NON-REPORTABLE

  IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 235-236 OF 2019

(Arising out of SLP(C)Nos.7843-7844 of 2014)

RAKESH BAKSHI & ANR.  ...APPELLANT(S)

VERSUS

STATE OF JAMMU AND KASHMIR & ORS. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 237  OF 2019

(Arising out of SLP (C)No.14660 of 2014)

STATE OF JAMMU AND KASHMIR  ...APPELLANT(S)

VERSUS

HARVINDER SINGH & ORS.   ...RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. Leave granted.

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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

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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

aside.  

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

parties.

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.

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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

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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

applications.  

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

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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,

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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

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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.  

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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

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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

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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

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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

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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.    

          …………………………….J.                                              (Ashok Bhushan)   

…………………………J.                                                 (K.M. Joseph)

New Delhi; January 22, 2019

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