Jammu & Kashmir High Court
Gurmeet Kour vs Dr. Sushil V. Patkar And Others And 1993 ... on 11 September, 2012
Bench: Virender Singh, Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 102 OF 2008 Gurmeet Kour. Petitioners State of J&K and ors Respondent !Mr. C. S. Azad, Advocate ^Mr. Ravinder Sharma, AAG for R-1 Mr. S. K. Shukla, Adv for R-2 Honble Mr. Justice Virender Singh, Judge Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 11.09.2012 :J U D G M E N T :
Muzaffar Hussain Attar In the admitted fact situation, the appellant, who sought consideration for being selected and appointed on the post of Teacher, in pursuance to the advertisement notice No. 10 of 2005 dated 29.12.2005 issued by the J&K Service Selection Board, was not possessed of Post Graduation Degree on the last date of filing of the application. The appellant could not secure the requisite merit, thus, was not selected for being appointed on the post of Teacher in District Cadre, Poonch. The challenge thrown to the selection by the appellant suffered collapse, inasmuch as, the writ petition was dismissed by the Writ Court. The appellant, being aggrieved of the judgement dated 27th 2 February, 2008, has challenged the same in this Letters Patent Appeal.
Learned counsel for the appellant submitted that the appellant was entitled to be given ten(10) points which were earmarked for the Post Graduation Degree by the Service Selection Board when they notified the criterion for making selection of the Teachers. Learned counsel submitted that though at the time of filing of application, the appellant had taken examination but she was not possessed of Post Graduation Degree, which was awarded to her after the cut off date for filing of application. Learned counsel further submitted that at the time of interview, the petitioner produced Post Graduation Degree Certificate, but no points have been awarded to her in this behalf. Learned counsel submitted that had ten (10) points been allocated to the petitioner she would have been selected and appointed on the post of Teacher. Learned counsel also produced the points for consideration in writing and also produced the Xerox copy of the judgment of the Honble Supreme Court reported in 1991 Supp(2) Supreme Court Cases 432 titled Municipal Corporation of Greater Bombay and others vs. Dr. Sushil V. Patkar and others and 1993 Supp(2) Supreme Court Cases 611 titled Ashok Kumar Sharma and another Vs. Chander Shekher and another (hereinafter called as 1st Ashok Kumar Sharmas case). Learned counsel also 3 submitted that the appellant has been appointed on the post of Teacher in a subsequent selection. Learned counsel, accordingly prayed for allowing this Letters Patent Appeal. Mr. S. K. Shukla learned counsel for the respondent- Board submitted that admittedly, the appellant was not possessed of Post Graduation Degree on the last date of filing of the application forms, thus no credit was given to the same on the basis of criteria fixed by the Service Selection Board. Learned counsel further submitted that the last selected candidate in the open merit category had secured 49.30 points, whereas the appellant has secured only 42.70 points and accordingly was not selected. Learned counsel prayed for dismissal of the LPA. In Dr. Sushils case, the Honble Supreme Court, while noticing the facts of the case, stated that respondent no. 1 was not possessed of M.Ch. Qualification on the last date, but despite that was called for interview, but could not produce the certificate at the time of interview. The case, on facts, is different from the case in hand and even otherwise, law laid down by the Honble Supreme Court in Ashok Kumar Sharmas case reported in (1997) 4 Supreme Court Cases 18, which is the decision of three Judges of Honble Supreme Court has to be followed.
In 1st Ashok Kumar Sharmas case, it is provided that the candidates were not possessed of the eligibility 4 qualification on the last date of filing of the application, but acquired the same before commencement of the interview. The Honble Supreme Court held that these candidates were eligible for being selected and appointed on the post of Junior Engineers. This was majority view in 1st Ashok Kumar Sharmas case. Paragraphs 3, 4 and 15 are taken note of:
-----3. The question which arises in the present appal is whether or not candidates who were fully qualified to be appointed as Junior Engineers on the dates of interview, but whose results had not been declared on the dates of submission of their applications, were entitled to be considered for appointment to the post of Junior Engineer. If the answer is in the affirmative, the appellants who had become qualified on the dates of interview and had admitted acquired higher marks in the interview were rightly appointed as Junior Engineers on the basis of their merits and were rightly promoted to the post of Assistant Engineer by reason of seniority in preference to the respondents who were also appointed as Junior Engineers and subsequently promoted, but placed junior to the appellants.
4. Advertisement inviting applications for appointment to the post of Junior Engineer was published on June 9, 1982. The last date for submitting applications was specifically stated to be July 15, 1982. By that day, the appellants and the respondents had submitted their applications. The appellants had appeared for the B.E.(Civil) examination and had been awaiting their results until the results were published on August 21,1982.
Interview were held on various dates commencing on August 24, 1982. The appellants were declared selected on April 21, 1983 and appointed as Junior Engineers. By reason of their merits, they were placed senior to the respondents. The respondents contended in the High Court that since the appellants were not qualified to apply for the post on the date of submission of applications as their results had not been declared until after that date, they were not qualified to appear for interview and the results announced on the basis of interview and the marks obtained by them were invalid and their applications ought to have been 5 rejected, the announcement of the results prior to the interview and their obtaining higher marks, notwithstanding.
15. The fact is that the appellants did pass the examination and were fully qualified for being selected prior to the date of interview. By allowing the appellants to sit for the interview and by their selection on the basis of their comparative merits, the recruiting authority was able to get the best talents available. It was certainly in the public interest that the interview was made as broad based as was possible on the basis of qualification. The reasoning of the learned Single Judge was thus based on sound principle with reference to comparatively superior merits. It was in the public interest that better candidates who were fully qualified on the dates of selection were not rejected, notwithstanding that the results of the examination in which they had appeared had been delayed for no fault of theirs. The appellants were fully qualified on the dates of the interview and taking into account the generally followed principle of Rule 37 in the State of Jammu & Kashmir, we are of the opinion that the technical view adopted by the learned Judges of the Division Bench was incorrect and the view expressed by the learned Single Judge was, on the facts of this case, the correct view. Accordingly, we set aside the impugned judgment of the Division Bench and restore that of the learned Single Judge. In the result, we uphold the results announced by the recruiting authority. The appeal is allowed in the above terms.
However, we make no order as to costs.
The Honble Supreme Court in case titled Rekha Chaturvedi (SMT) Vs. University of Rajasthan and others, reported in 1993 Supp(3) Supreme Court Cases 168, at paragraph 10 held as under:
10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire 6 the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequences, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the Selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra and District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram Vs. M. Tripura Sundari Devi. It is specifically ruled by the Honble Supreme Court in Rekha Chaturvedis case that the date of selection is invariably uncertain and held that required qualification for the candidates should be examined with reference to the date fixed in the advertisement notice, and in absence of 7 such date, the last date of filing of the applications shall be treated to be cut off date.
The majority view of the 1st Ashok Kumar Sharmas case has been reviewed by the Honble Supreme Court in case titled Ashok Kumar Sharma & Another vs. Chander Shekher & Another, reported in (1997)4 Supreme Court Cases 18. The position has been clarified by the Honble Supreme Court in paragraphs 5 and 6 of the said judgment. Paragraphs 5 and 6 thereof are taken note of:
---------5. The 33 respondents filed Civil Appeal No. 5407 of 1992 in this Court, while the State of Jammu & Kashmir filed Civil Appeal No. 5408 of 1982 questioning the decision of the Division Bench aforesaid. The appeals came up for hearing before a Bench comprising Dr. T. K. Thommen, V. Ramaswami and R.M. Sahai, JJ. There was a difference of opinion on one question though all the three learned Judges agreed on the result. The majority (Dr. Thommen and V. Ramaswami, JJ) held that allowing the said 33 candidates to appear for interview was not impermissible. The learned Judges were of the opinion that by allowing the said persons to appear for the interview the recruiting authority was able to get the best talents available. It was certainly in the public interest that the interview was made as broad-based as was possible on the basis of qualification. The learned Judges held that inasmuch as the 33 respondents (appellants before them) were qualified by the date of interview, though not by the date prescribed in the advertisement inviting applications, there was no illegality in allowing them to appear for the interview. R.M. Sahai, J., however, held that the said 33 candidates should not have been allowed to appear for the interview since they did not possess the requisite academic/technical qualifications by the prescribed date. Even so the learned Judge agreed with the majority that the seniority of the said 33 candidates vis-`-vis the qualified candidates (who are placed at a lower position in the Select List) need not be disturbed in the particular facts and circumstances of the case. The result was that all the three learned Judges allowed the appeals preferred by the 33 respondents and the State of Jammu and Kashmir and set aside the judgment of the 8 Division Bench. The present review petitions are filed by the four original writ petitioners in Writ Petition No. 483 of 1983, who were respondents in the civil appeals in this Court. After hearing the counsel for the review petitioners, we had passed the following order on 1.9.1995:
Heard Mr. Rohinton Nariman for the petitioners.
Mr. Nariman has attempted to bring to our notice several new questions of fact which were not urged in the High Court or in this Court. Their writ petition was dismissed by the learned Single Judge. Their letters patent appeal too failed, except for a certain modification. This Court dismissed their appeal restoring the judgment of the learned Single Judge. All this took ten years. It is only in these review petitions that certain new facts are sought to be brought to the notice of the Court. We cannot permit them to do so at this distance of time. We are of the opinion that the petitioners have not been diligent. We cannot reopen the whole case on the basis of new facts. We are, therefore, not inclined to permit them to put forward new facts or issues before us. The review petitions are admitted confined to the following two issues:
(1) Whether the review taken by the majority (Honble Dr. Thommen and V. Ramaswami, JJ.) that it is enough for a candidate to be qualified by the date of interview even if he was not qualified by the last date prescribed for receiving the applications, is correct in law and whether the majority was right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy?
(2) Whether in the facts and circumstances of the case, would it not be just to restore the direction of the Division Bench with respect to the inter se seniority between the two sets of candidates, namely those who were qualified as on the last date for receiving applications and those who were not so qualified. In other words, the question is whether the direction of the Division Bench to treat the candidates who were not qualified by the last date of receipt of applications as juniors, as a class, to those who were qualified, was not a just one?
Notice of these review petitions shall go to respondents 1 to 33 in the writ petition. Dasti service also permitted.
List after service of notice.
6. The review petitions came up for final hearing on 3.3.1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our Order dated 1.9.1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr T. K. Thommen and V. Ramaswami, JJ>) is unsustainable in law.
9The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they would not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi vs. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M.Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview. In view of the aforementioned judgment, the law laid down by the Honble Supreme Court in 1st Ashoka Kumar Sharmas case, on which reliance has been placed by the learned counsel for the appellant, no longer survives. It appears that the learned counsel for the appellant was not conscious of the fact that the judgment has been reviewed by the Honble Supreme Court, otherwise, reliance would never have been placed on this judgment.
10In view of the law laid down by the Honble Supreme Court in Rekha Chaturvedi and Ashok Kumar Sharmas cases (1997), the Post Graduation Degree which the appellant, admittedly, was awarded after the last cut off date, has rightly not been considered by the J&K Service Selection Board. The Honble Supreme Court in the aforementioned judgments has specifically held that the last date fixed in the advertisement notice for filing applications shall be the last date for being possessed of academic qualification will in all fours apply to the facts of the present case also and the Post Graduation Degree acquired by the appellant after cut off date has rightly not been considered. Had this degree of appellant been considered, then other similarly circumstanced persons would have been deprived of such consideration, violating their Constitutional rights guaranteed under Articles 14 and 16 of the Constitution. In view of our above discussion and for the aforestated reasons, this Appeal, being meritless, is dismissed along with connected CMA(s).
(Muzaffar Hussain Attar) (Virender Singh) Judge Judge Jammu 11.09.2012 Vijay