NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5217 OF 2012
(Arising out of S.L.P.(C) No. 30744 of 2010)
Vinod Kumar Koul … Appellant
versus
State of J & K and others … Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. In response to an advertisement issued by the Jammu and Kashmir
Services Selection Board, Jammu (for short, ‘the Board’) which was
published in the newspaper dated 29.3.1996, the appellant applied for the
post of Laboratory Assistant, which is a District cadre post. He appeared
before the Selection Committee consisting of respondent Nos. 4 to 6 but was
not interviewed on the ground that he was not a permanent resident of
District Udhampur.
3. The appellant challenged the decision of the Selection Committee in
SSWP No.1656 of 1996 not to consider his candidature on the ground of
violation of Articles 14 and 16 of the Constitution. The appellant pleaded
that he was qualified for the post and fulfilled other conditions. In
support of his assertion that he was a permanent resident of District
Udhampur, the appellant annexed certificate dated 15.2.1994 issued by
Additional Deputy Commissioner, Udhampur.
4. By an interim order dated 31.12.1996, the learned Single Judge of the
High Court directed the Selection Committee to interview the appellant but
made it clear that his result shall not be declared without the Court’s
order.
5. The Board contested the writ petition primarily on the ground that
the appellant is not a permanent resident of District Udhampur and that in
view of Circular dated 20.5.1993, only an unambiguous permanent residence
certificate issued by the competent revenue authorities of the district
could be accepted. Similar written statements were filed by the other
respondents.
6. After considering the arguments of the counsel for the parties, the
learned Single Judge dismissed the writ petition on the premise that the
selection was to be made only from the candidates belonging to District
Udhampur and being a permanent resident of District Anantnag, the appellant
was not entitled to be considered for appointment in District Udhampur. The
Division Bench of the High Court agreed with the learned Single Judge and
dismissed the appeal preferred by the appellant.
7. We have heard learned counsel for the parties and perused the record.
In exercise of the powers conferred upon him under Section 124 of the
Constitution of Jammu and Kashmir, the Governor of the State framed the
Jammu and Kashmir Subordinate Services Recruitment Rules, 1992 (for short,
‘the Rules’). Rules 3(ii), (v), (vi), (vii), (viii), 12, 13, 14 and 17,
which are relevant for deciding the question raised in this appeal, read as
under:
“3. Definitions:- In these rules unless the context otherwise
requires:
i. xxx xxx
ii. “Board” means the Services Selection Board constituted under
these rules;
iii. xxx xxx
iv. xxx xxx
v. “Subordinate Service” means and includes all non-gazetted posts
under the Government whether grouped into organized service or
not;
vi. “State Cadre” means the sanctioned strength of the non-gazetted
posts borne on the establishment of the headquartered offices of
the departments having jurisdiction over the whole state but
does not include the posts borne on the Divisional and district
cadres;
vii. “Divisional Cadre” means the cadre of the department in the
Division comprising the following posts:-
a. All non-gazetted posts, the maximum of the pay scale or
the pay as the case may be, of which exceeds Rs. 6000 per
month, exclusive of all allowances and dearness pay;
b. All non-gazetted posts, the maximum of the pay scale or
the pay as the case may be of which does not exceed Rs.
6000 per month, exclusive of all allowances and dearness
pay but which are borne on the establishment of offices
above the District level;
viii. “District cadre” means the cadre of a department in a District
comprising all the posts whether executive, ministerial,
technical or manipulative maximum of the pay scale or the basic
pay of which does not exceed Rs.6000 per month exclusive of all
allowances and dearness pay;
12. Procedure of referring vacancies to the Board
(1) The Administrative Department concerned shall refer all vacancies
in the Subordinate Services to the Board by 15th January of every year
strictly in accordance with SRO 166 of 2005 dated 14th January, 2005,
as amended from time to time, for making selection of candidates for
appointment to the posts.
Provided that the Government may for any recruitment to be made under
rule 9-A, refer the vacancies in one go at any time.
(2) While referring the vacancies to the Board, the administrative
department shall specify the number of posts for which selection to be
made from the reserved categories;
Provided that the Appointing Authority may with the prior approval of
the Government in the General Administration Department and for
sufficient reasons to be recorded make appointment in individual cases
or class of cases out side the purview of these rules.
13. Procedure of selection by the Recruitment Board:-
The Board shall make selection to the various posts in the following
manner;-
i) The Board on receipt of the reference of vacancies,
advertise the posts, communicate copies of the advertisements to
the respective employment exchange, Government Gazette, press
and other publicity media so as to achieve wide publicity;
Provided that it shall be mandatory for the Board to:-
(a) club the vacancies of District cadre of similar nature
referred to it by any department in a calendar year;
(b) club the vacancies of Divisional cadre of similar nature
referred to it by any department in a calendar year;
and advertise the same in one go as per laid down procedure and
invite applications from the permanent residents of Jammu and
Kashmir without prescribing the conditions of domiciliary
requirements.
ii) A candidate can apply only in one district for District
cadre posts and in one division in respect of Divisional cadre
posts;
Provided that if any candidate applies for more than one
district or one division, his candidature shall be considered
only for the district or the division in which he is ordinarily
residing.
iii) The Board shall, ordinarily, restrict the number of
applicants for oral and/or written test, as the case may be, to
at least five times the number of vacancies on the basis of
academic merit in the qualifying examination converted into
points on prorata basis out of the total points allocated for
the basic eligibility qualification and grant of weightage for
the higher qualification in the discipline concerned to be
allowed in the manner and to the extent as the Board may deem
appropriate for according due consideration to the merit and
proficiency in higher qualification:
Provided that the Board may, for reasons to be recorded in
writing, conduct a written test for short listing the candidates
for admission to the oral test and for purpose of selection of
candidates.
iv) The Board shall allot the requisite number of candidates in
order of merit and reservation as referred by the appointing
authority. The Board shall not maintain any select list for any
casual or future vacancies;
v) The General Administration Department may prescribe such
proformae as are required for reference of vacancies to the
Board and for communicating the select list from time to time.
14. Power to make regulation: -
The Services Selection Board may if it considers necessary formulate
regulations to provide for the procedure and method for carrying out
its functions under these rules:
Provided that prior approval of the Government shall be necessary for
issuance of such regulations by the Board.
17. Power to issue instructions:-
a) The Government in the General Administration Department may from
time to time, issue such directives or instructions as may be
necessary for the purpose of carrying out the provisions of
these rules.
b) The Government in the General Administration Department, where
it is satisfied that the operation of any provisions of these
rules causes undue hardship in any particular case or class of
cases, by order, dispense with or relax the requirement of that
rule as it may consider necessary.”
8. Circular dated 20.5.1993 issued by the Board on which reliance has
been placed by the respondents and which constitutes the foundation of the
impugned judgment and the order of the learned Single Judge reads as under:
“J&K SERVICES SELECTION BOARD SRINAGAR
The Board in its 11th meeting on 20.4.93 took the following decision
with regard to the Permanent Residence Certificates.
Only un-ambiguous Permanent Residence Certificate issued by the
competent Revenue authorities of the District to which the posts
belong should be accepted in respect of District cadre posts. The
PRC’s having statements like presently living at should not be taken
any cognizance of same will hold good for Divisional Cadre posts as
well.
Sd/-
(Gouhar Ahmad)
Secretary
No:SSB/787-806/93 dated 20.5.1993.”
9. It is not in dispute that the post of Laboratory Assistant is a
Subordinate Service post and is included in the District cadre for which
recruitment is required to be made by the Board on the recommendations of
the Selection Committee. In terms of Rule 13(i), the Board is required to
club the vacancies of District cadre referred to it in a calendar year,
advertise the same in one go and invite applications from the residents of
Jammu and Kashmir without prescribing the conditions of domicile. In terms
of clause (ii) of Rule 13, a candidate can apply only in one district for
the District cadre posts and in one division for the Divisional cadre
posts. If a candidate applies for more than one District or Division, then
his candidature is required to be considered only for the district or the
division in which he is ordinarily residing. In terms of Rule 14, the
Board can, with the prior approval of the Government, frame regulations and
lay down the procedure and method for carrying out its functions under the
Rules.
10. There is nothing in the language of Rule 13(i) or any other Rule from
which it can be inferred that for the District cadre post only a permanent
resident of the particular district can apply. Rather, Rule 13(i)
postulates inviting of applications from the permanent residents of Jammu
and Kashmir and not any particular district. Only in terms of clause (ii)
of Rule 13 the candidature of a person who applies for more than one
district can be considered for the district in which he is ordinarily
residing. In our view, in the absence of any statutory stipulation in that
regard, it cannot be said that a candidate who is a permanent resident of
the State of Jammu and Kashmir is not eligible to be considered for a
District cadre post merely because he is not a permanent resident of the
particular District for which the post has been advertised.
11. It is neither the pleaded case of the respondents nor it has been
brought to our notice that the decision contained in Circular dated
20.5.1993 is a part of the scheme of the Rules or the same embodies some
directive or instructions issued by the State Government in the General
Administration Department under Rule 17 of the Rules. As a matter of fact,
a plain reading of the circular shows that it contains an administrative
decision taken by the Board in its meeting held on 20.4.1993.
12. In our view, the administrative decision of the Board, which is ex-
facie inconsistent with the plain language of Rule 13(i), could not have
been relied upon for determining eligibility of the appellant for
appointment as Laboratory Assistant in District Udhampur and the learned
Single Judge and the Division Bench of the High Court committed serious
error by negating the appellant’s challenge to the decision of the
Selection Committee not to consider his candidature and that too by
overlooking the fact that at the time of submission of application, the
appellant was residing in District Udhampur, which is an integral part of
the State of Jammu and Kashmir.
13. In the result, the appeal is allowed. The impugned judgment and the
order of the learned Single Judge are set aside. It is declared that the
appellant was eligible to be considered for the post of Laboratory
Assistant for District Udhampur. The Board is directed to declare the
result of the appellant’s interview within a period of 4 weeks from today.
If it is found that the appellant’s name would have figured among the
selected candidates, then the Board shall forward its recommendation to the
appointing authority. This shall be done within 2 weeks of the declaration
of result. Within next 4 weeks, the competent authority shall issue order
appointing the appellant on the post of Laboratory Assistant. The appellant
shall be entitled to have his seniority fixed in accordance with the Rules.
The parties are left to bear their own costs.
…..……….....……..….………………….…J.
[G.S. SINGHVI]
…………..………..….………………….…J.
[SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi,
July 16, 2012.
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