, it was provided that the last date for receipt of applications shall for all purposes be the cut-off date for determining the eligibility; (c) Appellant along with eligible candidates applied for the said post. After conclusion of the selection process, the name of the appellant-writ petitioner did not figure in the select list; (d) Being aggrieved of his non-selection and selection of respondents No. 3 and 4, the appellant filed SWP No. 2186/2001 before the writ Court. One of the specific grounds taken in the writ petition was that respondents No. 3 and 4 on the cut-off date of the filing of the applications form viz. 31.07.1997, which was the date for determining eligibility, were not possessing the requisite eligibility qualification. The learned writ Court vide its order dated 31.12.2007 dismissed the writ petition filed by the appellant-writ petitioner. 2. It is this order which is called in question by the appellant-writ petitioner in this LPA. 3. Learned counsel for the appellant-writ petitioner while referring to the material placed on record submitted that respondents No. 3 and 4 were not eligible on the last cut-off date viz. 31.07.1997 as they were lacking the eligibility qualification on the said date because the result of their examination was declared by the concerned institution on 12.10.1997. Learned counsel submitted that on this date the respondents acquired eligibility qualification. Learned counsel submitted that ineligible candidates have been subjected to selection process and appointed on the post of Junior Engineers (Electrical). Learned counsel, accordingly, prayed for allowing the appeal and setting aside the impugned judgment. 4. Learned counsel submitted that on this date the respondents acquired eligibility qualification. Learned counsel submitted that ineligible candidates have been subjected to selection process and appointed on the post of Junior Engineers (Electrical). Learned counsel, accordingly, prayed for allowing the appeal and setting aside the impugned judgment. 4. Learned counsel for the respondents submitted that respondent No. 4 had filed writ petition bearing SWP No. 279/1999 in which respondent No. 3 was also impleaded as party respondent. Learned counsel submitted the learned writ Court vide judgment and order dated 28.12.1999 allowed the writ petition (SWP No. 279/1999) by providing that respondent No. 4 would be entitled to same benefit which has been given to respondent No.3 and the respondents were directed to issue appointment order in favour of writ petitioner-respondent No. 4 herein. Learned counsel submitted that the case set up by the respondent No. 4 in his writ petition was that he responded to the advertisement notification and was subjected to selection process but his result was not declared on the ground that he was not eligible. Learned counsel submitted that in view of the judgment passed by the court passed in SWP No. 279/1999 the claim of the appellant that private respondents are ineligible cannot be entertained at this stage. Learned counsel also submitted that the selection of the candidates was called in question before the writ Court in a writ petition which was ultimately upheld by the Hon'ble Supreme Court. Learned counsel submitted that learned writ Court, in this factual scenario, has been legally justified in dismissing the writ petition of the appellant-writ petitioner. Learned counsel prayed for dismissal of the appeal. 5. It was admitted in the SWP No. 279/1999 as is revealed by the judgment passed by the Court on 28.12.1999 that respondent No. 4 had acquired the eligibility qualification on 12.10.1997 on which date his result was declared. The claim of respondent No. 4 was that respondent No. 3 was similarly circumstanced with him and his name figured in the select list at Serial No. 172 and since results of both the candidates was declared on the same date, he has to be given similar treatment. 6. It is admitted on record that respondents No. 3 and 4 were not eligible on the terms and conditions of the advertisement notice for being selected and appointed as Junior Engineers (Electrical). 6. It is admitted on record that respondents No. 3 and 4 were not eligible on the terms and conditions of the advertisement notice for being selected and appointed as Junior Engineers (Electrical). In SWP No. 279/1999, appellant-writ petitioner was not a party. Respondent No. 4 had sought benefit in the said writ petition which was illegally given to respondent No. 3 by respondent No. 2. The eligibility of respondents No. 3 and 4 was not called in question in the said writ petition. The writ Court in this case was, thus, duty bound to return finding on the eligibility issue raised in the petition by the appellant. 7. Selection of the selectees which has been upheld by the Hon'ble Supreme Court, in law, cannot be stumbling block for the appellant to raise the issue of eligibility of respondents No. 3 and 4. The appellant, in facts and circumstances of this case, was justified in challenging the selection and appointment of respondents No. 3 and 4 in the writ petition on the ground that they were ineligible. The Hon'ble Supreme Court in case titled "Ashok Kumar Sharma and ors. v. Chander Shekhar and ors." reported in (1997) 4 SCC 18 has specifically ruled that an advertisement notice is a representation to eligible candidates and the authority who issued the same is bound by its terms and conditions. It has been further ruled by the Hon'ble Supreme Court that a candidate who did not fulfill the eligibility requirement on the cut-off date, but acquired the same at a later stage, could not be permitted to appear in the interview. In other words, such candidate could not be subjected to selection process. The law laid down by the Hon'ble Supreme Court in the aforementioned case squarely covers the facts and circumstances of this case. 8. Admittedly, the last date for filing the application form was 31.07.1997 and the same was the date for determining the eligibility of competing candidates. Respondents No. 3 and 4, admittedly, were not eligible on the cut-off date as their results in respect of their diploma were declared on 12.10.1997. Respondents No. 3 and 4, who are, admittedly, ineligible candidates, were clubbed with eligible candidates. This approach of the respondent No. 2 is against the tenet and spirit of Articles 14 and 16 of the Constitution of India. The ineligible candidates could not be subjected to selection process. Respondents No. 3 and 4, who are, admittedly, ineligible candidates, were clubbed with eligible candidates. This approach of the respondent No. 2 is against the tenet and spirit of Articles 14 and 16 of the Constitution of India. The ineligible candidates could not be subjected to selection process. The judgment passed in SWP No. 279/1999 would not bind the appellant-writ petitioner as he was not a party to the said writ petition and challenge to selection was not made on the basis of ineligibility. In that case one ineligible candidate sought parity in the matter of selection with other ineligible candidates. In law and in view of the mandate contained in Art. 14 and 16 eligible candidates constitute one class and ineligible candidates constitute a distinct and separate class. The clubbing of eligible and ineligible candidates and subjecting them to selection process would in law vitiate the entire selection process. The respondents 3 and 4 ineligible candidates on the cut-off date have no right in law to reap benefit of illegal selection process. Even the Court Judgment which proceeded on different facts, cannot cloth the respondents 3 and 4 with any right to protect their selection and appointment. 9. For our afore-recorded reasons, we allow the appeal and set aside the impugned judgment dated 31.12.2007 passed in SWP No. 2186/2001. Consequently, the selection and appointment of respondents No. 3 and 4 is set aside. Respondents 1 and 2 are directed to consider the case of the petitioner for his appointment as Junior Engineer (Electrical) within a period of eight weeks' from the data a copy of this order is served upon them. The appellant is to be treated within age, as on the date of initiation of selection process, he was within prescribed age limit.