Jammu & Kashmir High Court - Srinagar Bench
Jaweed Ahmad Najar vs The J&K Psc & Ors on 3 April, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No.600 of 2012 Jaweed Ahmad Najar Petitioners The J&K PSC & Ors Respondents ! Mr. Javaid Iqbal Advocate ^ M/s M.Y.Bhat and Jehangir Iqbal Ganie Advocate Honble Mr. Justice Muzaffar Hussain Attar Judge Date:03/04/2012 : J U D G M E N T :
Jammu and Kashmir Public Service Commission (for short the PSC) issued Notification No.03-PSC of 2010 dated 28.05.2010 wherein and whereunder besides others five posts of Assistant Draftsmen (Translation) three in Open Merit Category and one each in RBA and SC category were notified. The essential qualification for the post of Assistant Draftsmen (Translation) was provided as Bachelors Degree in Law with proficiency in Urdu language. It was also provided that the candidate must have two years actual practice at Bar and three years experience in translation of legal documents. The last date for receipt of application forms was fixed as 28.06.2010 and it was further provided that same shall be cut off date for purposes of qualification and experience for determining the eligibility of a candidate.
Petitioner responded to the said Notification and sought consideration for being selected and appointed on the post of Assistant Draftsmen (Translation). The PSC issued Notice dated 28.06.2011 wherein and whereunder the candidates were directed to fulfill the deficiency in the documents within seven days from the date of issuance of the Notice and it was further provided that on failure to respond to the said Notice the candidature of such candidate shall be rejected for the post of Assistant Draftsmen (Translation). At Column 3 of the said Notice it was provided that certificate of proficiency in Urdu would mean that the candidate must have passed examination with Urdu as one of the subjects at Graduation Level and the certificate must be issued by the concerned University.
The PSC issued Notice dated 06.03.2012 wherein and whereunder the names of the candidates who had applied for the posts in various disciplines for their interview on different dates were notified. Petitioner figured at S.No.3 of the said notification for the post of Assistant Draftsmen (Translation). The PSC issued Notification No.13-PSC of 2012 dated 19.03.2012 wherein and whereunder names of the candidates who were selected for being appointed on the post of Assistant Draftsmen (Translation) were notified. Petitioner feeling aggrieved of it has challenged the same in the present writ petition.
Mr. Javaid Iqbal learned counsel for the petitioner submitted that the petitioner was subjected to written test but was declined to be interviewed on the ground that his Post Graduation Degree Certificate in Urdu has been issued in December 2010 thus beyond the cut off date and was accordingly rendered ineligible for being considered for being selected and appointed on the post of Assistant Draftsmen (Translation). Learned counsel submitted that it was not within the province of the PSC to provide for eligibility qualification. Learned counsel submitted that the petitioner was not having Urdu as one of the subjects at Graduation Level but he was possessed of same at Post Graduation Level. Learned counsel submitted that the petitioners candidature was entertained by the PSC only after he was found eligible and his name figured in Notice dated 06.03.2012 when the candidates were called for interview. Learned counsel submitted that petitioner could not have been denied consideration for being selected and appointed on the post of Assistant Draftsmen (Translation).
Learned counsel in support of his submissions referred to and relied upon the case titled Ashok Kumar Sharma & Anr. (Appellants) v. Chander Shekher & Anr (Respondents) reported in 1993(1) SLR (SC)
379. Learned counsel also referred to judgment of Honble Supreme Court titled Charles K. Skaria & Ors (Appellants) v. Dr. C. Mathew & Ors (respondents) reported in (1980)2 SCC 752. Learned counsel also referred to judgment of this Court reported in KLJ 1980 page 204.
M/s M.Y.Bhat and Jehangir Iqbal Ganie learned counsel appearing for caveators submitted that the petitioner on the face of Advertisement Notice is ineligible as he has attained the Post Graduate Degree in Urdu much after the cut off date. While appearing for cavetors learned counsel respectively submitted that it is settled position in law that only those candidates who fulfill the eligibility qualification on cut off date fixed in the Advertisement Notice alone can be subjected to selection process and called for interview. Learned counsel accordingly prayed for dismissal of the writ petition.
In the writ petition the petitioner has sought for issuance of writ of certiorari for quashing the manner and method of selection adopted by the respondents for making selection to the post of Assistant Draftsmen (Translation) as also for quashment of selection of respondents 4 to 6. It is also prayed that respondents be directed to initiate fresh process of selection and subject the petitioner to the selection process and in alternate it is prayed that respondents be directed to interview the petitioner for the post of Assistant Draftsmen (Translation) and in case the petitioner gets selected he be appointed on the said post.
Admittedly the last date for filing of application form and for determining eligibility qualification and experience was fixed as 28.06.2010. Notice dated 28.06.2011 provide that certificate of proficiency in Urdu would mean a degree certificate issued by the concerned University indicating therein that the candidate has passed Urdu as one of the subjects at Graduation Level. This notification is not called in question in the writ petition. The notification thus binds the petitioner.
Admittedly the petitioner was not possessed of proficiency in Urdu on cut-off date thus was not eligible for being considered for being selected and appointed on the post of Assistant Draftsmen (Translation).
In Ashok Kumar Sharmas case the Honble Supreme Court ruled that the candidates were fully qualified for being appointed as Jr. Engineers on the date of interview though the result of B.E Examination had not been declared on the dates of submission of the application forms. The issue involved in the case was about the seniority and promotion on the next higher post of Assistant Engineer. The Ashok Kumar Sharmas case reported in 1993(1) SLR page 379 was reviewed by the Honble Supreme Court in case titled Ashok Kumar Sharma & Ors (Appellants) v. Chander Shekher& Anr. (Respondents) reported in (1997)4 Supreme Court Cases 18 and the Honble Supreme Court held that the candidates who had acquired the requisite qualification after filing of the application but before holding of interview were ineligible. It was held that contrary majority opinion in Ashok Kumar Sharma case was unsustainable and amounted to a clear error of law apparent on the face of the record. The decision in earlier case was not disturbed on the ground that the unanimous decision in earlier case was based on the merit vis-`-vis the qualified candidates. Since the matter related to determination of seniority and promotion to the next higher post same was not disturbed and in respect of determination of eligibility the view taken in earlier Ashok Kumar Sharmas case was held to be unsustainable. The judgment in first Ashok Kumar Sharmas case cited at Bar would thus not be of any help to the petitioner.
In Charles K. Skaria case it has been held by the Honble Supreme Court that the advantage of diploma would accrue to a candidate if he had completed the diploma examination on or before last date of application; the result of the examination was published before that date and the candidates success in the diploma course was brought to the knowledge of the selection committee before completion of selection in an authentic or acceptable manner. On the facts of this case the judgment cited at Bar does not render any help to the petitioner inasmuch as admittedly after the cut off date fixed the result of the Post Graduation Course of petitioner was declared.
Honble Division Bench of this Court in case titled Madhu Syal (Dr.) v. State of J&K & Ors reported in JK Judgments 2010 Vol.I at page HC 150 has ruled as under:
4. In terms of notice dated 28th Oct. 2009 issued by PSC the candidates who had applied for the posts of B-Grade Specialists/Lecturer in GMC Jammu/Srinagar were informed that the candidature of candidates figuring in the said notice is rejected on the grounds mentioned against each. Petitioner figures at serial No.10 of the discipline Gynae/ Obstr. The candidature of the petitioner has been rejected as she was having less experience than what was required in terms of the advertisement notification.
The PSC accordingly issued schedule for conducting interview of the candidates who were found to fulfill the requisite eligibility qualification.
5.We have heard learned counsel and considered the matter.
6.The documents placed on the writ record do show that petitioner as on cut off date was not possessed of the requisite experience of four years a requirement since she is a diploma holder so admittedly she was ineligible in seeking consideration for being selected/appointed as B-Grade Specialists in the discipline of Gynae/Obstr. Ld. counsel submitted that two of petitioners batch- mates Dr. Shabir Ahmed and Dr. Khalida Parveen who have obtained Diploma in Gynae in the same session in which petitioner obtained the said qualification have been called for interview by PSC. Learned counsel submitted that petitioner also deserves to be given same treatment which has been meted out to said doctors.
7.An advertisement notification is a representation to all eligible candidates from the Selection Authority providing therein the post(s) which are to be filled in and the eligibility qualifications which the candidates aspiring to seek consideration for being selected/appointed to a particular post(s) must possess. In order to avoid uncertainty which may arise in case date is not fixed for determining the eligibility the Selection Authority in the advertisement notification also provides the cut off date for determining the eligibility of candidate(s) who may seek consideration for being selected/appointed to the post notified. The moment the advertisement notification along with terms and conditions is made public it binds the authority who issues the same. A candidate who responds to the said notification on the basis of the terms and conditions mentioned therein without any reservation is also thereafter bound by the terms and conditions of the said notification.
8.The Honble Supreme Court in case titled Ashok Kumar Sharma and ors petitioners/appellants v. Chander Shekhar and anr respondents reported in (1997) 4 SCC page 18 has held that an advertisement or notification issued/published calling for applications constitutes a representation to the public and the issuing authority is bound by such representation. It cannot act contrary to it. The relevant portion of para 6 is reproduced as under:-
.An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it
9. On scrutiny of the Application Forms as also the testimonials attached therewith if it is found that the candidate is not fulfilling any of the terms and conditions contained in the advertisement notification his/her Application Form is liable to be rejected. A person being ineligible in accordance with the terms and conditions of the advertisement notification cannot seek consideration for being selected/appointed to a post.
10. Article 14 and 16 of the Constitution of India do mandate that it is only those candidates who on the terms and conditions of advertisement notification are eligible form one class and they alone under the scheme of the said constitutional provisions have guaranteed right of being considered for being selected/appointed to a post.
11.A person who does not satisfy the terms and conditions of the advertisement notification and is also not aggrieved of the terms and conditions notified therein and does not challenge them on any valid and legal ground cannot file Application Form in response to said notification and cannot seek consideration for being selected/appointed to the post. Such a candidate being not eligible on the terms and conditions of the advertisement notification forms a different class and has no enforceable right in law to pray for issuance of a direction to the selection authority to consider his/her candidature. An ineligible candidate being not clothed with any right in law cannot approach the court of law that too a Constitutional Court for issuance of high prerogative writs to command the selection authority to do an act in breach of the terms and conditions notified in the advertisement notification. Such a direction cannot be otherwise also issued as the eligible candidates on the terms and conditions of the advertisement notification form distinct and separate class whereas ineligible candidate on the same set of terms and conditions forms a separate class. The competent authority cannot be directed to give same treatment to an ineligible candidate which is being given to the eligible candidates as that would amount to clubbing of two different and distinct classes in one single class which would be voilative of Constitutional Guarantees as contained in Article 14 and 16 of the Constitution.
The petitioner was initially allowed to compete but on finding that on the terms and conditions of the Advertisement Notice he was ineligible the PSC rightly declined to interview him. No fault in law can be found in the course adopted by the PSC.
In the facts of this case and in view of the aforementioned legal position this petition is held to be meritless and is dismissed in limine.
Caveat discharged.
(Muzaffar Hussain Attar) Judge Srinagar 03.04.2012 Sarveeda