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NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5217   OF 2012 (Arising out of S.L.P.(C) No. 30744 of 2010)

Vinod Kumar Koul  … Appellant

versus

State of J & K and others … Respondents

J U D G M E N T

G. S. Singhvi, J.

1. Leave granted.

2. In  response  to  an  advertisement  issued  by  the  Jammu  and  Kashmir  

Services Selection Board, Jammu (for short, ‘the Board’) which was published  

in  the  newspaper  dated  29.3.1996,  the  appellant  applied  for  the  post  of  

Laboratory Assistant, which is a District cadre post.  He appeared before the  

Selection  Committee  consisting  of  respondent  Nos.  4  to  6  but  was  not  

interviewed on the ground that  he was not  a  permanent  resident  of  District  

Udhampur.   

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3. The  appellant  challenged  the  decision  of  the  Selection  Committee  in  

SSWP No.1656  of  1996  not  to  consider  his  candidature  on  the  ground  of  

violation of Articles 14 and 16 of the Constitution. The appellant pleaded that  

he was qualified for the post and fulfilled other conditions.  In support of his  

assertion that he was a permanent resident of District Udhampur, the appellant  

annexed  certificate  dated  15.2.1994  issued  by  Additional  Deputy  

Commissioner, Udhampur.

4. By an interim order dated 31.12.1996, the learned Single Judge of the  

High Court  directed the Selection Committee to  interview the appellant  but  

made it clear that his result shall not be declared without the Court’s order.

5. The Board contested the writ petition primarily on the ground that the  

appellant is not a permanent resident of District Udhampur and that in view of  

Circular dated 20.5.1993, only an unambiguous permanent residence certificate  

issued by the competent revenue authorities of the district could be accepted.  

Similar written statements were filed by the other respondents.

6. After considering the arguments of the counsel for the parties, the learned  

Single Judge dismissed the writ petition on the premise that the selection was to  

be made only from the candidates belonging to District Udhampur and being a  

permanent resident of District Anantnag, the appellant was not entitled to be  

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considered for appointment in District Udhampur. The Division Bench of the  

High Court  agreed with  the  learned Single  Judge and dismissed  the  appeal  

preferred by the appellant.

7. We have heard learned counsel for the parties and perused the record.  In  

exercise  of  the  powers  conferred  upon  him  under  Section  124  of  the  

Constitution  of  Jammu and  Kashmir,  the  Governor  of  the  State  framed the  

Jammu and Kashmir Subordinate Services Recruitment Rules, 1992 (for short,  

‘the Rules’).  Rules 3(ii), (v), (vi), (vii), (viii), 12, 13, 14 and 17, which are  

relevant for deciding the question raised in this appeal, read as under:

“3.  Definitions:-  In  these  rules  unless  the  context  otherwise  requires:

i. xxx xxx

ii. “Board”  means  the  Services  Selection  Board  constituted  under these rules;

iii. xxx xxx

iv. xxx xxx

v. “Subordinate Service” means and includes all non-gazetted  posts under the Government whether grouped into organized  service or not;

vi. “State  Cadre”  means  the  sanctioned  strength  of  the  non- gazetted  posts  borne  on  the  establishment  of  the  headquartered offices of the departments having jurisdiction  

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over the whole state but does not include the posts borne on  the Divisional and district cadres;

vii. “Divisional Cadre” means the cadre of the department in the  Division comprising the following posts:-

a. All non-gazetted posts, the maximum of the pay scale  or the pay as the case may be, of which exceeds Rs.  6000  per  month,  exclusive  of  all  allowances  and  dearness pay;

b. All non-gazetted posts, the maximum of the pay scale  or  the  pay  as  the  case  may  be  of  which  does  not  exceed  Rs.  6000  per  month,  exclusive  of  all  allowances and dearness pay but which are borne on  the establishment of offices above the District level;

viii. “District cadre” means the cadre of a department in a District  comprising  all  the  posts  whether  executive,  ministerial,  technical or manipulative maximum of the pay scale or the  basic  pay  of  which  does  not  exceed  Rs.6000  per  month  exclusive of all allowances and dearness pay;

12. Procedure of referring vacancies to the Board (1)  The  Administrative  Department  concerned  shall  refer  all  vacancies in the Subordinate Services to the Board by 15 th January  of every year strictly in accordance with SRO 166 of 2005 dated  14th January,  2005,  as  amended  from time  to  time,  for  making  selection of candidates for appointment to the posts.

Provided that the Government may for any recruitment to be made  under rule 9-A, refer the vacancies in one go at any time.  

(2) While referring the vacancies to the Board, the administrative  department shall specify the number of posts for which selection to  be made from the reserved categories;

Provided  that  the  Appointing  Authority  may  with  the  prior  approval  of  the  Government  in  the  General  Administration  Department  and  for  sufficient  reasons  to  be  recorded  make  

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appointment  in  individual  cases  or  class  of  cases  out  side  the  purview of these rules.

13. Procedure of selection by the Recruitment Board:- The  Board  shall  make  selection  to  the  various  posts  in  the  following manner;-  

i) The Board on receipt of the reference of vacancies,  advertise  the  posts,  communicate  copies  of  the  advertisements  to  the  respective  employment  exchange,  Government Gazette, press and other publicity media so as  to achieve wide publicity;

Provided that it shall be mandatory for the Board to:-

(a) club the vacancies of District cadre of similar nature  referred to it by any department in a calendar year;

(b) club  the  vacancies  of  Divisional  cadre  of  similar  nature referred to it by any department in a calendar  year;

and advertise the same in one go as per laid down procedure  and  invite  applications  from  the  permanent  residents  of  Jammu and Kashmir without prescribing the conditions of  domiciliary requirements.

ii)  A candidate  can apply only in one district  for  District  cadre posts and in one division in respect of Divisional cadre  posts;

Provided that  if  any candidate  applies  for  more  than  one  district or one division, his candidature shall be considered  only for the district or the division in which he is ordinarily  residing.

iii)  The  Board  shall,  ordinarily,  restrict  the  number  of  applicants for oral and/or written test, as the case may be, to  at least five times the number of vacancies on the basis of  academic merit in the qualifying examination converted into  

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points on prorata basis out of the total points allocated for  the basic eligibility qualification and grant of weightage for  the  higher  qualification  in  the  discipline  concerned  to  be  allowed in the manner and to the extent as the Board may  deem  appropriate  for  according  due  consideration  to  the  merit and proficiency in higher qualification:

Provided that the Board may, for reasons to be recorded in  writing, conduct a written test for short listing the candidates  for admission to the oral test and for purpose of selection of  candidates.

iv) The Board shall allot the requisite number of candidates  in  order  of  merit  and  reservation  as  referred  by  the  appointing  authority.  The  Board  shall  not  maintain  any  select list for any casual or future vacancies;

v)  The General  Administration Department  may prescribe  such proformae as are required for reference of vacancies to  the Board and for communicating the select list from time to  time.

14. Power to make regulation: - The  Services  Selection  Board  may  if  it  considers  necessary  formulate regulations to provide for the procedure and method for  carrying out its functions under these rules:

Provided that prior approval of the Government shall be necessary  for issuance of such regulations by the Board.

17. Power to issue instructions:- a) The Government in the General Administration Department  

may from time to time, issue such directives or instructions  as  may  be  necessary  for  the  purpose  of  carrying  out  the  provisions of these rules.

b) The Government in the General Administration Department,  where it is satisfied that the operation of any provisions of  these rules causes undue hardship in any particular case or  

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class  of  cases,  by  order,  dispense  with  or  relax  the  requirement of that rule as it may consider necessary.”

8. Circular dated 20.5.1993 issued by the Board on which reliance has been  

placed by the respondents and which constitutes the foundation of the impugned  

judgment and the order of the learned Single Judge reads as under:

“J&K SERVICES SELECTION BOARD SRINAGAR

The  Board  in  its  11th meeting  on  20.4.93  took  the  following  decision with regard to the Permanent Residence Certificates.

Only un-ambiguous Permanent Residence Certificate issued  by the competent Revenue authorities of the District to which the  posts belong should be accepted in respect of District cadre posts.  The PRC’s having statements like presently living at should not be  taken any cognizance of same will hold good for Divisional Cadre  posts as well.

Sd/- (Gouhar Ahmad)

Secretary No:SSB/787-806/93        dated 20.5.1993.”

9. It is not in dispute that the post of Laboratory Assistant is a Subordinate  

Service  post  and  is  included  in  the  District  cadre  for  which  recruitment  is  

required to be made by the Board on the recommendations of  the Selection  

Committee.  In terms of Rule 13(i), the Board is required to club the vacancies  

of District cadre referred to it in a calendar year, advertise the same in one go  

and  invite  applications  from  the  residents  of  Jammu  and  Kashmir  without  

prescribing the conditions of domicile.  In terms of clause (ii) of Rule 13, a  

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candidate can apply only in one district for the District cadre posts and in one  

division for the Divisional cadre posts.  If a candidate applies for more than one  

District or Division, then his candidature is required to be considered only for  

the district or the division in which he is ordinarily residing.  In terms of Rule  

14, the Board can, with the prior approval of the Government, frame regulations  

and lay down the procedure and method for carrying out its functions under the  

Rules.   

10. There is nothing in the language of Rule 13(i) or any other Rule from  

which  it  can  be  inferred  that  for  the  District  cadre  post  only  a  permanent  

resident  of  the  particular  district  can  apply.   Rather,  Rule  13(i)  postulates  

inviting of applications from the permanent residents of Jammu and Kashmir  

and not any particular  district.   Only in terms of  clause (ii)  of  Rule 13 the  

candidature  of  a  person  who  applies  for  more  than  one  district  can  be  

considered for the district in which he is ordinarily residing.  In our view, in the  

absence  of  any  statutory  stipulation  in  that  regard,  it  cannot  be  said  that  a  

candidate who is a permanent resident of the State of Jammu and Kashmir is  

not eligible to be considered for a District cadre post merely because he is not a  

permanent  resident  of  the  particular  District  for  which  the  post  has  been  

advertised.   

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11. It is neither the pleaded case of the respondents nor it has been brought to  

our notice that the decision contained in Circular dated 20.5.1993 is a part of  

the scheme of the Rules or the same embodies some directive or instructions  

issued  by  the  State  Government  in  the  General  Administration  Department  

under Rule 17 of the Rules.  As a matter of fact, a plain reading of the circular   

shows  that  it  contains  an  administrative  decision  taken  by  the  Board  in  its  

meeting held on 20.4.1993.   

12. In our view, the administrative decision of the Board, which is ex-facie  

inconsistent with the plain language of Rule 13(i), could not have been relied  

upon for determining eligibility of the appellant for appointment as Laboratory  

Assistant in District Udhampur and the learned Single Judge and the Division  

Bench of the High Court committed serious error by negating the appellant’s  

challenge  to  the  decision  of  the  Selection  Committee  not  to  consider  his  

candidature and that too by overlooking the fact that  at the time of submission  

of application, the appellant was residing in District Udhampur, which is an  

integral part of the State of Jammu and Kashmir.   

13. In the result,  the appeal  is allowed.  The impugned judgment and the  

order of the learned Single Judge are set aside.  It is declared that the appellant  

was eligible to be considered for the post of Laboratory Assistant for District  

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Udhampur.   The  Board  is  directed  to  declare  the  result  of  the  appellant’s  

interview  within  a  period  of  4  weeks  from  today.   If  it  is  found  that  the  

appellant’s name would have figured among the selected candidates, then the  

Board shall forward its recommendation to the appointing authority.  This shall  

be done within 2 weeks of the declaration of result.   Within next 4 weeks, the  

competent authority shall  issue order appointing the appellant on the post of  

Laboratory Assistant. The appellant shall be entitled to have his seniority fixed  

in accordance with the Rules.  The parties are left to bear their own costs.

…..……….....……..….………………….…J.               [G.S. SINGHVI]

…………..………..….………………….…J.               [SUDHANSU JYOTI MUKHOPADHAYA]

New Delhi, July 16, 2012.

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