Punjab-Haryana High Court
Rajesh Kumar vs State Of Punjab And Others on 1 August, 2008
Author: Nirmaljit Kaur
Bench: Ashutosh Mohunta, Nirmaljit Kaur
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CASE NO.: CWP No.70 of 2008
DATE OF DECISION : August 01,2008
RAJESH KUMAR .......PETITIONER.
VERSUS
STATE OF PUNJAB AND OTHERS
......RESPONDENTS
CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA
HON'BLE MS. JUSTICE NIRMALJIT KAUR.
Present: Mr. S.K. Arora, Advocate
for the petitioner.
Mr. Yatinder Sharma, D.A.G., Punjab
for respondents No.1 and3.
Mr. D.S. Keer, Advocate
for respondent No.2.
NIRMALJIT KAUR, J.
The petitioner, in the present writ petition, is aggrieved on account of not being allowed to join duty as Computer Faculty by respondent No.3 on the ground that the petitioner has become over age as per advertisement dated 30-11-2006, inspite of the fact that he was duly selected and appointed as Computer Faculty on the basis of the application submitted in pursuance to the earlier advertisement dated 09-03-2006 and on the basis of which, he was duly eligible.
The facts, in brief, are that respondent No.2 issued an advertisement dated 09-03-2006 inviting applications from eligible CWP No.70 of 2008 -2- candidates for recruitment to 854 posts of Computer Faculty on contractual basis. Besides other conditions, the age prescribed was between 18 and 35 years as on 08-03-2006. The petitioner applied for the same in pursuance to this advertisement i.e. 09-03-2006. He was below 35 years of age at the time of filling of application. His date of birth is 23-11-1971. He was issued Admit Card for written examination which was scheduled to be held on 14-05-2006. However, the written test was cancelled/postponed without any notice. The Department of School Education, Government of Punjab again issued an advertisement on 30-11-2006 and an important note was given that those who have applied in response to the advertisement dated 09-03-2006 were to sent on-line information without any application fee. However, this time, the maximum age was prescribed as 35 years as on 11-12-2006. The petitioner who was eligible, again submitted on-line application for appointment to the post of Computer Faculty without any application fee. Roll number slip, bearing Roll No.331694 was issued to the petitioner for appearing in the written examination which was scheduled to be held on 17-12-2006. The petitioner was successful in the written examination and the appointment letter dated 21-12-2006 was issued to the petitioner. He was asked to join a duty within seven days from the date of receipt of the appointment letter by reporting to the District Education Officer (SE) of the District concerned. The petitioner duly reported to the District Education Officer (SE) on 27-12-2006 for joining his duties but was not allowed to do so. The petitioner has challenged this action of the respondents in not allowing him to join his duty. The respondents have filed their reply. The stand taken by the respondents in the reply is that the petitioner was not allowed to join as he CWP No.70 of 2008 -3- was found to be over age as per the eligibility condition regarding age laid down in the fresh advertisement dated 30-11-2006 and that the petitioner had not challenged the advertisement dated 30-11-2006. It has been further stated that the candidate was not required to send any application or document but at the same time, he had to verify himself that he fulfilled all the eligibility conditions required for the post. It was further submitted that the Committee upon verification of the documents, submitted by the petitioner, found him to be over age as he was more than 35 years of age as on 11-12-2006 and, therefore, he was not allowed by the Committee to join.
It is not in dispute that the petitioner was having the requisite qualification and was eligible for being appointed in pursuance to the advertisement dated 09-03-2006. The petitioner has further relied on the judgment, rendered in the case of Jatinder Kumar v. State of Haryana 1995(5) SLR. In this case also, the stand of the respondent-Commission was that the Commission had issued advertisement No.2 on 01-05-1993 inviting applications for 32 vacancies in Haryana Civil Services (Judicial Branch) and closing date for the receipt of the application was 31-05-1993. The case set up by respondent No.1 was that vide its judgment dated 24-08-1993 in All Indian Judges Association v. Union of India 1993(6) SLR 37, the Supreme Court had directed the State to prescribe a minimum of three years' practice as lawyer as an essential qualification for appointment to the judicial service at the lowest rung and in order to comply with the directions of the Supreme Court, necessary amendments were made in the Punjab Civil Court. After detailed discussions, it was decided that the maximum age of the candidate should be kept as 35 years CWP No.70 of 2008 -4- (General category) and 40 years (Reserved Categories) and the minimum age was decided to be raised from 21 to 24 years to be calculated on the last date of submission of the application forms. The amendment was given effect from 24-08-1993.The competitive examination envisaged in advertisement No.2 could not be held in view of the decision of the Supreme Court. On 25-05-1994, the Government wrote letter No.25/3/90- 3/G.S.I. to the Commission to start the process of recruitment to Haryana Civil Services (Judicial Branch) afresh in the light of the amendment made in the Rules vide Annexure R-1. Respondent no.1 has justified the amendment by pleading that requirement of three years' practice at the Bar had to be prescribed in pursuance of the judgment of the Supreme Court and the amendment made in the Rules does not suffer from vice of arbitrariness. In its separate reply, the respondent-Commission has pleaded that in view of the judgment of the Supreme Court and the amendment made in the Rules vide notification dated 04-05-1994, the government of Haryana withdrew the requisition sent to the Commission. Consequently, the Commission issued order dated 29-06-1994 cancelling the advertisement issued on 01-05-1993 and at the same time directed the refund of the application fees to all the candidates. After cancellation of the earlier advertisement, new advertisement has been issued by it on 17-09-1994. Respondent-Commission has pleaded that no right accrued in favour of the applicants who had submitted their applications in response to the advertisement No.2 of 1993 and the Commission was duty bound to act in accordance with the amendment made in the Rules. Commission has further pleaded that the petitioner does not fulfill the conditions of eligibility specified in advertisement dated 17-09-1994 and, therefore, he cannot CWP No.70 of 2008 -5- made any grievance regarding the recruitment being undertaken by the Commission in response to the advertisement dated 17-09-1994.
While allowing the writ petition, the Division Bench of this Court had relied on "A.P. Public Service Commission vs. B. Sarat Chandra 1990(4) SLR235 (SC), wherein, it was observed as follows :-
" The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examination, calling for interview or viva-voce and preparation of list of successful candidates for appointment."
These Writ Petitions were accordingly allowed and all those, who were respondents to the Advertisement No.2 dated 01-05-1993, issued by the respondent-Commission found to be eligible to be considered for selection for appointment to the Haryana Civil Services and the rejection was held to be unlawful. The facts in the present case are somewhat similar. The present petitioner is even better placed. He had not only applied in pursuance to the Advertisement dated 30-11-2006 but was allowed to apply afresh without fresh fee. Thereafter, he was duly selected. After having cleared the written examination, he was also issued the appointment letter. However, he was not allowed to join on the plea that he has become overage by the time of subsequent advertisement. Such an action would be highly improper, especially when it was clearly mentioned in the subsequent advertisement dated 30-11-2006 (P-7) that the candidates who have applied in response to the advertisement dated CWP No.70 of 2008 -6- 09-03-2006 should submit their on-line application without any application fee. Thus, the process of selection was never abandoned, it was simply postponed. This fact would be clear from Annexure P-7 which is the second advertisement dated 30-11-2006 and for proper adjudication, the extract of the same needs to be reproduced below :-
Post Lump-sum Qualification Tentative
per month no. of
posts*
Computer Rs. 7000/- 3-years Diploma (Computer 2200
Faculty Science & Engineering) or
BCA or M.Sc (IT or
Computer Science) or B-
Level of DOEACC or B.E.
(IT) or B.E. (Computer
Scinece or its
equivalent/higher with at
least 50% marks)
*No. of posts may vary depending upon requirement.
IMPORTANT NOTE: Those who have applied in response to advertisement dated 09.03.2006 published in the English Tribune, Dainik Jagran and Jagbani may not as under :
• COMPUTER FACULTY: All applicants strictly fulfilling above mentioned qualifications are eligible. They should submit their on line application without any application fee so that they can be allotted new registration no. for appearing in the written test which will be held on 17th December,2006. Admit cards issued to them earlier for 14th May, 2006 shall not be valid for this test.
From the above perusal, it is clear that anyone applying in pursuance to this advertisement, was required to be eligible qua the qualifications mentioned in the box. The requirement of age was not applicable to those who had applied in response to the advertisement dated 09-03-2006. In fact, the purpose of inviting on-line application from such candidate is normally only to up-date the on-line record which is CWP No.70 of 2008 -7- maintained by the respondents. In fact, the selection process commences with the inviting of applications and ends with the making of the appointments. Their claim cannot be negated on the ground that they have become age barred by the time of the second advertisement. The ratio laid down in the judgment of Jatinder Kumar v. State of Haryana's case (supra) is fully applicable in the facts of the present case and, therefore, the same deserves to be allowed. It is declared that the petitioner who had applied in response to the advertisement dated 09-03-2006 issued by the respondents should be allowed to join his duty, in pursuance to the appointment letter 21-12-2006 duly issued to him. Parties are left to bear their own costs.
(NIRMALJIT KAUR) JUDGE (ASHUTOSH MOHUNTA) JUDGE August 01,2008 gurpreet