Puran Chand vs State and others

Arun Kumar Goel, J.—Case as set up in the writ petition is that J&K Service Selection Board issued advertisement No. 1/99 dated

09.03.1999. This was published in the newspaper. By means of this advertisement applications were invited for different posts as contained in the

advertisement. According to petitioner he has done B.Sc. B.Ed and he applied for the post of teacher in response to the said advertisement, copy

Annexure4 to the writ petition. Amongst other things ClauseV of this advertisement is as under :

V. Candidates who claim to be the persons belonging to any reserved category shall have to attach a copy of the requisite certificate as

prescribed under SRO 126 of 1994, with the application form.

Note below clauseV which is also relevant for the purpose of the present writ petition is extracted herein below :

Note :

A) It is for information of all concerned the posts are to be filled up in accordance with the reservation rules within the meaning of SRO 126 of

1994, unless otherwise stated. The breakup of reservation under SRO 126 is given as under :

Scheduled castes 8%

Scheduled tribes 10%

Socially and educationally backward classes :

i) Weak & under privileged classes (Social castes) 2%

ii) Residents of areas adjoining line of the actual control 3%

iii) Residents of backward areas 20%

B) It may be noted by all concerned that the certificates issued by the competent authority in favour of the candidates belonging to reserved

categories viz. RBA, Social, Castes and LAC should not have expired and be valid. However, certificates in respect of scheduled

castes/scheduled tribes, handicapped and Exservicemen need not be revalidated.

Last date for receipt of applications as per this advertisement by hand and by post/by courier was 31.3.1999.

In this background petitioner applied along with certificate AnnexureB. This is FormK to SRO 126 dated 28.06.1994. He was certified as

member of the socially and Educationally Backward class falling under the category of (iii) Weak and under privileged class (Social caste)

Tarkhan. Thus it is obvious that petitioner applied as a candidate belonging to category (3) under heading (A) of note (V) extracted hereinabove

and rightly so because he belongs to this reserved category in terms of SRO 126 of 1994.

Government of Jammu & Kashmir, General Administration Department issued SRO 208 of 1999 on 10th June, 1999 vide No. GAD (MTG)

Sts/6/93 dated 10.6.1999. The contents of this notification are as under :

Government of Jammu & Kashmir

General Administration Department

Notification

Srinagar, The 10th June, 1999

SRC208 In exercise of the powers conferred by section 124 and other enabling provisions of the Constitution of Jammu & Kashmir read with

Articles 15(4) and 16(4) and other enabling provisions of the Constitution of India as applicable to the State, the Governor hereby directs that in

AnnexureE to the Jammu and Kashmir Reservation Rules, 1994, after serial No. 21, the following shall be added, namely :

Lohars.

Tarkhans.

By order of the Government of Jammu & Kashmir.

Sd/

Commissioner and Secretary to Govt,

General Administration Deptt.

Dt : 10.06.1999

No. GAD (MTG) Sts/6/93

On the basis of this notification present writ petition has been filed. Learned counsel for the petitioner forcefully urged that since he is entitled to the

benefit of this notification and J&K Service Selection Board needs to be directed to interview him in the reserved category of social castes and if

found suitable to recommend him for appointment as a teacher in Jammu District. Admittedly either on the date of notification or till the last date

Tarkhan's caste was not included in ScheduleE in the J&K Reservation Rules, 1994 i.e. SRO 64 of 1994. This came to be added vide SRO 208

of 1999, that too much after the issuance of the advertisement notice as well as after the last date of the submission of the applications. Eligibility of

the candidates has to be seen on the cut off date which in instant case is 31.3.1999 and has admittedly not been extended.

In the aforesaid background learned counsel for the petitioner forcefully urged that this is a benefit in addition to ScheduleE of the SRO as such,

if its benefit is not extended to the petitioner, it will defeat the purpose sought to be achieved besides denying the benefit of Article 15(4) and 16(4)

of the Constitution of India as well as of the Constitution of J&K State extending benefit of reserved categories like petitioner and other castes like

S/C, S/T etc. etc. Thus according to her petitioner is entitled to the relief claimed in the writ petition.

After having considered all the submissions urged on behalf of the petitioner, it is felt that this writ petition needs to be summarily dismissed as

SRO 208 of 1999 is not retrospectively applicable.

On examination of SRO 208 of 1999 (supra) it is clear that it does not relate to procedure as it confers substantive rights on certain specific

castes named in it viz. Tarkhans and Lohars. It is cardinal principle of interpretation that procedural law can be made retrospectively applicable,

but not a provision affecting substantive rights of the parties as in the present case. Petitioner was well aware when he applied in response to

Notification in the year 1997 that the caste to which he belongs (which has been included in AnnexureE to the J&K Reservation Rules, 1994) was

not a reserved one prior to 10.06.1999. As such he did not and in fact could not have applied claiming reservation belonging to Tarkhan caste.

Thus on the cut off date he was not entitled to the benefit of his belonging to Tarkhan caste. In support of his plea Smt. Surinder Kour has placed

reliance on a decision of the Supreme Court of India in the case of Ashok Kumar Sharma v. Chander Shekhar and another and State of J&K v.

Chander Shekhar and others, 1993 Supp (2) Supreme Court Cases 611. In this decision given by three Judge Bench minority view as per Sahai,

J. was in the following terms :

In legal terminology, when something is required to be done and the consequences of failure to do so are also provided then it is known as

mandatory. Mandatory character of the condition stipulated in the advertisement is further strengthened from the fact that the candidates were

prohibited from applying if they did not possess the requisite qualification. The expression `shall be possessed of such qualification', is indicative of

both mandatory character of the requirement and its operation in praesenti. Acceptance of the view that the appellants had requisite qualification on

the date of interview would have the effect of altering condition of eligibility, on the date of application as being extended to the date of interview.

The condition that incomplete applications would not be accepted, will also become meaningless.

On the other hand majority view of Dr. T.K. Thommen and V. Ramaswami, JJ. in this case was in the following terms :

... ... ... .... ... ... ...

Rule 37 is certainly an efficacious rule for having broad based selection but its extension to the present case will result in unfairness discussed

above. Rules are framed under a statute to carry out the objective of enactment. If the rule making authority goes beyond the power conferred on

it, the rule is rendered invalid. A rule framed under one statute therefore cannot be invoked for carrying out the objective of another. It is therefore

doubtful whether rules framed by the Public Service Commission could be utilised for construing notification issued by a department of

Government, which has a separate set of rules.

It is however unfair to quash appointments after a period of more than ten years. The High Court tried to adjust the equities amongs the parties by

placing the appellants junior to the respondents but equity does not know half way. Once the eligibility Dar (bar?) was lifted for whatever reason,

the appellants must get the seniority because they were subjected to same interview and secured higher merit. The appellants cannot therefore be

placed junior to respondents.

The appellants did pass the B.E. (Civil) Examination and were fully qualified for being selected prior to the date of interview. By allowing the

appellants to appear in interview and by their selection on the basis of their comparative merits the recruiting authority was able to get the best

talents available. It was certainly in public interest that the interview was made as broad based as was possible on the basis of qualifications. It was

in public interest that better candidates who were fully qualified on the dates of selection were not rejected, notwithstanding that the results of the

examination in which they had appeared had been delayed for no fault of theirs. The appellants were fully qualified on the dates of interview and

taking into account the generally followed principle of Rule 37 in the State of Jammu & Kashmir, too much technical view cannot be taken. Results

announced by the recruiting authority have therefore to be upheld.

No benefit can be taken by the petitioner from this judgment, reason being that when this matter came up for consideration in review before the

Supreme Court again in the year 1997 in the case titled Ashok Kumar Sharma and others v. Chander Shekhar and another, 1997(2) SCT 123

(SC) : (1997) 4 Supreme Court Cases 18 , amongst others, question No. 1 was in the following terms :

(1) Whether the view taken by the majority (Hon'ble Dr. Thommen and V. Ramaswami, JJ.) that it is enough for a candidate to be qualified by the

date of interview even if he was not qualified by the last date prescribed for receiving the applications, is correct in law and whether the majority

was right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy.

What was held on this aspect was as under :

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 J&K 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. Ramanswami, JJ) is unsustainable in law. The proposition that where applications are called for

prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that

date alone, is a well established one. A person who acquires the prescribed qualifications 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 an 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 in 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 fro 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. Sahai, 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.

Mr. Rakesh Dwivedi, learned counsel for the 33 candidates, submitted that these 33 candidates had appeared for the B.E. Examination prior to

their applying for the post and that there was some delay in publishing the results and that these respondents cannot be punished for the delay on

the part of the authorities concerned in publishing the results. In our opinion, the said contention is beside the point. In these proceedings, we

cannot examine the reasons for delay assuming that there was delay in publishing the results. That issue is outside the purview of the writ petition.

Whatever may be the reason, the 33 persons were not qualified as on the prescribed date and, therefore, could not have been allowed to appear

for the interview. On the first issue (mentioned in the order dated 1.9.1995), therefore, we hold in favour of the review petitioners, affirming the

opinion of Sahai, J.

And finally while dismissing the review petition it was held as under :

For the above reasons, these review petitions are dismissed subject to the clarification on the legal issue, viz. issue 1 mentioned in our order

dated 1.9.95. There shall be no order as to costs.

In State of Haryana and others v. Anurag Srivastava and another, (1998) 8 Supreme Court Cases 399, it was held as under :

On the last date for receipt of applications, namely, 7.1.1981, respondent No. 2 did not possess a Master's degree in History, but in Group `A'

i.e. Medieval India. The marksSheet which was annexed by her showed that the four papers which she had appeared in were in the group

Medieval India"". The 2nd respondent herself has stated in her letter dated 3.7.1981, addressed to the Director, Haryana State Archives,

Chandigarh, that she had passed MA examination in History (1200 AD1787 AD) from Kurukshetra University in 1978. One paper was for the

period of 1627 AD1761 AD. Apart from this, she had already appeared in MA Examination in Modern Indian History (1707 AD1947 AD) for

obtaining additional qualifications and the result was awaited.

She subsequently obtained an MA in History in Group `B' Modern Indian History on 16.7.1981. The High Court has rightly held that on

7.1.1981, the last date for submitting the application, the 2nd respondent did not possess a Master's degree with Modern Indian History as her

subject. She obtained this qualification on 16.7.1981 subsequent to her interview and selection.

Learned counsel for the 2nd respondent has relied upon two decisions of this court in Ashok Kumar Sharma v. Chander Shekhar and Rekha

Chaturvedi v. University of Rajasthan. Both these judgments hold that the qualifications which have to be considered are those possessed as on the

last date of filing applications. The High Court has, therefore, rightly held that the 2nd respondent did not possess the requisite qualifications at the

material time and was not entitled to be selected under the advertisement of 7.12.1980. The appeal is, therefore, dismissed. There will be no order

as to costs.

In State of Rajasthan v. Hitendra Kumar Bhatt, 1997(4) SCT 32 (SC) : AIR 1998 Supreme Court 91 , it was held as under :

Looking to the clear terms of the advertisement which we have referred to above, the respondent was not eligible for consideration. It is

submitted by the respondent before us that since he has been continued and has now been confirmed we should not disturb his appointment. He

has requested that his case should be considered sympathetically. The fact, however, remains that the appellants have taken the correct stand right

from the beginning. The respondent's application was not considered and he was not called for an interview. It was on account of interim orders

which were obtained by the respondent that he was given appointment and continued. He was aware that his appointment was subject to the

outcome of his petition. One cannot, therefore, take to sympathetic a view of the situation in which the respondent finds himself. A cutoff date by

which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would

have applied had they known that the date of acquiring qualifications was flexible. They may not have applied because they did not possess the

requisite qualifications on the prescribed date. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to

others.

In the premises, the respondent was not eligible for consideration. We, therefore, allow the appeal, set aside the impugned order of the High

Court and dismiss the writ petition filed by the respondent. There shall be no orders as to costs.

Reliance is also placed by learned counsel for petitioner on a division bench decision of this Court in LPA(SW) No. 334/99 dated 4.11.1999,

titled J&K Public Service Commission and another v. Harvinder Kour and another, as well as on the decision in SWP No. 637/99, Harvinder

Kour v. State of J&K and others, decided on 1.6.1999. It was against this decision dated 1.6.1999 of learned Single Judge that matter was taken

up in appeal by the Public Service Commission which was dismissed. A perusal of both these judgments i.e. Division Bench as well as of learned

single Judge clearly suggests that it is wholly inapplicable to the facts of the present case. In this case Harvinder Kour had requisite certificate. It

was not being accepted because of its Form. It was nobody's case that writ petitioner was not eligible and/or she did not belong to reserved

category of which she has submitted the certificate. Rather in para No. 2 it was specifically pleaded by her that she has submitted the application

form to the Commission along with all relevant documents including her category certificate under the Actual Line of Control issued by the

Tehsildar concerned under SRO No. 314 and the date of issuance of certificate was 7.1.1991. Thereafter, she was called for combined

competitive examination (Preliminary). She participated in the examination and was called for appearing in the main examination when she was

required to apply afresh on the prescribed application form which was filled in by her and was submitted along with all other documents. A perusal

of the facts detailed in the writ petition as well as its judgment and aforesaid LPA nowhere suggests that retrospective applicability of some

provisions like SRO 208 was being examined in the said case. In view of this, plea based on these decisions is misconceived and cannot be

accepted.

In case submission of Smt. Surinder Kaur learned counsel for the petitioner is accepted its drastic result would be that it will tantamount to

deny equality of opportunity to all those candidates who became eligible like petitioner after the issuance of aforesaid SRO 208 of 1999. It would

be contrary to mandate of the Supreme Court in the case of Ramana Daya Ram Shetty v. International Airport Authority of India and others,

(1979) 3 Supreme Court 489. Reason being that those candidates were belong to Tarkhan caste may have applied in general category because

benefit of Social Caste Category was not available on the date of application, which became available after 1999.

SRO 208 of 1999 is in the nature of subordinate legislation. Appropriate authority was well aware that many cases may be in the pipe line on

the date of its issuance. If it was intended to make it retrospectively applicable they would have made a provision in the SRO itself by making

appropriate provision in it. This has admittedly not been done. Thus it can be inferred that it was never intended to be made retrospectively

applicable as was urged by Mrs. Kour.

As already noticed, rights of the petitioner were fructified on the last date of application i.e. 31.3.1999, therefore, he cannot derive any benefit

from the issuance of SRO 208 of 1999. Whatever benefit or advantage was available on account of reservation are notified in SRO 126 of 1994

in ScheduleE wherein castes Lohar and Tarkhan have been added at entry No. 22 and 23 by SRO in question in the year 1999.

Another reason not to accept the plea set up is that petitioner has to be eligible on the last of submissions of application. Any right acquired

subsequent thereto will not entitle a person like petitioner to seek benefit thereto for being appointed.

No other point is urged.

As a result of the aforesaid discussion, there is no merit in this writ petition which is accordingly dismissed.