Assad Ullah Khan vs State of Jammu and Kashmir and Others

The State Public Service Commission having received a reference from the Government invited applications form eligible candidates for the post

of Lectureres in Higher Education Department in the disciplineof Chemistry. The petitioner submits that he submitted his application. This was

accepted by the Commission. He was called upon to take part in the eligibility test which was to be held on 21-11-1999. The petitioner was

allocated roll number also. This was 301. The petitioner was declared successful in the screening test. The Commission latter issued a notification

on 18-08-2000. In this it is mentioned that the candidature of the petitioner bearing Roll No.301 is being cancelled as he submitted the category

certificate after the cut of date. It is this decision of the State Public Service Commission which is subject matter of challenge in this petition.

The petitioner submits that when he sbmitted his application he duly indicated that he is the resident of Backward area and that requisite

certificate would be furnished by him. This as per the petitioner he could furnish in terms of the notice issued by the Public Service Commission on

12-10-1999. Reliance is being placed on note 4. For facility of reference this is re-produced below :

NOTE :

The candidates belonging to various reserved categories will submit their requisite/valid certificates at the time of screening test. They must

indicate the Roll Number and subject which submitting their certificates.

Mr.Raina, appearing for the Public Service Commission submitted that this is a purely legal issue and does not require any counter to be

filed.What is sought to be urged is that as the requisite certificate i.e. RBA certificates was furnished after the cut off date, therfore, the petitioner's

candidature was rightly cancelled.

A few dates which are relevant for determination of this controversy be noticed :

i) Notification was issued on 31-12-1997;

ii) Last date for submission of application was 30-01-1998. This was in the case of those candidates who were to submit their applications

personally to Commission. If the application was to be routed through post office, then this was suppossed to be sent on or before 27-01-1998;

iii) The petitioner did submit his application before the above date but he furnished the RBA Certificate on a later date on 21-11-99. This was

because this was issued to him only on 18-11-1999.

The petitioner submits that Note-4 reproduced above makes it apparent that the candidates belonging to various reserved categories could

submit the certificate at the time of screening test. The argument is that if this note is taken into consideration then the notification itself provided that

these certificates could be submitted later on.

Learned counsel appearing for the Public Service Commission, however, submits that Forms complete in all respects should be furnished before

the last cut off date and if this is not done then the candidature of the candidate cannot be taken into consideration. Ashok Kumar Sharma and

Others Vs. Chander Shekhar and Another, , is a judgment on which reliance is being placed by the learned counsel appearing for the petitioner.

In the above case it was held that where the advertisement inviting applications requiring the qualification to be possessed on the date of

submission of the application, then permitting the candidates who did not fulfil that requirement but acquire the requisite qualification later albeit

before the holding of interview, to appear for interview, would not be in accordance with law.

Another judgment on which reliance has been placed is the decision reported as Bhupinderapl Singh and others Vs.State of Punjab & Others

AIR 2000 SCW 1888 wherein it has been observed that the cut off date by reference to which the eligibility requirement must be satisfied by the

candidates seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date by reference to which the

eligibilty requirement must be satisfied by the candidates seeking a public employment is the date appointed by the relevant service rules and if

there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications,

secondly if there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the

applications have to be received by the competent authority.

It is on the basis of these decisions it is urged that a candidate must possess the requisite qualifications before the cut off date fixed for

submission of the applications or the cut off date which can be spelled out from the rules.

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 qualification 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 lateron. 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 the cut of date.

A person is to be treated as resident of the backward area in terms of notification issued by the State of Jammu & Kashmir i.e. Jammu and

Kashmir Reservation Rules, 1994 (commonly known as SRO 126 of 1994). It would be apparent from Rule 6 which defines 'Backward Area'.

This provision reads as under :

Backward area"" means the village/areas declared as socially and educationally backward vide SRO 394 dated 05-09-1981 read with

notification SRO 272 dated 03-07-1982 and SRO 271 dated 22-08-1988 as amended from time to time.The list of these villages is appended as

Annexure 'C'.

Thus any person who is resident of this area he owuld be entitled to be treated as resident of 'Backward area'. This eligibility is to depend upon

his residence in the area and in terms of Rule 6. Once a certificate is given by the competent authority, then the eligibility would relate back to the

date when the person concerned is shown to have been residing in the area. There are some qualifications which are acquired by effort; there are

other qualifications which are conferred upon a person on account of the situation in which he is placed. A person who claims to be a member of

Scheduled Caste category is a Scheduled Caste by birth and not on account of certificate having been issued in his favour. There is a distinction

between a qualification which is acquired on a later stage and the qualification which comes to vest on a person by operation of law. The certificate

is issued only in proof of his having been a member of a particular category. Similar is the position viz-a-vis a member who belongs to a backward

area. In the case of educational qualification, the position would be however, different. The educational qualifications are to be acquired by effort

and the date of such eligibility is relevant.

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.

This petition is accordingly allowed. The petitioner who was permitted to take part in the process of interview is held entitled to get the result

notified. Let his result be notified and his claim be considered as per the merit obtained by him