Rakesh Bakshi vs The State Of Jammu And Kashmir

(Arising out of SLP(C)Nos.7843-7844 of 2014) RAKESH BAKSHI & ANR. ...APPELLANT(S)

VERSUS

STATE OF JAMMU AND KASHMIR & ORS. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 237 OF 2019

(Arising out of SLP (C)No.14660 of 2014) STATE OF JAMMU AND KASHMIR ...APPELLANT(S)

VERSUS

HARVINDER SINGH & ORS. ...RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

Signature Not Verified Digitally signed by

1. SANJAY KUMAR Date: 2019.01.22 16:01:49 IST Leave granted.

Reason: 1

2. Civil appeals (@ SLP(C) Nos.7843-7844 of 2014)

by Special Leave are filed against the judgment of the

High court of Jammu and Kashmir dated 04.03.2014 by

which it set aside the judgment of the Single Judge and

set aside the selection and appointment of the

appellants as Junior Engineers. Civil appeal @

SLP(C)No.14660 of 2014 is filed by the State of Jammu &

Kashmir against the impugned judgment.

3. The Services Selection Board of the State

issued an advertisement on 01.07.1997 inviting

applications for the post of Junior Engineers (Elect)

Grade II. The last date fixed was 31.07.1997 for

receipt of applications through registered post. It is

also provided that the cut-off date for determining the

eligibility is 31.07.1997. It is, accordingly, that

party respondent No.3 hereinafter referred to as the

writ petitioner filed SWP No.2186 of 2001 before the

Court. The learned Single Judge, however, dismissed the

petition but the Division Bench reversed the dismissal

of the petition and set aside the judgment of the

2 Single Judge. The selection and the appointment of the

appellants in these appeals arising out of the Special

Leave Petition Nos.7843-7844 of 2014, came to be set

aside.

4. The short ground on which the Division Bench

set aside the appointment is that the result of the

examination was declared only after the cut-off date

and they were not found eligible.

5. We have heard the learned Counsel for the

parties.

6. Learned senior counsel appearing on behalf of

the appellants whose appointment stand interfered with

made the following submissions. The academic session in

which they studied for the Diploma Course was from 1993

to 1996 and there was some problem about the

institution. The examination, though, it was in 1996,

result came to be declared on 12.10.1997. There is no

dispute that the last date for receipt of applications

was 31.07.1997. As far as the first appellant i.e.

3 Rakesh Bakshi is concerned, the Board itself considered

him eligible, as the result, was before holding of the

interview. In regard to the second appellant, he was

removed from the interview list. This led to the

filing of a writ petition by the second appellant. The

High Court took the view that if the Board has

interpreted the eligibility clause in a particular

manner in the case of first appellant who had cleared

examination along with the second appellant, there is

no justification to give different interpretation. In

the case of second appellant, the petition was allowed

and the second appellant was found entitled to the same

benefit as given to the first appellant. A writ

petition was filed challenging the appellant’s

appointment on the same ground. The writ petition was

dismissed by the Single Judge. This

Judgment, however, came to be set aside by the Division

Bench and the appointment of the appellants was set

aside. The matter travelled to this Court and this

Court set aside the judgment of the Division Bench. The

4 judgment of the Single Judge came to be restored. The

present appeal arises from a writ petition filed by

another person, namely, party-respondent in these

appeals Shri Harvinder Singh. The learned Single Judge

dismissed the petition but as noticed the Division

Bench allowed the writ petition reasoning that the

result of the examination of the appellants was

declared only after the last date of receipt of

applications.

7. The Learned Senior Counsel would point out that

the appellants have continued to work for long years

and would further point out that the writ petitioner in

this case did not secure sufficient marks so that he is

not going to get any relief after setting aside the

appointment of the appellants. He drew our attention to

the order passed by this Court dated 14.03.2014. It

reads as follows:-

“Taken on Board.

Mr. P.S. Patwalia, learned senior counsel appearing for the petitioners, submitted that without disturbing 5 respondent No.3, the claim of the petitioners be considered since they have been working from 1998 onwards.

Petitioners are directed to serve a copy of the SLP brief on the standing counsel for the State of Jammu & Kashmir, who will seek instructions in the matter.

Registry is directed to show the name of the standing counsel in the Cause List.

Until further orders, the services of the petitioners shall not be terminated. However, this order will not affect respondent No.3.

Put up after three weeks.”

8. In short, appellants were working for the past

nearly 18 years. As already noticed, the earlier

litigation is also enlisted in their support. Also

support is sought to be drawn from the judgment in

Ashok Kumar Sharma and Others Vs. Chander Shekhar and

Another 1997 (4) SCC 18, Counsel would also submit that

the court may appreciate the plight of the appellants

in that after the 1997 selection, selection was carried

out in the years 2004, 2007 and 2009. But as the

appellants were already selected and continued to work, 6 they have not applied pursuant to the selections. They

have become age barred. The learned counsel for the

petitioner, on the other hand, points out that the

appellants were not eligible on the cut-off date and

cleared the exam on the result being declared

subsequently. This is a recurring lapse, he points out.

9. We proceed on the basis that the appellants

were not possessing the requisite qualification as on

the cut-off date, as such as the result was declared

subsequently. The selection board, itself, had rejected

the eligibility of the second appellant. This led to

the filing of the Writ Petition but the said petition

was allowed on the reason, that there could not be two

yardsticks under the same selection. A writ petition

filed in the meantime, challenging the appellants

appointment was, though, dismissed by a Single Judge,

in appeal the Division Bench set aside the appointment

of the appellants which in turn was set aside by

Hon’ble Court. It is thereafter that the Writ Petition

filed by the present writ petitioner which was filed in

7 2001 came to be taken up and dismissed by the Learned

Single Judge and allowed by the Division Bench. In

between, almost two decades, rolled by with the

appellant’s continuing to work and the writ petitioner

remaining unselected.

10. There is no argument pressed by the learned

counsel that in law, the decision of Division Bench is

wrong in that the appellants were not holding the

requisite qualification as on the cut-off date and the

selection and appointment is bad in law. But the only

point raised is having regard to the efflux of time and

having regard to the equities, in the matter including

the result of the earlier litigation, the three

selections held after 1997, appellants not applying

thereunder having been selected under the impugned

selection and appellant having become age barred and

still further, the claim of the writ petitioner for

appointment being meritless having regard to the Low

Marks scored by him, the services of the appellants

should not be dispensed with.

8

11. Having regard to the case law cited by the

appellant i.e. Ashok Kumar Sharma and Others Vs.

Chander Shekhar and Another; 1997 (4) SCC 18, the facts

may be noticed. On 01.07.1997, an advertisement was

published for the post of Junior Engineers (Elect)

Grade II in the State of Jammu and Kashmir. 33 persons

had not passed BE Civil Examination before the last

date and their results were declared after the cut-off

date. They came to be interviewed, pursuant to

instructions and they were selected. This came to be

challenged. The Writ Petition was dismissed. No appeal

was filed against the order. However, another Writ

Petition came to be filed questioning the selection of

33 respondents on the very same grounds. The Writ

Petition was dismissed. However, the Division Bench

took the view that the 33 respondents could not have

been allowed to compete for the post as they did not

possess the requisite qualification. The appointment of

the 33 persons was not set aside and they were ordered

to be treated as junior to those selected candidates

9 who were fully qualified on the prescribed date. In

other words, the candidates who were not qualified on

the prescribed date were to be treated as junior en

block to the fully qualified selected candidates. The

33 respondents appealed before this Court. The majority

held that permitting the 33 candidates to appear for

the interview was not impermissible. The other learned

Judge, however, took the view that the 33 candidates

should not have been allowed to appear. Even then,

however, the learned Single Judge agreed with the

majority that the seniority of the 33 candidates need

not be disturbed in the particular facts and

circumstances. The result was that three learned Judges

allowed the appeal preferred by the 33 respondents and

set aside the judgment of the Division Bench. The

original writ petitioners filed for Review. The

judgment rendered in the review is the reported

judgment. The Court found that the majority judgment

was unsustainable in law. It is reiterated that the

person who clears the prescribed qualification after

10 the cut-off date cannot be considered qualified and

their applications ought to have been rejected.

12. Thereafter, in paragraph 8, the Court addresses

the question relating to the relief to be granted in

the review applications. The learned Counsel for the 33

respondents in the review petition who were the

appellants before this Court inter alia pointed out the

dismissal of the earlier writ petition and that the

said order had become final. Even the later writ

petitioners (filed by four candidates), it was pointed

out, had not sued in a representative capacity. Other

aspects including that the 33 persons had completed 13

years, was pointed out. The Court held as follows: -

“Having given our anxious and earnest consideration to the question and keeping in view the fact that we are sitting in review jurisdiction and that this particular aspect is a matter lying within the discretion of the Court, we do not think it appropriate to interfere with the unanimous opinion of the three learned Judges of this Court on this aspect. It is true that the Division Bench of the High Court had granted the relief not only to the four review 11 petitioners/writ petitioners but to all the candidates falling in that category yet we cannot ignore the fact that even Sahai, J. who agreed with the review petitioners on the first issue, thought it just and proper not to disturb the inter-se seniority between these two groups of selected candidates. The said seniority was determined by the selecting Authority. Though certain allegations are made with respect to the fairness of the process of selection, that issue is not open in these review applications nor was it gone into by this court in the civil appeals.”

13. Having heard learned Counsel for the parties,

we are inclined to grant relief to the appellants

against their being ousted after serving for nearly two

decades. We are not for a moment doubting the

correctness of the reasoning of the Division Bench in

this case, that eligibility of the candidates must be

decided with reference to the qualification possessed

as on the cut-off date and the qualification acquired

later in point of time cannot make a candidate

eligible. However, having regard to the facts obtaining

in this case, which we have set out and also the manner

in which this Court has decided the matter culminating

12 in 1997 (4) SCC 18 the interests of justice would

require the interference with the judgment of the

Division bench. We particularly note that as far as the

writ petitioner is concerned more than the efflux of

time, the fact is that he cannot possibly secure

selection. Thus having also regard to the fact that the

writ petitioner would not stand to gain if we ousted

the appellants having regard to his position in the

selection, we allow Civil Appeal @ SLP (C)No.7843-

7844/2014 and the judgment of the Division Bench will

stand set aside and the writ petition will stand

dismissed. Civil Appeal @ SLP(C) No.14660/2014 filed

by the State will also stand allowed. There shall be

no order as to costs.

…………………………….J. (Ashok Bhushan)

…………………………J. (K.M. Joseph)

New Delhi;

January 22, 2019

13