Adnan Nayeem Asmi vs State and Others

Hasnain Massodi, Judge

The petitioner responded to advertisement notification No. PSE/EXM-09/46 dated 30.12.2008 issued by the respondents 2 and 3, inviting

applications from eligible candidates for 398 vacancies in the pay scale of 7500-12000, in various services including Junior Scale of J&K

Administrative Services. The examination in terms of SRO 387 dated 01.12.2008 read with SRO 397 dated 15.12.2008 was to consist of two

stages:

(i) Combined Competitive (Preliminary) Examination (Objective Type) for selection of candidates for the main examinations and

(ii) Combined Competitive (Main) Examination (Written and interview) for selection of candidates for various services and posts indicated

The advertisement notification laid down the conditions of eligibility as under:-

5(1) A candidate

a. Must be permanent resident of the J&K State: and

b. Must hold a Bachelors Degree in any subject from a recognised University in India or from a foreign University declared by Government in

consultation with the Commission to be equivalent to a degree of a recognised India University.

Provided that candidates who have appeared in any examination for such degree from any such University the passing of which would render them

eligible to appear in the examination but the results of their examination has not been declared, shall be allowed to appear in the preliminary

examination. All such candidates who are declared qualified by the Commission for taking the Combined Competitive (Main) Examination will be

required to produce proof of passing the requisite examination with their application for the Main Examination failing which such candidates shall

not be admitted to the Main Examination.

The last date of filing of application forms was extended to 20th March 2009. The petitioner admittedly had not a Bachelors degree to his credit on

20th March 2009 i.e. the last date for filing of applications for the advertised post. The petitioner appeared in BA final year examination through

Delhi University in April 2009, the results were declared on 8th August 2009, the application for the advertised post obviously was filed his

application. In terms of Proviso to part (b) of the notice dealing with eligibility criteria, where under even a candidate, who did not hold a

Bachelor's degree from a recognised University, but had appeared in any examination for his degree and was awaiting results, however, the

petitioner provisionally admitted to Combined Competitive Services (Preliminary) Examination 2009, was permitted by the respondents to appear

in the preliminary examination held on 23rd and 24th May, 2009 and was declared successful where after the petitioner was again provisionally

admitted to Combined Competent Services (Main Examination) 2009, held in March, April 2010 and permitted to sit in the examination.

The respondents on the basis of petitioner's performance in the main examination, calling for interview on 02.11.2010 at 9:30 A.M. The

respondents thereafter vide No. PSC/EXAM/KAS/2009, dated 03.12.2010, informed petitioner that he had not appeared in the degree

examination, prior to 20th March, 2009, i.e. cut off date for obtaining the degree or appearing for the degree examination and failed to submit the

proof of having appeared in the degree examination prior to 20th March, 2009, though at the time of interview he volunteered to submit the proof,

asked the petitioner to submit the proof of having appeared in the degree examination prior to 20th March, 2009 within three days i.e. up to 7th

December 2010, failing which his candidature can be deemed to have revoked even shown ""ab-initio"" without any further notice.

The petitioner in his reply to the communication No. PSC/EXAM/KAS/2009 Dated 03.12.2010, insisting that the fixation of examination schedule

degree examination is never within control of candidate, stated that he was to be given same treatment as was given to the candidates, who had

appeared for the degree examination prior to 20th March, 2009 and yet to be declared successful by his/her candidature. The petitioner submitted

that the treatment given to the petitioner different from one candidate, who appeared fortunately to have examined scheduled/fixed by the

University before 20th March, 2009 would offend Article 14 Constitution of India. The petitioner highlighted his academic achievements, appeared

to the respondents not to reject his candidature on a technical ground. The petitioner also complained that as he was not informed well in time

regarding his ineligibility to participate in the selection process. The petitioner lost opportunity to prepare for Indian Administrative Service and

appear in the preliminary examination for the Service held in May, 2010. The petitioner's reply to the communication No. PSC/EXAM/KAS/2009

Dated 03.12.2010, having not found favour with the respondents, the petitioner has filed instant writ petition assailing the aforesaid communication

and also questioning the varies of Proviso 1 Rule 5 of SRO 387 of 2008 dated 01.12.2008 on the grounds that once Proviso 1 Rule 5 of SRO

387 of 2008 dated 01.12.2008, made room for participation of candidates, who had yet to acquire Bachelor's degree on the date the

advertisement notification was issued and even on the last date of filing of applications. There was no reason to reject the candidature of the

petitioner, who though not having Bachelors' degree on the last date of filing of the application, did acquire it after the main examination was held

but before he was called for interview. It is insisted that Proviso 1 Rule 5 of SRO 387 of 2008 dated 01.12.2008, when given a purposive

interpretation, makes the petitioner eligible for participation in the selection process for the advertised posts. It is pointed out that as the fixation of

examination schedule is not within competence of the candidate and dependence on the decision to be taken by the University Authorities. The

petitioner can not be exposed to hostile discrimination only because the University Authorities decided to conduct the examination a few weeks

after the last date of filing of the applications. It is urged that in case Proviso 1 Rule 5 SRO 387 of 2008 dated 01.12.2008, is held to entitle/make

eligible only the candidates, who appeared in Bachelors degree examination before the date of filing of applications i.e. 20th March 2009 and

excludes all such candidates who appeared in the said examination thereafter, but acquired Bachelors degree before the selection process was

taken to its logical end, the Proviso would amount to unreasonable classification and then inflict with the mandate of Article 14 Constitution of

India. It is further pleaded that the respondents after having entertained the application submitted by the petitioner, allowed the petitioner to appear

in preliminary examination and thereafter main examination and uncalled the petitioner for interview cannot turn around and reject the petitioner on

the ground of his having eligible on the date of filing of the applications on the principle of promissory estoppels. The petitioner also assails the

impugned order on the ground of fairness and pleads the order is unfair, unjust and inflict with principle of equity and good conscious and fair play.

The petitioner pleads that as there was no stipulation in terms of advertisement notification, obligating the candidate to prove his having appeared in

the degree examination prior to last date of filing of the application. The petitioner was neither to be asked to submit proof in support of his having

appeared in Bachelors' degree examination prior to 20th March, 2009, nor could petitioner be penalized for his failure to submit such proof.

The writ petition is opposed on the grounds that Proviso 1 Rule 5 J&K Combined Competitive Examination Rules, 2008 (SRO 387 of 2008

dated 01.12.2008) having been made in exercise of power under Article 309 Constitution of India, corresponding to Section 1 to 4 of the

Constitution of J&K. It can be struck down only on such ground as may invalidate legislation and not merely because the rule is considered as

unreasonable or harsh. It is pointed out that there is strong presumption in favour of Constitutionality of legislation and the petitioner is under heavy

burden to establish that impugned rules is violative of Article 14 or 16 of the Constitution. The respondents insist that as it is permissible for the

State to prescribe conditions of eligibility for recruitment to any service under it and the rule cannot be called in question on the ground that it

creates two classes, unmindful of the fact that discrimination is ""in itself essence of equality"". The respondents pointed out that the petitioner was

only provisionally permitted to appear in main examination on his claiming and there was nothing wrong in requiring the petitioner to submit proof of

his eligibility to participate in the selection process and once the petitioner fail to submit the proof, his candidature was to be deemed to stand

revoked from the date his initial participation in the selection process.

I have gone through the pleadings and heard learned counsel for parties.

Challenge to Proviso 1 Rule 5 of SRO 387 on the ground of unreasonable classification must fail for the following reasons:-

(I) It is no more res-integra that the State and its functionaries have complete freedom to lay down eligibility criteria for appointment to any office

under the State. The eligibility criteria where ever prescribed under the rules governing selection for any office under the State or Government

employment, necessarily divides the aspirants for such post or the employment into two groups--one satisfying the eligibility criteria and another

group not satisfying such criteria. The eligibility criteria works like a dividing line between two groups of the aspirants. To illustrate the eligibility

criteria for a post under the State or Government employment may declare such of the candidates having requisite qualification eligible for posts or

Government employment who are less than X years of age on the first day of January in which the advertisement notice is issued. The candidates

having the requisite qualification, training and expertise but more than X years of age on the 1st. January of the aforesaid year, even by one week

or one day would not be eligible for the advertised post. Such candidates can not be heard saying that they have been exposed to a discriminatory

treatment and that eligibility criteria laid down amounted to unreasonable classification. The reason being that eligibility criteria for a post under

State or Government employment whenever laid down as already pointed out is bound to divide the aspirants for such post or employment into

two groups. Same is true about criteria as regards the academic or technical qualification. Whenever date of acquisition of academic or technical

qualification prescribed for post or Government employment is prescribed under rules the aspirants for post or Government employment who

acquire such qualification say a week or a day after prescribed date would be ineligible for the advertised post. Even where the date of acquisition

of academic or technical qualification is advanced/extended still such criteria would divide the aspirants into two groups, one having acquired the

prescribed qualification on the cut of date and another group acquiring such qualification a day or a week after the said date. It needs to be pointed

out that when the prescribed criteria as regards age or academic or technical qualification divides the aspirants into two groups, the groups

constitute two different classes one satisfying the eligibility criteria on the date and another lacking eligibility on such date. There is thus intelligible

differential between the two classes. The object of laying down date of acquisition of eligibility criteria is to consider the candidates who satisfy the

eligibility criteria on the fixed date and exclude others and classification of the candidates into two classes on the basis of date of acquisition of

eligibility has a reasonable nexus with the object sought to be achieved.

In the present case as per advertisement notification (SRO--387 of 01.12.2008) a candidate in order to be eligible to appear in Combined

Competitive Examination must hold a Bachelor degree on the date he responds to the advertisement notice. In terms of proviso to Rule 5 (1) of

SRO 387 of 2008, even the candidates who appeared in the Bachelors degree examination on the date they respond to the advertisement notice

but their results are yet to be declared and resultantly do not have a Bachelors degree to their credit, are allowed to appear in ""Preliminary

Examination"" subject to the rider that they shall not be eligible to appear in the ""Main Examination"" unless their Bachelors degree result has been

declared by the time they submit their applications for ""Main Examination"". In other words candidates who have appeared in Bachelors degree

examination on the date they submit their application for Preliminary Examination can appear in Main Examination only if they have acquired the

Bachelors degree before they file their application for the main examination. It is a fact of common knowledge that there is a long interval between

preliminary and main examination in Combined Civil Services, Examination. A good number of candidates respond to the Preliminary Examination

which is intended to short list the candidates for the Main Examination. The Selection Authority requires quite some time to evaluate the

performance of the candidates who appear in Preliminary Examination. In the circumstances it would be harsh to exclude all the candidates who

have already appeared in Bachelors degree examination but are awaiting results, intend to appear in preliminary examination, from participating in

the Selection Process at the threshold/Preliminary Examination level. The exception is carved out to allow such candidates, who though not eligible

at the time of submitting applications for Preliminary Examinations, are expected to acquire eligibility before the Main Examination, to participate in

the examination. The object is to throw the net wider and get the best talent from the market place, without compromising on the date of

acquisition of the eligibility.

In the present case, the petitioner appeared in Bachelors degree examination in April 2009. The last date for filing Application Forms was 20th

March 2009. The petitioner obviously had not appeared in Bachelors degree examination on the date he filed the application for preliminary

examination. The petitioner thus was not eligible even in terms of exception carved out under Rule 5(1) to participate in the selection process on

the date of filing of application for Preliminary Examination. The respondents nonetheless permitted the petitioner to appear in Preliminary

Examination. The Preliminary Examination was held on 23rd and 24th May 2009 and the petitioner was declared successful. The respondents

permitted the petitioner to provisionally sit in the Main Examination, though the petitioner had not acquired the eligibility i.e. Bachelors degree on

the date he filed application to sit in the ""Main Examination"". The respondents having regard to the petitioner's performance in the main examination

called him for vivo-voce on 2nd November 2010 at 9.30 a.m., however before the petitioner could appear in vivo-voce the respondents realised

that the petitioner had not appeared in Bachelors degree on 20th March 2009 i.e. the last date for obtaining the degree and submitted no proof of

his having acquired Bachelors degree on the date he submitted application for Main Examination, he was not to be permitted to appear in vivo-

voce unless he produced a proof of his having acquired Bachelors degree on the date he filed application for Main Examination. The respondents

as pointed out gave opportunity to the petitioner to submit such proof within three days; The petitioner instead of submitting requisite proof insisted

that as declaration of results was not within the control of a candidate, the petitioner was not to be excluded on the ground of his not having

acquired the Bachelors degree on the prescribed date. The petitioner obviously did not satisfy the prescribed criteria on the date prescribed under

rules and did not belong to the class of candidates who had the requisite eligibility on the said date. The petitioner and the candidates like the

petitioner who did not posses the eligibility on the prescribed date and the candidates who had such eligibility belong to two different classes and

are to be treated unequally. The equality and not inequality between the two different classes shall offend Article 14 Constitution of India. In the

circumstances the petitioner can not be heard saying that he has been exposed to any discriminatory treatment or treated unequally.

An aspirant for a post under State or Government employment cannot lay a claim to his appointment though in-eligible and not satisfying the

eligibility criteria only on the ground that he was allowed to participate in selection process on the erroneous belief that he satisfied such criteria or

provisionally so allowed expecting him to acquire the eligibility before the selection process crosses the threshold stage. In a case like one in hand,

the participation of the candidate is ab-initio in violation of the eligibility criteria and no benefit can flow out of such participation in favour of the

petitioner.

(II) The petitioner has participated in the selection process, fully aware of the rules regulating such participation. The petitioner was aware that he

was to respond to the advertisement notice only if he had appeared in Bachelors degree examination on the date he submitted application for

Preliminary Examination and that for participation in second round of the selection process i.e. the Main Examination, he was to acquire Bachelors

degree before submitting the application form for the Main Examination. The petitioner knew well that he had not appeared in the Bachelors

degree Examination before submitting application for Preliminary Examination and was thus not eligible to participate in the selection process and

did not acquire Bachelors degree before filing application for ""Main Examination"". The petitioner after having applied under the SRO 387 of 2008

cannot turn around to question its validity and insist that the Provision was discriminatory in character.

For the reasons discussed the writ petition is bereft of any merit and is accordingly dismissed.