Basharat Iqbal vs J & K Public Service Commission

This is yet another case wherein this Court is called upon to decided whether a candidate seeking public employment should possess prescribed

eligibility qualification on the last date of receipt of the application or on the date of interview?

The petitioner is a candidate for the post of Lecturer in English. He passed his M.A. in English but managed to secure only 54.4 percent marks.

He, thereafter thought of improving his merit position and appeared again in February, 1993 in some subjects. Meanwhile the Public Service

Commission (herein after referred to as the Commission) issued notification No.4 dated 1131993 inviting applications for ten posts of lecturers in

English. This notification laid down that a candidate must possess master's degree in the relevant subject with atleast 55 percent marks or its

equivalent grade and good academic record. Last date for receipt of applications from candidates was fixed on 1451993 which was subsequently

extended to 3151993. The notification also provided that applications received from persons not possessing the minimum basic qualification as

prescribed above on the last date of receipt shall be rejected. It, however, stated that the applications which are deficient in respect of any

certificates) indicated in the instructions sheet for candidates, may be entertained by the commission subject to the making up of deficiency within a

stipulated period. It did not contain any note in terms of rule 37 of the J and K public Service Commission (Business and Procedure) Rules

(hereinafter called the Rules) regarding provisional entertainment of applications from such candidates whose result had not been declared on the

last date of receipt of applications.

The petitioner though admittedly eligible and not possessing 55% marks in the relevant subjects also applied on 2941993 and enclosed a note

stating that he had appeared in the course Nos. 401 and 402 of first semester to improve his percentage of marks but his result was still awaited

and requested for entertainment of his application. His result was finally declared on 991993 and he secured 56% marks thus rendering him eligible

for selection to the post of lecturer. He thereafter submitted an application to the Commission along with the requisite certificate in support of his

eligibility. The Commission, however, rejected his application and conveyed to him so vide its letter dated 2791993. Meanwhile the petitioner filed

this petition on 2591993. A show cause notice was issued to the respondent on 5101993 requiring it to file objections. It was directed to interview

the petitioner and to keep his result apart vide order dated 27121993. The writ petition was subsequently amended by the petitioner challenging

the deletion of Rule 37 of the Rules (supra and praying for a writ of mandamus commanding the respondent to entertain his application as also for a

declaration to declare all such candidates eligible who had appeared in the qualifying examination/examination for improvement of division or

performance but whose result was declared after the last date of the receipt of the applications but before the interview.

Objections have been filed by the respondentCommission resisting the writ petition. Learned counsel for the parties, however, agreed to the

disposal of the matter at this stage.

Petitioner rests his case on three rules, viz: rule 54 of the Jammu University Regulations and Rules 35 37 of the J and K Public Service

Commission (Business and Procedure)Rules, 1980. Relevant provision of rule 54 of the Jammu University Regulations provides that the result shall

be declared not later than sixth weeks of the date of termination of an examination, save with the permission of the Vice Chandler. Taking shelter

under this rule, the petitioner contends that the University, was under an obligation to declare his result within six weeks from the date of

termination of the examination and if it had done so, he would have become eligible, having secured 56% marks before the last date of the receipt

of the applications i.e., 3151993. It is submitted that since the University had delayed the declaration of the result for no fault of the petitioner,

therefore, the principle laid down in Ashok Kumar Sharma's case {Civil Appeal No. 5407/ 92 decided on 18121992) by the Supreme Court,

would apply with full force rendering the petitioner eligible on the date of interview.

The petitioner alternatively invokes rule 35 of the 1980 Rules which empowers the Commission to entertain an application of a candidate in the

following exceptional cases :

i) xx xx xx

ii) xx xx xx

iii) When there are some extra ordinary circumstances which justify the acceptance of an application.

According to him the delay in declaration of the result is an extra ordinary circumstance which should have been considered by the Commission to

accept his application even though he had come to possess the requisite eligibility after the last date of receipt of the application but well before the

date of interview. The Commission's failure in this regard is characterized as arbitrary and whimsical.

The petitioner, last of all, tumstorule37 of the 1980 Rules (supra) and seeking support from the interpretation placed on its terms by the Apex

Court in Ashok Kumar Sharma's case (supra) urges that the Commission could and should have provisionally entertained his application because

of the delay in the declaration of his result. But, having deleted the rule the Commission has caused enormous prejudice to him and had deprived

him of the consideration to seek employment. He also contends that in view of para 7 of the advertisement notification giving discretion to the

Commission to entertain applications which are deficient in respect of certificates, his case deserved to be considered on this score also.

The respondentcommission has fought back by contending that the writ petition is not maintainable as it omits to challenge the Commission's

communication dated 2791993 rejecting the petitioner's application. In its objections, it asserts that a candidate is required to possess prescribed

eligibility qualification on the last date of receipt of applications and in case the prayer made in the petition is granted it would amount to altering the

eligibility so laid down. It is also pointed out that the petitioner had no locus to challenge the deletion of rule 37 of the 1980 Rules and in any case

could not seek its benefit as advertisement notification inviting applications did not contain any note in this regard.

Mr. Raina, learned counsel for the respondent invited my attention to the Judgment rendered by me in Dimpy Raina's case (SWP No. 209/93

dated 31121993) wherein I had observed that the Apex Court had not laid down any general proposition in Ashok Kumar Sharma's case (supra)

to the effect that the crucial date for determining the eligibility of a candidate in all types of selections should be the date of interview and had

granted relief in the peculiar facts and circumstances of the case keeping in regard the delay in declaration of result and the principle of broadbasing

the competition. He also relied upon AIR 1980 SC 1230 and AIR 1982 MP 104. In the first case, the Supreme Court has observed thus:

Proof of obtaining a diploma is different from the factum of having got it.

In the other case a Division Bench of the Mandhya Pradesh High Court has laid down that ""a candidate must possess eligibility qualification on the

last date fixed for receipt of applications unless the advertisement notice provides to the contrary.

Adverting to the rival contentions, it is nobody's case that the petitioner satisfied the requisite eligibility of possessing 55% marks in the relevant

subject on the last date of receipt of the application. On that crucial date he had passed his examination but had secured only 54.4% marks and fell

short of the requisite percentage. Thereforee, all that remains to be seen whether his fallowup effort directed to improve his merit position and the

circumstance of delay in declaration of his result in the second attempt can be said to be covered by the rules regulations relied upon by him or by

the Apex Court Judgment in Ashok Kumar Sharma's case (supra).

In my view the petitioner's case is not wholly covered by the judgment pronounced by the Supreme Court in Ashok Kumar Sharma's case. As

pointed out else where the Apex Court has not laid down any cut and dry proposition regarding whether a candidate's eligibility should be

determined on the last date of receipt of the application or on the date of interview. The Court has, however, granted relief to the petitioners in that

case on the ground that the result of examination had been withheld for no fault of theirs and on the principle of broadening the competition. In the

present case, the result of the petitioner in the original examination had been declared and he did not possess the requisite eligibility because of his

inferior merit. Any delay in the declaration of his results in his second attempt to improve his merit position, cannot be treated in the same manner

and surely stands on a different footing. It is but natural for any candidate to make repeated attempts to improve his merit position but for that the

selection process cannot be kept open indefinitely. It is hard to accept any such proposition because doing so, would not only make the selection

an unending process but will also result in discrimination to those candidates who may not opt for improving their marks percentage and yet are

treated as in eligible on the last date of receipt of the applications.

Proceeding on this premises even rule 37 of the 1980 Rules would not be attracted to a case where the result of a subsequent examination in

which a candidate has appeared to improve his merit position, is not declared or has been delayed for some reason or the other. This rule applies

only to the delay in declaration of the results of qualifying examination and not of any other examination taken by a candidate to improve his marks

percentage. In this view of the matter it becomes unnecessary to look into the validity or otherwise of deletion of rule 37 by the Commission.

The petitioner's resort to Regulation 54 of the University Regulations is also of no avail to him. This regulation has a saving clause and it is not

known if the Vice Chancellor had permitted the declaration of result beyond the six 'weeks' time limit. Secondly, the failure of the University to

declare the result in branch of its own rule, does not cast any corresponding obligation on the Commission to entertain the applications of such

candidates whose result has been delayed in the process. Such an eventuality may furnish a cause to the candidate against the university but in no

case can any liability be fastened on the Commission on this score. Therefore, it is of little consequence whether the University has observed its rule

in breach or not.

Having said all this it is still possible to grant some relief to the petitioner by invoking rule 35 of the Rules. This rule empowers the Commission

to entertain an application of a candidate in exceptional circumstances. It is not for this Court to opine whether the petitioner's case is attended by

any exceptional circumstances but considering the fact that he has been working as lecturer on adhoc basis and that he has gone through the

interview process, coupled with the fact that he had become eligible before the date of interview, it squarely falls within the domain of the

Commission to give a second look to his case and consider it in exercise of powers under Rule 35 (Supra) and to pass appropriate orders thereon.

The Commission shall finalize the process of consideration within one month from the date of receipt of this order and in case it decides in favor of

the petitioner, his result of the interview shall be declared and if he makes the grade on the basis of inter see merit, his name shall be recommended

for appointment.

With the above observations this petition is accordingly disposed of.