Atul Sharma vs State of Jammu & Kashmir

Atul Sharma, appellant herein was the petitioner in W.P. No. 913/96 seeking certain reliefs at the hands of the learned Single Judge in the said

writ petition, the learned Single Judge having declined to grant that reliefs, the writ petitioner has presented this appeal challenging the correctness

and legality of the orders made by the learned Single Judge on 1231997, in the above said writ petition. 2 A few facts which are necessary for the

disposal of this appeal are as follows:3. Respondent No.2, J&K Public Service Commission, through its Secretary issued a Notification duly

publised in the newspaper on 2191995 calling applications for examination to combined Service (Preliminary Competitive Examination). Pursuant

to the said Notification the appellant filed an application as one of the candidates. It is stated that he was also permitted to take the premilinary

examination. He has successfully completed the preliminary examination and the results were declared. On the completion of the preliminary

examination successfully he had to take main examination to be conducted by the Public Service Commission, but the respondent No.2 has

pointed out by an endorsement issued to the appellant that the appellant was not eligible to appear in the examination to which he has applied, as

on the last date fixed in the notification for receiving application, he was not qualified in as much as the B.A. Final examination results came to be

declared some time after the last date fixed by the Public Service Commission i.e. 31101995. It is not in dispute that though the final examination

of B.A. had been held earlier, there has been some delay in declaration of the results. It is stated that as pej annexure A produced in the appeal a

declaration was made by the appellant on 15101995 in which he has produced a copy of annexure B addressed to Secretary, J&K Public Service

Commission, Srinagar saying that the following certficates would be submitted shortly before the examination starts:

(i) Graduate qualification certificate (result awaited);

(ii) Permanent Resident Certificate of self, which is under process. However, photocopy of father's permanent Resident Certificate is enclosed.

Thus, even on 15101995, the appellant did not possess a certificate in regard to academic qualification. When the mattercame up before the

writ court, it was pointed out as on 31101995, the last date fixed in the Notification for receiving applications by the Public Service Commission,

the appellant did not possess the qualification of B.A. Degree. There is no dispute about that. Therefore, the appellant was denied the Roll No. slk

to enable him to take the final examination to be held by the Public Service Commission, according to the scheme. Therefore, a question arose

before the learned Single Judge whether the action taken by the Public Service Commission in cancelling the candidature of the appellant to take

the main examination was justified. The learned Single Judge referred to the legal conventions urged in support of the writ petition, considering the

real questions at page 3,4 & 5 of the judgment. He has pointed out that, as on the last date of receiving applications being 31101995 if the

appellant did not possess necessary prescribed qualification required to become eligible to apply for the examination, such a person is not to be

found eligible to take the mam examination, though he has appeared and passed through the preliminary examination, held by the Public Service

Commission. The learned Single Judge placed reliance upon the Supreme Court judgment in U.P.S.C V/s Alpna, reported in 1994(2) SCC 723.

Following the said judgment he held that the writ petition has no merit. While upholding the action taken by the respondent No.2, the writ petition

came to be dismissed Hence this appeal.

We have heard Mr Jalali, learned counsel for the appellant, who after quoting certain documents produced in support of the appeal, argued(i)

Regard being had to the provisions of Rule 7 of the SRO 161 of 1995 the appellant had necessary eligibility to appear for the main examination;

(ii) In view of the law laid down by the Supreme Court in Ashok Kumar V/s Chander Shekher, reported as 1993 Supp(2) SCC 611, a Division

Bench of the Supreme Court has held that such a person cannot be said to be ineligible and that the view taken by the Supreme Court in that case

has not been followed by the learned Single Judge.

The last contention urged by Mr. Jalali, the learned counsel for the appellant is that the court must take into consideration that the equity

prevailed in favour of the appellant since the appellant having been allowed to take the preliminary examination, after depositing the requisite fee

and he having passed through successfully that examination, at the tail end of the process the respondent No.2 ought not to have prevented the

appellant from taking final examination, particularly in view of the fact that for the last 13 years no such examination could be conducted in the

Jammu 6 Kashmir State on account of the peculiar circumstances prevalent in the state.

We will take the first contention raised by Mr. Jalali, learned counsel for the appellant He drew our attention that Rule 7 of the SRO deals with

the eligibility of candidates for preliminary examination, who have submitted their applications in the prescribed form alongwith the fee payable in

terms of the notification. It says, candidates who have not produced necessary certificates such as Scheduled Caste Certificate, Permanent

Resident Certificate, etc. such persons are allowed to comply with the said condition and to produce such document at a later stage at the time of

holding main examination. If that is the interpretation why a lenient view should not be taken to enable such a candidate, as the appellant is to take

the examination, who had successfully passed through the preliminary examination. He has also submitted that Rule 7 should not be construed as

Rule of law, bereft of human consideration as it would result in harsh and inhuman results.

It appears to us, we can consider contentions No. 1 & 2 together. At the very out set we may point out that Rule 7 of the J&K Public Service

Commission (Conduct of Ex amination) Rules, 1973, followed by the State of J&K for the purpose of such examinations reads as under

Candidates for the preliminary examination shall submit alongwith their applications prescribed fee and attested copies of certificates in support

of their claims regarding age, educational qualifications, scheduled castes and Scheduled Tribes, other Backwards Classes and holding of a civil

post in the state which will be verified by the Commission at the time of main examination only. They shall, ensure that they fulfil all the eligibility

conditions for admission to the preliminary examination on the last date fixed by the commission for receipt of applications. The admission to the

preliminary examination shall be purely provisionsal and if on verification at any later date, it is found that the candidates had claimed eligibility for

such examination by misrepresentation, fraud or concealment of material fact or impersonation, his candidature shall be cancelled and he will be

liable to prosecution/disciplinary action by the commission. The candidatres who are declared by the commission to have qualified for admission to

the main examination will have to apply again alongwith prescribed application form, which would be available in the commission.

By looking at the language employed in this Rule, it is made clear that a duty is cast upon the candidates seeking to appear for the examination

that such candidate shall ensure that they fulfil all the eligibility conditions for admission to the preliminary examination on the last date fixed by the

Commission for receipt of applications. Contruing this language found in Rule 7, the learned Single Judge held that if on the last date of receiving

applications fixed as 31101995, the appellantpetitioner was not eligible, in as much as he did not possess a certificate of B.A. pass, then such

person cannot be said to be eligible. This view of the learned Single Judge, which is supported by the authority of Supreme Court Alpana's case

(supra). Hence it is difficult to accept the argument of Mr. Jalali, learned counsel for the appellant that this view is either incorrect or illegal.

Another argument advanced in support of the appeal by the learned counsel for the appellant is that, this view of Division Bench of Supreme

Court in Alpana's case is contrary to the view taken by the larger Bench of the Supreme Court in Ashok Kumar Sharma Vs. Chander Shekher

reported in (1993 Supp (2) SCC 611). He has pointed out that in a similar circumstances Supreme Court permitted a candidate, who having

not'fulfilled the academic qualification on the last date of receiving application, taking humantarian considerations, that such a person must be

allowed to take examination.

As a matter of fact in considering the case of Alpana (supra), the Division Bench of Supreme Court did refer the case of Ashok Kumar

(Supra), wherein it was held as under:

If the principle of Rule 37 is by analogy applicable, the fact that notice of provisional entertainment of applications, subject to passing of the

examination before the date of interview, is a requirement in the interest of candidature who fell within that category. The appellants are by analogy

persons of that category, but they have no complaint on any such ground.

Indeed, this aspect of the matter has been considered by the learned Single Judge in the writ petition and he has pointed out that as on the date

when the application was received by respondent No.2 in the instant case by virtue of the Notification, this Rule 37 of the J&K Public Service

Commission Rules, was no longer on statute book. Therefore, the question of applying analogy on these facts would not arise.

It is brought to out notice by Mr. D.C. Raina, learned counsel for the respondent No 2 that the judgment of Ashok Kumar is under review

before the Supreme Court. 14 Considering the last submission of Mr. Jalali, learned counsel for the appellant we are of the view that it is true that

since the appellant having been permitted to take the preliminary examination and having passed through the examination successfully and while he

was hoping to take the main examination, this provision has come in his way resulting in hardship, but that we found on the real question of law and

iterpretation of the statute correctly. Therefore, we cannot take a different view from the view taken by the learned Single Judge.

Before parting with this matter, it is necessary to mention here that according to the argument advanced by Mr. Jalali, learned counsel for the

appellant that Rule 7 of the SRO 161 cannot be construed to the mandatory, but it is only directory. We have carefully considered the language in

this Rule 7 and the objectives which are to be achieved and we must hold that regard being had to the intention of the legislation, the eligibility

condition for taking the examination on the last date fixed by the commission for receiving the applications must be takan into consideration to hold

a candidate eligible. Merely, because the respondent No.2 allowed the appellant to take the preliminary examination perhaps by a mistaken notion,

that would not give any right to the appellant. In this view of the matter, it is not correct to say that Rule 7 is directory and not mandatory. 16. In

view of the foregoing, the appeal stands dismissed.