Supreme Court of India
ASHOK KUMAR SHARMA AND ANRversusCHANDER SHEKHER AND ANR.
- Citation
- 1992 INSC 352
- Decided
- 18 December 1992
- Disposal
- Appeal(s) allowed
- Bench
- T K THOMMEN
Holding
The appellants were fully qualified at the date of interview and their selection was valid; the Single Judge’s decision was correct and the Division Bench’s reversal was set aside.
Summary
The respondents challenged the appointment of the appellants as Junior Engineers, arguing that the appellants were not qualified at the time of filing their applications because their B.E. (Civil) results were declared after the last date for submission. The High Court initially dismissed the challenge, but the Division Bench reversed that decision, holding the appellants ineligible. On appeal, the Supreme Court examined whether Rule 37 of the Jammu & Kashmir Public Service Commission Business Rules applied to a selection not made by the Commission and whether the qualification requirement must be satisfied at the date of application or at the date of interview. The Court held that the appellants had passed the examination and were fully qualified before the interview, and that the principle of Rule 37 could be applied by analogy to ensure a broad‑based selection. Consequently, the Court restored the Single Judge’s view, upheld the validity of the selection, and allowed the appeals.
Issues considered
- Whether candidates whose examination results were declared after the last date for application but before the interview are eligible for interview and selection under the advertisement.
- Whether Rule 37 of the Jammu & Kashmir Public Service Commission Business Rules applies to a selection process not conducted by the Commission.
- Whether the mandatory qualification requirement in the advertisement must be satisfied at the date of application or at the date of interview.
- Whether the selection can be set aside on grounds of ineligibility after a considerable lapse of time (laches).
- Whether equity considerations can override strict eligibility criteria in public service recruitment.
Subjects
civil service recruitmenteligibilitypublic service commission rulesRule 37interview selectionseniorityequitylaches
Judgment
.. A ASHOK KUMAR SHARMA AND ANR .
v.
CHANDER SHEKHER AND ANR.
DECEMBER 18, 1992
B
[DR. T.K. THOMMEN, V. RAMASWAMI AND R.M. SAHAI, JJ.]
Civil Services: Selection and appointment of Junior Engineers-Eligible
qualification-Result declared after the last date of submission of application,
.but before IntervieW-Selection ·of such c.andidates on the basis of marks
C obtained in that examination and Intervie~Validity of-Selection not made
by Public Service Commission-Rule 37 ofJ. & K Public Service Commission
Ru/es-Applicability of.
Jammu & Kashmir Public Service Commission Business Rules: Rule
D 37-Eligib/e qualification-Entertaining applications provisionally while
results of such examination awaited-Selection by agencies other than Public
Service Commission-Analogous application-Pennissibility of.
In response to an advertisement inviting applications for appoint-
ment to the post of Junior Engineer, the appellants and respondents
E submitted their applications. The eligibility qualification prescribed for
the said post was B.E. (Civil). At the tinie of application, the appellants
were awaiting the results of B.E. (Civil) Examination. The results were
published subsequently and the appellants were successful. Thereafter
intel"Views for the post of Junior Engineer commenced. The appellants
F were selected and appointed as Junior Engineers. They were placed senior
to the respondents by reason of their merits.
·•
The respondents filed Writ Petitions before the High Court contend-
ing that since the appellants were not qualified to apply for the said post
on the date of submission of applications as their results had not been
G declared by that date, they were not qualified to appear for the interview,
and as such their applications should have been rejected. The Writ Peti-
tions were dismissed by a Single Judge, who observed that the challenge
was belated and the selection of the appellants who had obtained higher
marks and who had been fully qualified prior to the dates of
interview
H made the whole selection process broad based.
768
ASHOK SHARMA v. CHANDER SHEKHER 769
On appeal, the Division Bench reversed the judgment of the Single A
Judge and held that the appellants were wrongly selected. Being ag·
grieved by this judgment, the appellants preferred the present appeals.
The appeallants contended that on the dates of interview, they
were eligible for being called for interview; and that since they fulfilled.
all the necessary qualifications for being interviewed and on the basis B
of the results announced and the marks obtained by them, their selection
was rightly made. It was also contended that though the selection was
not made by the Public Service Commission, Rule 37 of its Business
Rules made selections broad.;f>ased, so that the best talents available for
recruitment were not rejected merely because the results of the e:xamina• C
tion were delayed until after the last date prescribed for submission of
applications, but were announced before the dates of interview.
The respondents contended that Rule 37 of Public Service Com·
mission Business Rules was not applicable since the selection was not
made by Public Service Commission; and that the advertisement did not D
state that the candidates whose results had not been announced would
be allowed to appear for the interview provisionally, as required by the
said Rule 37.
Allowing the appeals, this Court
E
HELD: Per Thommen, J.: (For himself and V. Ramaswami, J.)
1. It is true Rule 37 of the J & K Public S~nice Commission
Business Rules is in terms applicable only to Pub.lie Service Commission
Candidates and due notice of provisional entertainment of their applica· F
tion, subject to their passing the examination before the date of inter·
view, is a requirement peculiar to Rule 37 and is not applicable to the
present case. If the principle of Rule 37 is by analogy applicabl~, the
fact the notice of provisional entertainment of applications, subject to
passing of the examination before the date of interview, is a requirement G
in the interests of candidates who fell within that category. The appel·
la!lts are by analogy persons of that category. [777-B,C]
2. The appellants did pass the examination and were fully qualified
for being selected prior to the date of interview. By allowing the appel·
lants to appear for the interview and by their selection on the basis of H
•
770 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.
A their comparative merits, the· recruiting authority was able to get the ·
best talents available. It was certainly in the public interest that the
interview· was made as broad based as was possible on the basis of
qualification. The reasoning of the Single Judge was thus based on sound
principle with reference to comparatively superior merits. It was in the
public interest that better t:andidates who were fully qualitied on the
B dates of selection were not rejected, notwithstanding that. the results of
the exaniination in which they had appeared had been delayed for no
fault of theirs. The appellants were fully qualified .on the dates of the
interview and taking into account the generally followed principle of rule
37 of the Public Service Commission Business Rules in the State of
c Jammu & Kashmir, the technical view adopted by the Division Bench
was incorrect and the view expressed by the Single Judge was the correct
view. The selection results announced by the recruiting authority and
placting the appellants senior to the respondents on the basis of com- .
parative merit, are valid. [777-D-G]
D Per Sahai, J. (Concurring).
1. In view of the clear and specific conditions ll;'id down in the
advertisement those candidates who were not possessed of the B.E.
qualfification were not eligible for applying, nor their applications were
E liable to be entertained, nor could they be called for interview. Eligibilit
for the post mentioned in the notification depended on possessing the
qualification noted against each post. The expression, 'shall be possessed
of such qualification' is indicative of both the mandatory character of
the requirement and its operation in presentii. ·A candidate must not
F only have been qualified but he sliould _have been possessed of it on the
date the application was made. The construction that the relevant date
for purposes of eligibility was the date of interview and not the date of
application or the last date for submission of fonns is not made out
from the language of the notification. Acceptance of such construction
would result in altering the first part of the advertisement prescribing
G eligibility !''!1 the. date of applying for the post as being extended to the
date of interview. If it is read in the manner suggested then the
requirement that incomplete applications and those not accompanied by
the requisite. certificates shall not be entertained, shall become mean-
ingless. Non-filing of any of the certifieates could have resulted _in not
H entertaining the application as the requirements as specified would have
...
•
ASHOK SHARMA v. CHANDER SHEKHER 771
been presumed to be non-existent. Fulfilment of condidtions was man- A
datory and its proof could be directory. The former could.not be waived
or deferred whereas the defect in latter could be cured even subsequently.
Proof could be furnished till date of interview but not the eligibility to
.
apply for the post. Any other construction would further be contrary to the
last part of the notification. [781-D-H; 782-A·B] ·
B
2. The stand of the Government that it always intended to permit can-
didates who qualified till date of interview was against record. Such sub·
sequent embellishment by Government to shield its officers of permitting
'!Uch candidates who were not qualified cannot be countenanced. The courts
should not approve of it as it emantes in unfairness and ends in arbitrari- C
ness. Th~ language of the notification must have prevented large number of
candidates who must have appeared in the B.E. examination from applying
as they were not qualified in terms of it whereas others of same group or class
stood to gain due to intention of government which was not known to the com· .
mon man. The appellants who were not only not qualified and were not en·
titled to apply and whose applications .were not liable to be ente11ained by D
this method gotan unfair advantage over those who for lack of knowledge of
government's intention did not apply. (782-C-E]
3. The appellants being ineligible on the date of application, they could
not have been called for interview. The conduct of the appellants in applying E
without being qualified, the unusual behaviour of the Board in keeping such
applications alive and not intimating the candidates that their applications
could not be entertained and above all the government's stand that their in-.
tention was to allow candidates who had obtained necessary qualifications
on the date ofinterview leave much to be desired. Such practice should be dis- F
couraged not in the interest ofthose who appeared and were placed.lower in
merit but for sake of those who have neither the approach nor have the finan-
cial resource to be aware of such uncommon happenings. (782-G-H; 783-A]
4. Efficacy of the Rule 37 of the Public Service Commission Busi-
ness Rules or the objective of its enactment to throw open the competi- G
tion by making it more broad bas~d and attract best talents cannot
be disputed. But the issue . involved is if it could be extended by
analogy to any selection or competition held by any other body. Rules
are framed under the statute to carry out the objective of the enactment.
If the rule making authority goes beyond the power conferred on it the H
772 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
A rule is- rendered invalid. A rule framed · under one statute, therefore,
cannot be invoked for carrying out the objective of another enactment.
Therefore, it is doubtful if rules framed by the Public Service Commis-
sion could be utilised for puposes of construing the notification issued
by a department of the government which has separate set of rules.
Some of the appellants who had applied, even though they wer~ not
B qualified, approached .the .Se~retary in the department concerned to
direct the ·Board to interview them as they were qualified no~. The
·matter was examined· thereafter and after ascertaining from the Com-
mission that such practice was preva~ent a decision was taken by the
appropriate authority to follow the _same. Therefore, it was not a case
C where the rule of the Commission need be extended by analogy but
factually the appropriate authority had taken decision to follow the same.
It '!8S thus adoption of the Public Service Commission Business Rules
for purposes of calling the appeallants for interview by the Board. It is
evident from records that the Board before issuing interview letters had
D taken a decision that those candidates who were not qualified were not
entitled to be called. It was only after the result was announced that
the Secretary to the 2overnment, at the instance of some of the can-
didates, got the matter examined. To state, therefore, that the govern-
ment intended from the ~nning to call such candidates who qualified
at the time of interview was incorrect and against the record.
E (783-F-H; 784-B-F]
- 5. Not that there was no illegality in calling the appeallants for
interview or that th.e Board was justified in taking the decision to follow
F the practice of Commission but similar claim of the respondents had been
rejected earlier by the High Court and by the time it was allowed more
'-
. than ten years had .elapsed since the examination was held and selection
was made. The High ·Court for this very reason did not enter into the
question of eligibility and tried to adjust the equities between the parties
by directing that all those candidates; namely, the appellants who were not
G qualified on the date of application should be plac~d as junior to·respon-
. dents who had applied earlier and were qualified. Once the· eligibility bar
was lifted by the High Court, for whatever reason may be as said by it due
to passage of time or because or erroneous application of Rule 37 of the c
Public Service Commission Business Rules, the appellants who were sub-
H jected to same interview as the respondents and were found better
ASHOK SHARMA v. CHANDER SHEKHER [THOMMEN, J.] 773
qualified and secure~ higher marks, could not be placed junior to others. A
The equity does not know the half way. Once the appellants were held io
be eligible • may be not strictly under law but on equitable considerations·
then it was wholly unjust to place them junior and under those who in the
some examination secured lesser marks. (784-G,H; 785-A-CJ
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5407-08 B
of 1992.
From the Judgment and Order dated.15.12.1991 of the Jammu and
Kashm,ir High Court in L.P A. No. 8 of 1985.
M.K. Banerjee, R.P. Bhatt, Arun Madan; G.K. Banerjee and Ashok C
Mathur for the Appellants.
Satish Chandra, G.L. Sanghi and E.C. Agrawala fur the RespQn-
dents.
The Judgment of the Court were delivered by
D
THOMMEN, J. Civil Appeal No. 5407 of 1992 (Arising out of
SLP(C) No. 12215/92)
Leave granted.
E
By the impugned judgment dated 13th December, 1991 in L.P.A. No.
8 of 1985, the learned Judges of the Division Bench of the Jummu &
Kashmir High Court reversed the judgment of the learned Single Judge.
As a result of the impugned judgment , the appellants, who were promoted
as Assistant Engineers are in danger of being placed junior to persons who F
had obtained lower ranks than the appellants at the time of their appoint-
ment as Junior Engineers.. At the time of seleotion to the post of Junior
Engineers, the appeltants were allotted higher nob on the basis of merits
in comparison to the respondents. Writ Petition filed by some of the
candidates was rejected by the High Court on the ground of laches and G
also for the reas-on that the selection had to be broad· based. A similar
-petition ·was 11ledily'the present responoents and "it was dismissed by the
learned Single Judge which was reversed.by the impugned judgment.
The question which arises in the present appeal is whether or not
candidates who were fully qualified to be ,appointed as Junior Engineers H
774 SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R.
A on the dates of interivew, but whose results had not been declared on the
dates of submission of their applications, were entitled to be consid<?red
for appointment to the post of Junior Engineer. If the answer is in the
affirmative, the appellants who had become qualified on the dates of
interview and had admittediy acquired higher marks in .the interview were
rightly appointed as Junior Engineers on the basis of their merits and were
B
rightly promoted to the post of Assistant Engineer by reason of seniority
in preference to the respondents who were also appointed as Junior
Engineers and subsequently promoted, but placed Junior to the appellants.
Advertisement inviting applications for appointment to the post of
C Junior Engineer was published on 9.6.1982. The last date for submitting
applications was specifically stated to be 15.7.1982. By that day, the appel-
lants and the respondents had submitted their applications. The appellants
had appeared for the B.E.(Civil) examination and had been awaiting their
results until the results were published on 21.8.1982. Interviews were held
D on various dates commencing on 24.8.1982. The appellants were declared
selected on 21.4.1983 arid appointed as Junior Engineers. By reason of their
merits, they were placed senior to the respondents. The respondents
contended in the High· Court that since the appellants were not qualified
to apply for the post on the date of submission of applications as their
E results had not been declared until after that date, they were not qualified
to appear fo~ interview and the results announced on the basis of interview
and the marks obtained by them were invalid and their applications ought
to have been rejected, the announcement ·of the results prior to the
interview and their obtaining higher marks, notwithstanding.
F
The respondents' challenge against the selection of the appellants did
not appeal to either of the two Single Judges who heard the Writ Petitions
filed by some of the respondents. The learned JUdges hi their respective
decisions held that the challenge was belated and the selection of the
appellants who had obtained higher marks and who had been Qtlly
G qualified prior to the dates of interview made the whole selection process
broad based.
The learned Judges of the Division Bench, however, taking a techni-
cal view and on the wrong assumption of ma/a fide on the part of the
H appointing authority, reversed the judgment of the learned Single Judge
ASHOK SHARMA v. CHANDER SHEKHER (TIIOMMEN, J.) 775
and, by their impugned judgment, held that the appellants were wrongly A
selected.
Certain statements in the impugned judgment show that the learned
Judges of the Division Bench assumed mala fide on the part of the
concerned authorities in selecting the appellants. We have perused the
relevant files and we see nothing in them suggesting male fide of any kind B
on the part of the concerned authorities. The simple question is whether
the appellants were rightly appointed.
It co.nnot be gainsaid that on the dates of interview the appellants
were fully qualified, for their B.E.(Civil) Examination results had been
declared on 21.8.1982. The interviews were held on 24.8.1982 and sub- C
sequent dates. It cannot also be gainsaid that on 15.7.1982 which was .the
last date for submission of applications, the B.E.(Civil) Examination result
in respect of the appellants had not been declared, although they were
awaiting their results of the examination conducted earlier. The advertise-
ment notice No. 2 of 1982 dated 9.6.1982 specifically stated: D
".....The applicants should not be more than 30 years and
not less than 18 years of age on the 1st January, 1982 and
should possess the qualification as noted against each
post.....
E
Attested copies of the following certificates ( origninal
to be produced at the time of interview before the State
Rectt. Board) should be attached with the application:-
(4) Academicffechnical Examination Certificate.
F
Incomplete applications and those not accompanied
by the requisite certificates shall not be entertained.
G
.... Candidates who fulfill the qualifications prescribed
for appointment to the posts advertised shall alone be
eligible for being called for interview and others need not
therefore, apply".
Mr~ Milon Kumar Banerjee, appearing for the appellants, contends H
776 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
A that on the dates of interview the appellants were eligible for being called
for interview, Their applications were not liable to be rejected, for they had
the requisite qualifications at the cruciat time, namely, the dates of inter-
view. It is true that when the applications were submitted, the appellants
had not obtained the results arid were awaiting the same, but the intent of
the appointing authority, as clearly stated in their affidavit, was to allow
B candidates who had obtained the necessary qualification on the dates of
interview to appear for interview. The appellants had fulfilled all the
necessary qualifications for being interviewed and their selection on the
basis of the results announced o.n the basis of the marks obtained by them
was rightly made.
c Mr. Banerjee refers to rule 37 of the Public Service Commission
Btisiness Rules and submits that the principle of that rule is applicable to
the case of the appellants, although that rule was· meant specially for
selection by Public Service Commission and the present selection was not
one made by the Public Service Commission. Nevertheless, the principle
D adopted by the Public Service Commission Business Rules makes a selec-
tion broad based, as found by the learned Single Judge, and the best talents
available for recruitment are not rejected merely by reason of the fact that
the results of the examination were, for no fault of theirs, delayed until
after the last date prescribed for submission of applications, but were
E announced before the dates of interview.
Rule 37 of the Public Service Commission Business Rules reads:
"R.37. Applications of candidates who have appeared in
the examination, the passing of which may make them
F eligible to appear in an interview for recruitment to a post
to be made otherwise than by a competitive examination,
but results whereof have not been declared upto the date
of making of the application, may be entertained provision-
ally, but no such candidate shall be permitted to take the
interview if he is declan~d as having failed in the examina-
G
tion or if the results are not available on the date the
viva-voce test is held".
Counsel fot the respondents submits that rule 37 has no application
to the instant case, for the selection was not made by the Public Service
H Commission. In any case, the advertisement notice had not stated that the
ASHOK SHARMA v. CHANDER SHEKHER [R.M. SAHAI, J.] 777
applications of candidates whose results had not been announced would A
be allowed to appear for the interview provisionally, as required by rule
37.
It is true rule 37 is in terms applicable only to Public. Service
Commission Candidates and due notice of provisional entertainment of
their application, subject to their passing examination before the date of B
interview, is a requirement peculiar to rule 37 and is not applicable to the
present case.
If the principle of rule 37 is by analogy applicable, the fact that notice
·'
of provisional entertainment of applications, subject to passing of the C
examination before the date of interview, is a requirement in the interests
of candidates who fell within that category. The appellants are by analogy
persons of that category, but they have no complaint on any such ground.
The fact is that the appellants did pass the examination and were fully
qualified for being selected prior to the date of interview. By allowing the D
appellants to sit for the 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 the public interest that the interview was made
as broad based as was possible on the basis of qualification. The reasoning
of the learned Single Judge was thus based on sound principle with reference E
to comparatively superior merits. It was in the 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 ~:lates of the interview and taking Into account the
gener~lly followed principle of rule 37 in the State of Jammu & Kashmir, we F
are of opinion that the technical view adopted by the learned Judges of the
Division Bench was incorrect and the view expressed by the learned Single
Judge was, on the facts of this case, the correct view. Accordingly, we set
aside the impugned judgment of the Division Bench and restore that of the
learned Single Judge. In the result, we uphold the results announced by the G
- recruiting authority. The appeal is allowed in the above terms. However, we
make no order as to costs.
Civil Appeal No. 5408 of 1992 (Arising out of SLP(C) No. 10503/92).
Leave granted. H
..
778 SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R.
A In view of our judgment in Civil Appeal No. 5407 of 1992 (arising
out of SLP(C) No. 12215 of 1992), this appeal is also allowed. However,
we do not make any order as to costs.
R.M. SAHAI, J. Although I agree with Brother Thommen, J., that
the appeals <leserve to be allowed and the seniority of the appellants and
B respondents, who were selected as Junior Eng~neers in 1982, had to be
determined by the marks they secured in the interview conducted by the •
Selection B~ard but with profound respect, in my opinion, they are entitled
to this relief not as a matter of law but due to equitable considerations
arising in peculiar facts and circumstances of the case. I would have
C refrained 'from expressing any opinion on eligibility of the appellants who,
admittedly, were not possessed of requisite qualifications till the last date
of submission of forms for selection as Junior Engineer but if the submis-
sion of the appellants is accepted and it is held that their applications were
not liable to be rejected as they acquired the requisite qualifications prior
to commencement of the interview then it is likely to create misapprehen-
D sion about the legal implications of such notification not only in the State
of .Jummu & Kashmir but even other States where similar rules are in force
or where similar advertisements may be issued.
To appreciate legality of the issue involved the full text of the
E advertisement dated 9th June 1982 is extracted below:
"GOVERNMENT OF JUMMU AND KASHMIR STATE
RECRUITMENT BOARD
Advertisement Notice No. 2of1982 Dated 9.6.1982
F
Applications are invited on the prescribed form
alongwith a self addressed envelop 9f 50 paisa and one
copy of passport size photograph duly attested which
should reach the office of the undersigned on or before 15th
Ju~v 1982 from the pennanent residents of J & K State who
G are eligible for the posts shown in the anneJ.ure to this
Notification. 771e applicants should not be more than 30
years and not less than 18 years of age on the 1st January
1982 and should possess the qualification as noted against
each post. Upper age limit is however, relaxable in the
H case of those in Govt. service and candidates representing
ASHOK SHARMA v. CHANDER SHEKHER [R.M. SAHA!, J.] 779
scheduled caste by 5 years and 2 years respectively and in A
the case of Ex-servicemen upto 45 years.
Vacancies shall be reserved for SC candidates where
applicable under rules.
Attested copies of the following certificates (original B
to be produced at the time of interview before the State
Rectt. Board) should be attached with the application:-
1. Matriculation/Higher Secondary Elect. Examination.
2. Permanent resident certificate. c
3. Character certificate.
4. Academic(fechnical Examination certificate.
5. Marks Certificate of each examination. D
6. Experience certificate, if any.
Incomplete applications and those not accompanied by
the requisite certificates shall not be entertained.
E
Applicants who are already in Govt. service should
submit their applications through their heads of Deptt/of-
fices. They can however, send a copy of application direct
to the Convenor State Recruitment Board but such ap-
plications will be considered only on receipt of the copy F
of application through proper channel.
Persons receiving stipend under the Self Employment
Scheme will be considered for employment provided they
refund the stipend in full. These having received loans are,
however, debarred from employment. Candidates should G
indicate the stipends/loan if any drawn, in the application.
Candidates who fulfil the qualifications prescribed for ap-
pointment to the posts advertised shall alone be eligible for
being called for interview and others need not therefore
apply. H
780 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.
A Fresh candidates who are selected shall be governed
under the J & K Apprentice (Recruitment) Rules, 1981.
Since the Rules have been stayed by the Hon'ble High
Court the fresh candidates recruited would be entitled to
only half of the pay and allowances of the post if the rules
impugned subsequently upheld.
B
Candidates applying for the posts mentioned in the
Annexure shall have to appear on their own expenses for
practical test and/or interview before the Board.
(Emphasis supplied)
c
Sd/- Hamid Ullah
Administrative Officer
. State Recruitment Board
Srinagat.
D Annexure to advertisement Notice No. 2 of 1982 dated
9.6.1982. •
SI. Nam~ of the Grade Qualifications
No. Post
E
1. JE Civil 875-1400 B.E. Civil
2. Sectional 680-1240 3 years diploma
Officer(Elect.) in Elect. Engg.
F 3. Sectional 680-1240 3 years diploma
Officer(Civil) in Civil Engg.
4. Draftsman 680-980 2 years drafts-
(Civil) man Course in Civil Engg.
G The relevant part of the notification has been underlined by me. It can be
divided in three parts. The first ani;f the most important part required a
candidate to apply on or before, the date specified, if he satisfied the
requirement of, (i) being a permanent resident ofJummu & Kashmir; (ii)
was eligible for the post shown in the annexure to the notification; (iii) was
H not more than 30 years and not less than 18 years ofl age on 1st January,
!
ASHOK SHARMA v. CHANDER SHEKHER [R.M. SAHAI, J.] 781
1982; and (iv) was possessed of the qualifications as noted against each A
post. If the notification would have stopped Chere, probably, much could
be said in favour of the appellants but the second part required every
candidate to file authenticated copy of the certificate in proof of each of
the conditions. The notification further provided that, 'incomplete applica-
tions and those not accompanied by the requiste certificates shall not be
entertained'. The notification, therefore, provided not, only, the conditions B
which a candidate was required to possess when applying for the post
mentioned in the notification but h~ was also required to support it with
authenticated certificate and if he failed to do so then the application was
not liable to be entertained. In legal terminology where something is
required to be done and the consequences of failure to do so are also C
provided then it is known as mandatory. The mandatory character of.
possessing the requirements as provided in the first part of the notification
stands f\lrther strengthened from the third and last part of the notification
which prohibited the candidates from applying if they did not possess the
requisite qualifications. In view of these clear and specific conditions laid D
down in the advertisement those candidates who were not possessed of the
B.E. qualifications were not eligible for applying nor their applications
were liable to be entertained nor could they be called for interview.
Eligibility for the post mentioned in the notification depended on possess-
ing the qualification noted against each post. The expression, 'shall be
possessed of such qualification' is indicative of both the mandatory charac- E
tar of the requirement and its operation in presentii. That is a candidate
must not only have been qualified but he should have been possessed of it
on the date the application was made. The construction suggested by the
learned counsel for the appellant that the relevant date for purposes of
eligibility was the date of interview and not the date of application or 15th F
July, 1982 the last date for submission of forms is not made out from the
language of the notification.'Acceptance of such construction would result
in altering the first part of the advertisement presceibing eligibility on the
dat~ of applying for the post as being extended to the date of interview. If
it is read in the manner suggested then the requirement that incomplete
applications and those not accompanied by the requisite certificates shall G
not be entertained, shall become meaningless. Purpose of filing certificate
along with application was to prove that the conditions required were
·satisfied. Non-filing of any of the certificates could have resulted in not
entertaining the application as the requi.rements as specified would have
H
782 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
A been presumed to be non-exi~tent. Fulfilment of conditions was mandatory
had its proof could be directory. The former could not be waived or
deferred· whereas the defect in latter could be cured even subsequently.·
That is proof could be furnished till date of interview but not the eligiblity
to apply for the post. Any other constuction would further be contrary to
the last part of the notification.
B
Nor can the notification, inviting applications, be construed in light
of what was stated by the Government in the affidavit filed by it in the High
Court. The stand of the Government that it always intended to permit
candidates who qualified till date of interview was against record. Such
subsequent embellishment by Government to shield its officers of permit-
c ting such candidates who were not qualified cannot be countenanced. The
courts should not approve of it as it emanates in unfairness and ends in
arbitrariness. Every candidate appearing in the B.E. examination could not
have had knowledge, as was spelt out by the government in its affidavit
before the High Court, execpt probably those few who despite clear words
D of the notification chose to apply may be with knowledge that the interview
shall not be held till their results were announced. The language of the
no"tification must have prevented large number of candidates who must
have appeared in the B.E. examination from appl}ring as they were not
qualified in terms of it whereas others of same group or class stood to gain
due to intention of government which was not known to a common man
and was put up before the High Court in reply to the writ filed by the
respondent. It is not borne out from the record. The appeliants, thus, who
were not only not qualified and were not entitled to apply and whose
applications were not liable to be entertained by this method got an unfair
advantage over those who for lack of knowledge of government's intention
did not apply. May be no one from those who were prevented from
applying due to unawareness of the intention of government which came
to light in the High Court only could challeng!! the selection yet it is the
duty of the Court under the Constitution once it is apprised of true facts
to make the government act fairly. I do not want to say further on this
· aspect except that the affidavit filed by the State could not be correct to
which I shall advert when I deal with tht;: other submission founded on Rule
} 37. I am, therefore, of the opinion that the appellants being ineligible on
the date of application they could not have been called for interview. The
conduct of the appellants in applying without being qualified, the unusual
behaviour of the Board in keeping such applications alive and not intimat- •
ing the candidates that their applications could not be entertained and
above all the government's affidavit that their intention was to allow
ASH OK SHARMA v. CHANDER. SHEKHER (R.M. SAHAI, J.] 783
candidates who had obtained necessary qualifications on the date of inter- A
view leave much to be desired. Such practice should be discouraged not in
the interest of those who appeared and were placed lower in merit but for
sake of those who have neither the approach nor have the financial
resource to be aware of such uncommon happenings.
Rule 37 of the Public Service Commission Rules reads as under: B
"37. Applications of candidates who have appeared in the
examination, the passing of which may make them eligible
to appear in an interview for recruitment to a post to be
made otherwise than by a competitive examination, but
results whereof have not been declared upto the date of c
making of the application, may be entertained provisional-
ly, but no such candidate shall be permitted to take the
interview if he is declared as having failed in the examina-
tion or if the results are not available on the date the
viva~voce test is held. D
The advertisement notice issued by the Commission shall
carry a note to this effect invariably.
This shall not apply to applications for sitting in a competi-
tive examination in which case the applicants shall have to E
be in possession of the prescribed qualifications on the date
of making the application."
Efficacy of the rule or the objective of its enactment to throw open the
competition by making i~ more broad based and attract best talents cannot F
be disputed. But the issue involved is if it could be extended by analogy to
any selection or competition held by any other body. Unfairness of con-
struing the notification, in the manner suggested, has already been dealt
with. Rules are framed under the Statute to carry out the objective of the
enactment. If the rule making authority goes beyond the power conferred
on it the rule is rendered invalid. A rule framed under one Statute, G
therefore, cannot be invoked for carrying out the objective of another
enactment. I have, therefore, grave doubt if rules framed by the Public
Service Commission could be utilised for. purposes of construing the
.notification issued by the department of government which has separate
set of rules. H
784 SUPREME COURT REPORTS [1992) SUPP. 3 S.CR.
A Having dealt with legal aspect it is necessary to be stated that it
transpired from the records which were produced by the learned counsel
for State of Jammu & Kashmir that a few days before the interview of first
batch of candidates was to commence the result of B.E. was announced.
Some of the appellants who, had applied, even though they were not
qualified, approached the Secretary in the department concerned to direct
B the Board to interview them as they were qualified now. The matter was
examined thereafter and after ascertaining from the Commission that such
practice was prevalent a decision was taken by the appropriate authority
to follow the same. Therefore it was not a case where the rule of the
Commission need be extended by analogy but factually the appropriate
C authority had taken decision to follow the same. It was thus adoption of
the Public Service Commission Rule for purposes of calling the appellants
for interview by the Board. Whether this could be done or not and if it
could have been done then at what point of time need not be gone into as
I agree with the High Court that it would be unfair to quash the selection
D after such a long time. But before parting with this aspect it is necessary
to be stated that the offi~ial who filed the affidavit in the High Court did
not either peruse the records before filing the affidavit or he deliberately
attempted not to place the facts in true perspective. In either case it was
bad. And the government should chastise such officers who do not place
the facts correctly even before courts. From the record it appeared that
E the Board before issuing interview letters had taken a decision that those
candidates who were not qualified were not entitled to be called. It was·
only after the result was announced that the Secretary to the government,
at the instance of some of the candidates, got the matter examined. To
state, therefore, that the government intended from the beginning to call
such candidates who qualified at the time of interview was incorrect and
F
against the record.
What has persuaded me, however, to allow the appeals, is not that
there was no illegality in calling the appellants for interview or that the
Board was justified in taking the decision to foJow the practice of Com-
• G mission but similar claim of the respondents ha . been rejected earlier by
the High Court and by the time it was allowed more than te_n years had
elapsed since the examination was held and selection was made. The High
Court for this yery reason did not enter into the question of eligibility 'and
tried to adjust the equities between the parties by \lirecting that all those
H candidates, namely, the appellants who were not qualified on the date 01'
ASHOK SHARMA v. CHANDER SHEKHER [R.M. SAHAI, J.] 785
application should be placed as junior to respondents who had applied A
earlier and were qualified. The order of the High Court, in my opinion, is
manifestly unjust. Once the eligibility bar was lifted by the High Court, for
whatever reason may be as said by it due to passage of time or because of
erroneous application of Rule 37 of the Public Service Commission Rules,
the appellants who were subjected to same interview as the respondents B
anCt were found better qualified and secured higher marks, could not be
placed junior to others. The equity does not know the half way. Once the
appellants were held to be eligible may be not strictly under law out on
equitable considerations, then it was wholly unjust to place them junior and
under those who in the same examintion secured lesser mark~.
., c
I would, therefore, in agreement with Brother Thommen, J ., allow
the appeals, set aside the order passed by the High Court and restore that
of the Single Judge.
G.N. Appeals allowed.
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