State of Jammu & Kashmir and Others vs Ravinder Singh

M.M. Kumar, C.J.—These two appeals under Clause 12 of the Letters Patent are directed against judgment and order dated 13-12-2010

rendered by the learned single Judge of this Court, in SWP Nos. 208 and 209 of 2010. With the consent of learned counsel for the parties,

LPASW No. 122/2011 is formally admitted and taken up for final disposal with the admitted appeal, namely, LPASW No. 123/2011. When the

matter came up for motion hearing the operation of the judgment was stayed by order dated 12-10-2011. Brief facts of the case may first be

revisited in order to put the controversy in its proper perspective. The appellant-State issued an advertisement notice dated 07-02-2009 inviting

applications for appointment to the post of Constable. The criteria for physical standard and award of marks of basic qualification was also

published in the advertisement notice (Annexure A). It would be appropriate to extract the criteria as published in the Press, which reads as

under:-

#Male

i) Height Max. Marks (15)

a) 5#-6# (5#-4# for Leh/Kargil) 5#-9# 10 Marks

b) Above 5#-9#-6# 12 Marks

c) Above 6# 15 Marks

Female

Height Max. Marks (15)

a) 5#-2# (5#-0# for Leh/Kargil) 5#-4# 10 Marks

b) Above 5#- 4#- 5#-6# 12 Marks

c) Above 5#-6# 15 Marks

ii) Educational Qualification Max. Marks (15)

a) Matric

b) 10+2

c) Graduation and above

iii) Two marks each shall be given to the candidates possessing the following additional qualifications not exceeding 06 marks in any case:-

Max. Marks (06)

a) #C# Certificate in NCC

b) Valid Driving License

c) Typing/Shorthand # From a recognized institute.

d) Diploma in Computer (from any Govt. recognized ITI/College)

e) Technical qualification (Diploma)#

The writ petitioner-respondent-Ravinder Singh applied and placed on record Diploma in Computer Applications issued by Global Institute of

information Technology which is said to be a Unit of Akaar Educational Society (Annexure C). He did not attach any diploma certificate course of

Computer software from Antrashtriya Computer Saksharta Abhiyan, (ACSA) study centre Ramban. Tavneer Ahmed, the other writ petitioner

respondent had attached one years Diploma course certificate issued by Asian Institute of Information Technology. The appellant-State and its

officers raised a specific objection that the writ petitioner-respondents did not append any recognized diploma with their application form and,

therefore, no additional marks as per the criteria disclosed in the advertisement could be awarded. Feeling aggrieved the writ petitioner-

respondents filed two separate writ petitions. The learned single Judge allowed the writ petitions and issued directions to the appellant for taking

into account the one year Diploma in Computer software at (ACSA), issued by study centre Ramban, despite the fact that it was produced after

the last date fixed for receiving the applications which was 18-03-2009. The reasoning adopted by the learned single Judge is that the diploma

certificate was issued before the cut off date and therefore would deserve to be considered. It has come on record that the Diploma certificate of

(ACSA) Study Centre Ramban was received much after the cut off date fixed in the advertisement notice. The view of the learned single Judge is

discernible from the last two paragraphs of the judgment, which reads thus:-

#Be that as it may, it is not in dispute that in case the petitioner has not produced the certificate at the time of filing of his application form, even

than the respondents are not precluded from considering his certificate, if not already filed with the application form. I say so because this

qualification has been acquired by the petitioner before issuance of the advertisement notice and not during the selection process was on. Petitioner

might have failed to submit this certificate along with his application form, but it cannot be said that respondents are precluded from considering the

same.

I, accordingly, dispose of this petition with direction to the respondents to consider the certificate/diploma issued in favour of the petitioner by

Antrashiriya Computer Sakshtra Abhiyan under serial No. Hcswo/ACSA/U/010, roll number; 96762/UD, dated 21-06-2008 and, in case it is

found that the said certificate is from a recognized institute, then to issue the appointment order in his favour with a period of two months from

today.

# (Emphasis added)

In order to ascertain the factual position as to whether the writ petitioner-respondents attached any diploma certificate secured from ACSA

study centre Ramban, we summoned the original applications submitted by the writ petitioner respondents. A perusal of the file would show that

Ravinder Singh had attached a certificate issued by Janta Commercial College, certifying that he was a student for English typing course from 06-

08-2007 to 06-02-2008. Tanveer Ahmed Naik, the other writ petitioner-respondent had attached one years Diploma course certificate issued by

Asian Institute of Information Technology, certifying that he had completed the Diploma Course by passing the final examination held in Nov/Dec

2007. The Asian Institute of Information Technology is again a private institution and there is nothing on the record to suggest that the institute is

recognized by the State Government. It is thus clear that no certificate for earning 02 marks, as contemplated by the criteria fixed, was placed on

record before the cut off date i.e. 18-03-2009. It has also been made specifically clear that under condition No. III(d) 2 marks each of the

additional qualification subject to maximum six marks were to be awarded for a diploma in Typing/Shorthand from a recognized institute or

Diploma in Computer from any recognized ITI/College.

Mr. Gagan Basotra, learned Sr. AAG, has vehemently argued that once the writ petitioner-respondents have failed to attach any Diploma

certificate of one year in Computer Software course from ACSA study Centre Ramban then it will not qualify to be taken into account after the cut

off date. According to the learned counsel the documents attached with the application before the cut off date would be taken into account.

Mr. Bari Abdullah, learned counsel for the writ petitioner-respondents has, however, submitted that on the basis of the assessment of marks the

writ petitioner-respondents were provisionally selected as is clear from the Wireless message. According to the learned counsel it is an after

thought on the part of the appellant to reject their lawful selection and appointment. It was later on made an excuse that the certificates assessed by

the appellant awarding marks were secured from private institutes or correct certificates were placed on record later on.

Having heard the learned counsel for the parties and perusing the record, we are of the considered view that these appeals deserve to be

accepted.

The question of law is whether the last date of submission of application forms along with other documents would be determinative of the rights

of the writ petitioner-respondents or it can be altered thereby permitting the writ petitioner-respondents to supplement their applications by

producing additional documents. The issue is no longer res Integra. In Dr. M.V. Nair Vs. Union of India (UOI) and Others, a Bench of 3 Judges

took the view that the law was well settled regarding the date of #suitability and eligibility (which) have to be considered with reference to the last

date for receiving the applications unless of course the notification calling for applications itself specifies such a date#. The Supreme Court

disagreed with and rejected the view taken by the Central Administrative Tribunal. Likewise in Mrs. Rekha Chaturvedi (Smt) Vs. University of

Rajasthan and Others, a similar view has been taken by a 2 Judges Bench, holding that in the absence of a specific date included in the

advertisement notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for scrutiny

of qualification would be the last date of making the applications. It was found in that case that the selection committee took into consideration the

requisite qualifications on the date of selection rather then on the last date of preferring applications.

When we apply the principles laid down by Hon'ble the Supreme Court, it becomes evident that the last date for receiving the applications fixed

in the advertisement notice was 18-03-2009. Accordingly, certificate with regard to typing/Shorthand or Diploma in Computer from Government

institute, ITI/College should have been attached with the applications or should have been sent before the cut off date. If any document earning

additional marks are to be accepted after the last date of submission of the application form, then the rights of other candidates who might be

similarly situated, would be prejudiced. If such a course is adopted the selection process can never be finalized.

Accordingly, we hold that the learned single Judge committed an error in law by not observing the last date as the relevant date for determining

the eligibility or for entertaining the applications along with all the relevant documents. Any deviation is required to be notified to the general public

so as to comply with Articles 14 and 16(1) of the Constitution.

As a sequel to the above discussion, the appeals are allowed. The judgments rendered by the learned single Judge are set aside and the writ

petitions filed by the writ petitioner-respondents are dismissed. No order as to costs.