Naresh Singh Vs. State of J. and K. and ors. - Court Judgment

Excerpt:
- s.c. mathur, c.j. 1. the appellant was a candidate at the entrance test held to select candidates for admission to the degree course in regional engineering college, srinagar and other regional engineering colleges in the country. he failed in his attempt. he filed a writ petition in this court to challenge his non-election. in that also he failed. he has now preferred the instant letters patent appeal to challenge the judgment of the learned single judge. a few facts necessary for the disposal of the appeal may be immediately stated: 2. cm 22-6-1992 a notification was issued inviting applications from eligible candidates. the notification contained in a schedule of relevant dates. in this schedule 10th july, 1992 up to 2 p.m. was mentioned as the last date and time for receipt of applications 'complete in all respects'. roll numbers to the candidates were to be issued between 21-7-92 and 24-7-1992 and 25-7-1992 and 26-7-1992 were mentioned as the dates of examination. the notification disclosed the criteria for selection and made reference to information brochure at 3.2 (note ii). for the candidates seeking selection against reserved category, the 'selection criteria' contained the following warning: 'candidates who claim consideration for selection on the basis of their belonging to any of the reserved category as specified in sro 272 dated 3-7-1982 as amended from time to time must attach requisite category certificate issued by the concerned competent authority as specified in the sros. in case the candidate is seeking consideration under 'sports category' he should submit the certificate(s) of participation in eligible sports events to the j & k state sports council for evaluation and determination of sports candidature as per sro 314 of 1986 in the absence of the recommendations from the j&k; state sports council. candidate(s) shall not be considered under this category but shall only be considered under 'om/ any other category' if otherwise eligible for consideration under the same. no 'under process certificate' will be entertained and the candidates will be considered under 'open merit' category if otherwise eligible for the same.' 3. admittedly, the appellant submitted his application within the time fixed in the notification. the application was however not accompanied with the certificate referred to in the first paragraph of the above extract. instead it was accompanied with a certificate which read as follows : 'certified that the backward area file no. 81/89 of sh. naresh singh s/o sh. krishen chand, r/o village bothri, tehsil billawar, district kathua is under process in this office. (it is only valid for three months).' this certificate is dated 2-7-1992 and was issued from the office of the deputy commissioner, kathua. this certificate is referable to the 'under process certificate' referred to in the second paragraph of the above extract. the appellant was issued admit card which reads as follows : 'regn. no. 0136 roll no. 49332 please admit naresh singh son of krishan chand to the entrance examination centre no. 14 located at govt. polytechnic (boys) jammu category under which being considered om' 4. it is not disputed that the abbrevation 'om' stood for general category. the appellant appeared at the examination on due dates. on 27th july, 1992, the deputy commissioner, kathua issued certificate to the appellant referable to paragraph 1 of the aforesaid extract. before declaration of result the appellant submitted the said certificate to the competent authority. result of the examination was published on 23-8-1992. the result contains the roll nos. of 22 candidates in respect of, whom it is stated that their result is provisional subject to their acquiring the required marks in the qualifying examination as applicable to their category. it is also stated that in case they failed to obtain such marks as are prescribed, their candidature will be deemed to have been cancelled. it is also mentioned in the result notification that the selection is provisional and is subject to the fulfilment of the requirements of the concerned university. the result notification did hot contain the roll no. or name of the appellant, either in the general category or in the reserved category. the appellant was aggrieved by his non-selection and he therefore filed writ petition in this court which came up for hearing before a learned single judge. 5. in the aforesaid writ petition, apart from impleading the state authorities, the appellant also impleaded certain candidates who had been selected at the test, as respondents 5 to 10 on the basis that they were of inferior merit or their merit was equal to that of the appellant, but they were selected and he was not, although they also belonged to the backward category as the appellant. on this basis it was pleaded that discrimination had been practised. the plea of discrimination was also raised on the ground that while under process certificate was not accepted as valid and the appellant was not given chance to produce the final certificate at the time of actual admission, the candidates who did not possess the eligibility qualification at the time of submission of the application were allowed to be admitted provisionally subject to acquiring the eligibility subsequently. 6. with these allegations, it was prayed that their selection be quashed. another prayer made in the writ petition was to quash the condition in the selection criteria contained in the second paragraph of the aforesaid extract. prayer was made for quashing sro 203 of 1991 also on the ground that the same was unconstitutional. material prayer made in the petition was for issuance of a writ of mandamus to command respondents 1 and 2 to consider the appellant for selection against the category reserved for candidates belonging to the backward area specified in sro 272 dated 3-7-1982. 7. the material grievance of the appellant in the writ petition was that instead of considering him as a candidate belonging to the general category, he should have been considered as a candidate belonging to the reserved category specified in sro 272 dated 3-7-1982. the appellant's case was that if he had been so considered, he would have been selected as candidates belonging to reserved category and acquiring lesser marks had been admitted. it is in this context that he assails the condition in the selection criteria which excluded 'under process certificate' from being considered as valid for entertaining the applications. 8. the learned single judge while dismissing the writ petition of the appellant did not accept the petitioner's contention that the under process certificate could be accepted as provisional certificate subject to final certificate being filed at later stage. according to him since the application of the appellant was not complete in all respects, the appellant was rightly not considered against the reserved category. the learned single judge also came to the conclusion that the plea of discrimination was misconceived as the appellant and those selected fell in different categories. the plea of the condition regarding under process certificate being ultra vires also did not find favour with the learned single judge. 9. in the present appeal, learned counsel for the appellant has assailed all the findings of the learned single judge. 10. in the present appeal we have heard shri h.c. jalmaria learned counsel for the appellant and shri d.c. raina learned counsel for the competent authority entrance examination. 11. learned counsel for the appellant has submitted that in view of clause 9.3 of the information brochure the 'under process certificate' could be taken on record and the appellant could be allowed to take the test as a reserved category candidate on provisional basis subject to his producing the certificate contemplated by paragraph 1 of the extract at the time of actual admission, instead of issuing 'open merit' admit card. clause 9.3 referred to above reads as follows: '9.3. admission to the entrance examination will be provisional subject to the verification of original documents at the time of admission to the course.' this clause has to be read along with clauses 6.1, 6.2 and 6.3 of the information brochure. these clauses refer to the certificates which are required to be attached to the application submitted in response to the advertisement notification. clause 6.1 requires attested copies of the certificates of marks obtained at the qualifying examination to be attached. clause 6.2 requires attested copy of certificate in respect of claim belonging to any reserved category as mentioned in the sro to be annexed. clause 6.3 mentions that the selected candidates shall have to produce all the certificates in original at the time of admission. from these clauses, it is apparent that at the time of making the application, the appellant was not required to file original certificate of his belonging to the reserved category; instead he was required to submit only attested copy. the original certificate, he was required to produce at the time of admission to the course as laid down in clause 6.3. clause 9.3 refers only to those certificates of which copies were required to be attached to the application submitted in response to the advertisement notification. clause 9.3 does not contemplate production of an original document which did not exist at the time the application for admission to the examination was filed and of which copy had not been filed along with the application. (admittedly certificate dated 27-7-1992 was not in existence when the appellant submitted application for admission to the examination. it follows as a corollary that its attested copy was not filed as required under clause 6.2 of the brochure. accordingly the appellant cannot be given any benefit on the basis of clause 9.3. 12. learned counsel then refers to the 22 candidates who were selected on provisional basis subject to their acquiring the required marks in the qualifying examination and submits that similar provisional basis could be adopted in the case of the appellant also. qualifying examination for the test in question was higher secondary examination or its equivalent examination. selection criteria required a candidate at the test in question belonging to the open merit category to obtain not less than 50% marks in the aggregate in the qualifying examination. candidates obtaining lesser marks were excluded from the field of eligibility. 13. learned counsel for the competent authority has pointed out that by the time the test in question was held result of the higher secondary examination had not been declared and therefore the eligibility of candidates was not possible to be judged at the time the applications were submitted and accordingly the brochure itself allowed such candidates to appear at the test subject to their filing an affidavit in the prescribed format. our attention has been invited by the learned counsel to clause 8.8 of the brochure which reads as follows: '8.8 candidates who have appeared in the qualifying examination and the result of which has not been declared so far shall furnish the requisite information in the format given hereunder on an affidavit.' the format of the affidavit is as follows: 'i. ....... s/o, d/o ......... .have appeared in ............. examination held in....................1991 under the board roll no: ........... as a bona fide regular/private student of........school.... i seek admission to the entrance examination provisionally subject to presentation of my result of qualifying examination to the competent authority (ee) within 7 days from the date of declaration of result by the board. in case i fail to submit my marks sheetbefore the declaration of the result of entrance examination fail to pass the qualifyingexamination with the required percentage ofmarks as is necessary to make me eligible to sitin the entrance examination 1 shall forfeit myclaim to seek any benefit on the basis of mymerit in the entrance examination.attestation deponent.' 14. clause 8.8 deals with a specific situation which is entirely different from the one involved in the appellant's case. admittedly a candidate seeking admission to the engineering degree course has to possess the minimum qualification of having passed the higher secondary examination or an equivalent examination obtaining thereat not less than 50% marks. a large number of candidates seek admission to this course. accordingly some screening becomes necessary. the screening is done in the present case by holding entrance test. in order not to delay the commencement of the session of the degree course it is desirable that the entrance test is held as early as possible after the higher secondary examination is over. quite often there is delay in the declaration of result of the higher secondary examination. if the declaration of the result of the higher secondary examination is awaited in order to verify the eligibility of the applicant to the entrance test, it would result in delay in commencement of the degree course or the entrance test will get confined to those only who passed the higher secondary examination at least one year earlier. those passing in the current year with the requisite marks will have to waste one year. during this period of one year they will either have to sit idle at home or join some course only to fill up the gap. this would obviously affect prejudicially the career of a large number of students. the loss of one year is saved by making the provisions contained in clause 8.8. clause 8.8 is therefore a very reasonable and satutory provision. the admission of the aforesaid 22 candidates is therefore reasonable and referable to a provision contained in the brochure itself. the appellant's case is not covered by clause 8.8 and he cannot claim benefit thereof by pleading discrimination or arbitrariness. 15. the appellant's case is squarely covered by clause 8.2 which reads as follows: '8.2. the candidate shall fill the category codes of the category/categories under which he/she seeks consideration. note: in the absence of a category certificate issued by the competent revenue authority candidates shall be considered under 'open merit' category if otherwise eligible for the same.' the above provision itself lays down that if a candidate does not file a category certificate, he shall be considered under the open merit category, if he is otherwise eligible. since the appellant was otherwise eligible, he has been allowed to appear under the 'open merit' category. in this category he has failed to qualify. the authorities have committed no error in considering the appellant in the open merit category. the appellant's application was 'complete in all respects' as laid down in clause 7.1 only for this category. 16. the view taken by us has the support of authorities cited by the learned counsel for the competent authority which may be noticed: 17. in anjum ara v. state of j. and k., 1986 (cash lj 539: (air 1988 j & k 69) it was held by a learned single judge of this court that where the applicant does not file the backward category certificate along with his application as provided in the notification inviting applications, but filed the same at the time of interview, he was not entitled to be considered as backward category candidate. we are in respectful agreement with the view taken in this case. 18. in chandrakant v. m. p. public service commission, air 1982 madh pra 104 (db) it was held that the candidate must possess eligibility qualification on the last date fixed for receipt of application unless the advertisement itself specifically mentions that the qualification may be acquired by a subsequent date. on the dictum laid down in this case appellant's exclusion from the reserved category is justified and the provisional selection of the aforesaid 22 candidates is also justified. 19. learned counsel for the appellant has cited certain authorities which may also be noticed. 20. air 1983 sc 580 (punjab engineering college, chandigarh v. sanjay gulati) deals with adjustment of equities between candidates wrongly admitted by the administrative authorities and the candidates who are wrongly denied admission and get relief from the court. we have held that the authorities committed no wrong in denying admission to the appellant. this authority is therefore of no assistance to the appellant. 21. air 1983 sc 1199 (dr. vinay rampal v. state of jammu and kashmir) lays down that a candidate cannot be refused admission on the basis of a government order which prescribed an eligibility qualification, reference of which was not contained in the advertisement. in the present case the appellant has not been denied admission on the basis of something which was not disclosed in the advertisement. 22. learned counsel for the respondent has submitted that the appellant was not entitled to approach the court on the principle of approbate and reprobate. he points out that the admit card itself gave the appellant sufficient notice of the category under which his candidature would be considered. the appellant took chance and appeared at the selection and approached this court only when he failed to qualify in the category mentioned in the admit card. 23. in support of the proposition learned counsel has invited our attention to (1984) 1 serv lj 398 (andh pra) (db) (dr. p. goverdhan reddy v. b. laxman) and air (1986 sc 1043 (om prakash shakula v. akhilesh kumar shakula). the first decision is of the andhra pradesh high court and is based upon the decisions of their lordships of the supreme court. in the supreme court decision the proposition of law has been stated in paragraph 23 thus : 'moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. he had appeared for the examination without protest. he filed the petition only after he had perhaps realised that he would not succeed in the examination.' 24. in the case on hand, the appellant filed the writ petition after the declaration of the result when he found that he had failed to qualify at the test. 25. in view of the above the appeal is dismissed with costs to the contesting respondent no. 2. the costs are quantified at rs. 500/-.