Ilr 1996 kar 3693 is reversed, distinguished or overuled?
Suryanarayana
(Querist) 25 September 2011
This query is : Resolved
Please tell me whether ILR 1996 KAR 3693 is reversed, distinguished or overuled?
This citation (from Karnataka high court) says declaration of caste before civil court is maintainable.
But - AIR 1995 SC 94, AIR 1995 SC 1506 and AIR 1997 SC 1199 says civil suit is not maintainable before civil court. Please let me know above querry. Also tell me some other rulings from karnataka or supreme court which clearly says civil suit not maintainable.
Raj Kumar Makkad
(Expert) 25 September 2011
History Chief Justice of India Chief Justice of Jammu & Kashmir Judges Former Chief Justices Registry LowerJudiciary Sub Registrars Weekly Causelists Sections Pendency Judgements Oath Commissioners Judis Online Official Calender News & events J&K Law Reporter Links
JKLR-Part(IV) SWP 2422/2000 Back To Index
(2001) 1 J & K LAW REPORTER 456
High Court of Jammu and Kashmir
at Jammu
Before
Hon’ble Mr. Justice Arun Kumar Goel, Judge
PARMODH KUMAR Petitioner
versus
J&K PUBLIC SERVICE COMMISSION AND ANR. Respondents
SWP 2422 / 2000, decided on 23.1.2001.
J&K Reservation Rules, 1994 – Petitioner belonging to Tarkhans’ caste – “Tarkhans” included in the Reservation Rules, 1994 after the cut off date for submission of applications for the post – Whether petitioner eligible for the selection- Held : No.
SRO 208 of 1999 is in the nature of subordinate legislation. Appropriate authority was well aware that many cases may be in the pipe line on the date of its issuance. If it was intended to make it retrospectively applicable they would have made a provision in the SRO itself by making appropriate povision in it. This has adminttedly not been done. Thus it can be inferred that it was never intended to be made retrospectively applicable. [Para 10]
As already noticed, rights of the petitioner were fructified on the last date of application in the year 1997, therefore, he cannot derive any benefit from the issuance of SRO 208 of 1999. Whatever benefit or advantage was available on account of reservation are notified in SRO 126 of 1994. In schedule E thereof castes Lohar and Tarkhan has been addeded at entry No.22 & 23 by SRO in question in the year 1999. [Para 11]
Advocates who appeared in this case :
Mr. Raghu Mehta, Advocate for the petitioner
Mr.D.C.Raina, Advocate, for respondent No.1
Cases referred : Chronological
1. Raman Dayaram Shetty vs. International Airport Authoriy of India & others, (1979) 3 SCC 489
2. State of J&K vs. Chander Shekher & others: 1993 Supp (2) SCC 611
3. Ashok Kumar Sharma & others vs. Chander Shekar & another : (1997) 4 SCC 18
4. State of Haryana & others vs. Anurag Srivastava and another: (1998) 8 SCC 399
JUDGMENT AND ORDER
Fact which are not in dispute in this case may be briefly stated.
Petitioner applied in response to Notification No. 17-PSC of 1997 dated 1.9.1977, for the post of Horticulture Development Officer. He holds Bachelors Degree in Agriculture as also Master’s Degree in Agriculture Chemistry.
J&K Public Service Commision decided to hold screening test as such petitioner was called for the said purpose. Such test was held on 30.4.2000. He secured 43 marks. According to petitioner, last candidate in Social Caste Category obtained 42 marks. Thus according to him, he was entitled to be included in the list on the basis of performance.
It is further not in dispute that vide Government of Jammu & Kashmir General Adminstration Department Notification Srinagar, the 10th June,1999, No. GAD(MTG) Sts/6/93 in Annexure to the Jammu & Kashmir Reservation Rules, 1994, after serial No.21, following were ordered to be added:
“ 22. Lohars.
23. Tarkhans”
Petitioners belongs to “Tarkhan” caste. It is on this basis that he is claiming reservation and thus seeks a direction to the respondents No.1- Public Service Commission, to call him for interview in the category of Social Caste and if found suitable to select him.
The narration of the above clearly shows that admittedly on the date of Notification as well as on the date of submission of application by the petitioner ‘Tarkhan’ caste was not included in schedule of the J&K Reservation Rules, 1994. This was added alongwith ‘Lohar’ Caste Vide SRO 208 of 1999. Thus the sole question that needs consideration is whether the applicant like petitioner must fulfill the eligibility criteria on the last date of application or on the date of interview/declaration of the result. In case of former this writ petition must fail and in case of latter there is no option but for allowing this writ petition, directing the public service commission to call the petitioner for interview in social caste category on the basis of his performance in screening test.
Shri. Raghu Mehta, learned counsel appearing for the petitioner, submitted that this is a beneficial provision of law as such it should be interpreted in a manner whereby the object sought to be achieved is fulfilled. Thus according to him, this provision is retrospectively applicable governing the pending cases of selection like the present one in case selections have not taken place on the date of promulgamation of SRO 208 of 1999(Supra). He further pointed out that by taking a narrow view of this provision the very object it will be defeated and such an interpretation would be contrary to the spirit, intention as well as purpose of Articles 15(4) and 16(4) of the Constitution of India, as well as the provisions of Constitution of Jammu & Kashmir so far those relate to reservation for socially backward and other castes like Scheduled Caste / Scheduled Tribe etc. etc. Thus he has prayed for allowing this writ petition.
On the other hand, Shri D.C. Raina, learned counsel appearing for the Public Service Commission, submitted that the argument put forth by Mr. Raghu Mehta, learned counsel for the petitioner, will lead to disastrous consequences. According to him, a candidate must always fulfill the requisite qualification and is entitled for the benefit of reservation etc. on the cut off date. According to him, unless it was intended to make SRO 208 of 1999 retrospectively applicable, by no rule of interpretation and howsoever liberal construction may be put, this provision cannot be made applicable in the manner prayed for on behalf of the petitioner to the selection in question.
On examination of SRO 208 of 1999 (supra) it is clear that it does not relate to procedure as it confers substantial rights on certain specific caste named in it viz. Tarkhan and Lohars. It is cardinal principle of interpretation that procedural law can be made retrospectively applicable by not a provision affecting substantial rights of the parities as in the present case. Petitioner was well aware when he applied in response to Notification in the year 1997 that the caste to which he belongs (which has been included in Annexre-E to the J&K Reservation Rules 1994) was not a reserved prior to 10.6.1999. As such he did not and in fact could not have applied claiming reservation belonging to Lohar caste. Thus on the cut off date he was not entitled to the benefit of his belonging to Lohar caste. In support of his plea Shri Raghu Mehta has placed reliance on a decision of the Supreme Court of India in the case of Ashok Kumar Sharma Vs. Chander Shekhar and another and State of J&K vs. Chander Shekher & others: 1993 Supp (2) Supreme Court Case 611. In this decision given by three Judge Bench minority view as per Sahai, J. was in the following terms :
“In legal termninolgy, when something is required to be done and the consequences of failure to do so are also provided then it is known as mandatory. Mandatory character of the condition stipulated in the advertisement is further strengthened from the fact that the candidates were prohibited from applying if they did not possess the requisite qualifications. The expression shall to be possessed of such qualification is indicative of both mandatory character of the requirement and its operation in praesenti. Acceptance of the view that the appellants had requisite qualification on the date of interview would have the effect of altering condition of eligibility on the date of applications would not be accepted, will also beome meaningless.”
On the other hand majority view of Dr.T.K. Thommen and V.Ramaswami JJ. In this case was in the following terms :
“... ... ... ... ...
Rule 37 is certainly an efficacious rule for having broad based selection but its extension to the present case will result in unfairness discussed above. Rules are framed under a statute to carry out the objective of enactment. If the rule making authority goes beyond the power conferred on it, the rule is rendered invalid. A rule framed under one statute therefore cannot be invoked for carrying out the objective of another. It is therefore doubtful whether rules framed by the Public Service Commission could be utilised for construing notification issued by a department of Government, which has a separate set of rules.
It is however unfair to quash appointments after a period of more than ten years. The High Court tried to adjust the equities amongst the parties by placing the appellants junior to the respondents but equity does not know half way. Once the eligibility bar was lifted for whatever reason, the appellants must get the seniority because they were subjected to same interview and secured higher merit. The appellant cannot therefore be placed junior to respondents.
The appellants did pass the B.E. (Civil) Examination and were fully qualified for being selected prior to the date of interview. By allowing the appellants to appear in interview and by their selection on the basis of their comparative merits, the recruiting authority was able to get the best talents available. It was certainly in public interest that the interview was made as broad based as was possible on the basis of qualification. It was in public interest that better candidates who were fully qualified on the dates of selection were not rejected, notwithstanding that the results of the examination in which they had appeared had been delayed for no fault of theirs. The appellants were fully qualified on the dates of interview and taking into account the generally followed principle of Rule 37 in the State of Jammu & Kashmir, too much technical view cannot be taken. Results announced by the recruiting authority have therefore to be upheld.”
No benefit can be taken by the petitioner from this judgment, reason being that when this matter came up for consideration in review before the Supreme Court again in the year 1997 in the case titled: Ashok Kumar Sharma & others vs. Chander Shekar & another : (1997) 4 Supreme Court Cases 18, amongst others, question No.1 was in the following terms :
“(1) Whether the view taken by the majority (Hon’ble Dr. Thommen and V.Ramaswami, JJ.) that it is enough for a candidate to be qualified by the date of interview even if he was not qualified by the last date prescribed for receiving the applications, is correct in law and whether the majority was right in extending the priciple of Rule 37 of the Public Service Commission Rules to the present case by analogy ?”
What was held on this aspect was as under:
“6. The review petitioners came up for final hearing on 3-3-1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr.T.K.Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date alone, is a well established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. 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. One reason behind this proposition is that if it were known that persons who obtained the qualification after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualification by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M.Sahai, J.(and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview.
7. Mr. Rakesh Dwivedi, learned counsel for the 33 candidates, submitted that these 33 candidates had appeared for the B.E. Examination prior to their applying for the post and that there was some delay in publishing the results and that these respondents cannot be punished for the delay on the part of the authorities concerned in publishing the results. In our opinion, the said contention is beside the point. In these proceedings, we cannot examine the reasons for delay — assuming that there was delay in publishing the results. The issue is outside the purview of the writ petition. Whatever may be the reason, the 33 persons were not qualified as on the prescribed date and, therefore, could not have been allowed to appear for the interview. On the first issue (mentioned in the order dated 1-9-1995), therefore, we hold in favour of the review petitioners, affirming the opinion of Sahai, J.”
And finally while dismissing the review petition it is held as under :
“10. For the above reasons, these review petitions are dismissed subject to the clarification on the legal issue, viz. Issue 1 mentioned in our records dated 1.9.1995. There shall be no order as to costs.”
In State of Haryana & others vs. Anurag Srivastava and another: (1998) 8 Supreme Court Cases 399 it was held as under :
“ 2. On the last date for reciept of application, namely, 7.1.1981, Respondent 2 did not possess a Master’s Degree in History, but in Group ‘A’ i.e. Medieval India. The marks-sheet which was annexed by her showed that the four papers which she had appeared in were in the group “Medieval India”. The second respondent herself stated in her letter dated 3.7.1981, addressed to the Director, Haryana State Archieves, Chandigarh, that she had passed M A examination in History (1200 AD-1787 AD) from Kurukshetra University in 1978. One paper was for the period 127 AD-1761 AD. Apart from this, she had already appeared in M A Examination in Modern Indian History (1707 AD-1947 AD) for obtaining additional qualifications and the results was awaited.
3. She subsequently obtained an MA in History in Group ‘B’ Modern Indian History” on 16-7-1981. The High Court has rightly held that on 7-1-1981, the last date for submitting the application, the 2nd respondent did not possess a Master’s degree with Modern Indian History as her subjects. She obtained this qualification on 16-7-1981 subsequent to her interview and selection.
4. Learned counsel for the 2nd respondent has relied upon two decisions of this court in Ashok Kumar Sharma V. Chander Shekhar and Rekha Chaturvedi v. University of Rajasthan. Both these judgments hold that the qualifications which have to be considered are those possessed as on the last date of filing applications. The High Court has, therefore, rightly held that the 2nd respondent did not possess the requisite qualifications at the material time and was not entitled to be selected under the advertisement of 7-12-1980. The appeal is, therefore, dismissed. There will be no order as to costs.”
In State of Rajasthan v. Hitendra Kumar Bhatt, AIR 1998 Supreme Court 91, it was held as under :
“ 6. Looking to the clear terms of the advertisement which we have referred to above, the respondent was not eligible for consideration. It is submitted by the respondent before us that since he has been continued and has now been confirmed we should not disturb his appointment. He has requested that his case should be considered sympathetically. The fact, however, remains that the appellants have taken the correct stand right from the beginning. The respondent’s application was not considered and he was not called for an interview. It was on account of interim orders which were obtained by the respondent that he was given appointment and continued. He was aware that his appointment was subject to the outcome of his petition. One cannot, therefore, take to sympathetic a view of the situation in which the respondent finds himself. A cut-off date by which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would have applied had they known that the date of acquiring qualifications was flexible. They may not have applied because they did not possess the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of one individual may therefore, cause injustice to others.
7. In the premises, the respondent was not eligible for consideration. We therefore, allow the appeal, set aside the impugned order of the High Court and dismiss the writ petition filed by the respondent.
There shall be no order as to costs.”
In case submission of Shri. Raghu Mehta, learned counsel for the petitioner, is accepted its drastic results would be that it will tantamount to deny equality of opportunity to all those candidates who become eligible like petitioner after the issuance of aforesaid SRO 208 of 1999. It would be contrary to mandate of the Supreme Court in the case of Raman Dayaram Shetty vs. International Airport Authoriy of India & others, (1979) 3 Supreme Court cases 489. Reason being that those candidates who belong to Tarkhan caste may have applied in general category because benefit of social caste category was not available on the date of application, which became available after 1999.
SRO 208 of 1999 is in the nature of subordinate legislation. Appropriate authority was well aware that many cases may be in the pipe line on the date of its issuance. If it was intended to make it retrospectively applicable they would have made a provision in the SRO itself by making appropriate povision in it. This has adminttedly not been done. Thus it can be inferred that it was never intended to be made retrospectively applicable as was urged by Shri Mehta.
As already noticed, rights of the petitioner were fructified on the last date of application in the year 1997, therefore, he cannot derive any benefit from the issuance of SRO 208 of 1999. Whatever benefit or advantage was available on account of reservation are notified in SRO 126 of 1994, in Schedule E whereof castes Lohar and Tarkhan has been addeded at entry No.22 & 23 by SRO in question in the year 1999.
No other point is urged.
As a result of the aforesaid discussion, there is no merit in this writ petition which is accordingly dismissed.
.........
