Punjab-Haryana High Court
Smt. Sunita Devi vs Learned Counsel For The Petitioner ... on 5 February, 2014
Author: Rajesh Bindal
Bench: Rajesh Bindal
CWP No. 9694 of 2009 [1]
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
C.W.P. No. 9694 of 2009 (O&M)
Date of decision: February 05, 2014
Smt. Sunita Devi
.. Petitioner
v.
State of Punjab and another
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Raman Mohinder Sharma, Advocate for the petitioner.
Mr. Suvir Sehgal, Addl. Advocate General, Punjab.
...
Rajesh Bindal, J.
The petitioner, who was a candidate for appointment to the post of Punjabi Mistress, has filed the present petition challenging the orders dated 31.10.2000 (Annexure P-9) and 27.2.2009 (Annexure -P15).
Learned counsel for the petitioner submitted that in pursuance to the advertisement issued for various posts on 12.1.1996, the petitioner applied for the post of Punjabi Mistress. The last date for submission of applications was 30.10.1996. The interviews were held on 22.11.1996 and the result was declared on 2.1.1997. The name of the petitioner was in the select list at Sr. No. 732, however, after considering the judgment of Hon'ble the Supreme Court in Civil Appeal No. 6750 of 1999-- Bhupinderpal Singh and others v. State of Punjab, 2000(5) SCC 262, the candidature of the petitioner was cancelled vide order dated 31.10.2000, which was an arbitrary action on the part of the respondents. One of the eligibility condition in the advertisement was that the candidate should have passed B. Ed. with Punjabi as subject. The petitioner had appeared for that examination as an additional subject in April, 1996, the result of which was declared on 8.10.1996, wherein the petitioner was declared fail. She applied for re-evaluation and simultaneously applied for the post, as the petitioner Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [2] was quite confident that there was some error in checking of the answer books and in re-evaluation, she may be declared pass. The stand of the petitioner was vindicated when the result of re-evaluation was declared on 10.2.1997 and she was declared pass having secured 104 out of total 200 marks. No doubt, the result of re-evaluation was declared after the last date for submission of applications, however, the same relates back to the date of examination or at the most the date of declaration of result at the first instance. As result of the petitioner at the first instance was declared before the last date fixed for submission of applications, her candidature was required to be considered.
Learned counsel further referred to a communication dated 17.6.2013, wherein it is certified by Kurukshetra University that the petitioner had appeared in B. Ed. examination in April, 1996 (additional subject). That has to be taken as the date of her eligibility. On account of any error or delay on the part of the University in evaluation of the answer books and declaration of result, the petitioner cannot be made to suffer. He further submitted that earlier the petitioner had filed CWP No. 14665 of 2003, which was dismissed as withdrawn on 8.12.2008 with liberty to the petitioner to move a representation to the authorities for the relief prayed for. The aforesaid representation was rejected vide order dated 27.2.2009, the legality of which is under challenge before this court. In support of the arguments, reliance was placed upon Thaper Institute of Engineering and Technology, Patiala through its Registrar v. Anupama Arya, 1990(1) RSJ 306 and Raj Kumar v. Punjabi University, Patiala and others, 1991(3) RSJ
19. On the other hand, learned counsel for the State submitted that last date fixed for receipt of applications for the post of Punjabi Mistress was 30.10.1996. As on that date, the petitioner had not passed her B. Ed. with Punjabi as one of the subject, her candidature was rightly not considered. It is the admitted case of the petitioner that after initially she was declared fail, re-evaluation was applied for. The result of the same was declared on 10.2.1997, whereas the selections had already been finalised on 2.1.1997. In support of the arguments, reliance was placed upon Charles K. Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [3] Skaria and others v. Dr. C. Mathew and others, (1980) 2 SCC 752.
Learned counsel further submitted that as initially on account of an error, candidature of certain persons, who acquired qualification or became eligible after the last date for submission of applications, was considered and the same was subject-matter of litigation. The matter went upto Hon'ble the Supreme Court, where in Bhupinderpal Singh's case (supra), it was opined that in the absence of any rules or conditions laid down in the advertisement, the last date for submission of applications is to be treated as a cut-off date for eligibility. However, considering the fact that some of the candidates had been selected and appointed, their appointment was protected in exercise of powers under Article 142 of the Constitution of India. It was further submitted that in case the last date fixed for submission of applications or any cut-off date is not considered as sacrosanct for treating eligibility of the candidates, it will not be possible to finalise the selection as any other date fixed thereafter may be termed as arbitrary as any candidate can raise an issue that if eligibility can be considered upto one month after the cut-off date, then why not two months, three months or even till the date final result is declared, which may take some time.
Learned counsel further submitted that admittedly the candidature of the petitioner was cancelled on 31.10.2000, when her case was considered in terms of the judgment of Hon'ble the Supreme Court in Bhupinderpal Singh's case (supra). To challenge the same, CWP No. 14665 of 2003 was filed nearly three years thereafter. While permitting the petitioner to withdraw the same on 8.12.2008 with liberty to file a representation, this court had observed that there is no explanation available for delay of 34 months in filing the writ petition. The aforesaid fact cannot be lost sight off. Even on account of delay and laches, the petitioner is not entitled to any relief.
It was further pointed out that in the affidavit filed on 22.12.2009, it has been specifically mentioned that there was no post of Punjabi Teacher available in the Education Department.
Heard learned counsel for the parties and perused the paper book.
Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [4]The questions, which require consideration by this court in the present petition, are :
(i) What is the date on which eligibility of the candidate, who is applicant for a post, is to be considered ?
(ii) Whether the petition is to be dismissed on account of delay and laches ?
(iii) Whether result of re-evaluation relates back to the date when the original result was declared ? If yes, the effect thereof, if the same has been declared after the last date for submission of applications for a post, but applied for before that ?
Question No. (i) As far as question No. (i) is concerned, much discussions is not required thereon, as for the selections in hand itself, though the authorities had initially considered the candidature of the applicants who became eligible after the last date fixed for submission of applications at that stage, the matter went upto Hon'ble the Supreme Court in Bhupinderpal Singh's case (supra). The issue regarding cut-off date for eligibility was considered. The answer to the aforesaid question has been culled out in paragraph No. 13 of the aforesaid judgment, which is extracted below:
"13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar and another, JT 1997 (4) SC 99: 1997(2) SCT 208 (SC); A. P. Public Service Commission v. B. Sarat Chandra and others, 1990 (4) SLR 235; The Distt. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram and another v. M. Tripura Sundari Devi, 1990 (4) SLR 237; Mrs. Rekha Chaturvedi v. University of Rajasthan and others, JT 1993(1) SC 220: 1993 (2) SCT 279 (SC); Dr. M. V. Nair v. Union of India and others, 1993(2) SCT 77 (SC); and U. P. Public Service Commission, U. P. Allahabad and another v. Alpana, JT 1994 (1) SC 94: 1994(2) SCT 701 (SC), the High Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [5] Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice."
To similar effect is the judgment of Hon'ble the Supreme Court in Alka Ojha v. Rajasthan Public Service Commission and another, (2011) 9 SCC 438. The relevant part thereof is extracted below:
"14. The question whether the candidate must have the prescribed educational and other qualifications as on the particular date specified in the Rule or the advertisement is no longer res integra. In Bhupinderpal Singh v. State of Punjab (2000) 5 SCC 262, this Court referred to the earlier judgments in A. P. Public Service Commission v. B. Sarat Chandra (1990) 2 SCC 669, District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi (1990) 3 SCC 655, M. V. Nair (Dr.) v. Union of India (1993) 2 SCC 429, Rekha Chaturvedi v. University of Rajasthan 1993 Suppl. (3) SCC 168, U. P. Public Service Commission, U. P. Allahabad v. Alpana (supra) and Ashok Kumar Sharma v. Chander Shekhar (supra) and approved the following proposition laid down by the Punjab and Haryana Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [6] High Court "..... that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications and that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority." 13 The same view was reiterated in M. A. Murthy v. State of Karnataka (2003) 7 SCC 517 and Ashok Kumar Sonkar v.
Union of India (2007) 4 SCC 54. Therefore, the Full Bench of the High Court rightly held that a candidate who does not possess driving licence on the last date fixed for submission of the application is not eligible to be considered for selection."
[Emphasis supplied] In Rakesh Kumar Sharma v. Govt. of NCT of Delhi and others, 2013(4) SCT 543 (SC), Hon'ble the Supreme Court expressed the same view. It was held therein that selection process commences on the date when applications are invited. Any person eligible on the last date for submission of application has a right to be considered against the said vacancy provided he fulfils the requisite qualification. The result of examination does not relate back to the date of examination.
In view of the aforesaid consistent view expressed by Hon'ble the Supreme Court, the answer to question No. (i) is that in the absence of any specific cut-off date either mentioned in the Rules or advertisement, the last date fixed for receipt of applications has to be considered the cut-off date for considering the eligibility of the candidates. The result of examination does not relate back to the date of examination.
Question No. (ii) As far as the issue regarding delay and laches in filing the present petition is concerned, it is not in dispute that the issue regarding application of cut-off date was settled by Hon'ble the Supreme Court in Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [7] Bhupinderpal Singh's case (supra). Thereafter, the matter was considered by the department and the candidature of the petitioner was rejected. Having not been qualified on the last date for submission of applications, the order was conveyed to the petitioner vide letter dated 31.10.2000. The petitioner challenged the same for the first time by filing CWP No. 14665 of 2003 after a period of 34 months. The aforesaid petition was dismissed as withdrawn on 8.12.2008 with liberty to the petitioner to file a representation to the department. The order passed is extracted below:
"This writ petition has been filed challenging the order dated 31.10.2000 (Annexure-P12), whereby the petitioner was held to be ineligible on the ground that she did not have necessary qualification on 31.10.1996 (which was the extended cut off date of eligibility fixed by the Hon'ble Supreme Court).
It is the case of learned counsel for the petitioner that subsequently, by a process of re-evaluation, the petitioner was declared passed and, therefore, the amended result would have to relate back to the original date of result viz. 7.10.1996. He has also argued that there are vacancies still available with the respondents. However, the learned counsel has no explanation for the delay of almost 34 months in filing the present writ petition.
Faced with this situation, counsel for the petitioner prays that he may be permitted to withdraw the writ petition with liberty to move a representation to the respondents taking the above pleas.
Writ petition is dismissed as withdrawn with the liberty aforestated. In case, such a representation is made within four weeks from today, respondent No. 2 shall dispose of the same, in accordance with law, by passing a speaking order within a further period of eight weeks."
It has specifically been mentioned in the aforesaid order that the petitioner has not been able to explain satisfactorily the delay of 34 months in filing the petition. Even if liberty was granted by this court to the Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [8] petitioner to move a representation to the department for claiming the relief, the aforesaid delay can still not be ignored as the delay already occurred in availing the remedy will not be condoned merely by filing a subsequent representation or disposal thereof by the authorities. Hence, the present petition deserves to be dismissed on account of delay and laches only. Ordered accordingly.
Question No. (iii) Though answer to questions No. (i) and (ii) would have decided the fate of the present petition, however, still question No. (iii) is also being dealt with as this court finds the same to be important as many candidates suffer only on account of delay in declaration of result of re-evaluation by the University/Educational Institutes, where the same had been applied for before the cut-off date for receipt of applications.
The petitioner in the present case appeared in the examination of Punjabi as an additional subject in April, 1996. The result thereof was declared on 8.10.1996. The petitioner failed. The petitioner applied for re- evaluation, the result of which was declared on 10.2.1997. On the other side, applications for the post of Punjabi Mistress were invited vide advertisement dated 12.1.1996. The last date fixed for submission of applications was 30.10.1996. The interviews were held on 22.11.1996, the result of which was declared on 2.1.1997. As in terms of the judgment of Hon'ble the Supreme Court in Bhupinderpal Singh's case (supra), the petitioner was not eligible, her candidature was rejected vide order dated 31.10.2000. In support of the plea that result of re-evaluation should relate back to the date when the result was declared originally, i.e., 8.10.1996, which was before the last date fixed for submission of applications, learned counsel for the petitioner placed reliance on certain judgments.
In Anupama Arya's case (supra), result of the candidate was declared originally on 7.6.1986. She applied for re-evaluation, result of which was declared on 18.7.1986. When she had applied for admission to the course of Bachelor of Engineering, the result of re-evaluation was produced at the time of interview on 23.7.1986, but the authorities did not consider the same. This Court opined that the marks obtained by her in re-
Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [9]evaluation should be considered for the purpose of her admission as the same was produced before the date of interview.
In Raj Kumar's case (supra), the issue under consideration before this Court was regarding entitlement of University Medal to a candidate after it was found that he secured more marks after re-evaluation of the answer books than the candidate who had already been granted the University Medal. The court directed the University to award Medal to the candidate who had secured more marks after re-evaluation but without depriving the candidate, who had already been granted the Medal. In fact, now Rule 18.5 of Kurukshetra University Re-evaluation Rules (Annexure P-
17) effective from April, 2012 examinations itself takes care of the aforesaid eventuality.
In Miss. Sunita Thereja v. Punjab University, Chandigarh and others, AIR 1993 P&H 237, this court upheld Clause (D) of the prospectus for late admission of a candidate, who secured high merit on the basis of re- evaluation, the legality of which was under challenge. The aforesaid rule provided that admission can be granted to a candidate on the basis of result of re-evaluation only if the seats are available; the candidate's merit falls within the merit of first 25% of the applicants admitted in the open category and the request has been made before the last date for late admission with the prior approval of the Vice-Chancellor.
In Rupali Mamta Jain v. The Kurukshetra University, Kurukshetra and another, 1999(4) RSJ 472, the issue under consideration before this court was for treating a candidate, who had been granted admission as a casual student, as a regular student of the University. The candidate failed in B. Com. Part-II examination. She applied for re- evaluation, however, got admission in B. Com. Part-II again. When the result of re-evaluation was declared, she got admission in B.Com. Part-III in December, but as a casual student. Her representation for treating her to be a regular student was rejected. In these circumstances, this court opined that the petitioner therein be treated as a regular student as she was not at fault on account of delay in declaration of result of re-evaluation.
A Division Bench of this Court in CWP No. 18731 of 2007--
Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [10]Abhijeet Partap Singh Chaudchary v. Punjab University, Chandigarh and others, decided on 14.2.2008, observed that a candidate cannot be made to suffer on account of lapse on the part of the educational institute in declaring the result of re-evaluation. It was also a case where on account of delay in declaration of result of re-evaluation, a candidate could not seek admission in the next higher class. It was directed therein that besides granting him admission in the next higher class, the University shall arrange for extra classes, if required. The relevant observations are extracted below:
"So, accepting the above observation, we are of the considered view that the petitioner cannot be allowed to suffer on account of lapse on the part of the University in delaying the result of re-evaluation. Therefore, we accept this petition and direct the respondent-University to allow the petitioner to join classes on 6th Semester forthwith. The respondents shall arrange for extra classes so as to complete the syllabus of fifth semester. The petitioner shall be allowed to appear in the examination of fifth and sixth Semesters and the remaining uncleared papers of third semester and fourth semesters in accordance with the Rules of the University."
In Tejinder Singh v. Punjab University, Chandigarh and others, 2012 (4) RSJ 136, the issue under consideration was regarding the cut-off date for admission in the case where a candidate had applied for re- evaluation of his answer books within the permitted time as the declaration of result thereof was exclusively in the hands of educational institute, the principle of "relation back" was applied. The relevant paragraph thereof is extracted below:
"4. Apart from that, even on first principle, I do not see any wisdom in fixing cut-off date as a ground to deny further admission when re-evaluation of answer books applied for within the time permitted and late declaration of result thereof lies exclusively in the hands of the University for which a candidate cannot be penalized. The principle of "relation back" would come to the rescue of the petitioner. I would Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [11] apply the equitable principle to this case. No other ground was pressed or pleaded before this court other than the effect of the cut-off date."
The cases, referred to above, throw light on the effect of result of re-evaluation in the cases of admissions to the higher courses. None of them pertains to a case where the issue was considered for the purpose of employment, especially when the result of re-evaluation was declared after the last date fixed for submission of application. In the judgments, referred to above, it has been opined that result of re-evaluation will relate back to the date on which the original result of the examination in question was declared. The benefit of further admission or regularisation was granted on the basis thereof.
As far as application of that principle in the cases for employment is concerned, it may not be strictly applicable as waiting for the result of re-evaluation indefinitely even after the cut-off date for filing of application against a post would lead to uncertainty in the process of selection. Some criteria needs to be devised, but still this court cannot lose sight of the fact that in case a meritorious candidate on account of some error, or any other reason, was either declared fail or did not get good marks, he may apply for re-evaluation of the answer books. It is also seen that in many cases, failed candidates are declared pass and further there is increase in the marks already obtained. A candidate cannot be said to be at fault, but on account of omission or commission on the part of the educational institutes, he may suffer irreparable loss. In my opinion, to take care of this situation and considering the fact that this issue arises in many cases, some criteria needs to be evolved to give succor to such type of candidates so that they do not lose opportunity of employment on account of any error in the result originally declared.
As it is settled law that cut-off date for submission of application with reference to eligibility of a candidate cannot be changed. Neither any application received after the cut-off date is to be entertained nor a candidate, who acquires qualification required for eligibility after the cut-off date, is to be considered eligible. His application has to be rejected Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [12] at the threshold. But, in my opinion, a candidate whose result of the eligibility qualification, though has already been declared, but on account of some error therein felt by him, he had already applied for re-evaluation thereof before the last date fixed for submission of application, such a candidate certainly needs to be given a chance to file an application, however, the same shall be provisional. In case in the process of selection, some written test is to be conducted, the candidate should be permitted to appear in the same (provisional). If the result of re-evaluation is produced by him at the time of counselling/interview and on the basis thereof, he is found eligible, his candidature has to be considered as if he had the requisite qualification on the last date for submission of application. In the absence thereof, his candidature being provisional, he will not be entitled to claim any benefit of the fact that his application was initially accepted or he was permitted even to appear in the competitive examination.
To sum up, it is held that in any advertisement issued in future for selection to any post, it shall specifically be mentioned that the candidates whose result of eligibility examination has been declared but are not entitled to apply on the basis thereof, but have applied for re-evaluation thereof, shall also be entitled to file application provisionally while mentioning this fact clearly. They shall also be permitted to appear in the competitive examination, if any, provisionally. However, their provisional candidature shall be subject to production of final result of re-evaluation on or before the date of interview/counselling. This will not affect any selection made or any advertisement already issued for selection. However, in future, keeping in view the law laid down in the present case, a condition be put in the advertisement providing for opportunity to the candidates, whose results of the minimum qualification required for the post had been declared but somehow not eligible in terms thereof and had applied for re- evaluation/re-checking before the last date fixed for submission of application. Any selection already made, where such an opportunity had not been given, will not be questioned on this ground.
A candidate can only appear in the examination. He has no control on its evaluation or the declaration of result. It is a matter of Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [13] common knowledge that many times initially the results are declared late or the evaluation of answer bookss is not correct. Many times, there is error in checking as well. The candidates, who are confident of the fact that they have not been awarded marks according to their performance in the examinations, apply for re-evaluation in terms of the rules of the Universities/Educational Institutes. It is also seen that in many cases after re-evaluation, a failed candidate is passed or gets more marks than what were awarded earlier. As a result, many times with the change, a candidate may become entitled to a gold medal being a topper in the University, though at the initial stage, some one else may have been declared first or there may be change in the division on the basis of percentage of marks obtained.
As a result of the aforesaid anomalies in evaluation of answer books, re-evaluation of which is sought by a candidate, he may be deprived of admission in the next higher class or may not be eligible for appointment in any service for which the cut-off date may expire before the result of re- evaluation is declared. Though a disclaimer is made by the Universities/Educational Institutes that they will not be responsible for any such error or delay but, in my opinion, the time of accountability has come. No one can be allowed to play with the career of the students, may it be regarding their higher education or employment. Some one may be deprived of a golden chance in life or may lose one precious year in his/her career merely on account of wrong evaluation at the initial stage or delay in declaration of result of re-evaluation. The rules provide for time within which a candidate can apply for re-evaluation after declaration of the result, which is normally 20 days. It is the duty of the Universities/Educational Institutes to ensure that re-evaluation of the answer books sought by the candidate is done at the earliest and the result thereof is declared without any delay. This service is not being provided free of cost. Specified fee is charged for the purpose. The Universities/Educational Institutes should be sensitive of the fact that casualness on their part in getting the answer books evaluated at the earliest may result in irreparable loss to a candidate. If there is abnormal delay in declaration of the result of re-evaluation, the Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document CWP No. 9694 of 2009 [14] Universities/Educational Institutes can be held responsible. A candidate, who has applied for re-evaluation of his answer books and before the result was declared, had applied for some post, he shall be at liberty to file a representation to the competent authority in the University/educational institute for expediting re-evaluation of his answer books so that he does not suffer on account of delay.
Copy of the order be sent to Chief Secretary, Punjab & Haryana and Home Secretary, Union Territory,Chandigarh for forwarding the same by e-mail to all the quarters concerned for implementation and necessary action.
(Rajesh Bindal) Judge February 05, 2014 mk (Refer to Reporter) Kumar Manoj 2014.02.07 09:24 I attest to the accuracy and integrity of this document