ADNAN NAYEEM ASMI Vs. STATE

JUDGEMENT

(1.) The petitioner responded to advertisement notification No. PSE/ EXM- 09/46dated 30-12-2008 issued by the respondents 2 and 3, inviting applications from eligible candidates for 398 vacancies in the pay scale of 7,500-12,000/- in various services including Junior Scale of J&K Administrative Services. The examination in terms of SRO 387 dated 1-12-2008 read with SRO 397 dated 15-12-2008 was to consist of two stages :

(2.) The respondents on the basis of petitioner's performance in the main examination, calling for interview on 2-11-2010 at 9:30 a.m. The respondents thereafter vide No. PSC/ EXAM/KAS/2009, dated 3-12-2010, informed petitioner that he had not appeared in the degree examination, prior to 20th March, 2009, i.e. cut off date for obtaining the degree or appearing for the degree examination and failed to submit the proof of having appeared in the degree examination prior to 20th March, 2009, though at the time of interview he volunteered to submit the proof, asked the petitioner to submit the proof of having appeared in the degree examination prior to 20th March, 2009 within three days i.e. up to 7th December, 2010, failing which his candidature can be deemed to have revoked even shown "ab initio" without any further notice. The petitioner in his reply to the communication No. PSC/ EXAM/ KAS/2009 Dated 3- 12-2010, insisting that the fixation of examination schedule degree examination is never within control of candidate, stated that he was to be given same treatment as was given to the candidates, who had appeared for the degree examination prior to 20th March, 2009 and yet to be declared successful by his/her candidature. The petitioner submitted that the treatment given to the petitioner different from one candidate, who appeared fortunately to have examined scheduled fixed by the University before 20th March, 2009 would offend Article 14, Constitution of India. The petitioner highlighted his academic achievements, appeared to the respondents not to reject his candidature on a technical ground. The petitioner also complained that as he was not informed well in time regarding his ineligibility to participate in the selection process. The petitioner lost opportunity to prepare for Indian Administrative Service and appear in the preliminary examination for the Service held in May, 2010. The petitioner's reply to the communication No. PSC/ EXAM/KAS/2009 Dated 3-12-2010, having not found favour with the respondents, the petitioner has filed instant writ petition assailing the aforesaid communication and also questioning the varies of Proviso 1, Rule 5 of SRO 387 of 2008 dated 1- 12-2008 on the grounds that once Proviso 1, Rule 5 of SRO 387 of 2008 dated 1-12-2008, made room for participation of candidates, who had yet to acquire Bachelor's degree on the date the advertisement notification was is- sued and even on the last date of filing of applications. There was no reason to reject the candidature of the petitioner, who though not having Bachelors' degree on the last date of filing of the application, did acquire it after the main examination was held but before he was called for interview. It is insisted that Proviso 1, Rule 5 of SRO 387 of 2008 dated 1-12-2008, when given a purposive interpretation, makes the petitioner eligible for participation in the selection process for the advertised posts. It is pointed out that as the fixation of examination schedule is not within competence of the candidate and dependence on the decision to be taken by the University Authorities. The petitioner cannot be exposed to hostile discrimination only because the University Authorities decided to conduct the examination a few weeks after the last date of filing of the applications. It is urged that in case Proviso 1, Rule 5 SRO 387 of 2008 dated 1-12-2008, is held to entitle/make eligible only the candidates, who appeared in Bachelors degree examination before the date of filing of applications i.e. 20th March, 2009 and excludes all such candidates who appeared in the said examination thereafter, but acquired Bachelors degree before the selection process was taken to its logical end, the Proviso would amount to unreasonable classification and then inflict with the mandate of Article 14, Constitution of India. It is further pleaded that the respondents after having entertained the application submitted by the petitioner, allowed the petitioner to appear in preliminary examination and thereafter main examination and uncalled the petitioner for interview cannot turn around and reject the petitioner on the ground of his having eligible on the date of filing of the applications on the principle of promissory estoppels. The petitioner also assails the impugned order on the ground of fairness and pleads the order is unfair, unjust and inflict with principle of equity and good conscious and fair play. The petitioner pleads that as there was no stipulation in terms of advertisement notification, obligating the candidate to prove his having appeared in the degree examination prior to last date of filing of the application. The petitioner was neither to be asked to submit proof in support of his having appeared in Bachelors' degree examination prior to 20th March, 2009, nor could petitioner be penalised for his failure to submit such proof.

(3.) The writ petition is opposed on the grounds that Proviso 1, Rule 5, J&K Combined Competitive Examination Rules, 2008 (SRO 387 of 2008 dated 1-12-2008) having been made in exercise of power under Article 309, Constitution of India, corresponding to Sections 1 to 4 of the Constitution of J&K. It can be struck down only on such ground as may invalidate legislation and not merely because the rule is considered as unreasonable or harsh. It is pointed out that there is strong presumption in favour of Constitutionality of legislation and the petitioner is under heavy burden to establish that impugned rules is violative of Article 14 or 16 of the Constitution. The respondents insist that as it is permissible for the State to prescribe conditions of eligibility for recruitment to any service under it and the rule cannot be called in question on the ground that it creates two classes, unmindful of the fact that discrimination is "in itself essence of equality". The respondents pointed out that the petitioner was only provisionally permitted to appear in main examination on his claiming and there was nothing wrong in requiring the petitioner to submit proof of his eligibility to participate in the selection process and once the petitioner fail to submit the proof, his candidature was to be deemed to stand revoked from the date his initial participation in the selection process.