Javid Iqbal vs State of Jammu and Kashmir & Others

Petitioner, a patwari was asked to hold the charge of Reader to Tehsildar setlement, R.S. Pura, vide order dated 17.10.1989. He was later

handed over the charge of Girdawar consequent upon the superannuation of one Som Nath by order dated 22.2.1993. He was then asked to hold

the charge of Girdawari Circle Gharana vide order dated 4,7.1994. Meanwhile he was recommended for promotion to the post of Gklirdawar and

his case for payment of charge allowance was also recommended but it was not sanctioned in his favour. He thereafter field Writ Petition (SWP

963/95) in this court which was allowed with a direction to the respondents to release the charge allowance to him in accordance with rules. It

appears that the Public Service Commission (PSC), respondent No. 4 herein, invited applications from eligible candidates for Conducting the

departmental examination of Naib Tehsildars. He responded to this by submitting his application and attaching a certificate of eligibility along with it

Issued by the Deputy Commissioner concerned under rules. He was granted AdmitCard and appeared In the examination from 24th to 29th July,

1995. Later, it appears that some complaint was made questioning his eligibility upon which respondent No. 4 sought clarification from respondent

No. 3 (Dy. Commissioner). This was furnished and respondent No. 3 (PSC) was informed vide letter dated 18.7.1995 that he was working as

Girdawar/Reader since 1972 and was eligible in terms of the relevant eligibility clause contained in the Rules.

It further appears that some other complaint was also made in the Vigilance organisation alleging that the petitioner had managed to apply for

taking the Naib Tehsildar examination which was forwarded to respondent No. 2 who took up the matter with respondent No. 3 (PSC) and finally

proceeded to cancel the eligibility certificate issued by Deputy Commissioner, Jammu, vide impugned order dated 19.12.1995, in favour of the

petitioner after noticing that he had been asked to hold the charge of Reader initially in 1992 by the Tehsildar Settlement who was incompetent to

do so.

Petitioner has questioned this order on the primary ground that he was eligible to appear in the examination under the Naib Tehsildar Departmental

Examination Rules, 1964 (1964 Rules) under which the Deputy Commissioner alone could certify his eligibility and since these rules do not provide

for any remedy of appeal or revision to respondent No. 2. (Financial Commissioner) he was not competent to cancel the eligibility certificate issued

by the Deputy Commissioner.

In the objections filed on behalf of respondents 1 to 3, it is submitted that the petitioner was substantially holding the post of Patwari and that he

was not eligible to sit in the Naib Tehsildar Departmental Examination in terms of the relevant Rules. It is submitted that the eligibility certificate

issued by respondent No. 3 was rightly cancelled by respondent No. 2.

It all turns on to the interpretation to be placed on Rule 4(d) and Rule 5(ii) of the 1964 Rules which read thus:

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No person shall be eligible to appear in the examination unless he

(d) is working as Girdawari, Saddar Qanungo, Naib Quanago or Ofice Qunango (even in S.P.T. or officiating capacity) : provided that

(i) he is matriculate:

(ii) he has put an aggregate service of not less than four years as such if matriculate and not less than three years if graduate: and

(iii) has received complete training prescribed for the post of Girdawar or has risen to his present position from the post of Patwari or Wazif khar.

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(i) A candidate desirous of appearing in the examination shall submit an application to the Secretary, Public Service Commission which shall be

accompanied by

(ii) A certificate to eligibility from the Deputy Commissioner Concerned, in the following forum:

Certif ied that the candidate(Name) does not suffer from any of the disqualification provided under rules 15 to 19 and that in view of the provisions

contained in rule 4 he is eligible to appear in the Departmental Examination of Naib Tehsildar.

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A combined reading of the relevant provisions extracted herein above shows that a candidate to be eligible for participation in the departmental

examinatio9n of Naib Tehsildars. should be working as Girdawar, Saddar qanungo, Naib Saddar Qanungo and Office Qunango and he should be

a matriculate and should have put in an aggregate service of not less than 4 years for matriculates. It also emerges from a perusal of rule 5 that a

candidate is required to attach a certificate of eligibility along with his application form from the Deputy Commissioner concerned in the prescribed

farm. In other words the prescribed authority to issue the eligibility certificate is the Dy. Commissioner and not the Financial Commissioner. Rules

do not provide for any remedy of appeal or revision to the Financial Commissioner against the eligibility certificate issued by the Deputy

Commissioner.

Reverting to rule 4 (d), it can not be gathered from its terms that a candidate being eligible for participation in the examination should hold the post

of Girdawar substantively. The expression used in the rule is ""working as a Girdwar"" cannot be stretched connote that he must hold the post of

Girdawar substantively. If that was so, the rule makers would have provided by using appropriate expression "" is holding the post of Girdawar"".

But, since the requirement provided was that he should be working as ""Girdawar"". Therefore, it could also include a situation where he was

working against the post of Girdawar and not yet substantively promoted to the post of Girdawar. There is no dipute that the petitioner was first

working as Reader and t hen as Girdawar aginst the clear vacancy since 1992. He was not holding any additional charge of Girdawar and was

also ordered to be granted charge allowance by this court for working as Girdwar. To cap it all, .the concerned prescribed authority (Dr.

Commissioner) had found him eligible and certified his eligibility on the requirement of the rules. Therefore, there was no occasion for the Financial

Commissioner (respondent No.2) to cancel the eligibility certificate issued by the Dy. Commissioner and to arrogate to himself of a power which

was not conferred on him under rules, perhaps on the strength of his being a superior officer to the Dy. Commissioner. After all the Deputy

Commissioner had issued the eligibility certificate in exercise of a statutory power which could not be set at naught by any superior authority to him

unless such authority was vested with such power under rules. Even if it be assumed that he possessed any such power, he could not have

cancelled this certificate at the back of the petitioner and without affording him an opportunity of being heard, moreso, on an untenable ground that

the Settlement Tehsildar had no competence to post him as Reader way back in 1992.

In the result I hold that the petitioner was eligible to participate in the Naib Tehsildari Department Examination as he was working as a Girdawar

within the meaning of the expression used in Rule 4(d) of the 1964 Rules and as he was holding an eligibility certificate from the prescribed

authority (Deputy Commissioner) which could not be cancelled at his back by respondent No.2 who did not possess any power under rules to

cancel the eligibility certificate. That apart, petitioner's participation on the departmental examination of Naib Tehsildars causes prejudice to none

much less to the state respondent or its Financial Commissioner. If he possesses the requisite merit to do well, he could not be forced to stagnate

at the post of patwari and deprived of an opportunity of proving his mettle to go ahead in his service career.

This petition is accordingly allowed and the impugned order passed by respondent No.2 dated 19.12.1995, is quashed and respondent No.4 is

directed to formally declare the result of the petitioner in the Naib Tehsildari Departmental Examination.