ORDER
B.A. Khan, J.
1. This is the sad story of a candidate for the MBBS course whose dream stands shattered and academic pursuit as good as short-circuited by the failure of the State functionaries to discharge their statutory obligations within the time frame prescribed by the Statute. The matter raises some crucial issues of public importance concerning the inaction and inertia of the statutory authorities and its disastrous consequences on the aggrieved parties. Who compensates such a party and what is the role of the Court in such a situation, is the moot question.
2. Petitioner had applied for grant of reserved category certificate 'Resident of Backward Area' (ROBA) to respondent No. 2 (Dy. Commissioner, Badgam), as far back as on 18-10-1991. Her application was endorsed to Tehsildar concerned on 28-10-1991 who processed her case and issued public notice in the newspaper on 22-11-1991 inviting objections from the public. The Tehsildar submitted the file along with his recommendation to the Deputy Commissioner who was the prescribed authority to issue certificate under SRO-316 of 1986 read with SRO-272 of 1982 on 25-4-1992. But, the Deputy Commissioner allegedly sat over the matter and failed to take any action till July, 1995 when he was under a statutory duty to decide the matter within fifteen days from the date of receipt of application.
3. In the meanwhile the Competent Authority, Entrance Examinations (CAEE) invited applications for selection to the MBBS/ BDS courses for the session 1992. Petitioner also applied laying claim to the reserved category of 'ROBA' and attached a certificate from the Tehsildar concerned to show that her case for grant of reserved category certificate was under process. No certificate was granted or refused to her till last date of receipt of the applications and the CAEE considered her case in the Open Merit category in which she failed to make the grade as she had obtained only 93 marks. Had respondent No. 2 granted her the ROBA certificate to which she was entitled, within the prescribed period of 15 days, she would have been considered in the reserved category of ROBA and selected because the last candidate had secured 87 marks. She would have figured at Section No. 7 of the merit list in this category and by now would have been near the completion of the course.
4. Petitioner's further case is that she again applied for selection to the MBBS course in 1993 in similar circumstances and at the same time pursued her case with the successive Deputy Commissioners and Teh-sildars for the grant of certificate but in vain. This time she secured 163 marks but met the same fate and was treated in the Open Merit category. Had the certificate been granted to her which was ultimately granted under orders of this Cpurt, she would have figured at Section No. 2 of the merit list in the ROBA category in which the first candidate had obtained 175 marks and last candidate 120 marks. In the circumstances she had missed the bus in 1993 also because of the inaction by the concerned officers of the Government which had resulted in denial of consideration to her in the ROBA category in two successive years when she had obtained the requisite merit to be admitted in the MBBS course in this category but for the reserved category certificate. She accordingly prays that she could be deemed to have been granted this certificate way back in 1991 on the expiry of prescribed 15 days period for grant of such certificate and should be further deemed to have been selected and admitted to the MBBS course in the years 1992 and 1993 when she would have figured at Section Nos. 7 and Section No. 2 in the merit list under the ROBA category.
5. The State-respondent has not offered any explanation for the failure of the functionaries to grant or refuse the requisite certificate to the petitioner within the prescribed period of 15 days under SRO-416 of 1986orthesubsequentSRO-126 of 1994. The Competent Authority has, however, filed objections taking the expected stand that since the petitioner had failed to produce the requisite reserved category certificate on the last date of receipt of applications for the session 1992 and 1993, therefore, she was rightly treated as a candidate in the 'Open Merit' category in which she could not be selected because of her inferior merit. It is also submitted that the 'under process certificate' attached by her along with her application forms was not entertainable under rules and, therefore, she was not considered under the ROBA category. It is urged that the petitioner cannot be deemed to be a reserved category candidate either for the session 1992 or 1993 when admittedly she had come to possess the certificate only in 1994. Reliance in this regard is placed on a judgment of the Supreme Court reported in AIR 1980 SC 1230 which lays down that a distinction is to be drawn between acquiring a degree and possession of such a degree and on this analogy it is argued that the petitioner may have been entitled to a reserved category certificate in 1992 but so long as she did not possess such certificate, she could not be treated in the reserved category.
6. Before coming to the grips with the issues involved, it becomes necessary to refer to the sequence of events during the pendency of this writ petition. The record shows that after the petitioner had failed on all fronts to persuade the State functionaries to take action on her request for grant of certificate, she filed this petition in this Court on 9-2-1994 seeking a direction to respondent No. 2 (Dy. Commissioner, Badgam) to take a decision on her application for grant of certificate. Respondents were put on notice on 10-2-1994. After it was noticed that the Deputy Commissioner concerned was under statutory legal obligation to decide the matter within 15 days, he was granted two weeks' time to take a decision on petitioner's application, by Court order dated 27-4-1994. It is alleged that the petitioner's father went to serve this Court order but the staff in the office of the Dy. Commissioner and his Asstt. Commissioner refused to receive it. He thereafter despatched a copy of the order through registered post and at the same time invoked contempt jurisdiction of this Court vide COA No. 52 of 1994. The Dy. Commissioner was put on notice and was required to file statement of facts vide order dated 14-7-1994. After he failed to respond to the Court notice, his attendance was sought to be secured through bailable warrants by order dated 30-8-1994. He eventually appeared before the Court on 28-12-1994 and took the stand that whole blame could not be put on him for not passing final orders on the petitioner's request for certificate as he had taken over as Dy. Commissioner, Badgam, on 13-6-1994 and had required his Tehsildar Mr. Nissar Geelani to submit his report within two days. But, he submitted the report on 30-6-1994 and in the meanwhile Government promulgated SRO-126 of 1994 whereby the Tehsildar was made the prescribed authority for issuance of the reserved category certificate under the ROBA category and accordingly the case was sent to him on 11-7-1994 and the certificate was ultimately granted on 5-10-1994. Even if all this is accepted, it follows that it took the Dy. Commissioner and Tehsildar concerned more than four months to issue the requisite certificate to the petitioner pursuant to Court order dated 27-4-1994.
7. Considering the explanation of the present Dy. Commissioner, Badgam, Mr. Sandeep K. Nayak, it was thought fit to put on notice all these officers who had served on the post of Deputy Commissioner from the time petitioner had applied for the grant of certificate to ascertain the cause of delay and to allocate the responsibility, if any. Consequently the following officers were put on notice and required to file their affidavits to explain the reasons for delaying the grant of ROBA category certificate to the petitioner beyond the statutory period of 15 days :
1. Mr. Mumtaz Afzal, Director, Food and Supplies, Srinagar.
2. Mr. S. A. Masoodi, Director, Social Welfare Deptt., Srinagar.
3. Mr. Nissar Geelani, Tehsildar, Badgam.
4. Mr. Mushtaq Ahmed Malik, Asstt. Commissioner (R), Badgam.
5. Mr. Abdul Majid, Section Officer, Dy. Commissioner's office, Badgam.
6. Mr. Abdul Majid, concerned dealing Asstt. in the office of Dy. Commissioner, Badgam.
All officers/officials except Mr. Mumtaz Afzal, filed affidavits giving their respective versions.
8. Mr. S. A. Masoodi, who remained posted as Dy. Commissioner, Badgam, from 6-7-1993 to 23-2-1994, stated in his affidavit that during his 7 months stay at Badgam, petitioner's case was never put up before him nor did the petitioner or any of her guardians or representatives approach him in this regard.
9. Mr. Sandeep K. Nayak, present Dy. Commissioner, Badgam, submitted in his affidavit that the file was for the first time put up before him on 3-6-1994 when he sought report from his Tehsildar which was submitted to him on 30-6-1994 and in the meanwhile Tehsildar was appointed as prescribed authority and the case was sent to him for disposal.
10. Mr. Nissar Geelani has stated in his affidavit that he was posted in Badgam in October, 1993 and that he received petitioner's case on 7-6-1994 for clarifying some points. Upon this the petitioner's father was summoned but he was not available at his village address. He further submits that he received the case for disposal as a newly appointed prescribed authority on 11-7-1994 and since the matter involved some enquiry, it took him some time to collect the pay certificate of the petitioner's father etc. and granted the certificate on 5-10-1994. He points out that the petitioner was not eligible for grant of this certificate under SRO-314/ 86 read with SRO-272/82 as 'her father was exceeding the limits',
11. The two other officials who have all along dealt with the case of the petitioner arc Abdul Majid Mir, Section Officer and Abdul Majid, Junior Assistant in the office of the Deputy Commissioner. The sum and substance of their affidavits is that the petitioner applied for the grant of certificate on 28-10-1991 and her case was forwarded by the Tehsildar which was put up before him on 25-4-1992 in which he raised some queries on 1-5-1992 which were accepted by the then DC who returned the case to the Tehsildar for clarification on 4-5-1992 in which some queries were again raised and the case sent to the Asstt. Commissioner, Badgam, on 10-6-1992, who, forwarded it to the Dy. Commissioner and who raised as many as 8 queries again on 10-8-1992. What happened after that is not known till these official respondents acknowledged the receipt of Court order dated 27-4-1994 whereby the Dy. Commissioner was directed to pass final orders on the petitioner's case. Accordingly there appears to be some missing link from 10-8-1992 to 3-6-1994 for about two years for which there is no explanation.
12. The stand taken by these officials is repelled and refuted by the petitioner in her rejoinder-affidavit in which she has stated that all these officers are now coming out with a cock and bull story to justify the inordinate delay caused in disposal of her case one way or the other. It is reiterated that the petitioner and her father were approaching these officers time and again but in vain.
13. Without resorting to any minute sifting process of the available documentary evidence on record, it does not require much proof to show that the petitioner's case for grant of reserved category certificate was not considered and disposed of for more than three years by the successive Dy. Commissioners, Tehsildars and other concerned staff of the two officers including the Section Officer and Junior Assistant when these officers were bound to do so within a prescribed period of 15 days under SRO-314/86. The original record of the Dy. Commissioner's office which contains the note file also shows that no action was taken in the case from the year 1992 till Court order dated 24-4-1992 is said to have been received in the DC's office. Therefore, it is not difficult to conclude that the concerned functionaries of the respondent-State were negligent, casual and careless in performing the statutory duty cast on them which has surely caused an enormous prejudice and injury to the petitioner. It is in this background that the following issue falls for determination:
'Whether the failure of the statutory authority to perform its statutory duty within the prescribed time entitles an aggrieved party, like a candidate for professional course, to a relief by way of grant of admission in the course in question as in the present case and additionally to some compensation recoverable from the person of the officers concerned who are found responsible for the inaction. In other words and in specific terms whether such delay should be allowed to prejudice the interests and career prospectus of the candidate who had done all that was required of him or her and had acted diligently and whether such candidate could be denied consideration in the reserved category when he or she could not be fauled or blamed for non-production of the requisite reserved category certificate on the last date of receipt of application forms?'
14. I am not oblivious or unaware of the position that consideration to be accorded to a candidate is related to his/ her possession of the prescribed and requisite eligibility. Where a candidate suffers from any inherent in-eligibility or fails to satisfy such eligibility on the date fixed, the question of according any consideration to such a candidate does not arise. I am also conscious of the position that acquiring of a degree is different from the possession of the degree and that a candidate is required to possess it on the relevant date to invite consideration. But the present case appears to me wholly and materially different and cannot be brought squarely within the purview of any one of such known proposition.
15. This is not a case where the petitioner was inherently disabled or disqualified to lay any claim to the reserved category of ROBA. Nor is it that she was negligent or lethargic in approaching the prescribed authority for grant of certificate well within time. Nor can any default, negligence or inaction be attributed to her leading to the delay in disposal of her case for grant of the requisite certificate.
16. It is the common ground that she had applied for this certificate months before the last date of receipt of applications for MBBS course for 1992 session, not to speak of 1993 session. She had also satisfied all the requirements involved in the inquiry to be conducted by the prescribed authority as appears from the official record. She had diligently performed her part leaving it to the prescribed authority to discharge his duty. It was for the authority to decide her case one way or the other. The failure of such authority should naturally entitle her to compensation in whatever way. Such a failure which is loaded with killing and marring a budding career cannot be allowed to go untouched and unchecked. Those responsible must account for it and the State must compensate for the injury and damage caused which can only be done, for the present, by directing it to accord consideration to the petitioner in the ROBA category on the basis of merit obtained by her in 1992 and 1993 and to grant her admission. She cannot be pushed down the hill and required to compete now when the tension, torture and agony suffered by her for the last three years must have taken its own toll and when her state of 'preparedness must have been considerably blunted.
17. The stand of the Competent Authority that the petitioner could not be considered in the reserved category at the relevant time may be technically correct. But the peculiar facts and circumstances of her case place her in a class by itself. As noticed earlier, she had done all that was required of her diligently and faithfully and had not contributed to the delay in the decision in any way. Therefore, her failure to possess the certificate at the relevant time was not of her making. It was because of circumstances beyond her control and because of official inertia and inaction for which she could not be held responsible and made to suffer. Had the prescribed authority considered her case within the time, she would have known her fate once and for all and would have chalked her course accordingly.
18. Considering that the petitioner was after all granted the requisite certificate under the threat of the orders passed by this Court from time to time, further fortifies her case. The stray plea of Tehsildar concerned taken in his affidavit subscribed in July, 1995, that she would not be entitled to the requisite certificates in 1992, 1993, is unacceptable at this stage and should be rejected. Therefore, it cannot be said and held in this scenario that she was not entitled to be considered in ROBA category as she failed to possess the certificate at the relevant time.
19. It is not in dispute that if the petitioner had been granted this certificate well within the time she would have been selected and granted admission both in 1992 and 1993 sessions. Her merit position admittedly placed her under ROBA category in 1992 at Section No. 7 and at No. 2 in 1993. Consequently, she is well within her rights to ask for a consideration being accorded to her for the sessions in question on account of the failure of the concerned prescribed authorities to take a decision on her request for the grant of reserved category certificate.
20. I accordingly hold on this parity of reasoning that where there is a failure of the statutory authority to grant the ROBA certificate to the Candidate for a professional course within the prescribed statutory time and if that candidate has deligently and bonafide performed his/her part and is subsequently found entitled to the grant of such certificate, a right of consideration shallaccrue to such a candidate, in reference to thepoint of time he or she had sought selectionfor such a course and the State-respondentwould be obliged to compensate the candidate by granting him or her admission in therelevant course in the next ensuing sessionfollowing the grant of certificate. There is noother way to put the aggrieved candidate backon rails and to restore him to the originalposition despite efflux of time because noamount of monetary compensation can makeup for the time lost, mental agony andhardship undergone by him/ her during theinterregnum.
21. This conclusion may appear to be at odds with some well known propositions. But, that is what the innovative justice is all about. It is satisfying that I am supported in this by a Division Bench judgment of this Court, though not expressed in so many words, in Mahesh Kumar's case (1994 Ker LJ 81) wherein it was observed as under:
'.....whether the writ-petitioner could be disentitled for consideration under the reserved category in view of the admitted fact that the authority competent to issue the certificate had failed in its obligation to decide the matter within fifteen days and also in view of the fact that the candidate had done all that was necessary and possible in the circumstances of the case. This question arises notwithstanding the view expressed somewhat to the contrary in the Division Bench judgment in Naresh Singh's case (AIR 1994 J & K 42) referred to earlier, We also feel that the Division Bench judgment may require reconsideration if that purports to hold that the candidate would loose his right of consideration even when issue of reserved category certificate was delayed for no fault of his.
We accordingly admit this appeal and direct the Registry to place the same before the Hon'ble Chief Justice for constituting a Full Bench for hearing and disposal of the same.'
In Naresh Singh's case reference whereof stands made in the judgment, AIR 1994 J&K; 42 (supra) a different Division Bench of this Court was dealing with the point whether a reserved category certificate could be allowed to be produced by a candidate after the submission of application form on the analogy that the candidate was required to submit other original certificates at the time of admission. Therefore, the point in issue involved in the present petition was neither debated nor considered in Naresh Singh's case.
22. It is not for this Court to suggest how the erring officials who failed to discharge their statutory duty to dispose of the reserved category certificate cases within the prescribed statutory period, deserve to be dealt with. They could perhaps be burdened with competition recoverable from their person and payable to the aggrieved parties in appropriate cases. They could also be proceeded against in a departmental action and in accordance with their service rules wherever their negligence and their failure to discharge the duty cast on them by the statute is prima facie established. In the present case I feel handicapped because the petitioner has not raised the demand for payment of compensation specifically and supported by some material.
In the result, I hold as follows:
1) That notwithstanding the stand of the Competent Authority, the State-respondent shall compensate the petitioner for the failure of its functionaries to discharge the statutory duty cast on them to decide the petitioner's case for grant of reserved category certificate within the prescribed period of 15 days. This shall be done by according consideration to her selection in the MBBS course on the basis of her merit position obtained in 1992 and 1993 and treating her to be a reserved category candidate under ROBA category at the relevant time and by granting her admission in the ensuing session. It should not be taken to negate the stand of the CAEE that a candidate is liable to consideration in the reserved category only after production of the requisite certificate. Nor shall it constitute any precedent for cases where certificates are granted by the prescribed authority after expiry of prescribed time;
(2) That Chief Secretary of the State-respondent shall issue administrative instructions cautioning all the prescribed authorities entrusted with the duty of issuing reserved category certificates, to adhere to the prescribed time schedule as far as practicable and tp record reasons for any unavoidable dealy caused and shall also inform them about the likelihood of the proposed departmental Action against erring officials who are found responsible for delaying the disposal of such cases;
(3) That C.O. A. No. 52 of 1994 shall survive along with petitioner's claim for compensation against the officials concerned and she would be at liberty to file any supplementary pleadings or place any supporting documents on record in this regard, The record, of this petition shall remain attached to that contempt petition and other ancillary matter, for further proceedings.