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2015 DIGILAW 298 (JK)

Shaheena Bashir v. J & K Service Selection Board

2015-06-08

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J. 1. The facts and circumstances giving rise to the grievance projected in this writ petition depict a horrible scenario of grave gender discrimination latent in the State of the law and the rules governing the subject. The relevant law, when seen through the prison of the equality provisions of the Constitution of India, smacks of a primitive tinge and manner of thought against woman folk. The treatment meted out to the petitioner herein gives a sense as if, by law, marriage pulls up and flings a lady in air so she loses her claim to appointment to Government service on the ground of residence both at her birth and the nuptial place. The agonizing tail of the petitioner that is reflected from the situation of the present case is thought provoking. Unfortunately, the law which permits such discrimination on the basis of gender is not under challenge in the writ petition, and neither the State nor any of its functionaries has been impleaded as a party respondent. The petitioner, a lady and a permanent resident of District Budgam, Kashmir, was married at Anantnag, Kashmir, in the month of July 2010. 2. In November of the same year, i.e., on 12.11.2010, respondent No. 1 issued advertisement notice No. 07 of 2010 inviting applications for various kinds of District, Divisional and State cadre posts mentioned in annexures 'A', 'B' and 'C' thereto, from the candidates who were residents of the concerned Division/District. The advertised posts included 339 District Cadre posts of Teachers in District Budgam and 207 posts in District Anantnag. In the notice specific mention was made of Section 13(1 to 3) of the J & K Civil Services Decentralization and Recruitment Act, 2010 which defines the term residence. It was provided therein that in respect of Divisional/District Cadre posts only the candidates belonging to the concerned Division/District could apply except Scheduled Caste candidates. The last date for receipt of the application forms was prescribed to be 21.12.2010. 3. It appears that the petitioner offered her candidature both at Budgam as well as at Anantnag. Subsequent thereto, the Jammu and Kashmir Services Selection Board (for short, the Board) is stated to have issued a notification publicising the short listed candidates of District Budgam wherein the name of the petitioner was shown at serial No. 779 as an eligible Open Merit candidate. 4. Subsequent thereto, the Jammu and Kashmir Services Selection Board (for short, the Board) is stated to have issued a notification publicising the short listed candidates of District Budgam wherein the name of the petitioner was shown at serial No. 779 as an eligible Open Merit candidate. 4. The Board conducted the interview of eligible candidates, who had applied for their consideration against the post of Teacher borne on District Cadre Anantnag, somewhere in March, 2011 and the petitioner was interviewed on 30.03.2011. The petitioner was duly interviewed and accorded consideration for selection. However, at Budgam, where her interview was scheduled to be held on 02.04.2011, she was denied appearance before the interviewing Board on the ground that she was married at Anantnag and, therefore, could not be said to be a resident of Budgam. 5. At Anantnag, despite having secured 56.69 points as against 54.37 points secured by the last selected candidate, she was excluded from the select list on the ground of production of Permanent Resident Certificate of District Anantnag after the cut-off date. It may be mentioned here that the petitioner was married to a person residing in Anantnag in July, 2010. The advertisement notice was issued on 12.11.2010. The petitioner made an application before the competent authority for issue of Permanent Resident Certificate of that District on 29.11.2010 which was issued in her favour on 30.03.2011, the date she was interviewed and, according to the petitioner, she produced the certificate in question before the Board on the very same day. It also needs a mention here that in terms of the advertisement notice, candidates were not required to attach any certificate with the application forms. They were only required to give the details of certificates in respect of eligibility qualification, additional qualification, reserved category and other certificates relied upon by them in the application forms. And only such qualifications and claims vis-à-vis. the qualification and category were required to be recorded in the application form as were relevant and in possession of the candidate before the last date for receipt of application forms. 6. And only such qualifications and claims vis-à-vis. the qualification and category were required to be recorded in the application form as were relevant and in possession of the candidate before the last date for receipt of application forms. 6. Aggrieved of the refusal on the part of the respondent Board to allow the petitioner to appear in the interview at Budgam on the ground of her having been married at Anantnag, and her exclusion from the select list at Anantnag on the ground that she had produced the 'PRC' after the cut off date, the petitioner has approached this Court in this writ petition. She has prayed for issue of a writ of certiorari to quash the grounds on which her candidature for the post of teacher in District Anantnag has been rejected. The petitioner has also sought Mandamus to declare that the petitioner was eligible for the post of Teacher both at Anantnag as well as Budgam and to direct the respondent Board to recommend her for appointment on the basis of the total points she has secured in the selection process. 7. The respondent Board has filed its reply. It is stated therein that the approach of the Board is in conformity with law and perfectly legal. It is asserted that the Board has rightly refused to consider the petitioner for appointment in District Budgam in that she was not a resident of Budgam on the relevant date. She has been rightly refused selection in District Anantnag on the ground that certificate relied upon by her for her selection has been obtained after cut-off date. Reliance in this connection is made on Clause (III) of the Advertisement notice. It is further asserted that the Board, as a recruiting body, is supposed to strictly adhere to the stipulations and conditions contained in the Advertisement notification and that the same cannot be relaxed in favour of any particular candidate. It is stated that the petitioner ought to have remained vigilant and obtained the requisite certificate before the cut off date. According to Board, the petitioner has lost her right of consideration. It is sought to be stressed that by providing a stipulation of having certificates before the cut-off date, the Board infuses a certainty in the selection process. 8. I have heard learned counsel for the respective parties, perused the material brought on record and considered the matter. 9. According to Board, the petitioner has lost her right of consideration. It is sought to be stressed that by providing a stipulation of having certificates before the cut-off date, the Board infuses a certainty in the selection process. 8. I have heard learned counsel for the respective parties, perused the material brought on record and considered the matter. 9. At the hearing the learned counsels for the parties have restricted their arguments to their respective pleadings. 10. It may be mentioned here that by order dated 24.12.2011 one post of Teacher in District Anantnag was directed to be kept reserved. In consequence thereof, one Mushtaq Ahmad Wani, who was the last selected candidate, figuring at serial No. 113 of the Open Merit Category, approached the Court and sought arraignment as respondent No. 2 in the writ petition. He was so arrayed as party respondent. However, as per the statement made at the Bar by his counsel, he was later appointed on one of the posts which had remained unfilled on account of non-joining of the concerned selected candidate. The matter in relation to respondent No. 2, therefore, stands concluded. 11. The reason why the petitioner was excluded from the select list of District Anantnag, despite having secured marks more than the last selected candidate, has been disclosed in the information supplied to the petitioner vide communication No. SSB/Div/J/RTI/55-56 dated 15.12.2011 under Right to Information Act. Therein the petitioner is shown to have obtained 56.69 points. In the remarks column of the information, it is written "PRC after cut-off date (30.03.2011), PG from Dr. Bhim Rao Ambedkar Univ." However, neither in the counter affidavit, nor at the hearing, the respondent Board raised any issue regarding the PG certificate of the petitioner. The contest is made only on the ground of the late production of PRC by the petitioner. 12. As seen above, whereas in the information supplied to the petitioner it is written "PRC after cut-off date (30.03.2011), in paragraph 2 of the counter affidavit it is stated that "Permanent Resident Certificate produced by petitioner has been issued after cut-off date" Same plea is reiterated in paragraph No. 3 of the counter affidavit in the words that "the petitioner has been rightly refused selection in District Anantnag on the ground that certificate relied by petitioner for her selection in District Anantnag has been obtained after cut-off date". 13. 13. The positive stand of the respondent Board is that the petitioner had produced her PRC after the cut-off date (30.03.2011). When they speak of PRC, they do not mean the Permanent Resident Certificate as is envisaged by Section 6 of the Constitution of Jammu and Kashmir read with the provisions of the PRC Act, but the present permanent 'Residence' certificate within the meaning of Section 13 of the Decentralization Act. The real controversy on the basis of which the petitioner has been excluded from the select list, thus, obviously is not relatable to any doubt of the Board about the petitioner's status as a Permanent Resident of the State of Jammu and Kashmir as defined under Section 6 of the Constitution of Jammu and Kashmir, but it is relatable to her 'residence' in the District of Anantnag. Unfortunately, the State Government has not prescribed and provided any mechanism for issuance of Present Permanent Residence Certificates in terms of the stipulations contained in Section 13 of the Decentralization Act. The governmental functionaries seem to be taking the Permanent Resident Certificates as the Present Permanent Residence Certificates, when the conditions governing the issuance of the Permanent Resident Certificates in terms of Section 6 of the Constitution of J & K read with the relevant provisions of the Jammu and Kashmir Grant of Permanent Resident Certificate (Procedure) Act, 1963 (for short, the PRC Act) and the purpose thereof is entirely different from the conditions and the purpose envisaged by Section 13 of the Decentralization Act. This aspect may need the attention of the Government. 14. It is also nobody's case that the petitioner is not a permanent resident of the State of Jammu and Kashmir within the meaning of Section 6 of the Constitution and Section 3(c) of the PRC Act. The petitioner possessed the Permanent Resident Certificate issued in her favour by the Deputy Commissioner, Budgam, way back in the year 2000. 14. It is also nobody's case that the petitioner is not a permanent resident of the State of Jammu and Kashmir within the meaning of Section 6 of the Constitution and Section 3(c) of the PRC Act. The petitioner possessed the Permanent Resident Certificate issued in her favour by the Deputy Commissioner, Budgam, way back in the year 2000. The issue has cropped up and the controversy has arisen in context of the definition of the term "Residence", wrongly mentioned as "Residents" in Clause (B), paragraph first, under the caption "invitation of applications and basic eligibility" of the Advertisement notification dated 12.11.2010, as it was given in Section 13 of the Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010 (for short, Decentralization Act) at the relevant point of time and reproduced in Clause (C) of the advertisement notification. 15. The Decentralization Act was enacted to provide for equitable opportunities of employment in the Civil Services in the State keeping in view its complex socio-economical and geographical, topographical, linguistic, security concerns and matters connected therewith and incidental thereto. Section 4 of the Act provides for constitution of District, Divisional and State Cadres of the services which shall be organized on department basis and administered as such subject to the general policy directives issued by the Government from time to time. Section 5 of the Act provides that the mode of recruitment to the posts borne on these three cadres shall be made by the competent authority on the basis of selection made by the Public Service Commission or the State Service Selection Board, as the case may be. 16. Section 6 of the Act under the heading 'appointment to District Cadre posts' lays down that a person shall be eligible for appointment to a District Cadre post only if he: (i) is a permanent resident of the State; (ii) is a resident of the concerned district; and (iii) possesses the prescribed qualification, eligibility and experience for the post as specified under the rules/orders regulating recruitment to such posts. 17. The term 'residence' is defined in Section 13 of the Act. 17. The term 'residence' is defined in Section 13 of the Act. At the time the selections in question were made, it read as under; "(1) A person shall be deemed to be resident of a particular District or Division if he/she has resided in such District or Division, as the case may be, for a period of not less than 15 years before the date of applying for a particular post and is actually residing in the said area. (2) Notwithstanding anything contained in sub-section (1), a person shall not be disentitled from claiming the residence in a particular District or the Division only on the ground that his/her father/mother or the person on whom he/she is dependent is living in a place outside the said District or the Division, as the case may be, on account of his/her employment, business, profession, vocational reasons or temporary dislocation from his/her original place of residence due to security reasons. (3) Notwithstanding anything contained in sub-section (1), the candidates applying under the Scheduled Caste Category for any post in the Divisional or District Cadre shall, irrespective of their place of residence in the State, be eligible for selection against the posts reserved for the said category at such selection." Reading Sections 6 and 13 of the Act conjointly, it is revealed that a person would be eligible for appointment to a District Cadre post only if, apart from possessing the prescribed qualifications, he or she was a permanent resident of the State and was a resident of the concerned district. It needs to be mentioned here that the word "person" used in Section 13 of the Decentralization Act refers only to a Permanent Resident of the State within the meaning of Section 6 of the Constitution. In terms of the definition of the word 'Residence' given under Section 13 of the Act, only such person, as aforesaid, would be deemed to be resident of a particular District if he or she has resided in such District for a period of not less than 15 years before the date of applying for a particular post and is actually residing in the said area. This particular Section thus has two parts. This particular Section thus has two parts. In terms of the first part, a lady, married in another district, would have to wait for 15 years before she would acquire the eligibility to apply for a post in her nuptial place and by then she could even cross the age bar; and in terms of the second part the lady would be deprived of her eligibility to apply in her parent district and, thereby lose her right to be considered there. Thus Section 13 of the Act did not envision and foresee the hapless situation to which a lady would be put who may be a resident of one district and would be married in another district. This scenario allowed by law to prevail doubtlessly tantamount to discrimination against women folk on the basis of gender. The object of the Decentralization Act, inter alia, was to provide equitable opportunities of employment in the Civil Services. Section 13 of the Act, as it then stood, by no standards could be said to be in consonance with its object. It, in fact, is against the relevant constitutional provisions mandating non-discrimination on the basis of gender. In that view of the matter, it was immaterial whether the petitioner had produced her Permanent Resident Certificate on the date when she was interviewed or before that date since before the date of applying for the post she had not resided in District Anantnag for a period of than 15 years. 18. It is true that Sub-rule (4) of Rule 13 of the Jammu and Kashmir Civil Service Decentralization and Recruitment Rules, 2010 (for short, Decentralization Rules) framed under Section 15 of the Decentralization Act, provided that the permanent resident certificate shall be the conclusive proof of residence of a candidate in a particular District or the Division, but this Rule did not remove the rigour placed by Section 13 of the Act. The scheme of things provided by Section 13 of the Decentralisation Act and the relevant Rule framed thereunder has grossly violated the fundamental rights of the petitioner. The scheme of things provided by Section 13 of the Decentralisation Act and the relevant Rule framed thereunder has grossly violated the fundamental rights of the petitioner. The State seems to have realised the mischief and woken up from slumber only in April 2013 when it inserted sub-section (4) under Section 13 by Act V of 2013 dated 25.04.2013 to the following effect: "(4) Notwithstanding anything contained in sub-section (1), if a woman marries outside her District/Division, the period of residence of 15 years under the said sub-section (1) shall not operate as a bar for applying to a post provided that her husband has resided in that District/Division, as the case may be, for a period not less than 15 year." Obviously, the aforesaid sub-section was added to cure a mischief in the Act, inasmuch as Section 13 of the Decentralization Act was totally discriminatory against women, like the petitioner herein. An amending Act which cures a mischief of the nature as was contained in Section 13 of the Decentralization Act would operate retrospectively to bring the legislative enactment and the action taken thereunder in consonance with the provisions of the Constitution. Consequently, the amendment can be applied to the case of the petitioner retrospectively. 19. It is not the case of the respondent that husband of the petitioner had not resided in District Anantnag for a period not less than 15 years on the date the petitioner had applied for the post. The last selected candidate also stands appointed against another post which had remained unfilled on account of non-joining of a selected candidate. One post stands reserved in this petition for the petitioner. At the top of it, the petitioner had produced the Permanent Resident Certificate before the Interviewing Board on 30.03.2011, i.e., the date on which she was interviewed. As mentioned earlier, she was not required to attach this certificate with her application form. Therefore, the last date prescribed for submission of application forms would be inconsequential and immaterial insofar as production of the requisite certificate before the Board is concerned. It is also not the case of the Board that the petitioner had not shown her residence in the application form as Anantnag. In that scenario, it cannot be said that the petitioner had produced the PRC after the cut off date. 20. It is also not the case of the Board that the petitioner had not shown her residence in the application form as Anantnag. In that scenario, it cannot be said that the petitioner had produced the PRC after the cut off date. 20. Keeping the entire facts and circumstances attendant to the case in consideration, I think the equality clauses of the Constitution and the fundamental rights of the petitioner guaranteed to her under Articles 14, 15 and 16 of the Constitution strand grossly violated by excluding the petitioner from the select list. The fault may not wholly and directly lie with the Board, but the fact remains that the petitioner's rights have been impinged upon and the wrong done to her needs to be set right. I am, therefore, of the opinion that this is a matter where judicial discretion deserves to be exercised in favour of the petitioner. 21. In light of the above, this petition is allowed. The ground on which the petitioner was excluded from the select list viz., that she had produced her Permanent Resident Certificate after cut off date is quashed. Resultantly, the petitioner having secured merit higher than the last selected candidate, the respondent Board is directed to take appropriate steps to recommend the petitioner's name to the competent authority for further necessary action at his end on the analogy of the other selected candidates. The needful shall be done within a period of 15 days from today. No order as to costs.