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2017 DIGILAW 595 (JK)

Namrata Abrol v. State

2017-08-09

B.S.WALIA

body2017
1. Petitioner applied for the post of Teacher in District Jammu in response to an Advertisement Annexure A dated 12.11.2010. Name of the petitioner was shortlisted, but he was not called for interview whereupon the petitioner filed the instant writ petition. On 20.04.2011, this Court while issuing notice, directed the Services Selection Board to conduct the petitioner’s interview for the post of Teacher in District Cadre Jammu. 2. According to learned Dy.AG, petitioner was not called for interview on account of her not fulfilling the requirement i.e 15 years residence in the District in which the recruitment was to be made. Pursuant to the aforementioned directions, the petitioner was interviewed and in terms of order dated 28.12.2012 in SWPNo. 871/2011 connected with SWP No. 811/2011 and SWP No. 870/2011, result of the petitioner was placed on record. A perusal thereof reveals that the petitioner was awarded 60.70 marks. 3. Learned counsel for the petitioner states that the advertisement for the post of teacher was for District Jammu. The petitioner was a resident of Bhaderwah District Doda prior to her marriage and after her marriage, the petitioner started residing in Jammu in the year 2008. The petitioner initially submitted PRC showing her place of residence as Jammu. The PRC submitted by the petitioner was objected to by the respondents on the ground that the same did not reflect 15 years residence of the petitioner in District Jammu as per the requirement under Section 13 of the Jammu and Kashmir Civil Services Decentralization Act, 2010 (for short ‘Act’) Relevant extract of Section 13 of aforementioned Act is reproduced hereunder: "Section 13.Residence-(i) 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 b, 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". 4. Learned counsel for the petitioner contends that the aforementioned provisions of the Act was amended in the year 2013 whereby period of residence of spouse of the applicant was also to be taken into account while working out the eligibility of 15 years. 4. Learned counsel for the petitioner contends that the aforementioned provisions of the Act was amended in the year 2013 whereby period of residence of spouse of the applicant was also to be taken into account while working out the eligibility of 15 years. Amended Section 13 is reproduced here under: “(A) Notwithstanding anything contained in Sub section (1), if a woman marries outside her Districts/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 her husband has resided in that District/Division, as the case may be, for a period of not less than 15 years” 5. On the basis of the same, learned counsel for the petitioner contends that once the provisions of section 13 had been amended then in terms thereof, the petitioner could not be denied eligibility and consideration for appointment. 6. I am afraid, the matter is not as simple as has been projected by the learned counsel for the petitioner. The advertisement inviting applications is of the year 2010. The eligibility of the petitioner has to be considered up to the last date for applying for the post of teacher in the year 2010 itself. Section 13 of the Act ibid stipulates requirement of 15 years in the District in which the post is to be filled up. Admittedly, the petitioner was not resident of District Jammu for a period of 15 years prior to the date of submission of application i.e 21st of December 2010 i.e the cut off date. No doubt, Section 13 of the Act ibid was amended in order to take into account the residence of the spouse of the applicant in the District concerned for working out the eligibility of the applicant also. But the amendment in question is dated 22.03.2013. 7. On the last i.e 04.08.2017, learned counsel for the parties were directed to make submissions on the proposition whether amendment to a statute in the absence of a provision providing for the amendment to be applicable w.e.f particular date, would be applicable retrospectively or prospectively. 8. But the amendment in question is dated 22.03.2013. 7. On the last i.e 04.08.2017, learned counsel for the parties were directed to make submissions on the proposition whether amendment to a statute in the absence of a provision providing for the amendment to be applicable w.e.f particular date, would be applicable retrospectively or prospectively. 8. Learned counsel for the petitioner has referred to order of this Court dated 06.07.2015 in SWP : No. 1338/2013 wherein directions were issued to decide the claim of the petitioner therein in terms of Section 13 of Jammu and Kashmir Civil Services Decentralization Act, 2010 as amended, which provided that residence status of 15 years was to be considered by taking into account the period the spouse had resided in that District/Division. I am afraid, the aforementioned decision is of no help to the petitioner in the context of proposition as noted above. 9. The matter had to be considered in the light of the eligibility prevailing as on the cut off date. Even otherwise, the law is well settled that even a social legislation is always applicable prospectively, unless it is expressly or by necessary intendment provided to the contrary. Reference in this connection is made to the decision of Hon’ble Supreme Court reported as (2016) 2 Supreme Court Cases 36 (Prakash and others vs. Phulavati and others). Relevant extract of paragraph No. 18 of the aforementioned judgment is reproduced here under : “18. Contention of the respondents that the Amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language of the statute. 10. A perusal of amendment of Section 13 of the Act ibid reveals that the same is to come into force from the date of its publication in the Government Gazette. The notification was published in the Government Gazette on 22.03.2013. Not only the language of the amendment, but also the applicability of the amendment i.e from the date of its publication in the Government Gazette goes to show that the amendment is prospective in nature. The notification was published in the Government Gazette on 22.03.2013. Not only the language of the amendment, but also the applicability of the amendment i.e from the date of its publication in the Government Gazette goes to show that the amendment is prospective in nature. 11. In the light of the plain language of the amendment and the date from which the amendment would come into operation as mentioned in Section 2 of the Act ibid, it cannot but be held that the amendment is prospective in the absence of there being any express or necessary intendment of the amendment being retrospective in nature. 12. In the light of the position as noted above, the petitioner was not eligible as on the cut off date, therefore, cannot derive any benefit of the amendment of Section 13 of the Act ibid. Resultantly, the writ petition is without any merit and is accordingly dismissed.