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2015 DIGILAW 182 (JK)

NASEER-UL-HAQ KHAN v. State

2015-04-16

MUZAFFAR HUSSAIN ATTAR

body2015
ORDER 1. Advertisement Notification No. 08 of 2010 dated 24th December, 2010, was issued by Jammu & Kashmir Service Selection Board (for short Board) inviting applications from eligible candidates for being selected/appointed on the posts of Junior Engineers, Grade II, Civil. 2. Besides others, the petitioner and private respondent No.4, responded to the said notification and sought consideration for being selected/appointed on the posts of Junior Engineers, Grade II, Civil under RBA category. 3. In this writ petition, the petitioner has called in question selection/appointment of private respondent No.4 on two grounds, one that RBA certificate was issued in favour of the private respondents after the cut off date and that his 03 year’s diploma certificate has also been issued after the cut off date. 4. The respondent – Board made recommendations in respect of selected candidates to the Government on 24th January, 2012, in which private respondent also figured. The Government acted upon the said recommendations and issued appointment orders in favour of the selected candidates, which include private respondent as well. Thereafter, one more communication was send by the respondent - Board to the Government on 25th January, 2012 in respect of RBA candidates. In that communication, the Principal Secretary to Government, PWD, was informed by the Secretary to respondent – Board that due to inadvertent error, name of the private respondent was recommended under RBA category at S.No.65. The authority was further informed that on checking the selection record, it has been found that the RBA certificate was issued in favour of the candidate after the cut off date and in consequence thereto, the candidature of private respondent stands deleted from RBA category. The Principle Secretary was further informed that in sequel thereto, the candidate figuring at S.No.1 of the Waiting List, under RBA category, i.e. present petitioner, makes the grade. 5. When the said communication was not acted upon, the petitioner approached the Court in this writ petition. 6. On 29th January, 2014, the Court stayed the appointment of respondent No.4 on the post of Junior Engineer, Grade II, Civil. He was further restrained from discharging his duties on the said post till further orders from the Court. It was further provided in the said order that staying of order of appointment of respondent No.4 shall be subject to objections of the other side. 7. He was further restrained from discharging his duties on the said post till further orders from the Court. It was further provided in the said order that staying of order of appointment of respondent No.4 shall be subject to objections of the other side. 7. Respondents 1&2, in their Reply Affidavit, have stated that on enquiry, it was found that RBA category certificate of the private respondent was genuine and within the cut off date. The respondent – Board, in its Reply Affidavit, has also reiterated the stand taken by respondent 1&2. Even learned counsel for the petitioner submitted that the issue in respect of RBA category certificate stands clinched and same has been issued within the cut off date prescribed in the Advertisement Notification. He, however, submitted that the result of the private respondent, in respect of his diploma has been issued after the cut off date fixed in the Advertisement Notification. Learned counsel submitted that for this reason the private respondent could not be considered for being selected/appointed on the post of Junior Engineer, Grade II, Civil. 8. Learned counsel for the petitioner invited attention of the Court to paragraph VI of the Advertisement Notification, copy whereof was produced before the Court during the course of arguments today and taken on record, to indicate that it has been prescribed in the notification that last date for receipt of applications shall be the cut off date for determining the eligibility. Learned counsel submitted that, admittedly, on 29th January, 2011, which was the last cut off date for filing of applications, the private respondent No.4 had not qualified the diploma course successfully. Learned counsel, in support of his argument, referred to and relied upon the Division Bench judgement of this Court, passed in LPA 69/2013 on 11th June, 2014 as also on the judgement rendered by learned Single Bench of this Court, reported in 2006(2) JKJ 675 and submitted that in view of law laid down by the Court, the private respondent was not eligible on the last cut off date, so his selection/appointment is to be set aside. He further submitted that the petitioner, who figured at S.No.1 in the Waiting List and in whose favour, recommendation was also made, has to be appointed on the post, which the private respondent has to vacate, in view of the aforesaid factual and legal position obtaining in this case. 9. Mr. He further submitted that the petitioner, who figured at S.No.1 in the Waiting List and in whose favour, recommendation was also made, has to be appointed on the post, which the private respondent has to vacate, in view of the aforesaid factual and legal position obtaining in this case. 9. Mr. Shah, learned Senior Advocate, appearing for private respondent No.4, submitted that the Advertisement Notification, which was issued on 24th December, 2010, fixed the cut off date for filing applications 29th January, 2011. Mr. Shah further submitted that the result of Diploma course was declared on 25th September, 2010, and in respect of two papers of the respondent No.4, same was declared on 10th January, 2011. Mr. Shah further submitted that in the result notification, the private respondent No.4 was shown to re-appear in one paper each in 3rd and 4th semesters. Learned counsel further submitted that the private respondent, on 23rd January, 2011, got the papers re-evaluated and on re-evaluation, it was found that mistake was committed by the concerned authority in counting the marks and it was because of the mistake, the private respondent No.4 was shown ‘re-appear’ in the aforesaid two papers. Learned counsel further submitted that on rectification of mistake on 23rd January, 2011, result of the private respondent No.4 was declared on 19th February, 2011, which showed him to have qualified the 03 year’s diploma course. 10. Learned counsel submitted that the issue, which is required to be considered by the Court in this case is as to whether the mistake committed by the concerned authorities in calculating the marks of the papers, one each of 3rd and 4th semester, which resulted in late declaration of the result of private respondent No.4, would, in law, deny him the right of consideration and appointment on the post of Junior Engineer, Grade II, Civil. Learned counsel submitted that on the basis of his merit, the private respondent No.4 came to be selected/appointed on the post of Junior Engineer, Grade II, Civil and he continued to work on the said post until such time, the interim order dated 29th January, 2014 was passed by the Court. Learned counsel, in support of his contention, referred to and relied upon the Division Bench judgement of this Court reported in 2012 (III) SLJ 695, titled Veena Kumari versus State of K&K and others. Learned counsel, in support of his contention, referred to and relied upon the Division Bench judgement of this Court reported in 2012 (III) SLJ 695, titled Veena Kumari versus State of K&K and others. Learned counsel invited attention of the Court to paragraphs 25 & 26 of the said judgement and submitted that it has been held that when a mistake, committed by authorities, is rectified, the rectification would date back to the date of declaration of result. Learned counsel, accordingly, submitted that since the mistake has been rectified, though after the cut off date, yet in view of the law laid down in the aforesaid Division Bench judgement, it has to be declared that the private respondent No.4 was in possession of the requisite qualification well within the last cut off date fixed for filing of applications. 11. In the judgement rendered in LPA 69/2013 supra, the respondents - writ petitioners had sought consideration for being selected/appointed on the posts of teachers under ST category. The last cut off date for filing applications was 15th May, 2008 and the result in respect of their Post Graduate degrees was declared by the University on 17th April, 2008. The marks cards were issued on 26th June, 2008, much after the cut off date fixed for filing of applications. The Division Bench, while considering the terms and conditions of Advertisement Notification, held that reference to the academic qualifications mentioned in the advertisement notification would mean those qualifications in respect of which the candidate is in possession of certificates and testimonials before the last cut off date of receipt of application forms. The judgement of the Division Bench is based on the judgement of Hon’ble the Supreme Court reported in AIR 2012 SC 1803 . On the same lines, the learned Single Judge has rendered judgement in the case reported in 2006 (2) SLJ 675. 12. In LPA 69/2013, the issue before the Court was not about the mistake committed by the authorities in calculating the marks of the private respondent in one paper each in 3rd and 4th semester. On the same lines, the learned Single Judge has rendered judgement in the case reported in 2006 (2) SLJ 675. 12. In LPA 69/2013, the issue before the Court was not about the mistake committed by the authorities in calculating the marks of the private respondent in one paper each in 3rd and 4th semester. If the mistake would not have been committed by the concerned authorities in calculating the marks, the result, which was declared on 25th September, 2010, would have covered the case of the private respondent No.4 as well and as the last cut off date for filing of application forms was 29th January, 2011, he would have, in his own right, become eligible on the terms and conditions of Advertisement Notification for being considered for being selected/appointed on the post of Junior Engineer, Grade II, Civil. 13. The issue of considerable importance, which requires to be adjudicated upon in this case is as to whether the mistake committed by the authorities in calculating the marks in two papers of private respondent No.4, which mistake, by no stretch of imagination can be attributed to the private respondent, would, in law, still mean that his result has not been declared on 25th September, 2010 as a successful candidate. 14. At few occasions, the Courts, while considering the cases and rendering judgements, themselves, for a moment, stand at cross roads. Since the primary function of the Court of law is to administer justice according to law, so earnest effort is to be made to cull out appropriate answer to questions and issues, which arise for consideration, so that justice is meted out to the parties. The Division Bench of this Court in case titled J&K BOPEE and others versus Sunandani Sharma and others, reported in AIR 2014 J&K 44, has held that though justice is to be administered in accordance with laws, but it further said that justice, in itself, constitutes a supreme law. 15. Assume a situation that the authority, who evaluated the answer scripts of private respondent No.4, would have, in the first instance, evaluated them properly and calculated the awarded marks also properly, then this case would not have been before the Court and respondent No.4 would have not been facing the axe, which is projected by the petitioner in the writ petition. The private respondent No.4 would have been continuing in service, in his own right, as he, on the basis of his merit, was recommended for being selected/appointed for the post of Junior Engineer, Grade II, Civil. 16. Now it is to be answered as to whether the respondent No.4 has to suffer at the altar of mistake committed by the Evaluator. The answer, in justice, would be no, as, for the mistake of Evaluator, the respondent No.4 cannot be made to suffer. 17. In the fact situation of this case, it has to be held that the petitioner has successfully qualified the Junior Engineer Diploma Course on 25th September, 2010, when the result was declared. It shall also be deemed, on the basis of legal fiction, that the petitioner was in possession of the requisite testimonials before the cut off date, viz. 29th January, 2011. 18. In this case, the competent authority has rectified its own mistake. The rectification would relate to the date of declaration of results, which view is taken by the learned Single Judge and upheld by Hon’ble Division Bench of this Court in Veena Kumari’s case supra, reported in 2012 (III) SLJ 695. The view taken by the Court in LPA 69/2013 and Cross Appeal 182/2013 on 11th June, 2014, is taken on the peculiar facts of those cases. 19. In view of the aforestated discussion, this writ petition is dismissed along with connected IAs. Interim order dated 29th January, 2014 is vacated. Private respondent No.4 shall be deemed to be in continuous service of official respondents and he shall be given all service benefits to which he is entitled to. 20. In consequence of dismissal of this writ petition, SWP 2171/2012, filed by the private respondent No.4, does not survive for further consideration and same is, accordingly, disposed of along with connected IAs.