Jammu & Kashmir Public Service Commission v. Shikha Sharma
2017-02-28
ALOK ARADHE, N.PAUL VASANTHAKUMAR
body2017
DigiLaw.ai
JUDGMENT N. Paul Vasantha Kumar, J. 1. Heard Mr. D.C. Raina, learned senior counsel appearing for the appellant and Mr. Abhinav Sharma, learned counsel appearing for the 1st respondent. This L.P. appeal is preferred by the Jammu & Kashmir Public Service Commission challenging the order of the Writ Court made in SWP No. 3023/2015, dated 22.08.2016, giving direction to declare the result of the 1st respondent and consider her for, appointment in the post of Consultant Gynecology in the Health and Family Welfare Department in case she makes the merit under the ALC category within a period of one week. 2. The case of the 1st respondent before the Writ Court was that a notification was issued by the Public Service Commission bearing No. 13-PSC (DE-P) of 2014, dated 20.06.2014 calling for applications from permanent residents of J & K State among various other posts, number of Consultant Gynecologist posts notified were 36 in Health and Family Welfare Department, one post was reserved under ALC category. The last date fixed for submission of applications was 23.07.2014. The minimum qualification prescribed for the said post was MBBS or possession of recognized Graduate qualification in the First or Second Schedule or Part-II of the 3rd Schedule (other than Licentiate qualification) to the Indian Medical Council Act, 1956. The 1st respondent being a resident of village Degwar, Maldayalan of Tehsil Haveli District Poonch and a member of socially and educationally backward are falling under the category of "Resident of Area Adjoining Line of Actual Control" and she having possessed of the said certificate issued by the Tehsildar Haveli dated 29.07.2009, applied for the said post under ALC category. She underwent the process of selection and she was shown at serial No. 52 out of 88 candidates in terms of the merit list issued by Notification No. 1O-PSC(DR-S) of 2015, dated 18.09.2015. However, instead of mentioning total points in the last column, it was mentioned with remarks "withheld". The 1st respondent having shortlisted as a ALC category candidate and she having possessed a valid certificate issued by the competent authority as resident of the area near the Line of Actual Control requested the appellant to remove the word "withheld" as described in the merit points and she was informed by the officials that the ALC certificate produced by her as on the date of issuance of the merit list was not valid.
Hence the 1st respondent filed the writ petition seeking to quash notification dated 18.09.2015 to the extent disclosure of merit of the 1st respondent was withheld and the act of exclusion of the 1st respondent, who was the only candidate shortlisted and figuring in the merit list under ALC category with further direction to the Public Service Commission to disclose the merit points of the 1st in the selection process based on which select and recommend her name to the Government, namely, the 2nd respondent for her appointment as Consultant (Gynaecology) under ALC category and not to select and recommend any other candidate under ALC category. 3. The writ petition was allowed by the learned Single Judge by holding that the ALC certificate produced/enclosed by the 1st respondent having not been cancelled and the same was valid on the last date of submission of the application/cut off date, the 1st respondent is entitled to be treated as a ALC category candidate. 4. Mr. D.C. Raina, learned senior counsel appearing for the Public Service Commission argued that the cutoff date for submitting applications, though was 23.07.2014, on the date when the selection/merit list was drawn its validity was over as the certificate issued was valid only for a period of five years, which was upto 28.07.2014 and 1st respondent having married is not residing in the area near Actual Line of Control from 2012, she is not entitled to be considered as resident of ALC. In such circumstances, only, the result of the 1st respondent was shown as withheld in the merit list. Learned senior counsel further argued that the learned Single Judge relied on two judgments, one from the Hon'ble Supreme Court and another from Madras High Court, which were in relation to the validity of Community Certificate and are not relevant to the issue raised in the writ petition as well as in the L.P. appeal. 5. Mr.
Learned senior counsel further argued that the learned Single Judge relied on two judgments, one from the Hon'ble Supreme Court and another from Madras High Court, which were in relation to the validity of Community Certificate and are not relevant to the issue raised in the writ petition as well as in the L.P. appeal. 5. Mr. Abhinav Sharma, learned counsel appearing for the 1st respondent, on the other hand, argued that in terms of Rule 21 of the Jammu & Kashmir Reservation Rules, 2005, particularly Sub-Rule (iii), for claiming benefit for being resident of Backward Area or of area near the line of actual control one must establish that he/she has resided in the area for a period not less than 15 years before the date of application and is actually residing in the said area on the date of application seeking the said certificate. The 1st respondent having been resident of the area near Actual Line of Control for over 15 years submitted an application for issuing resident of ALC category certificate and the Tehsildar Haveli after enquiry and on recording satisfaction issued the certificate on 29.07.2009. The said certificate is valid for a period of five years in terms of Rule 24 of the said Rules and a right of renewal is conferred under the said Rule. The last date of submission of applications for the post in question being 23.07.2014, the 1st respondent was having a valid certificate issued by the competent authority and the qualification and requirement are to determined on the last date of submission of the applications, the Public Service Commission was not right in withholding the result of the 1st respondent from the merit list, particularly, when there is no rule stating that by virtue of marriage a girl will lost the residential status of ALC. Learned counsel further argued that the two judgments relied on by the Writ Court though relating to Community Certificate, the principle mentioned in the said judgments will apply to the facts of this case, thus, the order of the Writ Court is perfectly justified and no interference is called for. 6. We have considered the rival submissions and perused the Certificate dated 29.07.2009, the Rules as well as the order of the Writ Court. 7.
6. We have considered the rival submissions and perused the Certificate dated 29.07.2009, the Rules as well as the order of the Writ Court. 7. It is not in dispute that the 1st respondent was a resident of village Degwar, Maldayalan Tehsil Haveli, District Poonch and the competent authority, namely, Tehsildar Haveli issued a certificate on 29.07.2009 as a resident of ALC in terms of Rule 21 of the J & K Reservation Rules, 2005. Rule 21(iii) is a relevant provision insofar as claim of resident of backward area or area near line of control, which reads thus:- "21. Procedure for issuance of certificates The issuance of certificate shall be governed by the procedure laid down in Sections 13, 14, 15, 16, 17, 18, 20, 21 and 22 of the Act and the Competent Authority shall scrutinize the application and conduct such enquiries as may be necessary for verification of the details of the application as also with regard to the eligibility of the application for the certificate claimed by him/her keeping in view the following guidelines, namely:- (i) ................. (ii) ................. (iii) A person claiming benefit for being resident of Backward Area or of Area near the Line of Actual Control must establish that he/she has resided in the area for a period not less than 15 years before the date of application and is actually residing in the said area. However, a person may not be disentitled from claiming this benefit only on the ground that his/her father or person on whom he/she is dependent is living in a place which is not identified as Backward Area or area near line of Actual Control on account of his employment, business or other professional or vocational reasons; ..............." 8. On perusal of the said rule, it is evident that for issuance of ALC certificate by the competent authority, the authority shall scrutinize the application and conduct such enquiry as may be necessary for verification of the details of the application as also with regard to the eligibility of the applicant and he should satisfy that he/she has resided in the area for a period not less than 15 years before the date of application and he/she is actually residing in the said area.
It is also stated in the said Rule that certificate cannot be denied only on the ground that his/her father or person on whom he/she is dependent is living in a place which is not identified as Backward Area or area near line of Actual Control on account of his employment, business or other professional or vocational reasons. It is also mentioned in Rule 24 of the said Rules that certificate once issued is valid for a period of five years. The said Rules reads thus:- "24. Validity and Renewal.- The certificates issued to residents of Backward Areas or Areas near the Line of Actual Control shall be valid for a period of five years at a time and the certificates shall be renewable after following the procedure prescribed for issuance of such certificate". 9. It is not disputed that the 1st respondent was a resident of the village Degwar Maldayalan for more than 15 years was residing in the said village on the date of submission of application in the year 2009. For the reason that 1st respondent was resident of the said village in Poonch District, she suffered enormous difficulties, which are being faced by all residents of areas adjoining Actual Line of Control, the special reservation is provided in the Rules. In other words, object of giving reservation to a candidate, who is resident of an area adjoining Actual Line of Control was on the basis of hardships faced by candidates belonging to the areas adjoining Actual Line of Control and if the interpretation sought to be given by the learned senior counsel appearing for the Public Service Commission is accepted the object of giving reservation to the residents of areas adjoining Actual Line of Control will be defeated. 10. Learned senior counsel appearing for the appellant fairly agreed that there is no rule stating that by virtue of marriage, if a lady has to shift her residence to other place, she will loss her residential status so long as the validity period of the certificate is not over.
10. Learned senior counsel appearing for the appellant fairly agreed that there is no rule stating that by virtue of marriage, if a lady has to shift her residence to other place, she will loss her residential status so long as the validity period of the certificate is not over. That being the position, having regard to the admitted fact that the cutoff date for submission of application being 23.07.2014 and the certificate issued on 29.07.2009 was having validity period up to 28.07.2014, learned counsel appearing for the 1st respondent is justified in his submission that crucial date determining eligibility being the cutoff/last date and the said certificate issued to the 1st respondent having not been cancelled, the Public Service Commission is bound to accept the certificate and act on the said certificate and for that purpose only, learned Single Judge has relied on two judgments reported as (1997) 7 SCC 505 (R. Kandasamy v. Chief Engineer, Madras Port Trust) and (2012) 1 JCR 258 (Tamil Nadu Public Service Commission v. R. Manikandan & Anr.). Though the said decisions pertain to community certificate, the proposition of law to be ascertained from the said judgments is that once a certificate is issued by the competent authority, unless the same is cancelled, every authority is bound to accept the said certificate as valid for all purposes, whether the same is of community certificate, resident certificate, income certificate or any other certificate. The said view was taken by the Division Bench in the judgment reported in 2015 (1) JKJ 1 [HC] [Bansi Lal v. State of J & K & Ors.] 11. Considering the above facts as well as the law, we are of the view that the 1st respondent is entitled to get her merit declared and if her merit is enough for selection to the post of Consultant (Gynaecology), she is entitled to be selected and appointed against the said post. With the above observation this L.P. appeal is dismissed. No costs.