Prince Kumar Sharma and Others v. Union of India Through Its Home Secretary Ministry of Home and Others

JUDGMENT

Sanjeev Kumar J

¶1These intra court appeals are directed against a common order and judgment dated 14th August, 2024 passed by a Learned Single Judge ["Writ Court"] in SWP No.2460/2018 along with ten clubbed matters, whereby the Writ Court has dismissed the writ petitions.

¶2Briefly stated, the facts leading to the filing of the instant appeals are that the Staff Selection Commission ["SSC"] vide notification issued in January, 2015 invited applications for the posts of Constable/GD in BSF, CRPF, CISF, ITBP, SSB, NIA, SSF and NS Recruitment/GD (hereinafter referred to as "CAPFs"). The appellants herein submitted their application forms in response to the aforesaid advertisement notification and also applied for seeking relaxation of five years in upper 9 LPA No.193/2024 a/w connected matters

age limit as provided under Clause 4B of the notification. The appellants were allowed to sit in the written examination. They qualified the examination and were eventually selected. They were made to undergo requisite training, however, later on it was found that the appellants were not entitled to age relaxation, for, the age relaxation was applicable to the candidates (un-reserved), who were domiciled in State of Jammu and Kashmir during the period between 1st January, 1980 to 31st December, 1989. With a view to claim the benefit of aforesaid relaxation, the candidates were required to fill up Code No.21, which was in reference to Clause 4B of the advertisement notification.

¶3The respondents having found that the appellants had obtained the employment on the basis of age relaxation under category Code 21, whereas they were not so entitled to, their result was revised by the Staff Selection Commission and they were disqualified on that account. Since the appellants were on probation, as such, the Commandant of the CAPF concerned issued show cause notice(s) to the appellants for termination of their services on the ground that in his opinion the appellants were not fit for appointment in CAPF. The show cause notices were replied by the appellants and, accordingly, vide impugned orders passed by the competent authority i.e. Commandants concerned, the services of the appellants were terminated with immediate effect on payment of one month"s pay in lieu of one month"s notice. 10 LPA No.193/2024 a/w connected matters

¶4Feeling aggrieved, the appellants filed their respective petitions challenging the orders of termination primarily on the ground that neither there was any mis-representation on part of the appellants nor were they over-aged at the time of submission of application forms. The writ petitions were contested by the respondents, who in their reply affidavits singed by the Commandant of the Battalion concerned of CAPF took the stand before the Writ Court that the candidates, who were entitled to relaxation of five years in upper age limit were required to mark category code 21 at the provided space in the application form. The benefit of reservation/relaxation of upper age limit as provided for the Residents of Jammu & Kashmir State (Upper Age Limit for Recruitment to Central Civil Services and Posts) Rules, 1997, as amended upto date, was available only to the candidates ordinarily domiciled in the State of Jammu and Kashmir during the period w.e.f. 1st January, 1980 to 31st December, 1989. Since the appellants were all born after 1989 and, therefore, it was contended, they were not entitled to the benefit of relaxation. It was submitted that since there was enormous response to the recruitment notification issued on 24.01.2015, as such, applications of the candidates with regard to their eligibility viz. age etc could not be meticulously scrutinized. This was because of this reason that the ineligibility of the appellants, who were over-aged and were not entitled to age relaxation, could not be detected at the relevant point of time and they were permitted to sit in the selection process and eventually they also emerged as selected candidates. The mistake could not be detected 11 LPA No.193/2024 a/w connected matters

even at the time of their appointment and sending them for requisite training. It was submitted that the selection and appointment made is always provisional and the person(s) appointed is put on probation and it is during probation, if candidate is not found fit, he can be discharged by issuing one month"s notice.

¶5The Writ Court after considering the rival contentions of the parties and examining the material on record, came to the conclusion that the appellants, who were not entitled to age relaxation provided for domiciles of Jammu & Kashmir had wrongly claimed the benefit of Code

¶21This fact could not be detected by the selection body due to overwhelming response to the advertisement notification. Relying upon para 2 (xii) of the appointment orders, impugned orders were held justified. The Writ Court held that in terms of aforesaid clause the material evidence with regard to domicile, category, educational, physical and medical standards can be examined even at a later stage and that there is no bar on the power of the employer to correct the mistake even after a candidate has joined in the service provided the same is apparent and is required to be corrected.

¶6Having heard learned counsel for the parties and perused the material on record, we first need to refer to advertisement notification issued by the SSC for conducing Constables(GD) in CAPFs, NIA & SSF and Rifleman(GD) in Assam Rifles Examination Examination, 2015 12 LPA No.193/2024 a/w connected matters

["2015 Examination"]. The relevant clauses of the advertisement notification are set out below. Clause 4(A) of the notification rreads thus:- "4.(A) AGE LIMITS 18-23 years as on 01.08.2015. Candidates should not have been born earlier than 02.08.1992 and not later than 01.08.1997." Code 21 of Clause 4(B) is as follows:- Code No. Category Age-Relaxation permissible beyond the Upper age limit Candidates who had ordinarily been domiciled in the State of Jammu & Kashmir during the period from 1st Jan 1980 to 31st Dec 1989 (Unreserved) 5 years

¶7From a reading of the aforesaid Clauses, it is clear that the age limits for recruitment as Constables in CAPF is 18-23 i.e. minimum eighteen years and maximum 23 years and that a five years" relaxation in upper age is admissible to the candidates, who had ordinarily domiciled in the State of Jammu & Kashmir during the period from 01.01.1980 to

31.12.1989. Although, Code 21 of Clause 4(B) does not refer to the source of such relaxation, but on some efforts we have been able to lay our hands on the Residents of the State of Jammu & Kashmir (Relaxation of Upper Age Limit for Recruitment to Central Civil Services and Posts) Rules, 1997 ["the Rules of 1997"], which have been issued by the competent authority under the powers conferred by the proviso to Article 13 LPA No.193/2024 a/w connected matters

309 and Clause (5) of Article 148 of the Constitution of India. These Rules have been amended from time to time and the benefit of relaxation in upper age limit has been extended to the candidates, who had ordinarily domiciled in the State of Jammu and Kashmir during the period between 01.101980 to 31.12.1989. Rules 2, 3 and 4 of the Rules of 1997, as were prevalent at the relevant point of time, are set out below:-"2. Application:-

These rules shall apply to all Central Civil Services and Posts recruitment to which are made through the Union Public Service Commission or the Staff Selection Commission or otherwise by the Central Governmetn.

¶3Relaxation of Upper age limit:-

Wherever any recruitment to the services and posts referred to in rule 2 is made, a relaxation in the upper age limit of five years shall be admissible to all persons who had ordinarily been domiciled in the State of Jammu and Kashmir During the period from the 1st day of January, 1980 to the 31st day of December, 1989:

Provided that the relaxation in the upper age limit for appearing at any examination shall be subject to the maximum number of chances permissible under the relevant rules.

¶4Certificate regarding proof of residence:-

Any person intending to avail of the relaxation of age-limit admissible under rule 3 shall submit a certificate from –

(a) The District Magistrate within whose jurisdiction he had ordinarily resided; or

(b) Any other authority designated in this behalf by the Government of Jammu and Kashmir, 14 LPA No.193/2024 a/w connected matters

to the effect that he had ordinarily been domiciled in the State of Jammu and Kashmir during the period from the 1st day of January, 1980 to the 31st day of December, 1989."

¶8From a readings of the Rules, it clearly transpires that these Rules were made applicable to all central civil services and posts recruitment to which were carried out through the Union Public Service Commission or Staff Selection Commission or otherwise by the Central Government and the benefit of relaxation of upper age limit of five years was admissible to all persons, who had ordinarily been domiciled in the State of Jammu & Kashmir during the period from 01.01.1980 to 31.12.1989. With a view to claiming benefit of relaxation in the upper age limit prescribed in the Rules, a candidate was required to produce certificate regarding proof of residence to be issued by a District Magistrate within whose jurisdiction he had ordinarily resided or any other authority designated in this behalf by the Government of Jammu and Kashmir. The certificate was required to be issued to the effect that the candidate had ordinarily been domiciled in the State of Jammu and Kashmir during the period from 1st January, 1980 to 31st December, 1989. The Rules of 1997, which were envisaged to remain in force till 31st December, 1999 were extended from time to time and at the relevant point of time i.e. when the advertisement in question was issued, Rules of 1997 stood amended vide Government of India"s notification dated 30th September, 2014 and the benefit of relaxation of five years provided to the residents of the State of Jammu & Kashmir was extended upto 31st December, 2015. Rules of 15 LPA No.193/2024 a/w connected matters

1997 were superseded on 9th February, 2018 and a similar provision was made for upper age relaxation till 31st December, 2019.

¶9The Rules of 1997, as amended from time to time, or even Rules of 2018 issued in supersession of the Rules of 1997, do not indicate as to who is the person ordinarily domiciled in the State of Jammu & Kashmir between the relevant period. In the absence of any definition given in the Rules of 1997, or even in the Rules of 2018, we may have to bank upon the concept of "domicile" as is given in the Jammu & Kashmir Civil Services Decentralization and Recruitment Act, 2010. Section 2(ca) defines the term "domicile" whereas Section 3A enumerates categories of persons, who are entitled to receive the domicile certificate. Both these provisions for facility of reference are reproduced hereunder:- Section 2(ca):- "(ca) "Domicile" means Domicile as defined in section 3A of this Act ;"

Section 3A:- 3A. Domicile for purposes of appointment to any service in Union territory of Jammu and Kashmir. –– (1) Any person who fulfils the following conditions shall be 2[x x x] domicile of the Union territory of Jammu and Kashmir for the purposes of appointment to any post 3[x x x] under the Union territory of Jammu and Kashmir or under a local or other authority (other than cantonment board) within the Union territory of Jammu and Kashmir:–

(a) who has resided for a period of fifteen years in the Union territory of Jammu and Kashmir or has studied for a period of seven years and appeared 16 LPA No.193/2024 a/w connected matters

in Class 10th/12th examination in an educational institution located in the Union territory of Jammu and Kashmir ; or

(b) who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants) in the Union territory of Jammu and Kashmir.

(2) Notwithstanding anything contained in sub-section (1), following persons shall be domicile under sub-section (1) :–

(a) children of those Central Government Officials, All India Services Officers, Officials of Public Sector Undertaking and Autonomous body of Central Government, Public Sector Banks, Officials of Statutory bodies, Officials of Central Universities and recognized Research institutes of Central Government who 1[shall have served] in Jammu and Kashmir for a total period of ten years ; or

(b) children of parents who fulfil any of the conditions in sub-section (1) ; or

(c) children of such residents of Union territory of Jammu and Kashmir as reside outside Union territory of Jammu and Kashmir in connection with their employment or business or other professional or vocational reasons but their parents fulfil any of the conditions provided in sub-section (1).

(3) Notwithstanding anything contained in sub-section

(1), spouse of a domicile shall also be deemed to be a domicile for the purposes of sub-section (1)".

¶10From a reading of the definition of domicile given in Section 2 (ca) along with Section 3A of the Act of 2010, it is abundantly clear that a person shall be deemed to have domiciled in the State of Jammu & Kashmir, if his parents fulfill any of the conditions of Section 3A(I) of the Act of 2010. The appellants have with their writ petitions appended domicile certificates issued by the competent authority indicating that the 17 LPA No.193/2024 a/w connected matters

parents of the appellants had ordinarily been domiciled in the State during the period from 01.01.1980 to 31.12.1989.

¶11We are aware that at the relevant point of time the concept of domicile was not imported to the Act of 2010. This happened after the Jammu and Kashmir Reorganization Act, 2019. That being the position, in the year 2015 when the advertisement notification in question was issued, we had the class of people domicile of the State of Jammu & Kashmir known as "permanent residents". Section 6 of the Constitution of Jammu & Kashmir, which was then in force defines "permanent residents" to mean every person who is or is deemed to be a citizen of India under the provisions of India and was on 14.05.1954 either a State Subject of Class-I or Class-II or was a person having lawfully acquiried immovable property in the State had been ordinarily residing in the State for not less than ten years prior to that date. The definition of State Subject of Class-I and Class-II are given in the State notification No. 1-L/84 dated 20.04.1927 read with State Notification No. 13/L dated

27.06.1932.

¶12From a reading of the concept of permanent residents, as was available in the State of Jammu & Kashmir prior to the Jammu & Kashmir Reorganization Act, 2019, it is abundantly clear that not only the persons who would strictly fall in the definition of permanent residents as given in Section 6 of the Constitution of Jammu & Kashmir but their children, who were born much later and even grandchildren 18 LPA No.193/2024 a/w connected matters

were also entitled to issuance of certificate of permanent residents in the State of Jammu & Kashmir. Similar is the concept of domicile.

¶13That being the clear position emerging from reading of the Rules of 1997 along with concept of permanent residents of the State iof J&K and the concept of domicile as conceptualized under the Act of 2010 and the Rules framed thereunder, the candidates whose parents were domiciled in the State of Jammu and Kashmir during the period

01.01.1980 to 31.12.1989 shall also be deemed to have domiciled during the said period in the State of Jammu & Kashmir for the purposes of availing the benefit of five years" relaxation of upper age limit prescribed for recruitment to various posts process for which is initiated by the UPSC, SSC or any other Central Government Department.

¶14The appellants had rightly claimed the benefit of Code 21 and such claim was based upon the domicile certificates issued by the competent authority. There was neither any mis-representation on behalf of the appellants nor could it be a case of the respondents that the appellants have been appointed despite being over-aged. They were entitled to five years" relaxation and were, thus, within age as on 01.08.2015 as prescribed in the advertisement notification.

¶15The pea of the respondents that it is only such candidates, who were actually domiciled in the State of Jammu and Kashmir between

01.01.1980 to 31.12.1989, are entitled to the benefit of relaxation in upper age, is without any substance and needs to be considered for 19 LPA No.193/2024 a/w connected matters

rejection only. Even in the Rules of 2018, the period during which a candidate is required to be domiciled in the State of Jammu & Kashmir continues to be 01.01.1980 to 31.12.1989. Candidates applying in the year 2018 may not have born during the aforesaid period. Even if we are to assume that they were born and had domiciled in the State, they would still be over-aged even after five year relaxation as envisaged under the Rules of 2018. If we were to interpret the Rules of 2018, which are in pari materia to the Rules of 1997 read with Rules of 2014, in the manner these have been understood by the respondents, in such situation the candidates from Jammu & Kashmir, who had crossed the upper-age limit of 23 years for applying in CAPFs would not be entitled to any benefit. This is so, for, the maximum age limit prescribed for recruitment is 23 years and adding to this five years relaxation, it would become 28 years. Any candidate having age of 28 years could not have domiciled in the State of Jammu & Kashmir between the period 01.01.1980 to

31.12.1989, as going 28 years back from the date of advertisement notification issued in the year 2018 would take us to 1990.

¶16The Rules cannot be interpreted in a manner, which makes them unworkable and would render them redundant. The Rules making authority would not lay down Rules, which are redundant. The object of promulgation of Rules of 1997, which have been amended from time to time is to give benefit of upper age relaxation to the candidates domiciled in the State of Jammu & Kashmir, who have suffered during a particular period. Otherwise also, domicile certificate to which the reference has 20 LPA No.193/2024 a/w connected matters

been made in the Rules of 1997 and advertisement notification in question is domicile certificate to be issued by the competent authority of the Government of Jammu & Kashmir and the domicile certificates issued in favour of the appellants by the competent authority are in pursuance of Notification No.15012/7/91-Estt(D) dated 09.11.1996 issued by the Govt. of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personal & Training), New Delhi) as received from General Administration Department vide letter No.GAD/(MTG)RB/81/83 dated 22.11.1996. The respondents have totally misconstrued the provisions of the Rules of 1997, as amended from time to time and also the stipulation in the advertisement notification. The Writ Court, too, has failed to appreciate the correct contour of the controversy raised in the writ petitions.

¶17For all these reasons, we find merit in all these appeals. The same, are, accordingly, allowed. Judgment of the Writ Court impugned in these appeals is set aside. Consequently, writ petitions of the appellants are allowed and termination orders of the appellants are quashed. The appellants shall be put back in service forthwith along with all consequential benefits except monetary benefits.

(Mohd. Yousuf Wani) (Sanjeev Kumar)

Judge Judge JAMMU

25.11.2024 Vinod,PS

Whether the order is speaking : Yes

Whether the order is reportable: Yes

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 06.11.2024 Pronounced on: 25.11.2024 LPA No.193/2024 c/w LPA No.199/2024 LPA No.200/2024 LPA No.202/2024 LPA No.206/2024 LPA No.208/2024 LPA No.209/2024 LPA No.211/2024 LPA No.212/2024 LPA No.193/2024 Deepak Kumar, Age 32 years S/o Shri Roop Lal, R/o Jinder Kalan, Tehsil R.S.Pura, District Jammu ...Appellant(s) Through:- Ms. Surinder Kour, Sr. Advocate with Ms. Manpreet Kour, Advocate V/s 1. Union of India through Home Secretary, Ministry of Home Affairs, Government of India, New Delhi. 2. Director General, Central Industrial Security Force (CISF) Government of India, New Delhi. 3. Inspector General, Central Industrial Security Force (CISF) SES Headquarters, Kolkata. 4. Deputy Inspector General, Central Industrial Security Force (CISF) SEZ-I Headquarters, Mundali. 5. Commandant, CISF Unit NALCO ANGUL. 2 LPA No.193/2024 a/w connected matters 6. Staff Selection Commission through, Chairman, Kendriya Sadan, Sector-9 Ground Floor, Chandigarh. ...Respondent(s) Through:- Mr. Sumant Sudan, Assisting Counsel to Mr. Vishal Sharma, DSGI LPA No.199/2024 Raj Kumar, Age 33 years, S/o Shri Krishan Lal, R/o Bhawani, Tehsil Nowshera, District Rajouri. ...Appellant(s) Through:- Ms. Surinder Kour, Sr. Advocate with Ms. Manpreet Kour, Advocate V/s 1. Union of India through Home Secretary, Ministry of Home Affairs, Government of India, New Delhi. 2. Director General, Central Industrial Security Force (CISF) Government of India, New Delhi. 3. Inspector General, Central Industrial Security Force (CISF) SS Headquarters, Chennai. 4. Deputy Inspector General, Central Industrial Security Force (CISF) SZ Headquarters, Chennai. 5. Senior Commandant, CISF Unit CHPT, Chennai. 6. Staff Selection Commission through, Chairman, Kendriya Sadan, Sector-9 Ground Floor, Chandigarh. ...Respondent(s) Through:- Mr. Sumant Sudan, Assisting Counsel to Mr. Vishal Sharma, DSGI LPA No.200/2024 Amit Sharma, Age 32 years S/o Shri Bansi Lal Sharma, R/o Chadwal, Tehsil Hiranagar District Kathua ...Appellant(s) 3 LPA No.193/2024 a/w connected matters Through:- Ms. Surinder Kour, Sr. Advocate with Ms. Manpreet Kour, Advocate V/s 7. Union of India through Home Secretary, Ministry of Home Affairs, Government of India, New Delhi. 8. Director General, Central Industrial Security Force (CISF) Government of India, New Delhi. 9. Inspector General, Central Industrial Security Force (CISF) CS Headquarters, Bhilai, Chattisgarh 10. Deputy Inspector General, Central Industrial Security Force (CISF) Sector Headquarters, Bhilai, Chattisgarh. 11. Commandant, CISF Unit BIOM Bacheli. 12. Staff Selection Commission through, Chairman, Kendriya Sadan, Sector-9 Ground Floor, Chandigarh. ...Respondent(s) Through:- Mr. Sumant Sudan, Assisting Counsel to Mr. Vishal Sharma, DSGI LPA No.202/2024 Mukesh Sharma, Age 34 years S/o Shri Ram Krishan Sharma, R/o Gara Tehsil Hiranagar, District Kathua ...Appellant(s) Through:- Ms. Surinder Kour, Sr. Advocate with Ms. Manpreet Kour, Advocate V/s 1. Union of India through Home Secretary, Ministry of Home Affairs, Government of India, New Delhi. 2. Director General, Central Industrial Security Force (CISF) Government of India, New Delhi. 4 LPA No.193/2024 a/w connected matters 3. Inspector General, Central Industrial Security Force (CISF) SES Headquarters, Kolkata. 4. Deputy Inspector General, Central Industrial Security Force (CISF) SEZ-I Headq uarters, Kolkata. 5. Commandant, CISF Unit HDC Haldia, District East Medinipur, Kolkata. 6. Staff Selection Commission through, Chairman, Kendriya Sadan, Sector-9 Ground Floor, Chandigarh. ...Respondent(s) Through:- Mr. Sumant Sudan, Assisting Counsel to Mr. Vishal Sharma, DSGI LPA No.206/2024 Sushil Singh, Age 31 years S/o Shri Thour Singh, R/o Village Katli, P.O. Katli, Tehsil & District Samba ...Appellant(s) Through:- Ms. Surinder Kour, Sr. Advocate with Ms. Manpreet Kour, Advocate V/s 1. Union of India through Home Secretary, Ministry of Home Affairs, New D