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2018 DIGILAW 379 (JK)

Isma Bashir v. State of J&K

2018-06-05

M.K.HANJURA

body2018
JUDGMENT : 1. By the medium of this writ petition, the petitioner seeks the indulgence of this Court in issuing a writ of Certiorari for setting aside the communication bearing No. ZEO/IDD/6425 dated 01-04-2015, annexure (k4), issued by respondent No.4, which has the effect of disqualifying the petitioner from being selected/appointed as Rehbar-i-Taleem (ReT). A writ of Mandamus is also sought to direct the respondents to take on record the Permanent Resident Certificate (PRC) of the petitioner issued by Tehsildar, Eidgah, Srinagar, on 25-06-2015. A further prayer is made to direct the respondents to select/appoint the petitioner to the post of ReT in view of her merit position. 2. The brief facts, essential for the disposal of this writ petition, are that the petitioner responded to the advertisement notice dated 21-08-2014, issued by the respondent No.4, for filling up the post of ReT, that had fallen vacant in the Primary School, Bangladesh-B, in revenue village Takanwari Pora, Eidgah, Srinagar. The cut off date for filing the application forms was prescribed as 10 days from the date of the publication of the advertisement notice. Besides other documents, it was notified that the application forms should be accompanied by the State Subject Certificate and Permanent Resident Certificate issued by the Tehsildar concerned. The petitioner has stated that at the time of publication of the advertisement notice, i.e. on 25-08-2014, she was having the State Subject Certificate but not the PRC. However, she had submitted an application before the Tehsildar concerned for issuance of the PRC in her favour, which was under process at the relevant point of time. It is further stated that immediately after obtaining the PRC, the same was produced before the respondents but they declined to entertain the same. The petitioner has further stated that it was only after taking resort to the RTI Act that she came to know that the respondents had received only 07 application forms for filling up the post of ReT. The merit list had also been prepared where the petitioner appeared to have obtained 54.71 points and figured over & above all the candidates. The merit list had also been prepared where the petitioner appeared to have obtained 54.71 points and figured over & above all the candidates. However, it is stated that to the dismay of the petitioner, her candidature was rejected on the ground that she had not annexed the PRC with her application form and had also not responded to the notification issued by the respondents in the daily Aftab informing her to do the needful within six days from the date of publication of the notification. The petitioner has further stated that the panel of 03 candidates, viz. respondents 5,6&7 herein, (even though they were inferior in merit than that of the petitioner), was submitted by the respondent No.4 to the respondent No.3, for their engagement as ReT in Primary School, Bangladesh-B. 3. The petitioner has further stated that the respondent No.3, in the light of order No. 641-DSEK of 2015 dated 16-03-2015, issued by the respondent No.2, returned the said panel to the respondent No.4. The respondent No.4, however, refused to obey the said order on the ground that the post had been advertised in August, 2014 and the panel was submitted in March, 2015. It was also mentioned that the petitioner had been disqualified due to the deficiency of PRC, which she had not produced within the stipulated time. 4. The petitioner has proceeded to state that the respondents have not finalized the selection process of filling up the post of ReT as yet. She had not annexed the PRC with the application form but had attached her State Subject Certificate with it. She has further stated that when the PRC was issued in her favour, it was mentioned in it that the same is issued on the basis of the State Subject Certificate already issued in her favour by the Deputy Commissioner, Srinagar. The petitioner has further stated that she cannot be excluded from the zone of consideration for her selection/appointment to the post of ReT when, as per the merit list, she figures at S.No.1. She cannot be deprived of the selection/appointment to the post in question merely on the ground that she had not produced her PRC along with her application form. She cannot be deprived of the selection/appointment to the post in question merely on the ground that she had not produced her PRC along with her application form. She further states that as a matter of fact, in terms of the PRC issued in her favour by the Tehsildar concerned on 25-06-2015, it was stated therein that the State Subject Certificate of the petitioner be treated as PRC. The petitioner has further stated that since the respondents, have refused to take on record her PRC and have also declined to consider her case for selection/appointment to the post of ReT, therefore, the impugned order dated 01-04-2015, issued by the respondent No.4, deserves to be set aside, being contrary to equity, fair play and good conscience. 5. The respondents have filed the reply affidavit in which it is stated that the writ petition is not maintainable and deserves to be dismissed as none of the legal, constitutional or statutory rights of the petitioner have been violated by the respondents. It is further pleaded that the petitioner has not come to the Court with clean hands and has suppressed the material facts from this Court. 6. It is further contended in the objections that the application form submitted by the petitioner was found deficient and she was informed through print media to report to the respondent office within 06 days, failing which her application form will be rejected. It is further pleaded that in terms of the advertisement notice dated 21-08-2014, applications were invited from the eligible candidates having 10+2 qualification or above from the revenue village, Takanwari Pora, Eidgah, Srinagar, for the engagement to the post of ReT with further stipulation that no application form will be entertained after the cut off date which was fixed as 04-09-2014. It was clearly mentioned in the basic advertisement notice that, besides other documents, the application forms must be accompanied by PRC/Non migration Certificate by the concerned VEC, and the State Subject Certificate. It is further pleaded that the petitioner though selected had not appended the PRC with her application form, which necessitated the rejection of the same. It was clearly mentioned in the basic advertisement notice that, besides other documents, the application forms must be accompanied by PRC/Non migration Certificate by the concerned VEC, and the State Subject Certificate. It is further pleaded that the petitioner though selected had not appended the PRC with her application form, which necessitated the rejection of the same. However, it was felt necessary to provide a chance to her to do the needful and produce the PRC before the respondents within six days from the publication of the said notice, so that her case is processed further, which she failed to do, leaving the respondents with no option but to reject her application form and proceed with the process of selection of ReT in Primary School, Takanwari Pora, Eidgah. The respondents have finally prayed that the contentions and submissions made in the writ petition by the petitioner, being contrary to what has been stated by them in their objections, the writ petition is liable to be dismissed. 7. Heard & considered. 8. The moot question for consideration in this petition is whether the petitioner could have been disqualified from holding the post of ReT on the sole ground that she did not produce a Permanent Resident Certificate (PRC) before the Competent Authority at the time of filing the application in response to the Advertisement Notice or thereafter when she was asked to produce the same by a notice published in a local daily and the answer to this question is a big “No” in view of the law laid down by the Division Bench of this Court in the case of J&K Public Service Commission & Another v. Ms. Rimpi Ohri and Another reported in 2002 (1) SLJ 234 , wherein it has been held as under: “Constitution of India Articles 15 & 16; J&K Reservation Rules Rule 34: Service Law Appointment:- Consideration for appointment sought by a candidate against reserved category LAC (resident of Line of Control). Rimpi Ohri and Another reported in 2002 (1) SLJ 234 , wherein it has been held as under: “Constitution of India Articles 15 & 16; J&K Reservation Rules Rule 34: Service Law Appointment:- Consideration for appointment sought by a candidate against reserved category LAC (resident of Line of Control). Consideration denied on the ground that certificate produced by her had not been renewed and the renewed certificate was lately produced held even after the expiry of the validity period of two years as contemplated in sub rule (1) of the rule 34 of J&K Reservation Rules, if a candidate continues to reside in the area, non-renewal of the certificate as contemplated under sub rule (2) of the rules would not disentitle him or her of the reservation benefit for considering his/her case under the reserve category of resident of Line of Actual Control. Non-renewal of certificate does not change the status of the applicant if he or she is actually residing in the area for which the certificate has been issued originally”. 9. The same view has been repeated and reiterated in the law laid down in Assad Ullah Khan v. State of J&K reported in 2001 JKLR 137 , which is reproduced below: “There can be no dispute with the proposition which is sought to be canvassed by the learned counsel for the petitioner. A candidate must possess the requisite qualifications before the date which is indicated acquisition of these qualifications later on would be of no consequence. The position in this case is entirely different. This is not a case where some qualification has been acquired by the petitioner later on. He was the resident of Backward Area earlier to the issuance of the notification by the Commission and he continues to be so. As such the eligibility qualification in this regard is not being acquired by the petitioner for the first time after the cut off date. It is only proof regarding this is being furnished on a date which is after cut off date. ………. A distinction has to be made qua a qualification which is acquired i.e, by a positive effort and a qualification which stands vested by operation of law or by circumstances beyond the human effort such as birth in a family or at a particular place. ………. A distinction has to be made qua a qualification which is acquired i.e, by a positive effort and a qualification which stands vested by operation of law or by circumstances beyond the human effort such as birth in a family or at a particular place. If this aspect of the matter is taken note of then there is merit in the submission of the learned counsel for the petitioner. The petitioner did possess the qualification is acquired earlier to the issuance of the notification. Only proof was furnished by him afterwards. This could be done in terms of Rule 4 noticed above”. 10. Applying the ratio of the law laid down above to the facts of the instant case, the petitioner could not have been denied the appointment against the post of ReT on the sole ground that she did not produce the requisite certificate before the Competent Authority at the time of responding to the advertisement notice or subsequently, when she was asked to do so through a notice published in a local daily. The State Subject Certificate of the petitioner produced by her with the application form demonstrated that she is the resident of the area in which the post has to be filled and to crown it all there is no denial of the fact that she (the petitioner) came to be selected but her case was not considered on a ground which seems to be too technical and has no base. 11. Learned counsel for the respondent No. 5 has placed reliance on the law laid down in Mohammad Ashraf Raina v. State and Others reported in 2011 (ii) SLJ 683, wherein it has been held that the qualification acquired after last date fixed for submitting application which was the cut off date for determining merit/qualification/eligibility shall have to be judged with reference to the date prescribed as last date for filing the application. 12. The law laid down above does not have any application to the facts and circumstances of the instant case inasmuch as the petitioner was a permanent Resident of the area much before the issuance of the notification. She had already acquired the eligibility in this regard but she did not produce the certificate on the cut off date. 12. The law laid down above does not have any application to the facts and circumstances of the instant case inasmuch as the petitioner was a permanent Resident of the area much before the issuance of the notification. She had already acquired the eligibility in this regard but she did not produce the certificate on the cut off date. The State Subject Certificate attached by the petitioner to her application bears testimony to the fact that she was a resident of the area for which the post was notified. She had already acquired the status of being a resident of the area which could be verified from the State Subject Certificate also and she did acquire the Permanent Resident Certificate subsequently which forms a part of the file. 13. In view of the preceding analysis, the petition of the petitioner is allowed and the communication bearing No. ZEO/IDD/6425 dated 01.04.2015 (Annexure K4) addressed by respondent No. 4 to the respondent No. 3 is quashed. The respondents are directed to take on record the Permanent Resident Certificate (PRC) of the petitioner issued by the Tehsildar Eidgah, Srinagar, on 25.06.2015 and select/appoint the petitioner to the post of ReT in view of her merit position. 14. The writ petition is disposed of along with connected MP(s).