Himachal Pradesh High Court
Akash Sharma vs Himachal Pradesh University). The ... on 8 July, 2022
Bench: Amjad Ahtesham Sayed, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF JULY, 2022
.
BEFORE
HON'BLE MR. JUSTICE A.A. SAYED,
CHIEF JUSTICE
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
Between:
r to
CIVIL WRIT PETITION No. 3120 of 2022
1. AKASH SHARMA,
S/O SH. RAVI DUTT SHARMA,
R/O HOUSE NO. 103,
WARD NO. 11,
P.O. DUGHA,
TEH. HAMIRPUR,
DOSARKA,
HAMIRPUR, H.P.,
AGE 25 YEARS.
2. SURAJ SHARMA,
S/O SH. RAJ KUMAR
SHARMA,
R/O VILLAGE PLASSI,
P.O. BALDWARA,
DISTT. MANDI, H.P.,
AGE 25 YEARS.
3. RAMAN THAKUR,
S/O SH. KRISHAN CHAND
THAKUR,
R/O VILLAGE BALAIN
(16/195) PO CHANOG,
TEH. & DISTT. SHIMLA, H.P.,
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2
AGE 25 YEARS
...PETITIONERS
.
(BY MS. VEENA SHARMA
AND MR. ABHISHEK SHARMA,
ADVOCATES)
AND
1. THE STATE OF HIMACHAL
PRADESH THROUGH
CHIEF SECRETARY TO THE
GOVERNMENT OF H.P.
SHIMLA - 171 002.
2. HIMACHAL PRADESH
PUBLIC SERVICE COMMISSION
THROUGH ITS SECRETARY,
NIGAM VIHAR,
SHIMLA - 2,
DISTRICT SHIMLA
(H.P.)
...RESPONDENTS
(MR. ADARSH K. SHARMA,
ADDITIONAL ADVOCATE
GENERAL, FOR R-1,
MR. VIKRANT THAKUR,
ADVOCATE, FOR R-2)
This Civil Writ Petition coming on for admission this
day, Hon'ble Mr. Justice A.A. Sayed, passed the following:
ORDER
The petitioners have filed this petition seeking the following reliefs:
::: Downloaded on - 13/07/2022 20:01:47 :::CIS 3"i. That the Hon'ble Court may direct H.P. Public Service Commission to take into consideration all the facts aforestated and to decide the matter in view of the ratio .
laid down by the Hon'ble Apex Court. The candidature of the petitioners may be reviewed and their candidature along with certificate submitted belatedly on account of COVID-19 may be considered before announcing the result.
ii. That the Hon'ble Court may direct H.P. Public Service Commission to consider the candidature of the petitioners to be eligible for the post of Process Engineer (Jal Shakti Vibhag).
iii. That the Hon'ble Court may direct H.P. Public Service Commission not to announce the result till decision of this Writ Petition."
2. Brief facts of the case are that on 11 th June, 2021, respondent No. 2-Commission had invited applications for the posts of Process Engineer on contract basis in the Department of Jal Shakti Vibhag, H.P. The closing date of applications was 8 th July, 2021, 11:59 p.m. The petitioners had applied for the said posts. It is contended that due to COVID-19 pandemic, petitioners' session of M. Tech. in Environmental Engineering of Punjab Engineering College, Chandigarh was extended till the month of August, 2021, which otherwise would have been completed by June, 2021. In August, 2021, the petitioners got provisional degree for Masters of Technology Environmental ::: Downloaded on - 13/07/2022 20:01:47 :::CIS 4 Engineering and accordingly, uploaded the same on the online portal of respondent No. 2-Commission. The Computer Based Test .
(CBT) for the posts of Process Engineer was conducted by respondent No. 2-Commission on 25th August, 2021. The list of proposed rejection of the candidates for the said posts was announced on 28th January, 2022 and representations, if any, against the proposed rejections were to be made by 3 rd February, 2022. The petitioners on 1st February, 2022 made the representations in respect of rejection of their applications. The petitioners, thereafter, filed CWP Nos. 1587, 1588 and 1592 of 2022 seeking a prayer not to declare the results of Process Engineer before deciding their representations. The said writ petitions came to be disposed of with a direction to respondent No. 2-Commission to consider and decide the representations by a speaking order within fifteen days. By the letter dated 28 th April, 2022, the representations, however, came to be rejected. Hence, the present petition.
3. The petitioners have completed their M. Tech. in Environmental Engineering from Punjab Engineering College, Chandigarh in the month of August, 2021. It is contended that in normal circumstances, the petitioners would have completed their ::: Downloaded on - 13/07/2022 20:01:47 :::CIS 5 M. Tech. by June, 2021. It is an admitted position that the petitioners were required to submit their applications alongwith .
their qualification of M. Tech. by 8th July, 2021. The petitioners submitted their provisional degrees on 10 th August, 2021; 3rd August, 2021 and 20th August, 2021, respectively. The delay is stated to be on account of the COVID-19 pandemic. Though the petitioners, pursuant to the advertisement, had appeared in the test, since they could not submit their qualifications, i.e. their degree of M. Tech. before the closing date, they were not considered eligible and their candidature was not considered.
4. The learned counsel for respondent No. 2-Commission has invited our attention to The Himachal Pradesh Public Service Commission (Procedure & Transaction of Business and Procedure for Conduct of the Screening Tests/Examinations & Personality Tests etc.) Rules, 2021 and in particular, Rule 6 (b) under Chapter IV. The said Rule states that the candidates should be eligible on the closing date for submission of Online Recruitment Application (ORA). This condition was also incorporated in the advertisement. The Rules do not provide for any relaxation. It is rightly submitted that if such relaxation is given to the petitioners, such relaxation would have to be given also to all ::: Downloaded on - 13/07/2022 20:01:47 :::CIS 6 other candidates who have applied pursuant to the advertisement dated 11th June, 2021.
.
5. The learned counsel for respondent No. 2-Commission has placed reliance on the judgment of the Division Bench of this Court dated 4th May, 2021 in CWP No. 722 of 2021 (Dharam Pal Singh versus Himachal Pradesh University). The Division Bench in the said case has considered several judgments of the Apex Court as well as this Court and observed thus:
"1. Whether a qualification acquired by a candidate subsequent to the prescribed date can be taken into consideration to adjudge the eligibility or acquisition of higher qualification is the moot question to be decided in the instant petition?
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5. It is the admitted case of the parties that as on the closing date for determining the eligibility of candidates i.e. 30.01.2020, the petitioner had not been awarded Ph.D. Degree as the same was obtained by him only in the month of December, 2020.
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10. It is more than settled that where the applications are called for prescribing a particular date as the last date for filing applications, the eligibility of the candidates has to be judged with reference to that date and that date alone. A ::: Downloaded on - 13/07/2022 20:01:47 :::CIS 7 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 and it cannot act contrary to it.
11. Reference in this regard can conveniently be made to the judgment rendered by three Hon'ble Judges of the Hon'ble Supreme Court in Ashok Kumar Sharma and others vs. Chander Shekhar and another (1997) 4 SCC 18 wherein it was held as under:-
"6. The Review petitions came up for final hearing on March 3, 1997. We heard the learned counsel for the review petitioners, for the State of Jammu and Kashmir and for the 33 respondent So far as the first issue referred to in our order dated Ist September, 1995 is concerned, we are of the respectful opinion that majority judgment (rendered by the Dr. T.K. Thommen and V. Ramaswami, JJ) is unsustainable in law,. the proposition that where applications are called for prescribing a particular date as the last date for fling 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 ::: Downloaded on - 13/07/2022 20:01:47 :::CIS 8 be allowed to appear for the 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 application ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority Judgement. This is also the proposition affirmed in Rekha Chaturvedi (Smt.) v. University of Rajasthan and others [1993 Suppl. (3) S.C.C 168]. The reasoning in majority opinion that by allowing the 33 respondents to appear for the interview, the Recruiting Authority was able to get the bests 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 low 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 allowed to appear for interview."
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17. From the conspectus of laws on the subject, some of which have been noted above, the position appears to be as follows:-
(i) That the suitability and eligibility of a candidate have to be considered with reference to the last date for receiving the applications, unless, of course, the ::: Downloaded on - 13/07/2022 20:01:47 :::CIS 9 notification calling for the applications itself specifies such a date;
(ii) When the recruitment is sought to be made, the last .
date has been fixed for receipt of the applications, such of those candidates, who are possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment according to Rules;
(iii) 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;
(iv) Where the 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. As a necessary corollary, a person, who acquires the necessary qualification subsequent to the prescribed date cannot be considered at all;
(v) A person who does not possess the requisite qualification on the appointed date cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules and therefore would 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."
The question of law, as framed, is answered accordingly."
::: Downloaded on - 13/07/2022 20:01:47 :::CIS 106. The learned counsel for respondent No. 2-Commission has also relied upon another judgment of the Division Bench of .
this Court dated 8th October, 2020 in CWP No. 4276 of 2020 (Monika Koti versus H.P. Public Service Commission) and invited our attention to paragraph 4, which reads as under:
"4. The only argument raised by learned counsel for the petitioner is that though the petitioner had not submitted the certificates reflecting her eligibility on the day of computer based test/written examination, however, the authorities present at the venue of holding the written examination had allowed her to undertake the examination. The petitioner was assured that in case of her qualifying the written examination, she would be allowed to appear in the interview and will be permitted to submit requisite documents in support of her eligibility at that time.
We are afraid, that the sole argument raised by the petitioner to challenge the rejection of her candidature is completely misconceived. The advertisement was very categoric that the certificates/documents reflecting the eligibility of the candidates were required to be submitted 'on the day of computer based test/written examination failing which his/her candidature was to be rejected straightaway and no further opportunity was to be given to such candidates to submit the documents'. Just because the petitioner was permitted to sit in the examination will not vest a right in her favour to seek acceptance of her candidature when admittedly, she had not submitted the requisite documents to prove her eligibility at the relevant time as per the advertisement.
In Bedanga Talukdar Vs. Saifudaullah Khan and others (2011) 12 SCC 85, it was held by the Hon'ble ::: Downloaded on - 13/07/2022 20:01:47 :::CIS 11 Apex Court that selection process has to be conducted strictly in accordance with the stipulated selection process. Consequently, when a particular schedule is mentioned in an .
advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India."
The aforesaid judgments clearly support the case of respondent No. 2-Commission. It is, therefore, not possible to grant any relaxation to the petitioners alone unless such benefit is extended to all such students who could not submit their applications or their degree before the closing date on account of the delay in their examination or degree due to COVID-19 pandemic.
7. So far as the judgment of the Apex Court dated 16th July, 2021, in Writ Petition (Civil) No. 408 of 2021 (Deepak Yadav ::: Downloaded on - 13/07/2022 20:01:47 :::CIS 12 & ors. versus Union Public Service Commission & anr.), relied upon by the learned counsel for the petitioners in support of their .
contention that notwithstanding the delay in submission of their degree, the petitioners ought to have been granted relaxation in time for submission of their degree, we find that the said judgment does not assist the petitioners. In the said judgment, the Apex Court had exercised plenary powers under Article 142 of the Constitution of India and also clarified that the said order would not be treated as a precedent.
8. In the circumstances, no relief can be granted to the petitioners. The writ petition is accordingly dismissed, so also the pending miscellaneous applications, if any.
( A.A. Sayed ) Chief Justice ( Chander Bhusan Barowalia ) Judge July 08, 2022 ( rajni ) ::: Downloaded on - 13/07/2022 20:01:47 :::CIS