Suram Chand Sharma vs Rimpi Ohri

We have heard Mr. D.C. Raina, learned counsel for the appellant in LPA No. 356/2001, Mr. P. Kohli, Sr. Advocate for the appellant in LPA

No. 477/2001 and Mr. U.K. Jalali. Sr. Advocate for the respondent No. 1 in both the appeals. LPA No. 356/2001 has been preferred by the

Jammu and Kashmir Public Commission, LPA NO. 477/2001 has been preferred By Shri Suram Chand Sharma, who was not arrayed as party

respondent in the writ proceedings. He has, however, felt aggrieved by the order of learned Single Judge impugned in this appeal and this court

allowed him to file the appeal. Both the appeals have been preferred against the judgement and Order passed by the learned Single Judge, allowing

the writ petition of the respondent No.1. Since both the appeals arises out of the same judgement, we propose to dispose of both the appeals by

this common order.

The facts giving rise to the filing of the present appeal may be briefly recited.

Pursuant to the Notification No. PSC/EX99/10 dated 10.02.1999, the respondent applied for Combined Services Competitive Examination.

Closing date of application was fixed on 18.03.1999. In the said notification, reserved category quota under SRO 126 dated 28.06.1994 has also,

been indicated. Respondent No. 1/writ petitioner being a resident of Line of Actual Control (LAC), she applied under that reserved category. Her

application was processed and she was issued admission card under Roll no. 029270. She has passed the Combined Services (Preliminary)

Competitive Examination in 1999. Thereafter by another notification No. PS£/Ex2000/44 dated 20.04.2000, the Public Service Commission

invited applications from the candidates who have been declared qualified in the preliminary examination for the Main Examination in the pre

scribed form. She applied for the main examination by submitting her application form, enclosing there with educational certificates and also LAC

category certificate. She was allotted Roll No. 029270 and al lowed to appear in the Combined Services (Main) Competitive Examination. The

result of the Main Competitive Examination was declared vide Notification No. PSC/EX2001/17 dated 07.04.2001. Thereafter vide notification

No. PSC/Ex99/lntKAS dated 14.04.2001, the respondent was directed to appear for the interview/vivavoce test on 06.07.2001. She appeared

before the Interview Board and produced various certificates in original along with permanent resident certificate. She was allowed to appear in the

vivavoce test and according to her she has done excellent by answering all the questions put to her. However, she was considered as open merit

candidate (general category) and not treated as reserved category (LAC) candidate. The result of Main Combined Competitive Examination was

published by Notification No. PSC/EX99/KAS dated 26.07.2001, wherein the name of the respondent/writ petitioner has not been included in the

select list.

Admittedly, the case of the respondent was considered by the Board under open merit category and not as reserved category being resident of

LAC. Being aggrieved, the respondent filed SWP No. 1803/2001 seeking interalia a writ of mandamus, praying the following relief:

(i). To direct the respondents to declare the result of the interview of the petitioner of the J&K Combined Services Examination 1999, under the

LAC category and consequently direct the respondent to issue the order of her appointment,

(ii). To direct the respondents to keep the list of J&K Combined Services Examination 1999 under LAC category in abeyance;

(iii). To pass any other writ, order or direction as is deemed fit and proper in the facts and circumstances of the case.

The writ petitioner/respondent specifically averred in paragraph (1) of the writ petition that the petitioner is resident of village Deeing, Tehsil

Nowshera, District Rajouri, area adjoining the Line of Actual Control and thus she belongs to reserved category of LAC and a certificate to this

effect has been issued by the competent authority.

This averment has been answered by the respondent No. 2 (Public Service Commission) in their reply affidavit in the following terms:

In reply to contents of para No. 1, it is stated that the invitation application form eligible candidates for the main examination is not denied but as

has been indicated herein, above the petitioner was not having revalidated ALC certificate

The ground of rejection to treat her as reserved category of LAC is taken in para (C) of the preliminary objections of the respondent. Para (C)

is extracted :

That upon scrutiny of the documents it transpired that the reserved category certificate relied upon by petitioner was valid only for two years

which stood issued on 27th October 1995 and its validity stood expired after 27th October 1997. In other words when the answering respondents

issued notification No. PSC/EX99/10 dated 10th February 1999, the petitioner had no valid certificate of her belonging to LAC category.

Needles to mention that on or before cut off date prescribed in the notification No. PSC/EX99/10 dated 10th February 1999. The valid certificate

was required to be produced. The petitioner despite intimation of the Commission did not produce any valid certificate and thus now at this stage

cannot claim benefit of his belonging to LAC category. In short, the petitioner is not entitled under the stage to claim benefit of LAC category and

thus could only considered under the open merit category where the petitioner has failed to make grade. It may be clarified that even for the

preliminary examination the petitioner qualified under the open category and similarly she was considered in the main examination also in the open

category. Petitioner failed to satisfied the Commission despite letter No. PSC/EX99/KAS/29270 dated 11th September 2000 asking the

petitioner to produce the valid certificate of the said category. It was made clear to the petitioner that the certificate relied upon by the petitioner

had last its validity and the same was not considered. Even till the date of interview the petitioner failed to produce a valid certificate leaving the

Commission with no other option than to treat the petitioner in the open category and determining her merit accordingly"".

Cursory reading of the objection as referred to above would reveal that two reasons have been assigned for not considering her case under

LAC category; firstly the resident category certificate produced by the respondent/writ petitioner was only valid for two years which was is sued

on 27.10.1995 and its validity expired on 27.10.1997; and secondly that despite of Commission letter dated 11.09.2000, asking the respondent

to produced valid certificate, who could not produce the same as required.

With regard to the first reason, it is belied by the record. The respondent No. 1 submitted the certificate of resident of area adjoining the Line of

Actual Control at the time of submission of her form. The certificate is in form ""X"" to SRO 126 dated 28.04.1994. A photo stat copy of the

certificate is annexed as part of Judgement.

Form 'X1 to SRO 120 dated 28.04.1994

Office of the authorised officer Tehsildar. Nowshera certificate of being a member of the Socially & Educationally Backward Class.

This is to certify that Shri Rimpy Singh Son/W/o Daughter/of Inder Jit Singh, R/o Peeing Tehsil Nowshara, District Raouri, is a member of the

Socially and Educationally Backward Class, falling under the category.

i. Resident of Backward area,

ii. Resident of Area adjoining Line of Actual Control.

iii. Weak and Under privileged class (Socialcaste).

This is also certified that the said (Shri) Rimpy Singh W/q Inder Jit Singh (on behalf of applicant) submitted his application for grant of this

certificate to this office on 26.10/1995 and the certificate has been ' delivered to him under my hand and seal today on the 27.10.1995. Vide No.

B.C/109, Dated 26.10.1995

Sd/

Tehsildar Nowshera

Signature of the Authorised Officer with seal. Name in block letters K.K. Sharma Designation Tehsildar, Nowshera

The certificate as annexed, there is no stipulation that it is valid only for a period of two years.

The official respondents did not deny the factum of respondent No. 1 being a resident of LAC at the time of respondent applied for appearing

in the Combined Competitive Examination. It is nobody's case that the respondent obtained the resident certificate by misrepresentation, fraud or

concealment of material fact or impersonation.

The second reason that despite Commission's letter dated 11.09.2000, asking her to produce valid certificate, she could not produce the same

is also belied by the factual position. Infact she had obtained the certificate, subsequently. The subsequent certificate is dated 24.10.2001,

certifying that she is resident of LAC it is placed on record.

At the time of hearing of this appeal, tow contentions have been raised by Mr. D.C. Raina, counsel for the appellant:

a. That under Rule 34 of SRO 126 of 1994, the certificate issues in Form 'X' is valid for a period of two years from the date of issue unless it is

renewed for a further period of two years under SubRule (2) of Rule 34.

b. That the respondent was not possessing the requisite qualification on the closing date of the application i.e. 16.03.1999, in as much as, the

resident certificate is sued to her on 26.10.1995 was only for a period of two years and expired on 27.10.1997.

In the backdrop of the contentions raised by the appellant, we are now called upon to interpret Rule 34 of the Rules.

By a notification dated 28.06.1994, the Governor of Jammu and Kashmir in exercise of the powers conferred by section 124 of the

Constitution of Jammu and Kashmir read with Article 15(4) and 16(4) framed the rules called ""The Jammu and Kashmir Reservation Rules, 1994,

(here in after the Rules), vide SRO 126 of 1994. Rule 7 of the Rules deals with the areas adjoining the Actual Line of Control as included in the

reserved category. Rule 10 of the Rules deals with the reservation for appointment by direct recruitment.

Rule 10 (c) which is relevant for the present purpose reads :

(c). Socially and educationally backward class (other than Scheduled Castes and Scheduled Tribes)

(i). Weak and under privileged classes. (Social castes) 2 %

(ii). Resident of areas adjoining Line of Actual Control 3%.

(iii) Resident of Backward Areas 20

We are pointing out to this relevant rule only to show that there is reservation of some post for the resident of area ad joining the Line of Actual

Control, violation of quota and rota rule is not disputed be fore us. Therefore, this point need not be adverted to further.

In the facts and circumstances as recited above, precisely the question that calls for determination is whether nonrenewal of Resident Area

Certificate (LAC) would disentitle the resident of the Line of Actual Control, for consideration under that category if otherwise he or she is actually

resident of that area.

Rule 34 of the Rules deals with the validity of the certificate. It reads :

Validity of the Certificate. (1) The certificate issued under these rule shall remain valid for a period of two years from the date of issuance.

(2). After the expiry of the period of validity under subrule (1), the Authorized Officer, shall, on the request of the certificate holder, renew the

same for a further period of two years following the same procedure as laid down for obtaining the certificate;

(provided that nothing in the above rule shall apply to the persons belonging to the Scheduled Caste, Scheduled Tribes, Exserviceman,

Handicapped and candidate possessing outstanding proficiency in sports)

The rule consists of two parts. The first part deal with the validity of the certificate i.e. that the certificate is valid for a period of two years from

the date of issue and the second part deal with the renewal of the same for a further period of two years.

The rule read as it is, is adequately elastic. The rule is intended to take care of a situation where a resident after obtaining resident certificate

migrated to other place and claim benefit of the resident of that area even after the validity of the certificate issued has been expired. In our view,

even after the expiry of the validity period of two years as contemplated in subrule (1) of rule 34, if he or she continues to reside in the area,

nonrenewal of the certificate as contemplated under subrule (2) of the rules would not disentitle him or her provided it is established that he or she

is still a resident of the area for which a certificate has been issued. Nonrenewal of such certificate would not disentitle him or her of the reservation

benefit for considering his/her case under the reserve category of resident of Line of Actual Control. We have taken this view because a certificate

is issued on the basis that a particular person is resident of particular area which has been reserved as a reserved category. Nonrenewal of

certificate does not change the status of the applicant if he or she is actually residing in the area for which the certificate has been issued, originally.

In the instant case the factum of respondent No. 1/writ petitioner being resident of Line of Actual Control is not disputed either at the time of

submitting the application or even today. Infact, the respondent was a resident of Line of Actual Control at the time of submission of the application

and continue to be the resident of that area has been fortified by a subsequent certificate issued by the Authority dated 24.10.2001, which has

been produced by the counsel for the respondent and not disputed by the appellant's counsel.

The object sought to be achieved by SRO 126 of 1994 is to confer certain benefit to the resident of Line of Actual Control by virtue of being a

resident of that area. No other qualification is prescribed. The rule intended to serve a boon to the residents of area and not as a ban to them. A

certificate re issues to them as an identity so that they are entitled to claim benefit as a resident of that area.

It will be noticed that in the form ""X"" on which a certificate of resident is required to be issued does not prescribe any validity period. It is only

under Rule 34 that the period of validity of such certificate is prescribed as two years and renewable for another period of two years. We are,

therefore, clearly of the view that Rule 34 is intended to check an applicant who after obtaining a resident certificate and migrated to other place of

nonline of Actual Control and still claim benefit under the same resident certificate.

Ordinarily a person claiming benefit under a certificate of Line of Actual Control would renew such certificate as contemplated under subrule

(2) of rule 34, however, nonrenewal of certificate through inadvertant would not disentitle such person who are otherwise resident of the same area

for which a certificate has been issued originally. This, in our view, would be harmonious construction of Rule 34, so as to advance the cause of the

rules. Conversely, if the actual resident of the area is denied the benefit of SRO 126 for nonrenewal of the resident certificate, though factually

residing in the area, would produce perilous result and in such event it would defeat the object and the purpose of the rule. Even otherwise looking

at the Form ""X"" on which a certificate is issued, there is no period prescribed in the form. In such an event, a resident of Line of Actual Control,

most of them being un expose to the outside, is not expected to know that there is a rule which prescribes that the certificate issued under From

X"" is valid for a period of two years only and is liable to be renewed after the expiry of two years period, especially when such condition is not

stipulated in Form ""X"".

Reverting to the facts of the present case, admittedly, a resident certificate was issued on 26.10.1995 under the provisions of SRO 126. There

is no mention in the certificate of the validity period. However, taking into consideration the provisions of Rule 34 as discussed above, the

certificate expired with effect from 27.10.1997. Despite of the expiry of the certificate, factually she was resident of that area continuously

throughout from the date of the application till publication of the result. The Commission vide its letter dated 11.09.2000 also asked her to furnish

valid resident certificate. She has submitted valid certificate dated 24.10.2001. it is in these circumstances that we are clearly of the view that she

was factually resident of Line of Actual Control and she could not be denied the benefit of SRO 126 of 1994 under the reserved category of

resident of LAC and her case should have been considered under the reserved category of Resident of Actual Line of Control. We accordingly

hold that the respondent No. 1 is factually the resident of LAC.

The next contention of Mr. D.C. Raina that the respondent did not possess requisite qualification on the closing date of submission of

application form i.e. 16.03.1999 has no substance and it de serves to be rejected. The requisite qualification on the last date of application is

relatable to educational qualification. In the case of respondent, we have already hold that she was a resident of LAC, at the time of submission of

the application and continue to be so even today. If that is so, she was definitely possessing the qualification with regard to the resident of LAC, at

the time of closing date of the application i.e. 16.03.1999. Nonrenewal of certificate would not alter the status of her residence if otherwise she

was factually resident of Line of Actual Control. The factum of the respondent/writ petitioner being the resident of Line of Actual Control is not

denied by the appellant.

We now proceed to say something about LPA (SW) No. 477/2001 filed by Suram Chand Sharma. As already said, Suram Chand Sharma

was not arrayed as partyrespondent. His case has been considered under the category of resident of LAC. In this appeal Mr. Kohli sought to

convince us by stating that the resident certificate issued to the respondent on 26.10.1995 has been illegally obtained al though she was not entitled

to get such certificate. It is nobody's case throughout. For the first time this version is sought to be introduced in this LPA. This is not permissible.

At the same time, this submission is belied by the record that the respondent No. 1 also obtained subsequent resident certificate dated

24.10.2001.

We have already hold that the case of respondent No. 1 Ms. Rimp Ohri alias Rimpi Singh shall be considered under re served category of

resident of Line of Ac tual Control. If that is so, her case has to be considered according to her own merit and grading. Counsel for the respondent

Mr. U.K. Jalali has produced result sheet showing marks obtained by the appellant and respondent Ms. Rimi Ohri, which has not been disputed

by the counsel for the appellant. The said result sheet available on the record shows that respondent Ms. Rimpi Ohri secured total 1179 marks

(LAC) category and the appellant Suram Chand Sharma obtained total 1022 marks (LAC) category. The marks secured by respondent Ms.

Rimp Ohri are higher than the appellant Suram Chand Sharma. Even on merit, thus the appellant has no case.

Mr. D.C. Raina has also brought to our notice provisions of Rule 7 of SRO 161 which provide that the candidate shall ensure eligibility criteria

for admission to the preliminary examination on the last date fixed by the Commission for receipt of applications. This question has already been

answered while dealing with rule 34 of the Rules. For the present purpose Rule 7 of SRO 161 need not be adverted to.

In the result, both the appeals are dismissed. Judgement of the Learned Single Judge is affirmed. Pursuant to the interim order passed by this

court, one post has been kept unfilled under the reserved category of LAC. The official respondents are directed to issue appointment letter within

a week from the date of receipt of this order.

Before parting with the records, we may observe that in order to thwart the confusion of the present nature in future, it is desirable that the

appropriate authority should consider insertion of validity period of certificate in form ""X"", apart from provisions of Rule 34 of SRO 126 of 1994.