Gujarat High Court
Dharatibahen Divyakantbhai Parmar vs State Of Gujarat on 2 February, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19220 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 19220 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 4 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 19220 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 6 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 19220 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 19506 of 2018
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 19506 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 19506 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 4 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 19506 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?
========================================================== DHARATIBAHEN DIVYAKANTBHAI PARMAR & 109 other(s) Versus STATE OF GUJARAT & 2 other(s) ========================================================== Appearance:
MR PR ABICHANDANI(102) for the Petitioner(s) No. 1,10,100,101,102,103,104,105,106,107,108,109,11,110,12,13,14,15,16,17,18 ,19,2,20,21,22,23,24,25,26,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42 ,43,44,45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,6 Page 1 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 6,67,68,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89, 9,90,91,92,93,94,95,96,97,98,99 MR PR ABICHANDANI(102)-G/545/1993 for the Petitioner(s) No. 27 MR ROHAN SHAH, AGP for the Respondent(s) No. 1 MR NIMESH M PATEL(6780) for the Respondent(s) No. 10,11,12,13,14,15,16,17,18,19,4,5,6,7,8,9 MR B P TANNA, SENIOR ADVOCATE WITH MR. HARDEEP L MAHIDA(7112) for the Respondent(s) No. 100,101,102,103,104,105,106,107,108,109,110,111,112,113,114,115,116,11 7,118,119,120,121,122,123,124,125,126,127,128,129,130,131,132,133,134,1 35,136,137,138,139,140,141,142,143,144,145,146,147,148,149,150,151,152, 153,154,155,156,157,158,159,160,161,162,163,164,165,166,167,168,169,17 0,171,172,173,174,175,176,177,178,179,180,181,182,183,184,185,186,187,1 88,189,190,191,192,193,194,195,196,197,198,199,20,200,201,202,203,204,2 05,206,207,208,209,21,210,211,212,213,214,215,216,217,218,219,22,220,22 1,222,223,224,225,226,227,228,229,23,230,231,232,233,234,235,236,237,23 8,239,24,240,241,242,243,244,245,246,247,248,249,25,250,251,252,253,254 ,255,256,257,258,259,26,260,261,262,263,264,265,266,267,268,269,27,270, 271,272,273,274,275,276,277,278,279,28,280,281,282,283,284,285,286,287, 288,289,29,290,291,292,293,294,295,296,297,298,299,30,300,301,302,303,3 1,32,33,34,35,36,37,38,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54,55, 56,57,58,59,60,61,62,63,64,65,66,67,68,69,70,71,72,73,74,75,76,77,78,79,80 ,81,82,83,84,85,86,87,88,89,90,91,92,93,94,95,96,97,98,99 MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 304,305,306,307 MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR. VIPUL B SUNDESHA(6689) for the Respondent(s) No. 304,305,306,307 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3 VIKAS V NAIR(7444) for the Respondent(s) No. 10,11,12,13,14,15,16,17,18,19,4,5,6,7,8,9 ========================================================== CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 02/02/2022 COMMON CAV JUDGMENT
1. RULE. Learned AGP Mr.Rohan Shah, learned advocate Mr.Nimesh Patel, learned advocate Mr.Hardeep Mahida and learned advocate Mr.Vipul Sundesha waive service of notice of rule for and on behalf of the respective respondents.
2. In the captioned writ petitions, the petitioners have sought directions directing the respondent authorities to declare them eligible for the post of Police Sub-Inspector upon Page 2 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 completion of 3 years of service and also permit them to fill-up the forms to appear in the competitive examination to be held for the post of Police Sub-Inspector.
3. FACTS:
3.1 The petitioners are direct recruits working as Assistant Sub-Inspector (ASI) at various places in the State of Gujarat. An advertisement came to be published in the year 2014 for the recruitment in the Police Department of Class-
III. Pursuant to the said advertisement, examination was held in 2014-15, the result thereof was declared on 16.09.2015. The appointment orders were issued on 11/12.01.2016 and their training started on 01.02.2016.
SUBMISSIONS
4. Learned advocate Mr.Abhichandani for the petitioners has submitted that as per the recruitment rules framed vide notification dated 11.03.2016 being the Police Sub-Inspector (Unarmed), Class-III, Recruitment Rules, 2008, the petitioners have to meet with the requirement of completion of 3 years of service for getting appointment as Police sub-Inspector however, the petitioners do not fulfill that criteria since there were various litigations going on with regard to their recruitment. The petitioners, who were appoint on 01.02.2016, they would be Page 3 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 completing 3 years of service on 31.01.2019 as per the clause of advertisement, which stipulates the completion of 3 years as on 15.12.2018. He has submitted that the petitioners except the aforesaid requirement, fulfill all the other criteria for the post of Police Sub-Inspector and hence, the cut-off date prescribed in the advertisement should be altered from 15.12.2018 to 15.02.2019. He has submitted that all the petitioners are falling short of 1.5 months and in some cases it is 45 days and hence, a lenient view should be taken so that they may have opportunity to undergo the recruitment process and ultimately, they may get appointed as Police Sub-Inspector. He has submitted that no prejudice would be caused to the private respondents or authorities in allowing the petitioners to undergo the recruitment process since many posts are lying vacant.
4.1 Learned advocate Mr.Abhichandani has also submitted that in the earlier recruitment process, there were various writ petitions filed and this Court vide order dated 28.04.2017 passed in Special Civil Application No.8808 of 2017 had directed the respondent authorities to undertake the departmental examination and ultimately, the State Government had taken the policy decision to grant relaxation with regard to experience of 5 years and hence, the State Government may be directed to take similar policy decision in case Page 4 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 of the present petitioners also. It is submitted that since the petitioners have been allowed by this Court to undergo the physical test and written test, they may be considered for the appointment to the post of Police Sub-Inspector. No further submissions are advanced.
5. Learned advocate Mr.Bhunesh Rupera has also adopted the arguments advanced by the learned advocate for the petitioners and has submitted that due to some litigation before this Court, the appointment of the petitioners to the post of Police Sub-Inspector were delayed and hence, because of such litigation, the petitioners may not be debarred from undertaking the recruitment to the post of Police Sub-Inspector merely because they have not completed 3 years of experience as Assistant Sub-Inspector.
6. In response to the aforesaid submissions, learned Senior Advocate Mr.Shalin Mehta appearing for the private respondents has submitted that the petitioners cannot be allowed to undergo recruitment process since they do not fulfill the criteria specified in the recruitment rules as well the advertisement, which stipulates of having 3 years of experience as Assistant Sub- Inspector. He has submitted that since the recruitment rules as well as the advertisement mandate of fulfilling the criteria of 3 years of experience as Assistant Sub-Inspector, the petitioners, who are not eligible, cannot be Page 5 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 allowed to undergo the recruitment process as it will further create complications.
6.1 In support of his submissions, he has placed reliance on the judgements of the Apex Court in the cases of Dheeraj Mor Vs. High Court of Delhi , (2020) 7 S.C.C. 401, Alka Ojha Vs. Rajasthan Public Service Commission and Anr., (2011) 9 S.C.C. 438, Ashok Kumar Sonkar Vs. Union of India and Ors., (2007) 4 S.C.C. 54 and State of Bihar and Ors. Vs. Ramjee Prasad and Ors. , (1990) 3 S.C.C. 368. Thus, he has submitted that the writ petitions may be rejected.
7. Learned Assistant Government Pleader Mr.Rohan Shah, while placing reliance on the affidavit filed by the respondent authorities has submitted that the petitioners are not even eligible to apply to the post of Police Sub-Inspector (Unarmed) as per the advertisement dated 15.11.2018 since as per the eligibility criteria as specified in the advertisement, the candidates must have completed minimum 3 years of service in unarmed cadre either on the post of Assistant Sub-Inspector (Class-III) or Head Constable, (Class-III). He has submitted that the recruitment rules to the post of Police Sub- Inspector (Unarmed), Class-III, more particularly Rule 2(a) envisages such eligibility criteria and since the petitioners do not fulfill the same, they cannot seek the appointment to the aforesaid post. Learned AGP, upon instructions, has made a Page 6 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 categorical statement that the State Government does not intend to take any policy decision to allow the petitioners to undergo the recruitment process by relaxing the eligibility criteria provided in the statutory rules and in the advertisement. Thus, it is submitted by him that the writ petitions may not be entertained.
8. Learned Senior Advocate Mr.B.P.Tanna on behalf of the private respondents has also submitted that the writ petitions may not be entertained since the petitioners do not in any manner fulfill the eligibility criteria, which is requisite for appointment to the post of Police Sub-Inspector (Unarmed). It is submitted that merely because in past, some policy decisions has been taken by the State Government, it is not necessary that in each and every recruitment process, the candidates can take benefit since they would be governed by the recruitment process in which the candidates seek to apply.
CONCLUSION
9. I have heard the learned advocates for the respective parties to the lis at length and also perused the documents as pointed out by them.
10. The facts, which are established from the petitions, are that all the petitioners do not fulfill the criterion of completing 3 years of service, which has been envisaged in the Page 7 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 recruitment rules as well as in the advertisement. The recruitment rules framed vide notification dated 27.08.2008 by exercising the power conferred by Clause (b) of Section 5 of the Bombay Police Act, 1951, titled as Police Sub- Inspector (Unarmed) Class-III Recruitment Rules, 2008 more particularly, Rule 2(a), which is relevant rule for the purpose of deciding this petitions, reads as under:
"(2) by promotion of a person on the basis of merit rank obtained in the Special Competitive Examination conducted in accordance with the rules prescribed by Government in that behalf and who-
(a) have worked for not less than three years either in the cadre of Assistant Sub-Inspector (Unarmed), Class III or Head Constable (Unarmed), Class III, in the Gujarat State Police Service:"
11. The State authorities issued the advertisement dated 15.12.2018 for filling up the post of Police Sub-Inspector (Unarmed) and the same incorporates the same condition that the eligibility criteria, for which the candidates, who seek appointment to the post in question, must have completed minimum of 3 years of service in unarmed cadre either on the post of Assistant Sub-Inspector, Class-III or Head Constable, Class-III. Indubitably, none of the petitioners fulfill this criteria as on the cut-off date of 15.12.2018.
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12. The petitioners have premised their submissions primarily on the ground that there were various litigation challenging the recruitment process to the appointment to the post of Police Sub-Inspector and since their appointment got delayed, they did not have three years of experience as on 15.12.2018 and hence, they may not be made to suffer for the action of such litigation.
13. The petitioners were unable to point out any direction issued by this Court or any other Court or any circular or administrative instructions clarifying that the candidates of such appointments, which have been subject matter of various litigation, will get benefit of relaxation in any manner. In absence of such provision of law, this Court cannot accept the submissions advanced by the petitioners with regard to conferring relaxation de hors the recruitment rules.
14. The Apex Court in the case of Dheeraj Mor Vs. High Court of Delhi (supra), while examining the similar issue, with regard to the appointment, has observed thus:
"36. This court is of the opinion that the decision in Vijay Kumar Mishra (supra), as far as it makes a distinction between consideration, of a candidate's eligibility, at the stage of selection, and eligibility reckonable at the time of appointment, is incorrect. There is clear authority to the proposition that eligibility of any candidate is to be reckoned, not from the date of his or her selection, but in terms of the rules, or the advertisement for the post. In Ashok Kumar Sharma & Ors. vs. Chander Shekhar & Ors. 1997 (4) SCC 18, a three-judge bench of this court held as follows:Page 9 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022
C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 "6....The 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 of notification issued/published calling for application constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it.
7. 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 person had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis.
8. 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 (Smt.) v. University of Rajsthan and Ors. (1993) I LLJ 617 (SC). 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." This reasoning is similar to other decisions, such as U.P. Public Service Commission v Alpana 1994 (2) SCC 723 and Bhupinderpal Singh & Ors. vs. State of Punjab & Ors. 2000 (5) SCC 262. Therefore, the observation in Vijay Kumar Mishra (supra) that "the right of such a person to participate in the selection process undertaken by the State for appointment to any post in public service (subject to other rational prescriptions regarding the eligibility for participating in the selection process such as age, educational qualification etc.) and be considered is guaranteed under Art. 14 and 16 of the Constitution" is not correct. With respect, the distinction sought to be made, between "selection" and "appointment" in the context of eligibility, is without foundation. A selection process begins with advertisement, calling for applications from eligible candidates. Eligibility is usually defined with reference to possession of stipulated qualifications, experience, and age, as on the last date (of receipt of applications, or a particular specified date, etc). Anyone fulfilling those eligibility conditions, with reference to such date, would be ineligible. Therefore, the observation that the right to participate in the selection process, Page 10 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 without possessing the prescribed eligibility conditions, is guaranteed, is not correct; the right is guaranteed only if the candidate concerned fulfils the requisite eligibility criteria, on the stipulated date. As pointed out by the three judge bench decision, if the contrary is correct, one acquiring the stipulated qualifications subsequent to the prescribed date cannot be considered. Also, one not fulfilling the conditions cannot be allowed to participate, because, as held in Ashok Kumar Sharma (supra), if it were known, that such ineligible candidates can be considered, those who do not apply, but are better placed than the ineligible candidates who are allowed to participate, would be left out. Moreover, the authority publishing the advertisement / notification represents to the members of the public that it is bound by such representation.
89. As a result of the above discussion, it is held that Vijay Kumar Mishra (supra), to the extent that it is contrary to Ashok Kumar Sharma (supra), as regards participation in the selection process, of candidates who are members of the judicial service, for appointment to the post of District Judge, from amongst the quota earmarked for advocates with seven years' practice, was wrongly decided. To that extent, Vijay Kumar Mishra (supra) is hereby overruled."
15. In the case of Alka Ojha Vs. Rajasthan Public Service Commission and Anr. (supra), the Apex Court, while examining the recruitment process to the post of Motor Vehicle Sub- Inspector, has observed thus:
"15. 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 Rajasthan1993 Supp. (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 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 Page 11 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 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."
16. 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.
17. Unfortunately, the learned Single Judge decided the writ petitions without even adverting to Rule 11, the relevant entries of the Schedule and paragraph 13 of the advertisement and issued direction which amounted to amendment of the Rules framed under Article 309 of the Constitution. This was clearly impermissible. Therefore, the Division Bench of the High Court rightly set aside the direction given by the learned Single Judge, which facilitated appointment of the petitioners despite the fact that they were not eligible to be considered for selection."
16. In the case of Ashok Kumar Sonkar Vs. Union of India and Ors. (supra) has observed thus:
"11. The question as to what should be the cut-off date in absence of any date specified in this behalf either in the advertisement or in the reference is no longer res integra. It would be last date for filing application as would appear from the discussions made hereinafter.
12. The question came up for consideration, inter alia, before a 3-Judge Bench of this Court in Ashok Kumar Sharma and Another etc. v. Chander Shekher and Another etc. [(1993) Supp. (2) SCC 611], wherein Thommen, J. speaking for himself and Ramaswami, J. opined :
"13. It is true Rule 37 is in terms applicable only to Public Service Commission candidates and due notice of provisional entertainment of their application, subject to their passing examination before the date of interview, is a requirement peculiar to Rule 37 and is not applicable to the present case.
14. If the principle of Rule 37 is by analogy applicable, the fact that notice of provisional entertainment of applications, subject to passing of the examination before the date of interview, is a requirement in the interests of candidates who fell within that category. The appellants are by analogy persons of that category, but they have no complaint on any such ground.
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 Page 12 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 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 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."
17. In the case of State of Bihar and Ors. Vs. Ramjee Prasad and Ors. (supra), the Apex Court has observed thus:
"In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as 31st January 1988. Those who had .... the required experience of three years by that date were, therefore, eligible to apply for the posts in question. The respondents and some of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as 31st January, 1988 the State Government had only followed the past practice and if the High Court's attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice of the date for advertising the posts had to depend on several factors, e.g., the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of any one that experienced Page 13 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 candidates were not available in sufficient numbers on the cut- off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January, 1988 to 30th June, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. We are, therefore, of the opinion that the High Court was clearly in error in striking down the Government's action of fixing the last date for receipt of applications as 31st January, 1988 as arbitrary.
9. It was lastly contended that the State Government had given an undertaking to the High Court that 'no appointment shall be made from any previous panel and that, as decided by this Court, if the panel, which is likely to be prepared pursuant to the advertisement in question, is allowed, appointments shall be made from the same panel or if that panel is not allowed and a new panel is required to be prepared, as directed by this Court, appointments shall be made from the same panel'. This undertaking, in our opinion, cannot preclude the State from challenging the decision of the High Court."
18. It would be apposite to refer to the decision of the Apex Court in the case of Rakesh Kumar Sharma Vs. State (NCT of Delhi) and Ors., (2013) 11 S.C.C. 58, after survey of various judgements on the issue has held thus:
"12. A three-Judge Bench of this Court in Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18 reconsidered and explained the judgment of Ashok Kumar Sharma (1993) (supra) observing:
"The 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 could 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."Page 14 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022
C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 The Court further explained that the majority view in Ashok Kumar Sharma (1993)(supra) was not correct, rather the dissenting view by Justice R.M. Sahai was correct as the Court held as under:
"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."
It may also be pertinent to mention here that in the aforesaid case reference to Rekha Chaturvedi (supra) appears to have been made by a typographical error as the said judgment is by a two- Judge Bench of this Court. Infact the court wanted to make a reference to the case of Ashok Kumar Sharma (1993) (supra).
13. In Bhupinderpal Singh v. State of Punjab, AIR 2000 SC 2011 , this Court placing reliance on various earlier judgments of this Court held:
"The High 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."
14. This Court lately in State of Gujarat v. Arvindkumar T. Tiwari, AIR 2012 SC 3281 held:
"A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See Prit Singh v. S.K. Mangal 1993 Supp (1) SCC 714 and Pramod Kumar v. U.P. Secondary Education Services Commission (2008) 7 SCC 153.) "
15. A similar view has been re-iterated by this Court in Pramod Kumar v. U.P. Secondary Education Services Commission, (2008) 7 SCC 153 ; and State of Orissa v. Mamta Mohanty (2011) 3 SCC 436.
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16. In the instant case, the appellant did not possess the requisite qualification on the last date of submission of the application though he applied representing that he possessed the same. The letter of offer of appointment was issued to him which was provisional and conditional subject to the verification of educational qualification, i.e., eligibility, character verification etc. Clause 11 of the letter of offer of appointment dated 23.2.2009 made it clear that in case character is not certified or he did not possess the qualification, the services will be terminated. The legal proposition that emerges from the settled position of law as enumerated above is that the result of the examination does not relate back to the date of examination. A person would possess qualification only on the date of declaration of the result. Thus, in view of the above, no exception can be taken to the judgment of the High Court."
19. The legal proposition that emerges from the settled position of law as enumerated herein above is as under:
a) The right to participate in the selection process, without possessing the prescribed eligibility conditions, is guaranteed, is not correct; the right is guaranteed only if the candidate concerned fulfills the requisite eligibility criteria, on the stipulated date. A candidate acquiring the stipulated qualifications subsequent to the prescribed date cannot be considered and also, one not fulfilling the conditions cannot be allowed to participate.
b) There is clear authority to the proposition that eligibility of any candidate is to be reckoned, not from the date of his or her selection, but in terms of the rules, or the advertisement for the post.Page 16 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022
C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022
c) 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.
d) A person who does not possess the requisite
qualification cannot even apply for
recruitment for the reason that his
appointment would be contrary to the
statutory rules, and would therefore, be
void in law.
e) Lacking eligibility for the post cannot be
cured at any stage and appointing such a
person would amount to serious illegality
and not mere irregularity. Such a person
cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court.
20. In the present case, though by the interim orders, the petitioners are directed to undergo the physical test and the written test, subsequently the same would not make any difference since as on the cut-off date as specified in the advertisement and in the recruitment rules, the petitioners did not fulfill the eligibility criteria. The Apex Court has held that the proposition that where Page 17 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 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.
21. The applications of the petitioners at the very outset were not required to be entertained since they were not eligible to apply for the aforesaid post and thus, in wake of their lacking the eligibility for the post, their applications cannot be accepted since appointing such persons would amount to serious illegality.
22. The petitioners have placed reliance on the orders passed by this Court in other writ petitions being Special Civil Application No.9647 of 2017 with allied matters. The group of writ petitions were disposed of by a common order dated 17.10.2019. The same reveals that in fact an Office Order was issued by the Director General of Police, Gandhinagar allowing those candidates, who had cleared the physical test and thereafter, cleared objective and written test in which the recruitment process and relaxation was granted by the concerned authorities and accordingly, the writ petitions were disposed of. Since, a policy decision was taken by the Deputy Secretary, Home Department to offer the appointment to those candidates, who have passed the departmental preliminary examination, without Page 18 of 20 Downloaded on : Thu Feb 03 20:41:42 IST 2022 C/SCA/19220/2018 CAV JUDGMENT DATED: 02/02/2022 working for 5 years as the Assistant Sub- Inspector and who fulfill the requirement of 40 months of experience, the writ petition was disposed. In the present case, neither there is any policy decision of the State Government nor the authorities have offered any relaxation in the eligibility criteria of 3 years as envisaged in the recruitment rules and in the advertisement and hence, the respondent authorities cannot be compelled to give any relaxation. As noted hereinabove, the Apex Court has clarified that the respondent authorities are bound by the provisions of the advertisement and no benefit of relaxation can be granted de hors the recruitment rules and the criterion stipulated in the advertisement. Thus, it is not pen for the respondents to grant relaxation in the recruitment rules, which are statutory in nature without issuing a notification amending the Rules.
23. The issue raised in the present writ petitions is no more res integra. It is well settled principle of law that the candidates, who apply for the particular post should fulfill the eligibility criteria as specified in the advertisement and the recruitment rules, failing which such candidate cannot be considered even eligible for filling up the application for seeking the appointment to the concerned post, for which the advertisement is issued.
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24. The writ petitions fail. Rule is discharged. Interim relief, if any, stands vacated.
25. The connected civil applications also stand rejected.
Sd/- .
(A. S. SUPEHIA, J)
FURTHER ORDER
After the aforesaid judgment is pronounced, learned advocate Mr.P.R.Abhichandani has requested to stay of the present order.
Request is refused since any further stay would jeopardize the entire recruitment process, including the appointments of the private respondents and their future service benefits.
Sd/- .
(A. S. SUPEHIA, J)
NVMEWADA
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