Jammu & Kashmir High Court
State Th.Home Deptt.And Ors. vs Tanveer Ahmed Naik on 4 February, 2013
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
LPASW no. 122/2011
CMA no. 147/2011
Date of order: 04.02.2013
State of J&K and ors. v. Ravinder Singh
Coram:
Hon'ble Mr. Justice M. M. Kumar, Chief Justice.
Hon'ble Mr. Justice Hasnain Massodi, Judge.
Appearing counsel:
For the Appellant(s) : Mr. Gagan Basotra, Sr. AAG.
For the respondent(s) : Mr. Bari Abdullah, Advocate.
i) Whether to be reported in
Press, Journal/Media : Yes/No
ii/ Whether to be reported in
Digest/ Journal : Yes/No
M. M. Kumar, CJ
1. 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 no. 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.
2. Brief facts of the case may first be re-visited in order to
put the controversy in its proper perspective. The appellant-
State issued an advertisement notice dated 07.02.2009 inviting
2
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
possession 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)"
3. 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
3
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 years 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
4
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)
4. 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
5
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.
5. 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 .
6. 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
6
certificates assessed by the appellant awarding marks were
secured from private institutes or correct certificates were
placed on record later on.
7. 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.
8. 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 v. Union of India and ors (1993) 2 SCC
429, 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 Rekha
Chaturvedi v. University of Rajasthan, (1993) Supp 3
SCC 168 a similar view has been taken by a 2 Judge Bench,
holding that in the absence of a specific date included in the
7
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.
9. 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.
10. 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
8
deviation is required to be notified to the general public so as to
comply with Article 14 and 16(1) of the Constitution.
11. 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.
12. No order as to costs.
(Hasnain Massodi) (M. M. Kumar)
Judge Chief Justice
Jammu,
04.02.2013
Anil Raina, Secy.
*
Sr. No. Case no. & Title Year
1. LPASW no. State of J&K & Ors v. Ravinder 122/2011 and Singh CMP no.
147/20112. LPASW no. State of J&K & Ors v. Tanveer 123/2011 Ahmed Naik (Hasnain Massodi) (M. M. Kumar) Judge Chief Justice Jammu:
04.02.2013