Allahabad High Court
Ram Kumar Sinha vs State Of Up Thr Prin.Secy.Govt.Of Up ... on 10 July, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- SERVICE BENCH No. - 1485 of 2016 Petitioner :- Ram Kumar Sinha Respondent :- State Of Up Thr Prin.Secy.Govt.Of Up Deptt.Of Medical & Ors. Counsel for Petitioner :- Vinod Kumar Singh Counsel for Respondent :- C.S.C.,B.K. Shukla,Vinayak Saxena Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Shri V. K. Singh, learned counsel for the petitioner, learned Standing Counsel for the opposite party no.1, Shri B. K. Shukla, learned counsel for the opposite party no.2 and Shri Vinayak Saxena, learned counsel for the opposite party no.3.
By means of the present writ petition, the petitioner has challenged the impugned order dated 31.12.2014 as well as order dated 13/14-06-2006 passed by opposite party nos.2 and 3 respectively.
Facts in brief of the present case are that petitioner was initially appointed on 13.06.1988 on the post of Lab Attendant in Sanjay Gandhi Post Graduate Institute of Medical Sciences, Rae Bareli Road, Lucknow (hereinafter referred to as Institution).
An advertisement No.2/1991 was published in Employment Newspaper dated 23.02.1991-01.03.1991 for filling 94 posts of Technician. As per terms of the advertisement, petitioner submitted his candidature for the post of Technician but he did not receive any call letter to appear in the interview. Thereafter, on 24.09.1991 he sent a letter to the competent authority/Director,S.G.P.G.I.M.S., Lucknow requesting therein that he may be issued call letter for appearing in the interview as junior or similarly employee to the petitioner, who are working in the Institution, have been issued call letter to appear in the Interview. The application moved by the petitioner for appearing in the interview was not considered.
Again in the month of May, 1997, an advertisement No.11/97-98 was issued for filling the 45 posts of Technician by the Institution and the date of receiving of the application for appointment on the post of Technician Grade-II was 16.06.1997. Due to illness of the petitioner from 05.05.1997 to 27.07.1997, he could not apply within stipulated time, therefore, he moved an application before the opposite party no.3 requesting therein that he may be allowed to submit the application in pursuance of the aforesaid advertisement. The petitioner was permitted to submit the application and his application was duly received in the office of opposite party no.3. He approached to the authority concerned for issuance of his call letter but the call letter was not issued to him.
Being aggrieved by the said facts, petitioner has approached this Court by filing Writ Petition No.1346 (SS) of 1998, which was dismissed as infructuous vide order dated 11.07.2005. The same reads as under :-
"Heard Sri R. B. S. Rathore, learned counsel for the petitioner and Sri Devendra Mohal Shukla, learned counsel for the S.G.P.G.I.M.S., Lucknow.
Sri Rathore has fairly submitted that subsequent to filing of the writ petition, his client, Sri Ram Kumar Sinha has been promoted on the post of Technician Gr.-II w.e.f. 31.12.2002.
The grievance left that he should have been promoted along with similarly placed person Sri Muzaffar Ali since 1991.
Considering the relevant clause of the writ petition, the writ petition has become infructuous and the same is dismissed as infructuous.
However, it shall be open for the petitioner to raise his grievance by filing a representation etc to the appropriate authority of the S.G.P.G.I.M.S., Lucknow for redressal of his grievance, seeking promotion from some appropriate date allegedly when his junior or similarly placed employees were promoted."
Pursuant to the order of this Court, the petitioner approached the competent authority/Director, S.G.P.G.I. for redressal of his grievances by making representation. In order to consider his grievances, the Competent Authority had constituted Four-Member Committee vide order dated 13.06.2006. After taking into consideration the report of the Committe as well as representation submitted by the petitioner, opposite party no.3, vide order dated 13/14.06.2006, had rejected the petitioner's representation on the ground that he had not submitted his candidature within 20 days as per terms of the advertisement.
The order dated 13/14.06.2006 was challenged by the petitioner by filing Writ Petition No.10655 (SS) of 2006, which was dismissed by order dated 23.04.2014. The same reads as under :-
"This petition has been filed for writ of mandamus commanding the respondents to give promotion to the petitioner w.e.f. 13.10.1991.
Vide order dated 11.07.2005, this Court had directed S.G.,P.G.I.M.S., Lucknow to decide the representation.
Briefly stated facts are that petitioners had applied for promotion from the post of Lab attendant to the post of Technician Grade-2. Muzeffer Hussain was appointed as Technician in pursuance of selection held in the year, 1991.
Petitioner's grievance is that Muzeffer Hussain was junior to him, as such petitioner should have been appointed.
Defence set up by counsel for SGPGI is that petitioner had not applied. Muzeffer Hussain having applied he was selected.
In pursuance of order passed by this Court, twice enquiry was held and it was found that petitioner had not applied.
Petitioner's contention is that finding that petitioner had not applied, recorded in enquiries is wrong.
Petitioner had applied or not, this is a dispute which cannot be decided by this Court under Article 226 of the Constitution of India.
Consequently, this petition is dismissed. Petitioner if he so chooses may challenge the order of director S.G.P.G.I. before the visitor within a month which may be disposed of expeditiously."
In compliance of the said order, petitioner submitted his representation to the opposite party no.2 under Section 36 of the Sanjay Gandhi Post Graduate Institute of Medical Sciences Act, 1983. Opposite party no.2, vide order dated 31.12.2014, had rejected the petitioner's representation.
Aggrieved by the order dated 31.12.2014 as well as order dated 13/14-06-2006 passed by opposite party nos.2 and 3 respectively, the present writ petition has been filed by the petitioner before this Court.
Learned counsel for the petitioner while challenging the impugned orders submits that as a matter of fact on record, the petitioner has submitted his candidature in response to advertisement No.2/91 dated 23.02.1991-01.03.1991 within time period as mentioned in the said advertisement. Thereafter, he was not called for interview. He sent a letter on 24.09.1991 to the opposite party no.3 requesting therein that he may be allowed to appear in the interview as he possesses the requisite qualification. In the said letter, he also mentioned that he sent the application in response to the advertisement no.2/91 through registered post. The order dated 31.12.2014 and 13/14.06.2006 by which opposite party nos.2 and 3 had not allowed the petitioner to appear in the interview for appointment of the post of Technician Grade-II in spite of the fact that he had submitted his candidature and possesses the requisite qualification as per terms of the advertisement no.2/91 are illegal and in violation of principles of natural justice.
Shri V. K. Singh, learned counsel for the petitioner further submits that before the opposite party no.2, petitioner had categorically stated that petitioner had submitted his candidature in response to the advertisement no.2/91 for appointment on the post of Technician Gr.-II, however, his candidature was not considered. On the other hand Shri Muzaffar Hussain, who was junior to the petitioner in service was selected and appointed on the said post.
Lastly, it is submitted by learned counsel for the petitioner that after filing of the Writ Petition No.10655 (SS) of 2006, which was dismissed by order dated 23.04.2014, petitioner had obtained the material under Right to Information Act by virtue of which it is established that the application was given by the petitioner to the opposite party no.3 within time. In this regard there is no specific pleading in the writ petition. It is not clearly established from Annexure No.20 of the writ petition that the application in issue was submitted within time i.e. by 21.03.1991.
Learned counsel for the opposite party nos.2 and 3 submits that an Advertisement No.2/1991 was published in Employment Newspaper dated 23.02.1991-01.03.1991 for filling certain posts of Technician Grade-II and the candidates were required to apply within 20 days of publication of the advertisement i.e. latest by 21.03.1991. As per record, petitioner had not submitted any candidature in response to the said advertisement.
He further submits that for the first time in the month of September the petitioner submitted an application to appear in the interview and in the said interview, he stated that he submitted his candidature through registered post. In order to consider the case of the petitioner, opposite party no.3 had constituted the Committee. The said Committee provided opportunity to the petitioner. Before the Committe, he had not produced any evidence in support of his said claim. The relevant portion of the report of the Committee is being quoted herein below :-
"विज्ञापन दिनांक २३ फरवरी, १९९१ को रोजगार समाचार में प्रकाशित किया गया था २० दिनों के भीतर आवेदन पत्र प्रस्तुत किया जाना था | साक्षात्कार इसके लगभग ६-७ माह बाद सितम्बर, ९१ में हुआ | श्री सिन्हा संस्थान में ही कार्यरत थे वे समय से साक्षात्कार हेतु जानकारी कर सकते थे श्री सिन्हा द्वारा निदेशक महोदय को दिनांक २४.०९.१९९१ को प्रस्तुत प्रत्यावेदन की प्राप्ति भी सुनिश्चित नहीं की जा सकी क्योकि उस पत्र को चूहों ने कुतर दिया है | श्री सिन्हा अपने दावे के पक्ष में कोई भी ऐसा साक्ष्य नहीं प्रस्तुत कर पाये जिससे कि यह पुष्टि की जा सके कि उनके द्वारा टेक्नीशियन पद हेतु प्रार्थना पत्र पंजीकृत डाक द्वारा भेजा गया था |"
The Committee submitted its report to the opposite party no.2 inter alia stating therein that petitioner by way of cogent evidence was not able to prove that he had submitted his candidature in response to the advertisement No.2/91 within the time period as mentioned in the said advertisement. Taking into consideration the said report, opposite party no.3, vide order dated 13/14.06.2006, had rejected the petitioner's representation. Thereafter, another representation of the petitioner was also rejected by the opposite party no.2 vide order dated 31.12.2014 with a categorical finding that petitioner was not able to produce any evidence in support of his claim.
Accordingly, it is submitted by learned counsel for the respondent that the present writ petition lacks merit and is liable to be dismissed.
We have heard learned counsel for the parties and gone through the records.
The first point which is to be considered in the present case is that what is the meaning of advertisement.
Hon'ble the Apex Court in the case of Municipal Corporation of Greater Bombay vs. Bharat Petroleum Corporation Ltd., AIR 2002 SC 1638 has held that advertisement means to make publicly known an information by some device and to draw or attract attention of public/individual concerned to such information.
The another point which is to be considered in the present case is that a particular information which is to be filled up by the candidate as per advertisement is mandatory.
The answer to the said question finds place in the Full Bench Judgment of this Court in the case of Gaurav Sharma and others vs. State of U.P. and others, AIR 2017 All 116. The relevant portion of the same is being quoted herein below :-
"17. The second aspect which must necessarily be noted is the significance of a last date prescribed in an advertisement and its impact. A last date comes to be prescribed in an advertisement or recruitment notice to seek certain well established objectives. It firstly puts all prospective candidates on notice with regard to the eligibility qualifications that the employer desires a particular candidate to hold. The prescription of the last date also acts as information to the prospective candidates to test and ascertain whether they are eligible to participate in the selection process. There are therefore, upon the prescription of such a last date in the advertisement no shifting timelines or uncertainty. The prescription of such a condition in the advertisement also eschews any arbitrary action and denudes the authority from wielding a discretion which may be abused. One may in this connection usefully refer to the judgment of the Supreme Court in Rakesh Kumar Sharma v. State (NCT of Delhi) and others, (2013) 11 SCC 58 which noticed the earlier precedents on the subject and observed as follows:
"12. In U.P. Public Service Commission, U.P., Allahabad & Anr. v. Alpana, (1994) 2 SCC 723, this Court, after considering a large number of its earlier judgments, held that eligibility conditions should be examined as on last date for receipt of applications by the Commission. That too was a case where the result of a candidate was declared subsequent to the last date of submission of the applications. This Court held that as the result does not relate back to the date of examination and eligibility of the candidate is to be considered on the last date of submission of applications, therefore, a candidate, whose result has not been declared upto the last date of submission of applications, would not be eligible.
13. A three Judge Bench of this Court, in Dr. M.V. Nair v. Union of India & Ors., (1993) 2 SCC 429, held as under:-
"9. ...It is well settled that suitability and eligibility have to be consi dered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date."
14. In Smt. Harpal Kaur Chahal v. Director, Punjab Instructions, Punjab & Anr., 1995 (Suppl) 4 SCC 706, this Court held:
"2. ...It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications, such of those candidates, who possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment according to Rules."
15 . This Court in Rekha Chaturvedi v. University of Rajasthan, 1993 Supp (3) SCC 168 held:
"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 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 consequence, 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. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission v. B. Sarat Chandra (1990) 2 SCC 669; and District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi (1990) 3 SCC 655."
17. 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:
"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 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."
The Court in Ashok Kumar Sharma (1993)(supra)further explained that the majority view in Ashok Kumar Sharma was not correct, rather the dissenting view by Justice R.M. Sahai was correct as the Court held as under:
"6. 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."
19. In Bhupinderpal Singh v. State of Punjab, AIR 2000 SC 2011, this Court placing reliance on various earlier judgments of this Court held:
"13. ...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."
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.
22. It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement."
Thus, in short, as per judgment given by a Full Bench of this Court as well as law laid down by Hon'ble the Apex Court, the terms and conditions as mentioned in the advertisement is mandatory.
Further, Full Bench of this Court in the case of Gaurav Sharma (Supra) after taking into consideration the law laid down by Hon'ble the Apex Court in the case of Bhupinderpal Singh v. State of Punjab, AIR 2000 SC 2011 has stated that the cut off date as mentioned in the advertisement is mandatory and the candidate has to submit his candidature within the prescribed time.
Now reverting to the facts of the present case, an Advertisement No.2/1991 was published in Employment Newspaper dated 23.02.1991-01.03.1991 for filling certain posts of Technician Grade-II by the S.G.P.G.I.M.S., Lucknow and the candidates were required to apply within 20 days of publication of the advertisement i.e. latest by 21.03.1991 and as per material available on record specially report of the Committee and admitted by the petitioner, petitioner was not able to prove by way of cogent evidence that he had submitted his candidature in response to the advertisement within time as prescribed in the advertisement and in this regard, opposite party nos.2 and 3 while passing the impugned orders had given a categorical finding.
Hon'ble the Apex Court in the case of Kalinga Mining Corporation Vs. Union of India and others, (2013) 5 SCC 252 has held that it is by now well settled that judicial review of the administrative action/quasi judicial orders passed by the Government is limited only to correcting the errors of law or fundamental procedural requirements which may lead to manifest injustice. When the conclusions of the authority are based on evidence, the same cannot be re-appreciated by the Court in exercise of its powers of judicial review.
From the argument raised by learned counsel for the petitioner that Shri Muzaffar Hussain, who was junior to the petitioner in service was selected and appointed on the post of Technician Gr.-II, the petitioner cannot derive any benefit, rather it is well settled that if a wrong has been committed by the respondents in respect to some other persons, that will not provide a cause of action to claim parity on the ground of equal treatment since the equality in law under Article 14 is applicable for claiming parity in respect to legal and authorized acts. Two wrongs will not make one right.
For the foregoing reasons, the present writ petition lacks merit and is dismissed.
.
(Saurabh Lavania,J.) (Anil kumar,J.) Order Date :- 10.7.2019 Mahesh