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Saturday, November 7, 2015

the High Court that in order to be an eligible candidate, the appellant should have done B.Sc. in Forestry and since he had not done so, he was not considered as an eligible candidate. = In our considered view, firstly, if there was any ambiguity or vagueness noticed in prescribing the qualification in the advertisement, then it should have been clarified by the authority concerned in the advertisement itself. Secondly, if it was not clarified, then benefit should have been given to the candidate rather than to the respondents. Thirdly, even assuming that there was no ambiguity or/and any vagueness yet we find that the appellant was admittedly having B.Sc. degree with Forestry as one of the major subjects in his graduation and further he was also having Masters degree in Forestry, i.e., M.Sc.(Forestry). In the light of these facts, we are of the view that the appellant was possessed of the prescribed qualification to apply for the post in question and his application could not have been rejected treating him to be an ineligible candidate for not possessing prescribed qualification. 25. In our view, if a candidate has done B.Sc. in Forestry as one of the major subjects and has also done Masters in the Forestry, i.e., M.Sc.(Forestry) then in the absence of any clarification on such issue, the candidate possessing such higher qualification has to be held to possess the required qualification to apply for the post. In fact, acquiring higher qualification in the prescribed subject i.e. Forestry was sufficient to hold that the appellant had possessed the prescribed qualification. It was coupled with the fact that Forestry was one of the appellant’s major subjects in graduation, due to which he was able to do his Masters in Forestry. 26. Learned counsel for the respondents contended that if the appellant is held eligible on the basis of his qualification, the candidates alike him would be deprived of applying for the said post. The argument, in our view, has no merit. 27. In the first place, no such candidate or/and applied for the post and secondly, the argument being wholly hypothical in nature cannot be accepted. 28. In the light of foregoing discussion, we are not in agreement with the view taken by the High Court when it was held that the appellant did not possess the prescribed qualification. This finding, as held above, is unsustainable and thus cannot be upheld. The appeal thus succeeds and is accordingly allowed. Impugned order is set aside. As a consequence, the writ petition filed by the appellant succeeds and is accordingly allowed. Since the appellant has already cleared the written examination and had appeared in the interview and further one post was directed to be kept reserved for him by the orders of the High Court in the event, the appellant succeeds in this litigation, we consider it appropriate to direct the respondents to issue necessary appointment order in favour of the appellant for the said post after ensuring compliance of the procedural formalities within one month from the date of receipt of this judgment.

                                                               REPORTABLE  [
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.  13368  OF 2015
                   (ARISING OUT OF SLP (C) No. 26131/2013)


Parvaiz Ahmad Parry                     …..….Appellant(s)


                             VERSUS


State of Jammu & Kashmir
& Ors.                                  ……Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1.    Leave granted.
2.    This appeal is filed  against  the  final  judgment  and  order  dated
10.05.2013 passed by the High Court of Jammu & Kashmir at  Jammu  in  L.P.A.
No. 102 of 2012 whereby the Division Bench of the High Court  dismissed  the
appeal filed by the appellant herein  while  upholding  the  judgment  dated
12.11.2012 passed by the learned Single Judge of the High Court in  SWP  No.
2699 of 2010.
3.    In order to appreciate the issues involved in the  appeal,  which  lie
in a narrow compass, few relevant facts need mention infra.
4.    The appellant completed B.Sc.  with  Forestry  as  one  of  the  major
subjects from Garhwal University, Uttarakhand in the year  2001.  Thereafter
he also completed his M.Sc.(Forestry) from the same University in  the  year
2003.
5.    The appellant also passed  the  National  Eligibility  Test  (NET)  in
Forestry from Indian Council of Agricultural Research  (ICAR)  in  the  year
2005-2006.
6.    The J & K Forest Service (Gazetted) Recruitment Rules, 1970 (in  short
‘the Rules’) lays down the eligibility qualifications for the post of  Range
Officer Grade-I (Forest) which is “B.Sc. Forestry  or  its  equivalent  from
any University recognized by the Indian Council of  Agricultural  Research”.

7.    The Indian Council of Forest Research & Education (in  short  “ICFRE”)
issued Notification dated 15.01.1999 clarifying that the syllabus  of  State
Forest Service (in short ‘SFS’) Colleges was  very  much  akin  to  that  of
Indira  Gandhi  National  Forest  Academy  (in  Short  “IGNFA”),  therefore,
considering  the  high  standard  of  training  and  education  in  the  SFS
Colleges, the ICFRE resolved that “SFS College  Diploma  to  be  treated  as
equivalent to M.Sc.(Forestry).”
8.    By letter dated 15.02.2007, the Forest Research  Institute  (in  short
‘FRI’) informed the Department of Forest, J & K  Government,  that  the  SFS
Colleges Diploma be treated as equivalent to M.Sc. (Forestry).  In turn,  on
12.03.2007, the Forest Department informed  the  same  to  the  J.K.  Public
Service  Commission  (JKPSC)  endorsing  the  opinion  of  the   FRI   dated
15.02.2007.
9.    By Notification dated 20.07.2007,  the JKPSC advertised 23 posts of  J
& K Forest Service Range Officers Grade-I (Forest) and invited  applications
from the eligible candidates.  The eligibility  qualification  mentioned  in
the Notification was “B.Sc.(Forestry)  or  equivalent  from  any  University
recognized by the ICAR”.  The appointment to the post was to be made on  the
basis of written test, viva-voce test, walking test and medical  test.   The
appellant applied for the said post.
10.   By Notification dated 08.09.2010, the JKPSC declared the appellant  as
an ineligible candidate for appointment to the post of Range Officer  Grade-
I(Forest)  on  the  ground  that  he  does  not   possess   the   prescribed
qualification.
11.   On 07.10.2010, the appellant sent a representation to the JKPSC to re-
consider his case as  according  to  him,  he  possessed  the  qualification
prescribed  for  the  post.  On  11.10.2010,  the  appellant  sent   another
representation to the JKPSC requesting it to allow  him  to  participate  in
the selection.  Since  no  action  was  taken  on  the  representation,  the
appellant filed a petition being SWP No. 2699 of 2010 before the High  Court
for issuance of writ of certiorari for quashing the said notification  dated
08.09.2010  and  for  further  direction  to  the  JKPSC  to  allow  him  to
participate in the selection process.
12.   The learned Single Judge, by interim order dated  24.11.2010,  allowed
the appellant to appear in the written examination subject  to  the  outcome
of  the  writ  petition.   Accordingly,  the  appellant  appeared   in   the
examination.
13.   On 22.02.2011, the result of the written examination was  produced  in
the Court by the JKPSC, which declared the  appellant  as  successful.   The
learned Single Judge permitted the appellant to appear in the interview.
14.   On 22.07.2011, the JKPSC published a list of selected  candidates  who
were recommended for appointment on the basis of merit but the list did  not
reflect the name of the appellant.
15.   By order dated 12.11.2012, the  learned  Single  Judge  dismissed  the
writ petition.
16.   Against by the said order, the appellant  preferred  an  appeal  being
L.P.A. No. 102 of 2012 before the  High  Court.   Pending  disposal  of  the
appeal, the Division Bench, by interim order  dated  22.11.2012,    directed
that one post  of  Range  Officer  Grade-I  (Forest)  be  reserved  for  the
appellant.   However,  by  order  dated  10.05.2013,  the   Division   Bench
dismissed the appeal.
17.   Aggrieved by the said judgment, the appellant  preferred  this  appeal
by way of special leave before this Court.
18.   Heard learned counsel for the parties.
19.   Learned Counsel for the appellant while  assailing  the  legality  and
correctness of the impugned judgment made  two  submissions.  In  the  first
place, he contended that the writ court and the  appellate  court  erred  in
dismissing the  appellant's  writ  petition  and  the  appeal.  It  was  his
submission that the reasoning of the writ court, which was simply upheld  by
the appellate Court without examining the real  issue,  is  wholly  perverse
and being unsustainable in law deserves to  be  set  aside.  In  the  second
place, learned counsel contended that  when  admittedly  the  appellant  was
having B.Sc. degree in Forestry as one of the major subjects and further  he
had also obtained Masters degree in  Forestry,  M.Sc.(Forestry),  and  later
acquired higher qualification of Masters  degree,  i.e.,  M.Sc.  in  Natural
Resources and Environment from the University of Michigan,  USA,  he  should
have been held as an eligible candidate  for  the  post  of  J  &  K  Forest
Service Range Officers Grade-I for which he  had  applied  pursuant  to  the
advertisement.
20.   In reply, learned counsel for the respondents supported  the  impugned
judgment and contended that  no  case  is  made  out  to  interfere  in  the
impugned order and hence the appeal should be dismissed.
21.   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find  force  in  the  submissions  urged  by  the
learned counsel for the appellant.
22.   As would be clear from  the  undisputed  facts  mentioned  above,  the
minimum qualification prescribed for applying to the post of J  &  K  Forest
Service Range Officers Grade-I was "B.Sc. (Forestry) or equivalent from  any
University recognized by ICAR".  It is not disputed that the  appellant  was
to his credit a qualification of B.Sc. with Forestry as  one  of  the  major
subjects and Masters in Forestry, i.e. M.Sc.(Forestry), on the date when  he
applied for the post in question, which satisfied the  eligibility  criteria
so far as the qualification was concerned.
23.   We do not agree with the reasoning of the High Court that in order  to
be an eligible candidate, the appellant should have done B.Sc.  in  Forestry
and since he had  not  done  so,  he  was  not  considered  as  an  eligible
candidate. This reasoning, in our view, does not stand to any logic and  is,
therefore, not acceptable insofar as the facts of this case are concerned.
24.   In our considered  view,  firstly,  if  there  was  any  ambiguity  or
vagueness noticed in prescribing the  qualification  in  the  advertisement,
then it should have  been  clarified  by  the  authority  concerned  in  the
advertisement itself.  Secondly, if  it  was  not  clarified,  then  benefit
should have been given to the candidate  rather  than  to  the  respondents.
Thirdly, even assuming that there was no ambiguity or/and any vagueness  yet
we find that the appellant was admittedly having B.Sc. degree with  Forestry
as one of the major subjects in his  graduation  and  further  he  was  also
having Masters degree in Forestry, i.e., M.Sc.(Forestry).  In the  light  of
these facts, we are of the view that the appellant   was  possessed  of  the
prescribed  qualification  to  apply  for  the  post  in  question  and  his
application could not have been rejected treating him to  be  an  ineligible
candidate for not possessing prescribed qualification.
25.   In our view, if a candidate has done B.Sc. in Forestry as one  of  the
major  subjects  and  has  also  done  Masters  in   the   Forestry,   i.e.,
M.Sc.(Forestry) then in the absence of any clarification on such issue,  the
candidate possessing such higher qualification has to  be  held  to  possess
the required qualification to  apply  for  the  post.   In  fact,  acquiring
higher qualification in the prescribed subject i.e. Forestry was  sufficient
to hold that the appellant had possessed the prescribed  qualification.   It
was coupled with the fact that Forestry was one  of  the  appellant’s  major
subjects in graduation, due to which he  was  able  to  do  his  Masters  in
Forestry.
26.   Learned counsel for the respondents contended that  if  the  appellant
is held eligible on the basis of his  qualification,  the  candidates  alike
him would be deprived of applying for the said post.  The argument,  in  our
view, has no merit.
27.   In the first place, no such candidate or/and applied for the post  and
secondly,  the  argument  being  wholly  hypothical  in  nature  cannot   be
accepted.
28.   In the light of foregoing discussion, we are  not  in  agreement  with
the view taken by the High Court when it was held  that  the  appellant  did
not possess the prescribed qualification. This finding, as  held  above,  is
unsustainable and thus cannot be upheld.  The appeal thus  succeeds  and  is
accordingly allowed. Impugned order is set  aside.  As  a  consequence,  the
writ petition filed by the appellant succeeds and  is  accordingly  allowed.
Since the appellant has already cleared  the  written  examination  and  had
appeared in the interview and further one  post  was  directed  to  be  kept
reserved for him by  the  orders  of  the  High  Court  in  the  event,  the
appellant succeeds in this litigation, we consider it appropriate to  direct
the respondents to issue  necessary  appointment  order  in  favour  of  the
appellant for the said post after  ensuring  compliance  of  the  procedural
formalities within one month from the date of receipt of this judgment.



……...................................J.
                                  [J. CHELAMESWAR]


                       ..……..................................J.
                                     [ABHAY MANOHAR SAPRE]    New Delhi;
      November 06, 2015.

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