Javid Iqbal vs State

Khan, J.—Petitioner, a Patwari, was asked to hold the charge of Reader to Tehsildar Settlement, 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 Girdawar. Circle Gharana vide order dated 4.7.1994. Meanwhile, he was recommended for promotion to the post of Girdawar and his case for payment of charge allowance was also recommended but it was not sanctioned in his favour. He thereafter filed 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 Commissioner (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 Admit Card 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 Tehsildari 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 (SIC) by the Tehsildar Settlement 'Who was incompetent to do so.

., 4. Petitioner has questioned this order on the primary ground that he was eligible to appear in the examination under the Naib Tehsildari 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 Tehsildari 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 the interpretation to be placed on Rule 4(d) and Rule 5 (ii) of the

1964 Rules which read thus:

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

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d) is working as Girdawar, Saddar Qanungo, Naib Qunango or Office Qunango (even in S.P.T.or officiating capacity); provided thati) 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 Wazikhar. 5.

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

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ii) a Certificate of eligibility from the Deputy Commissioner Concerned, in the following forum:

Certified that the candidate (Name) does not suffer from any of the disqualification provided under rules 15 to 19 and that in view of he 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 hereinabove shows that a candidate to be eligible for participation in the departmental examination of Naib Tehsildars should be working as Girdawar, Saddar Qanungo, Naib Saddar Qanungo and Office Qunango and he should be matriculate and should have put in an aggregate service of not less man 4 years for matriculates and not less than three years for graduates. 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 form. In other words, the prescribed authority to issue the eligibility certificate is the Dy. Commissioner arid 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 the rule 4(d), it cannot be gathered from its terms that a candidate being eligible for participation in the examination should hold the post of Girdawar substantively. Expression used in this rule is "working as a Girdwar" cannot be stretched to connote that he must hold the post of Girdawar substantively. If that was so, the rules 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 working against the post of Girdawar and not yet substantively promoted to the post of Girdawar. There is no dispute that the petitioner was first working as Reader and then as Girdawar against 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 Girdawar. To cap it all, the concerned prescribed authority (Dy.

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, more so, 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 Departmental Examination as he was working as a Girdawar within the meaning of the expression used in Rule 4(d) of the 1964 Rules and 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 Staterespondent or its Financial Commissioner. If he possesses the exquisite 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.