Sonia Nayyar vs State of J&K & Others

V.K. Gupta.

The only question to be decided in this appeal is whether a certificate required to be issued by a particular officer is not valid and cannot be

taken into consideration if it is not issued by that particular officer and is instead issued by another officer, even though superior in rank to the

prescribed officer; How this question falls for our consideration and adjudication in this appeal under the Letters Patent wilt be clear by the

narration of brief facts leading to the filing of this appeal.

Vide advertisement notice No. 5/MBBS/83 dated 2451983 applications on prescribed forms were invited from permanent residents of Jammu

and Kashmir State for admission to the 1st year M.B B.S. course in the Medical Colleges of Jammu and Srinagar. Vide para 8 of this

advertisement notice it was prescribed that those candidates who claimed consideration for selection to the Course on the basis of their belonging

to any of the categories mentioned in this para should attach with their application forms issued by the competent authority which was nominated in

the Annexure to the advertisement notice. Clause 2 (b) of para 8 of the said notice included the category of residents of backward areas' and the

competent authority nominated for issuing the certificate in the prescribed form in the annexure in the advertisement notice was the Tehsildar of the

concerned area. The appellant applied for admission to the MBBS course pursuant to this notification, claiming to be considered as a candidate

belonging to the backward area under the aforementioned para 8 of the advertisement notice. The appellant claimed to be belonging to village

Assoh in Tehsil Basohli of District Kathua, which stood declared as a backward area vide Annexure 2 to the Notification issued by the State

Government vide SRO 394 dated 591981. Instead of submitting the certificate by the Tehsildar of the concerned area, which was the requirement

of the aforesaid advertisement notice, the appellant submitted a certificate issued by the S.D.M. Basohli to the effect that she was resident of village

Assoh Tehsil Basohli. This certificate duly issued by the Collector S.D.M. Basohli on 361982 was countersigned by the Deputy Commissioner

Kathua. It also bore a note by the S.D.M. that the post of Tehsildar was vacant at the relevant time and was not likely to be filled up for some time

more and therefore the certificate was being issued by the S.D.M. Basonli. Since the certificate submitted by the appellant with her application

form for admission to the M.B.B.S. Course did not strictly conform to the requirement relating to the issuing authority, the respondents refused to

take note of the certificate, in turn, refusing to consider the appellant in the category of 'residents of backward area'. Aggrieved by this refusal the

appellant filed the writ petition in this court. Even though vide order dated 2331984, the appellant was granted provisional admission, ultimately'

her writ petition was dismissed by learned Single Judge of this Court vide his judgment dated 22121990. It is against this judgment that the

appellant has filed this appeal under Letters Patent.

The learned Single Judge after discussing various facts and circumstances of the case and applying legal principles on them, held that the

Certificate issued by the Collector S.D.M. Basohli did not meet the legal requirements and that it was mandatory for the appellant to have obtained

and presented the certificate issued by the Tehsildar Basohli, who alone according to learned Single Judge, was the competent authority to issue

such certificates. It may also be noted that pursuant to her provisional admission granted by the court vide order dated 2431984, the appellant had

completed her studies and had in fact been granted the Degree of M.B B S. before her writ petition, came to be dismissed. Notwithstanding this

factual position, the learned Single Judge while dismissing the writ petition cancelled the provisional admission granted to the appellant and

consequent upon the cancellation of the provision admission held that respondents would not be bound by any of the results declared in favour of

the appellant in the intervening period. It is also worth noticing that the provisional admission granted by this court to the appellant on 231984 was

confirmed by the Supreme Court because a Special Leave petition riled by the respondent State against the aforesaid order was dismissed by the

Apex Court vide its order dated 2341984.

We have heard learned counsel for the parties and perused the record.

In support of his contentions Mr. T.S. Thakur, learned counsel appearing for the appellant, has submitted that the issuance of the certificate by

the collector SDM Basohli requires to be appreciated in true perspective in the background of the circumstances under which the certificate was

issued by the SDM and not by Tehsildar Basohli. According to him, in 1982 when the elder sister of the appellant had to apply for the MBBS

course under similar circumstances as were applicable a year later to the appellant, both the sisters applied for the issuance of the backward area

resident certificate but it turned out that the competent authority, i.e. Tehsildar Basohli was not present. In fact, what turned cut was that the

incumbent Tehsildar had since retired and the post had not been filled up nor was it likely to be filled up for some time more. The Collector SDM

Basohli being a post superior in administrative and revenue hierarchy to the Tehsildar was accordingly approached for the issuance of the

certificate, perhaps with the clear understanding that any delay in the issuance of the certificate would have resulted in the elder sister of the

appellant losing her chances of applying. The Collector SDM Basohli being aware of the fact that the post of Tehsildar was lying vacant

accordingly processed and issued the certificates to the sisters. The appellant's elder sister made use of the certificate and the State Government, in

fact, acting upon it granted admission to her in the M.B.B.S. Course. Since her elder sister was granted admission based on the aforesaid

certificate issued in 1982, the appellant when her turn came in 1983, submitted the same certificate i.e. the one obtained by her in 1982, to the

Competent Authority for selection to the M.B.B.S. Course. This time, however, the competent authority did not accept the certificate, which

according to Mr. Thakur, was not a correct approach.

Mr. D. C. Raina, learned counsel appearing for the respondents, on the other hand submitted that if a statute or a statutory rule or instruction

required the issuance of a certificate by a particular prescribed authority certificate issued by that authority alone deserves to be acted upon and

any certificate issued by any other authority was no certificate in the eyes of law and the respondentstate was under an obligation to reject such a

certificate. He also referred to a judgment of single Bench of this court in the case of Anjuman Ara vs State and others reported in 1986 KLJ 539

in support of his assertion.

The judgment of this court in the case of Anjuman Ara referred to and relied upon by Mr. D. C. Raina has no application to the facts of the

present case. In the case of Anjuman Ara, the admission was denied to the petitioner because she hid not submitted any certificate alongwith her

admission form. In fact, the learned Single Judge did not go into the point as to whether the certificate issued by the Deputy Commissioner instead

of Tehsildar was valid or not, as is clearly evident from the observations made by the court in para 5 of the Judgment.

Rules and Regulations are framed for proper smooth functioning of the official business as also for the guidance of various functionaries working

for and under the Government. All the Rules and Regulations, as also various executive instructions and government orders are framed and issued

from time to time so as to advance the cause of natural justice and to prescribe a particular mode for the purposesof regulating the procedure for

achieving certain objections. It is in the light of these sound principles that the State Government, after categorising the backward areas for the

purposes of giving them benefits and concessions for admission to MB B.S. Course, prescribed authorities who would be competent to issue

certificates in favour of the candidates. For the smooth functioning of the Government as also in the interest of intending candidates' it was but

natural and desirable that the authorities, competent to issue certificates, ought to have been prescribed and duly nominated. The Tehsildar of the

concerned area undoubtedly was the best suited person to have been nominated as the prescribed authority for issuing the said certificates.

Nothing wrong can be found with that. The problem, however, arose in an inconceivable situation where the nominated authority was found to be

nonexistent. Perhaps while framing rules or issuing executive instruction? a situation was not conceived or contemplated where the office of the

Tehsildar could be found to have been vacant for some reason or the other and because of the absence of this comprehension the Government

failed to provide for a suitable alternative. The absence of the suitable alternative, however, in situations like these, could not be allowed to work to

the detriment of a citizen especially when be or she had nothing to contribute for such absence. If a citizen is entitled to certain benefits and

concessions granted to him or her by an instrument of the state, he or she cannot be denied such a benefit merely because of an inconceiveable

procedural lapse on the part of the Government or any of its functionaries. The Rules and Regulations are meant to advance the cause of justice

and riot to retard it. Viewed thus, it can be safely said that if the office of Tehsildar Basohli was vacant during a particular period and was likely to

remain vacant for sometime more, the Collector SDM Basohli, admittedly superior in administrative and revenue hierarchy32 to the Tehsildar,

could perhaps be deemed and held to be competent and justified in issuing the requisite certificate to an intending applicant. It is not that it is a

general rule that if a particular certificate is required to be issued by a Tehsildar, it can invariably be issued by his superior officer, It is only in

exceptional cases and situations like the one existing in the year 1982 that the SDM could be deemed to be competent to issue the certificate.

The problem, however, so far as the appellant is concerned was that she was not required to even possess the certificate in the year 1982, what

to speak of any urgent requirement of submitting it for any consideration to any authority, 1982 situation was quite idea! for the elder sister of the

appellant, who, it has been stated wanted the certificate urgently for consideration in support of her application for admission to the M.B.B.S.

course in that year. This was surely not the case of the appellant because admittedly she did not apply for such consideration in the year 1982

when she was not even eligible. The occasion for her to possess the certificate and to submit it for consideration arose only after the France of the

advertisement notice dt. 24.5.1983, as mentioned in the opening part of this judgment, this advertisement notice of 24.5.1983 clearly stipulated in

unambiguous and unmistakable terms that it was the Tehsildar of the concerned area who was the competent and prescribed authority to issue a

certificate of backward area residence. It is not the appellant's case set up anywhere either in the writ petition or in the appeal before us that she

was unaware of this clear stipulation. If that was the strict requirement, there cannot be escape from the rigours of this requirement and the

appellant was thus under an obligation to obtain certificate from the Tehsildar Basohli and from none else. At the relevant time in the year 1983

after the issuance of the advertisement notice dt. 24.5.1983, it is nobody's case that the Tehsildar Basohli was absent or that his post was lying

vacant. If a stipulation required the submission of a certificate issued by a Tehsildar a candidate could not be permitted to submit a certificate

issued a year earlier by another functionary without there being any explanation or excuse for the same. Merely saying that because the certificate

issued by the S.D.M. in 1982 in the case of the appellant's elder sister was accepted and therefore the appellant submitted the same certificate is

not enough. Rules, Regulations and Instructions are meant to be followed in observance and compliance and nut in breach.

The appellant, therefore, was not justified in submitting the certificate issued in 1982 and she ought to have applied for and obtained the

certificate from Tehsildar Basohli as was required in the advertisement notice dt. 24.5.83 it was the omission on her part which led the respondents

in refusing to consider her as 'resident of backward area'. Looking at the strict requirements of Rules and Regulations, therefore, one could not find

fault with the action of the respondents.

We have seen the entire case file and have very carefully examined all the aspects, including the factual ones. The denial of consideration to the

appellant was because of nonsubmission of the requisite certificate by her. It was not because the appellant did not, in fact, belong to backward

area or that the certificate submitted by her was a fake or forged document. In fact, no one ever disputed the fact of the appellant belonging to a

backward area. That is a factor favorable to the appellant which is required to be taken into consideration on equitable grounds. We are saying so

purely on considerations of equity, because this court granted provisional admission to the appellant on 24.3.1984. The grant of provisional

admission was subsequently confirmed by the Apex court as well, as it has been noticed above. We have perused the record and find that the

delay in the disposal of the writ petition cannot be attributed directly to the appellant. Because of the grant of provisional admission and because of

the writ petition for more than six years, the appellant had since completed her studies and had in fact, been awarded the Degree of M.B.B.S. If

one looks back to the years 1982 and 1983, one can perhaps say that the appellant deserves to be excused for the lapse of relying upon the

certificate of 1982 and not submitting the correct certificate in 1983 purely on equitable and humanitarian considerations, if for nothing else. To put

the clock back after a period of six years and after the appellant has successfully completed her studies will indeed be a very harsh recourse almost

bordering on ruining the life of the appellant. This would be a punishment which the appellant does not deserve because she did not commit such a

grave lapse as would deserve such a grave punishment. Her act of omission in relying upon the certificate of 1982 therefore deserves to be

condoned in the peculiar facts of this case.

We, therefore, allow this appeal and quash and set aside the judgment of learned Single Judge dt. 22.12.1990 impugned in this appeal, with all

the necessary consequences We direct that the provisional admission granted to the appellant shall be and shall always be deemed to have been

regularised with all attendant and consequential benefit to her throughout.

There shall be no order as to costs.