Jammu and Kashmir Service Selection Board vs Mohammad Naseer

Muzaffar Hussain Attar, J.—The Appellant issued Advertisement Notification No. 01 of 2008 dated 22-04-2008, whereunder applications

were invited for filling up of the posts, details whereof were mentioned in annexures I to XX appended to the said Notification. The posts notified

were District Cadre posts and the last date for filing of the application forms was fixed as 15-05-2008.

The respondents writ petitioners, sought consideration for being selected/appointed on the posts of teachers as ST category candidates. Before

the last cut off date for filing of application forms, viz. 15-05-2008, the result of the respondents writ petitioners, in respect of their Post

Graduation degrees was declared by the respondent University vide Result Notification dated 17-04-2008. The marks cards, however, were

issued to the respondents writ petitioners on 26-06-2008 and 05-08-2008 respectively.

The respondents writ petitioners were subjected to selection process and on the basis of their academic merit and performance, they figured in

the provisional select list for the posts of teachers, District Cadre Kulgam, which provisional list was issued on 14-01-2009. The Appellant

recommended names of the select candidates to the Competent Authority for appointing them on the posts of teachers. However, the respondents

writ petitioners did not figure in the said communication. In their place, two other persons were recommended for being appointed on the posts of

teachers. The respondents writ petitioners, feeling aggrieved of the action of the Appellants, challenged the same by filing SWP 1495/2009. The

learned writ Court, vide its order and judgment dated 12-03-2012, directed the respondents (Appellant herein) to make recommendation in

favour of the respondents writ petitioners in accordance with the rules, provided that failure on their part to produce the Result Notification was the

only ground for not recommending them for being appointed on the posts of teachers. A direction was further issued that on receipt of

recommendations, the State respondent shall accord consideration to the respondents writ petitioners for being appointed against the advertised

posts in accordance with the rules.

It is this order and judgment of the learned writ Court, which has been called in question in this Letters Patent Appeal (LPA).

Mr. J.A. Kawoosa, Sr. AAG, appearing for the Appellant, submitted that in view of the terms and conditions contained in the Advertisement

Notification No. 01 of 2008 dated 22-04-2008, the Post Graduate academic qualification of the respondents writ petitioners was not to be

considered and no credence was to be given to that. Learned counsel further submitted that erroneously, the Post Graduate academic qualification

of the respondents writ petitioners was considered and on the basis of over all merit secured by them, they figured in the provisional selection list of

teachers. Mr. Kawoosa submitted that after it was found that the Post Graduate academic certificates were issued after the last cut off date, the

points given, on this score, to the respondents writ petitioners were deleted, which resulted in their securing less merit than those candidates, who

were figuring in the wait list and, accordingly, on the basis of merit, other two candidates, whose selection was called in question in the writ petition

by the respondents writ petitioners, were recommended for being appointed on the posts of teachers. Learned counsel submitted that the

Appellant is bound by the terms and conditions of the Advertisement Notification and as such could not give any credence to the Post Graduate

academic qualification of the respondents writ petitioners. Learned counsel, in support of his contention, referred to and relied upon the judgment

of Hon'ble the Supreme Court, rendered in case titled Bedanga Talukdar Vs. Saifudaullah Khan and Others, and case titled Ashok Kumar Sharma

and Others Vs. Chander Shekhar and Another, and prayed for allowing of the Appeal and setting aside the impugned judgment. Learned counsel

also submitted that all the posts, having been filled up, until such time the selection of private respondents in the writ petition was not quashed, the

Appellant cannot make any recommendations in favour of the respondents writ petitioners. He further submitted that the learned writ Court, having

not granted the relief of quashing the selection of the private respondents in the writ petition, the impugned judgment is rendered illegal on this score

as well.

Mr. G.A. Lone, learned counsel appearing for the respondents writ petitioners, submitted that in view of the admitted fact position, the

respondents writ petitioners result was declared on 17-04-2008 before the last cut off date for filing up of the application forms, thus, they were in

possession of higher academic qualification before the last cut off date. Learned counsel submitted that the testimonials in support of the academic

qualifications, were to be produced at the time of written/oral test, which conditions, the respondents writ petitioners complied with. Mr. Lone

further submitted that the Appellant had initially rightly considered the academic qualification and merit of the respondents writ petitioners and

consequently they figured in the provisional select list. He submitted further that because of wrong interpretation of the terms and conditions of the

Advertisement Notification, the Appellants have, illegally and arbitrarily, deleted names of the respondents writ petitioners from the select list.

Learned counsel placed whole hog reliance on the expression possession of qualification before the last date of receipt of application forms and

submitted that it would not mean that the candidate must be in possession of the academic qualification certificates before the last cut off date for

filing of the application forms. Learned counsel submitted that the expression possession would mean that a candidate is holding academic

qualification and the certificate can be produced at any point of time and not necessarily before the cut off date for receipt of application forms.

Learned counsel also submitted that the respondents writ petitioners have filed cross objection, wherein they have prayed that

selection/appointment of private respondents in the writ petition be quashed.

In order to appreciate the issues raised at the bar, it is deemed appropriate to take note of sub paras (c&d) of paragraph III of the

Advertisement Notification and paragraphs 28 to 31 of the judgment of Bedanga Talukdar s case and paragraph 6 of the Ashok Kumar Sharma s

case supra :

Sub paras (c&d) of paragraph III of Advertisement Notification.

(c) The details of certificates in respect of eligibility qualification, additional qualification, reserved category (SC, ST, RBA, OSC, ALC Ex.

Serviceman and H.C) or any other certificate relied upon should be clearly detailed in the Application Form at the appropriate place. No

certificates/testimonials should be enclosed/annexed with the form. It should, however, be borne in mind that only such qualifications and claims

viz-a-viz, the qualification and category etc, should be recorded in the Application Form which are in possession of the candidate before the last

date for receipt of Application Forms. Any qualification or claim accruing to the candidate after the last date of receipt of application shall not merit

entertainment for consideration. No under process claim will be considered at any stage.

(d) The certificates and testimonials which are in possession of the candidate before the last date of receipt of Application Forms shall have to be

produced by the applicants called for written/oral test at the time of conduct of such test.

Bedanga Talukdar s Case:

We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public

office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any

undue favor being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection

procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot

be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in

the relevant Statutory Rules. Even if power of relaxation is provided in the rule, it must still be mentioned in the advertisement. In the absence of

such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due

publicity. This would be necessary to ensure that those candidates, who become eligible due to the relaxation, are afforded an equal opportunity to

apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in

Articles 14 and 16 of the Constitution of India.

A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed

an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before

appearing in the preliminary examination could be relaxed in the case of respondent No. 1. Such a course would not be permissible as it would

violate the mandate of Articles 14 and 16 of the Constitution of India.

In our opinion, the High Court was in error in concluding that the respondent No. 3 had not treated the condition with regard to the submission

of the certificate along with the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion,

is contrary to the record. In its resolution dated 21st May, 2010, the Commission has recorded the following conclusions:-

Though Shri S. Khan had mentioned in his letter dated 10.12.2009 that he was resubmitting the Identity Card with regard to Locomotor Disability

he, in fact, had submitted the documentary proof of his Locomotor Disability for the first time to the office of the A.P.S.C. through his above letter

dated 10.12.2009. However, after receiving the Identity Card the matter was placed before the full Commission to decide whether the

Commission can act on an essential document not submitted earlier as per terms of advertisement but submitted after completion of entire process

of selection.

The Commission while examining the matter in details observed that Shri. S. Khan was treated as General candidate all along in the examination

process and was not treated as Physically Handicapped with Locomotor Disability. Prior to taking decision on Shri. S. Khan it was also looked in

to by the Commission, whether any other candidate s any essential document relating to right/benefits etc not furnished with the application or at

the time of interview but submitted after interview was accepted or not. From the record, it was found that prior to Shri S. Khan s case, one Smt.

Anima Baishya had submitted an application before the Chairperson on 26.2.2009 claiming herself to be a S.C. candidate for the first time. But her

claim for treating herself as a S.C. candidate was not entertained on the grounds that she applied as a General candidate and the caste certificate in

support of her claim as S.C. candidate was furnished long after completion of examination process.

In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts

and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the

power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same

would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such

circumstances, the High Court could not have issued the impugned direction to consider the claim of respondent No. 1 on the basis of identity card

submitted after the selection process was over, with the publication of the select list.

Ashok Kumar Sharma s case

The review petitions came up for final hearing on 3-3-1997. We heard the learned counsel for the review petitioners, for the State of Jammu &

Kashmir and for the 33 respondents. So far as the first issue referred to in our order dated 1.9.1995 is concerned, we are of the respectful opinion

that majority judgment (rendered by Dr. T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where application

are called for prescribing a particular date as the last date for filing the application, the eligibility of the candidates shall have to be judged with

reference to that date and that date alone, is a well established one. A person who acquires the prescribed qualification subsequent to such

prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to

the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it

were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for

the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had

not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought

to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed the majority judgment. This is

also the proposition affirmed in Rekha Chaturvedi V. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33

respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of

public interest is, with respect, an impermissible justification, it is in our considered opinion a clear error of law and an error apparent on the face of

the record. In our opinion R.M. Sehai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have

been allowed to appear for the interview.

The terms and conditions contained in the Advertisement Notification and the procedure for making selection to a public post, when notified in

an Advertisement Notification, then those terms and conditions and the procedure for making such selection has to be faithfully obeyed and

religiously followed by the selection Authority. The candidates, who respond to a Notification, are equally bound by the terms and conditions and

the procedure of selection notified therein. The candidates, who are eligible for seeking selection/appointment to the post on the terms and

conditions of the Advertisement Notification, constitute a class in themselves. There can be a situation when some candidates without abiding by

the terms and conditions of the Advertisement Notification and the selection procedure prescribed therein, may seek consideration for being

appointed on the post, whereas some other candidates, who are similarly circumstanced in view of the mandate contained in the Advertisement

Notification, would be dissuaded to stake like claim for being selected and appointed on a post. Similarly a group of candidates may not mention in

the application forms the possession of academic qualification obtained by them before the last cut off date for filing of the application forms for the

reason that the necessary testimonials/qualification certificates are not in their possession. The other group of candidates, who are similarly

circumstanced may mention in their application forms of being in possession of academic qualification but may not be in possession of certificates

before the cut off date, then the Selection Authority, if it considers the academic qualification of aforesaid candidates, would subject the first group

of candidates to invidious discrimination, being violative of articles 14 and 16(1) of the Constitution of India. The selection process, in such

circumstances, would be rendered illegal and would stand vitiated in the eyes of law.

Reading sub paras (c&d) of paragraph III of the Advertisement Notification in conjunction with each other, makes it writ large on the face of the

record that possession of academic qualifications as per terms and conditions of the Advertisement Notification would mean those academic

qualifications in respect of which a candidate is in possession of certificates and testimonials before the last cut off date of receipt of application

forms.

We refrain to comment on the legality of sub para (d) of paragraph III of the Advertisement Notification as it is not in challenge in the writ

petition. Since we have to return finding of law on the material available, we, in view of above discussion and the law laid down by Hon'ble the

Supreme court in the aforementioned judgments, hold that in view of the sub paras (c&d) of the Advertisement Notification No. 01 of 2008 dated

22-04-2008, the respondents writ petitioners had to be in possession of the certificates and testimonials in respect of their Post Graduate

academic qualification before the last cut off date for filing of the application forms, viz. 15-05-2008.

Admittedly, the respondents writ petitioners were not in possession of certificates/testimonials before the last cut off date for receipt of

application forms. The Post Graduate academic qualification of the respondents writ petitioners, thus, could not be considered by the Appellant

and no credence was required to be given to this academic qualification.

For our above recorded reasons, we allow this LPA, set aside the impugned order/judgment of the learned Single Bench dated 12-03-2012.

Consequently, SWP 1495/2009 is dismissed along with connected IAs. In sequel thereto, the cross objections also stand dismissed.