Judgment Date  01 Jan 1970                                                                                        


1. Leave granted.

2. Civil appeals (@ SLP(C) Nos.7843-7844 of 2014)
by Special Leave are filed against the judgment of the
High court of Jammu and Kashmir dated 04.03.2014 by
which it set aside the judgment of the Single Judge and
set aside the selection and appointment of the
appellants as Junior Engineers. Civil appeal @
SLP(C)No.14660 of 2014 is filed by the State of Jammu &
Kashmir against the impugned judgment.

3. The Services Selection Board of the State
issued an advertisement on 01.07.1997 inviting
applications for the post of Junior Engineers (Elect)
Grade II. The last date fixed was 31.07.1997 for
receipt of applications through registered post. It is
also provided that the cut-off date for determining the
eligibility is 31.07.1997. It is, accordingly, that
party respondent No.3 hereinafter referred to as the
writ petitioner filed SWP No.2186 of 2001 before the
Court. The learned Single Judge, however, dismissed the
petition but the Division Bench reversed the dismissal
of the petition and set aside the judgment of the
Single Judge. The selection and the appointment of the
appellants in these appeals arising out of the Special
Leave Petition Nos.7843-7844 of 2014, came to be set

4. The short ground on which the Division Bench
set aside the appointment is that the result of the
examination was declared only after the cut-off date
and they were not found eligible.

5. We have heard the learned Counsel for the

6. Learned senior counsel appearing on behalf of
the appellants whose appointment stand interfered with
made the following submissions. The academic session in
which they studied for the Diploma Course was from 1993
to 1996 and there was some problem about the
institution. The examination, though, it was in 1996,
result came to be declared on 12.10.1997. There is no
dispute that the last date for receipt of applications
was 31.07.1997. As far as the first appellant i.e.
Rakesh Bakshi is concerned, the Board itself considered
him eligible, as the result, was before holding of the
interview. In regard to the second appellant, he was
removed from the interview list. This led to the
filing of a writ petition by the second appellant. The
High Court took the view that if the Board has
interpreted the eligibility clause in a particular
manner in the case of first appellant who had cleared
examination along with the second appellant, there is
no justification to give different interpretation. In
the case of second appellant, the petition was allowed
and the second appellant was found entitled to the same
benefit as given to the first appellant. A writ
petition was filed challenging the appellant’s
appointment on the same ground. The writ petition was
dismissed by the Single Judge. This
Judgment, however, came to be set aside by the Division
Bench and the appointment of the appellants was set
aside. The matter travelled to this Court and this
Court set aside the judgment of the Division Bench. The
judgment of the Single Judge came to be restored. The
present appeal arises from a writ petition filed by
another person, namely, party-respondent in these
appeals Shri Harvinder Singh. The learned Single Judge
dismissed the petition but as noticed the Division
Bench allowed the writ petition reasoning that the
result of the examination of the appellants was
declared only after the last date of receipt of

7. The Learned Senior Counsel would point out that
the appellants have continued to work for long years
and would further point out that the writ petitioner in
this case did not secure sufficient marks so that he is
not going to get any relief after setting aside the
appointment of the appellants. He drew our attention to
the order passed by this Court dated 14.03.2014. It
reads as follows:

“Taken on Board.
Mr. P.S. Patwalia, learned senior counsel appearing for the petitioners, submitted that without disturbing
respondent No.3, the claim of the petitioners be considered since they have been working from 1998 onwards.
Petitioners are directed to serve a copy of the SLP brief on the standing counsel for the State of Jammu & Kashmir, who will seek instructions in the matter.
Registry is directed to show the name of the standing counsel in the Cause List.
Until further orders, the services of the petitioners shall not be terminated. However, this order will not affect respondent No.3.
Put up after three weeks.”

8. In short, appellants were working for the past
nearly 18 years. As already noticed, the earlier
litigation is also enlisted in their support. Also
support is sought to be drawn from the judgment in
Ashok Kumar Sharma and Others Vs. Chander Shekhar and
Another 1997 (4) SCC 18, Counsel would also submit that
the court may appreciate the plight of the appellants
in that after the 1997 selection, selection was carried
out in the years 2004, 2007 and 2009. But as the
appellants were already selected and continued to work, 6
they have not applied pursuant to the selections. They
have become age barred. The learned counsel for the
petitioner, on the other hand, points out that the
appellants were not eligible on the cut-off date and
cleared the exam on the result being declared
subsequently. This is a recurring lapse, he points out.
9. We proceed on the basis that the appellants
were not possessing the requisite qualification as on
the cut-off date, as such as the result was declared
subsequently. The selection board, itself, had rejected
the eligibility of the second appellant. This led to
the filing of the Writ Petition but the said petition
was allowed on the reason, that there could not be two
yardsticks under the same selection. A writ petition
filed in the meantime, challenging the appellants
appointment was, though, dismissed by a Single Judge,
in appeal the Division Bench set aside the appointment
of the appellants which in turn was set aside by
Hon’ble Court. It is thereafter that the Writ Petition
filed by the present writ petitioner which was filed in
2001 came to be taken up and dismissed by the Learned
Single Judge and allowed by the Division Bench. In
between, almost two decades, rolled by with the
appellant’s continuing to work and the writ petitioner
remaining unselected.

10. There is no argument pressed by the learned
counsel that in law, the decision of Division Bench is
wrong in that the appellants were not holding the
requisite qualification as on the cut-off date and the
selection and appointment is bad in law. But the only
point raised is having regard to the efflux of time and
having regard to the equities, in the matter including
the result of the earlier litigation, the three
selections held after 1997, appellants not applying
thereunder having been selected under the impugned
selection and appellant having become age barred and
still further, the claim of the writ petitioner for
appointment being meritless having regard to the Low
Marks scored by him, the services of the appellants
should not be dispensed with.

11. Having regard to the case law cited by the
appellant i.e. Ashok Kumar Sharma and Others Vs.
Chander Shekhar and Another; 1997 (4) SCC 18, the facts
may be noticed. On 01.07.1997, an advertisement was
published for the post of Junior Engineers (Elect)
Grade II in the State of Jammu and Kashmir. 33 persons
had not passed BE Civil Examination before the last
date and their results were declared after the cut-off
date. They came to be interviewed, pursuant to
instructions and they were selected. This came to be
challenged. The Writ Petition was dismissed. No appeal
was filed against the order. However, another Writ
Petition came to be filed questioning the selection of
33 respondents on the very same grounds. The Writ
Petition was dismissed. However, the Division Bench
took the view that the 33 respondents could not have
been allowed to compete for the post as they did not
possess the requisite qualification. The appointment of
the 33 persons was not set aside and they were ordered
to be treated as junior to those selected candidates
who were fully qualified on the prescribed date. In
other words, the candidates who were not qualified on
the prescribed date were to be treated as junior en
block to the fully qualified selected candidates. The
33 respondents appealed before this Court. The majority
held that permitting the 33 candidates to appear for
the interview was not impermissible. The other learned
Judge, however, took the view that the 33 candidates
should not have been allowed to appear. Even then,
however, the learned Single Judge agreed with the
majority that the seniority of the 33 candidates need
not be disturbed in the particular facts and
circumstances. The result was that three learned Judges
allowed the appeal preferred by the 33 respondents and
set aside the judgment of the Division Bench. The
original writ petitioners filed for Review. The
judgment rendered in the review is the reported
judgment. The Court found that the majority judgment
was unsustainable in law. It is reiterated that the
person who clears the prescribed qualification after
the cut-off date cannot be considered qualified and
their applications ought to have been rejected.

12. Thereafter, in paragraph 8, the Court addresses
the question relating to the relief to be granted in
the review applications. The learned Counsel for the 33
respondents in the review petition who were the
appellants before this Court inter alia pointed out the
dismissal of the earlier writ petition and that the
said order had become final. Even the later writ
petitioners (filed by four candidates), it was pointed
out, had not sued in a representative capacity. Other
aspects including that the 33 persons had completed 13
years, was pointed out. The Court held as follows:
“Having given our anxious and earnest consideration to the question and keeping in view the fact that we are sitting in review jurisdiction and that this particular aspect is a matter lying within the discretion of the Court, we do not think it appropriate to interfere with the unanimous opinion of the three learned Judges of this Court on this aspect. It is true that the Division Bench of the High Court had granted the relief not only to the four review
petitioners/writ petitioners but to all the candidates falling in that category yet we cannot ignore the fact that even Sahai, J. who agreed with the review petitioners on the first issue, thought it just and proper not to disturb the inter-se seniority between these two groups of selected candidates. The said seniority was determined by the selecting Authority. Though certain allegations are made with respect to the fairness of the process of selection, that issue is not open in these review applications nor was it gone into by this court in the civil appeals.”

13. Having heard learned Counsel for the parties,
we are inclined to grant relief to the appellants
against their being ousted after serving for nearly two
decades. We are not for a moment doubting the
correctness of the reasoning of the Division Bench in
this case, that eligibility of the candidates must be
decided with reference to the qualification possessed
as on the cut-off date and the qualification acquired
later in point of time cannot make a candidate
eligible. However, having regard to the facts obtaining
in this case, which we have set out and also the manner
in which this Court has decided the matter culminating
in 1997 (4) SCC 18 the interests of justice would
require the interference with the judgment of the
Division bench. We particularly note that as far as the
writ petitioner is concerned more than the efflux of
time, the fact is that he cannot possibly secure
selection. Thus having also regard to the fact that the
writ petitioner would not stand to gain if we ousted
the appellants having regard to his position in the
selection, we allow Civil Appeal @ SLP (C)No.7843
7844/2014 and the judgment of the Division Bench will
stand set aside and the writ petition will stand
dismissed. Civil Appeal @ SLP(C) No.14660/2014 filed
by the State will also stand allowed. There shall be
no order as to costs.

                                            (Ashok Bhushan)
                                            (K.M. Joseph)
New Delhi; January 22, 2019

January 25, 2019

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