Jammu & Kashmir High Court
Shabnam Ahmad Wani vs State Of J. & K. And Ors. on 22 February, 1999
Equivalent citations: AIR1999J&K120, AIR 1999 JAMMU AND KASHMIR 120
ORDER Syed Bashir-ud-Din, J.
1. Petitioner obtained a certificate of Resident of Backward Area from Deputy Commissioner, Anantnag-Respondent No. 2 on 1-7-1992, after the Deputy Commissioner, processed her application for R. B. A. certificate and got verification report from his subordinate officials including Assistant Commissioner (Revenue) Anantnag. Armed with this RBA certificate, she applied for admission to B. E. Course to Respondent No. 3, Competent Authority, pursuant to advertisement and notification inviting applications for the course for the year 1992. Respondents 5 and 6 were selected to the course under the reserve category of R. B. A. and the petitioner was left out, though she secured equal number of marks with the said two select respondents and in terms of the rules and information brochure, she had to get preference over Respondents 5 and 6 in so far as she secured more marks in math(s) than the other two respondents. The petitioner was left out on the alleged ground that on some complaint, her R. B. A. certificate was suspended pending inquiry on the report of Assistant Commissioner, Anantnag. The petitioner challenged the action of suspension of her certificate on number of grounds including lack of jurisdiction to suspend the certificate and the order having been passed at her back without affording her opportunity.
2. Petitioner while challenging the action of the respondents sought admission in B. E. Course in Regional Engineering College for the Session 1992. Respondents appeared and filed reply, but have contested the case. Alongside, on the very grounds petitioner moved C. M. P. 6740/92 for provisional admission in B. E. Course. This court after inviting objections and hearing the parties, passed a detailed order on 25-5-1993, in terms allowing the petitioner's prayer for provisional admission in B. E. Course, as under :--
"........... In these circumstances, this C. M. P. is finally disposed of with a direction to the respondents to accord admission to the petitioner in B. E. Course provisionally subject to availability of seat in the said course which will be subject to final result of the writ petition or the enquiry regarding cancellation of the certificate under the category of RBAC....................."
3. Pursuant to this order of the Court, petitioner has been admitted provisionally to B. E. Course in Regional Engineering College, Srinagar. She has been allowed to appear in examination and has completed all eight semesters. She has passed the final semester and because of the provisional admission is awaiting award of final degree. It may be noted that the petitioner has completed the B. E. Course, during pendency of the petition after succeeding in getting provisional admission in the College under the orders of the Court. The counsel for petitioner has moved CMP No. 1266/98, wherein, after giving the details of the case and referring to the orders and directions of the court, issued from lime to time during last over five years, enabling the petitioners to complete the course, the petitioner is seeking regularisation of provisional admission and direction to University for issuance of academic certificate of B. E. Course to petitioner.
4. It is to be noted that the main writ petition is at pre-admission stage. The objections have been filed by the respondents, which as per the statement of the counsel for the respondents, Mr. J. A. Kawoosa, AAG, are treated reply in the main petition. Mr. Kawoosa, AAG, does not want to file objections to the BMP and submits, that the CMP as also the Writ petition may be disposed of in the facts and circumstances appearing on record and after taking into consideration the said reply of the respondents.
5. Considered. The case is admitted and taken up for final disposal.
6. Counsel for the parties have been heard.
7. The order of May, 1993 of this Court, directing the respondents to admit the petitioner provisionally in B. E. Course, shows that the petitioner's case of her Backward area certificate having been suspended illegally and without jurisdiction, is believed prima facie by the Court. Her case is that she has been wrongly left out and excluded from consideration under the category of R. B. A. on the above illegal suspension of her RBAC. This case of petitioner is believed as is manifest from the following observations of the Court :---
".............. but, Mr. Jalali, Sr. AAG, frankly conceded that the assessment in the objections of this point has been wrongly made and the petitioner on that score admittedly had higher merit in mathematics entitling her for admission to B. E. Course, but for suspension of the fraudulent certificate allegedly under RBAO issued by respondent No. 2..................... The rules indicated do not envisage suspension submitted that these rules are not exhaustive and the respondent issuing authority has discretionary power to suspend the certificate allegedly obtained by misrepresentation................... The respondents are conducting an enquiry and I am of the opinion that pending enquiry respondent No. 2 has no power rather jurisdiction to suspend the certificate issued by him. He has of course the powers of cancellation but that too after conducting an enquiry..................
Keeping in view the observations, I am of the opinion that action of respondent No. 2 in suspending the certificate of the petitioner is not in accordance with law, but rather offends the principles of natural justice.............."
8. This order has been passed after objections and on hearing both the parties. Thereafter to-date it is not brought to the notice of the court whether inquiry has been at all conducted and if so, what is the decision of the competent authority thereto.
9. Respondent No. 4, Principal Regional Engineering College, Srinagar, as on 26-9-1998 placed a memo on record giving the impression that this respondent having allegedly received an inquiry report is placing same on record. On examination of this memo, it appears that just three pages have been annexed with the application and affidavit. Page 1, is a forwarding letter addressed to the Principal of R. E. College, Srinagar, Page 2, is the letter addressed to the Divisional Commissioner Srinagar by the Deputy Commissioner Anantnag in the matter and page 3, is letter on the subject addressed by the Assistant Commissioner Anantnag to Dy. Commissioner, Anantnag. Though the page 1 marked for identification as R. I. speaks of some inquiry report containing 64 pages, only three pages with application and affidavit have been placed before this Court. This fact is taken note of by the Court even in its order of October 12, 1998.
10. Mr. J. A. Kawoosa, AAG, was asked to place the report before the Court. Mr. Kawoosa, AAG., submits that despite his efforts he has not been able to lay hand on any such report. No such report is forthcoming from the Divisional Commissioner Kashmir, or Deputy Commissioner, Anantnag. The above letters (page 2 and 3 of R1) would reveal that in fact the correspondence between Asstt. Commissioner, Deputy Commissioner and Divisional Commissioner pertains to pre-writ period. The subject and the referred letters have been challenged in the writ. This report though dated 11-9-1998 only speaks of the inquiry allegedly conducted by the Assistant Commissioner Anantnag between July and September, 1992. There is nothing on record or those letters to show that the petitioner has been associated with this inquiry or that she has been given any opportunity or heard in the matter. The report whatever it is, as observed by the motion Bench while admitting the petitioner provisionally to the B. E. Course, is vitiated in so far as it has been drawn up at the back of the petitioner in sheer disregard to principles of natural justice. This inquiry having serious consequences and gravely affecting petitioner's career, cannot be conducted at the back of the petitioner.
11. The totality of facts and circumstances show that petitioner who has been given provisional admission has a case based on merit in the category of RBAO. So long the RBAO certificate, stood and is not cancelled or annulled in accordance with law, she has a case on stronger footing than the respondents 5 and 6, who too were selected in the RBAO category. The petitioner has not been admitted to B. E. Course against seat of any other candidate more meritorious than her in the category of RBAO.
12. Keeping above circumstances in view, it is obvious that the petitioner who completed the B. E. Course during pendency of the writ petition and when the petitioner's case was found prima facie made out at the time of ordering her provisional admission (which position is un-altered even at this stage) dislodging the petitioner at such late stage is obviously inequitable. Petitioner having completed all the eight semesters spreading over last six years and having completed the course under the orders of the Court from time to time without objections from the respondents, non-seating her and that too when only academic certificate of B. E. is to be awarded, is considered from any angle, in the totality of facts and circumstances, quite unjust.
13. In State of J. & K. v. Radhika Narogtra, 1993 Srinagar LJ 257, Division Bench of this Court, observed that where provisional admission was granted to the candidate in MBBS course who completed MBBS during the pendency of the Writ in absence of any steps being taken by the respondents for vacation of the order, the petitioner cannot be dislodged after completion of the course.
In AIR 1990 SC 1222, it has been observed (at p. 1224 of AIR):
"Since the respondents students stand already admitted and the more meritorious students cannot now avail of the seats given to the respondents due to lapse of time, we do not propose to interfere with their pursuit of the course and dismiss the appeals."
14. Mr. J.A. Kawoosa, AAG, basing his submissions on the case of Gurdeep Singh v. State of J. & K. and Ors., 1993 SC 2638 submits that petitioner getting herself selected to BE Course through the process of Court, should not be allowed to retain the seat by appealing "to the sympathy of the Court".
15. In the above cited case, the Apex Court after finding that the appellant having eligibility and legitimate entitlement for selection under approved sports category in MBBS course for the year 1991 was left out and dropped illegally to accommodate respondent No. 6 who had neither the eligibility nor legitimate entitlement for selection against the approved Sports Category and that the selection of Respondent No. 6 was sheer manipulation on the part of the concerned authorities, observed:
"............. that a tendency of this kind where advantage gained by illegal means is permitted to be retained will jeopardize the purity of selection process itself, engender cynical disrespect towards the judicial process and in the last analyses embolden errant authorities and candidates into a sense of complacency and impunity that gains achieved by such wrongs could be retained by an appeal to the sympathy of the court. Such instances reduce the jurisdiction and discretion of courts into private benevolence. This tendency should be stopped................"
However, the facts of the above case before their Lordships have no parallel to the facts and circumstances of this case. This is not a case of admission to professional course, which has been obtained by illegal means and through writ an attempt is made to get it regularised. As already observed, the admission has been given by the court after hearing the parties and inviting objections and examining the matter. The respondents have taken 116 steps and have not shown that the certificate 'RBAO' issued in favour of petitioner has been got by 'some trickery and stratagem', in so far as respondents have not inquired into the matter and annulled or cancelled the certificate after following due process of and in accordance with the provisions of law. The petitioner has been allowed to complete the course during the pendency of the petition. At the initial stage, petitioner has been found selecting herself on merit in the category of RBAO candidates. This position has remained unaltered hereto. Her case as conceded by the respondents is at a higher pedestral and on stronger footing than those of Respondents 5 and 6, who were selected ahead of her. Therefore, it cannot be an instance or a case to "reduce the jurisdiction and discretion of the courts into private benevolence."
16. For the aforesaid reasons, the petition succeeded to the extent that, the admission of the petitioner to B. E. Course is regularised and the University and Principal Regional Engineering College, Sringar, respondents shall be free to award qualification certificate to the petitioner along with other candidates in terms and on conditions of the law and rules applicable thereto.
17. Writ petition is disposed of accordingly along with connected C. M. Ps.