Gujarat High Court
Prashant Prahladbhai Patel & 16 vs State Of Gujarat & 3 on 16 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3623/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3623 of 2016
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PRASHANT PRAHLADBHAI PATEL & 16....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR CHETAN K PANDYA, ADVOCATE for the Petitioner(s) No. 1 - 17
MS MANISHA SHAH, GOVERNMENT PLEADER for the Respondent No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/03/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioners, serving as the Senior Clerks, Class-III (Commissionerate of Commercial Tax), have prayed for the following reliefs :
"(A) To issue a Writ of mandamus and/or Certiorari and/or any other writ, order or direction directing the respondents to permit the petitioners to appear in the special competitive examination to be held on 19/03/2016 under the Gujarat Commercial Tax Inspector, Class-III (Special Competitive Examination) Rules, 2010 and to pass all consequential and incidental orders as may be deemed fit and proper to this Hon'ble Court and in the interest of the petitioners.
(B) To issue a Writ of mandamus and/or Certiorari and/or any other writ, order or direction directing the respondents to conduct special competitive examination Page 1 of 21 HC-NIC Page 1 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER every year under the Gujarat Commercial Tax Inspector, Class-III (Special Competitive Examination) Rules, 2010;
(C) Pending admission, final hearing and disposal of this petition, permit the petitioners to appear in the special competitive examination to be held on 19/03/2016 under the Gujarat Commercial Tax Inspector, Class-III (Special Competitive Examination) Rules, 2010 on such terms and conditions as may be deemed fit and proper to this Hon'ble Court;
(D) Cost of this petition is awarded to the petitioners.
(E) To pass any other and further orders as may be deemed fit and proper in the interest of justice."
The facts of this case may be summarised as under :
The petitioners seek to challenge the decision of the respondents in not permitting them to appear in the special competitive examination to be conducted on 19th March 2016 under the Gujarat Commercial Tax Inspector, Class-III (Special Competitive Examination) Rules, 2010 for the post of Commercial Tax Inspector on the ground that the petitioners have not completed five years of service in the cadre and post of the Senior Clerk.
The petitioners had joined the Sales Tax department in the cadre and post of Junior Clerk. They cleared the pre-service training examination and thereafter the departmental examination for the promotion to the post of Senior Clerk.
The post of Senior Clerk is to be filled up by promotion under the Senior Clerk, Class-III (Commissionerate of Commercial Tax) Recruitment Rules, 2009.Page 2 of 21
HC-NIC Page 2 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER It is the case of the petitioners that according to rule 3(b), the appointment by promotion under clause (a) (b) of sub-rule (2) of rule 2 is to be made in the ratio of 2:1 i.e. two candidates are to be promoted on the basis of clearing the departmental examination and seniority, whereas one is to be promoted on the result of the special competitive examination irrespective of the seniority.
In the year 2014, all the petitioners cleared the examination conducted under the Gujarat Commercial Tax, Senior Clerk, Class-III (Special Examination) Rules, 2009.
It is the case of the petitioners that according to rule 4 of the Rules, every year, ordinarily, the examination has to be conducted.
The problem has cropped up because the respondents did not conduct the examination in time till 2014.
It is the case of the petitioners that had the respondents conducted the special competitive examination in time, then probably, by today, they would have put in more than five years of service which would have made them eligible for appearing in the competitive examination for promotion to the post of Commercial Tax Inspector.
The appointment on the post of Commercial Tax Inspector, Class-III, could be by direct selection or by promotion on the basis of the seniority and passing of the departmental examination as also on the basis of passing of the special competitive examination in the ratio of 1:1:1.
Mr.Chetan Pandya, the learned counsel appearing for the Page 3 of 21 HC-NIC Page 3 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER petitioners vehemently submitted that as the respondents fail to conduct the special competitive examination for the promotional post of Senior Clerk from Junior Clerk between 2009 and 2014, his clients were unable to clear the special competitive examination. Although the rules are of 2009, yet the special competitive examination was conducted for the first time in 2014. He submitted that no sooner his clients passed the special competitive examination, then they were promoted to the post of Senior Clerk of Commercial Tax department.
Mr.Pandya submitted that it is true that for the post of Commercial Tax Inspector, Class-III, one has to work for not less than five years in the cadre of Senior Clerk, but his clients should not be held responsible because if the examination would have been conducted in time, then they would have appeared and probably cleared the same.
Mr.Pandya submitted that by a Circular dated 6th April 2015, it was declared that the special competitive examination would be taken for the post of Commercial Tax Inspector and pursuant to the same, except the petitioner nos.4, 5 and 15, all other petitioners applied, but it seems that their candidature has been rejected as they are not fulfilling the requisite criteria prescribed in the rules. Hence, this petition.
Notice was issued to the respondents, and in response to the same, an affidavit-in-reply has been filed on behalf of the respondent no.2, inter alia, stating as under :
"2. It is submitted that the petitioners in the present petition have prayed for directions to permit them to appear in the Special Competitive Examination to be held on 19/03/2016 under the Gujarat Commercial Tax Page 4 of 21 HC-NIC Page 4 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER Inspector Class III (Special Competitive Examination) Rules, 2010 [referred to hereinafter as the Rules 2010]. The petitioners have also prayed to direct the Respondent Authorities including the answering respondent to undertake the said examinations under the Rules 2010 every year. The following facts shall be essential for the adjudication of the controversy at hand.
3. It is submitted that the petitioners are senior clerks desirous of having promotion to the post of Commercial Tax Inspector. Appointment to the post of Commercial Tax Inspector can be made through 3 modes as per Commercial Tax Inspector, Class-III, Recruitment Rules 2008 [referred to hereinafter as the Rules 2008]. The said 3 modes are:
(a) by promotion on the basis of proved merit and efficiency (Refer Page 13-14)
(b) by promotion on the basis of Special Competitive Examination held by GPSC (Refer Page 14-15)
(c) by direct selection (Refer page 15)
4. The appointments at the post of commercial tax inspector through the aforesaid modes are to take place in the ration of 1:1:1 (Refer Rule 3 of Rules 2008 @ Page
15). It shall be essential to take note that each mode of appointment (a-c) referred to above has its own set of pre-requisite criterias set out which need to be fulfilled to qualify for appointment through it.
5. It is submitted that relevant for the present purpose would be appointment by promotion on the basis of Special Competitive Examination. The following are the pre-requisites for being appointed to the post of Commercial Tax Inspector through Special Competitive Examination:
(a) worked for not less than 5 years as senior clerk.
(b) possesses a degree of a recognized university or equivalent qualification.
(c) Passed qualifying computer examination Page 5 of 21 HC-NIC Page 5 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER
(d) Passed prescribed departmental examination
(e) Passed special competitive examination It is submitted that for appearing in special competitive examination a senior clerk as per Rules 2008 must
(i) Have worked for not less than 5 years at his post.
(ii) possesses a degree of a recognized university or equivalent qualification.
(iii) Passed qualifying computer examination
(iv) Passed prescribed departmental examination The present petitioners though desiring to avail promotion through special competitive examination are not fulfilling the eligibility criteria for appearing in the said special competitive examination more particularly criteria (i).
6. It is submitted that in the aforesaid facts, the petitioners cannot be considered/permitted to appear in the special competitive examination. The prescriptions of the Rules 2008 are clear and binding. The petitioners do not possess 5 years of experience at the post of Senior Clerk, and hence become ineligible for being considered for special competitive examination. It is submitted that the petitioners cannot as a matter of right claim for being considered for special competitive examination dehors the law being Rules 2010. It is required to be submitted that there cannot be any relaxations as claimed for by the petitioners for the reason that the same would be contrary to law being the Rules 2010."
One additional affidavit-in-reply has been filed on behalf of the respondent no.2 duly affirmed by one Shri Divakar Kishorchandra Vasavada, serving as Assistant Commissioner of Commercial Tax, Ahmedabad, inter alia, stating as under :
Page 6 of 21HC-NIC Page 6 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER "1. It is submitted that the present affidavit is being filed to supplement the contents of the affidavit in reply earlier filed (affidavit affirmed on 14.03.2016).
2. It is submitted that the answering respondent in due compliance of Rule 4 of Gujarat Commercial Tax Class-III, Rule 10 had sent requisition to the Finance Department on various occasions. However, it appears that due to administrative difficulties, no affirmative action has been taken. Copy of the communication dated 29.10.2010, 21.11.2012, 17.04.2013 and 05.12.2013 to that effects are annexed hereto and marked as ANNEXURE-R1."
Ms.Shah, the learned Government Pleader appearing for the State-respondents, vehemently submitted that indisputably the petitioners are not eligible for promotion as they are not fulfilling the requisite criteria as prescribed in the rules. In such circumstances, there is no question of allowing them to appear in the competitive examination. Ms.Shah further submitted that assuming for the moment that for one reason or the other the competitive examination could not be conducted, on account of which the petitioners could seek promotion as Senior Clerk only in 2014, by itself would not confer any legal right to claim promotion on the post of Commercial Tax Inspector. She submitted that there being no merit in this writ-application, the same deserves to be rejected.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the petitioners are entitled to any of the reliefs prayed for in this writ-application.
Let me first look into the rules governing the promotion and appointment.
Page 7 of 21HC-NIC Page 7 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER The State Government, in exercise of its powers conferred by the proviso to Article 309 of the Constitution of India, framed the rules called "The Senior Clerk, Class-III (Commissionerate of Commercial Tax) Recruitment Rules, 2008, by a notification dated 14th August 2008. I may quote the relevant portion, i.e. rule 2(b) as under :
"2. Appointment to the post of Senior Clerk, Class-III in the Subordinate Service of the Commissionerate of Commercial Tax, shall be made either :-
(1) (a) xxx xxx xxx
(b) by promotion on the basis of the special competitive examination of a person of proved merit and efficiency from amongst the persons who
-
(i) have worked for not less than five years in the cadre of Junior Clerk or Junior Clerk-cum-
Typist or Typist, Class-III in the subordinate service of the Commissionerate of Commercial Tax; and
(ii) have passed the prescribed departmental examination and
(iii) possesses a degree from any of the Universities established or incorporated by or under the Central or State Act in India; or any other educational institution recognized as such or deemed to be a University under Section 3 of the University Grants Commission Act, 1956; or possess an equivalent qualification recognized by the Government; and
(iv) have passed the qualifying examination for computer knowledge, in accordance with the provisions of the Gujarat Civil Services Computer Competency Training and Examination Rules 2006; and Page 8 of 21 HC-NIC Page 8 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER
(v) have passed the special competitive examination in accordance with the rules prescribed by the Government.
(2) by direct selection."
By a notification dated 19th December 2009, the State Government framed the rules called "The Gujarat Commercial Tax, Senior Clerk, Class-III (Special Competitive Examination) Rules, 2009. Rule 6 therein is with regard to holding of examination. It reads as under :
"6. Holding of examination.- The examination shall ordinarily be held by the Board at Ahmedabad/Gandhinagar in the month of October every year."
Let me now look into the rules with which I am concerned. The State Government, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, framed rules called "The Gujarat Commercial Tax Inspector, Class-III (Special Competitive Examination) Rules, 2010. Rule 3 provides for the eligibility of the candidates. It reads as under :
"3. Eligibility of the Candidate.- A Senior Clerk who desires to appear in the examination shall.-
(i) have completed at least five years regular continuous service in the cadre of Senior Clerk, Class-III, in the subordinate service of Commissionerate of Commercial Tax on 30th September in the year; and
(ii)possess a degree obtained from any of the Universities or institutions established or incorporated by or under the Central or State Act in India; or any other educational institution recognized as such or declared as deemed Page 9 of 21 HC-NIC Page 9 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER University under section 3 of the University Grants Commission Act, 1956; or possess an equivalent qualification recognized by the Government;
(iii) have passed the prescribed departmental examination;
(iv) have passed the qualifying examination for computer knowledge in accordance with the provisions of the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006."
The plain reading of the rules makes it clear that any Senior Clerk who is desirous to appear in the special competitive examination should have completed atleast five years of regular continuous service in the cadre of Senior Clerk, Class-III.
Indisputably, none of the petitioners could be said to have completed atleast five years' regular continuous service in the cadre of Senior Clerk. It is difficult for me to appreciate the argument of the learned counsel appearing for the petitioners that if at an appropriate time as provided in the rules, if the competitive examination would have been conducted, then probably the petitioners could have appeared and cleared the same, and by now, they would have put in more than five years of service, making them eligible to appear in the competitive examination for the post of Gujarat Commercial Tax Inspector.
What is important is the eligibility criteria being fulfilled by a candidate on the date when he applies for the post. If a candidate is not fulfilling the eligibility criteria for any reason and even if such reason is to be attributed to the other side, it Page 10 of 21 HC-NIC Page 10 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER is difficult for me to take a view that the rules should be ignored or relaxed and the petitioners should be permitted to appear in the special competitive examination.
In the case of Shailendra Dania and others v. S.P.Dubey and others, (2007)5 SCC 535, the Supreme Court observed in paragraphs 43 to 45 as under :
"43. Taking into consideration the entire scheme of the relevant rules, it is obvious that the diploma-holders would not be eligible for promotion to the post of Assistant Engineer in their quota unless they have eight years' service, whereas the graduate Engineers would be required to have three years' service experience apart from their degree. If the effect and intent of the rules were such to treat the diploma as equivalent to a degree for the purpose of promotion to the higher post, then induction to the cadre of Junior Engineers from two different channels would be required to be considered similar, without subjecting the diploma- holders to any further requirement of having a further qualification of two years' service. At the time of induction into the service to the post of Junior Engineers, Degree in Engineering is a sufficient qualification without there being any prior experience, whereas diploma-holders should have two years' experience apart from their diploma for their induction in the service. As per the service rules, on the post of Assistant Engineer, 50% of total vacancies would be filled up by direct recruitment, whereas for the promotion specific quota is prescribed for a graduate Junior Engineer and a diploma-holder Junior Engineer. When the quota is prescribed under the rules, the promotion of graduate Junior Engineers to the higher post is restricted to 25% quota fixed. So far as the diploma- holders are concerned, their promotion to the higher post is confined to 25%. As an eligibility criterion, a degree is further qualified by three years' service for the Junior Engineers, whereas eight years' service is required for the diploma-holders. Degree with three years' service experience and diploma with eight years' service experience itself indicates qualitative difference in the service rendered as degree-holder Junior Engineer Page 11 of 21 HC-NIC Page 11 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER and diploma- holder Junior Engineer. Three years' service experience as a graduate Junior Engineer and eight years' service experience as a diploma-holder Junior Engineer, which is the eligibility criteria for promotion, is an indication of different quality of service rendered. In the given case, can it be said that a diploma-holder who acquired a degree during the tenure of his service, has gained experience as an Engineer just because he has acquired a Degree in Engineering. That would amount to say that the experience gained by him in his service as a diploma-holder is qualitatively the same as that of the experience of a graduate Engineer. The rule specifically made difference of service rendered as a graduate Junior Engineer and a diploma-holder Junior Engineer. Degree- holder Engineer's experience cannot be substituted with diploma-holder's experience. The distinction between the experience of degree-holders and diploma-holders is maintained under the rules in further promotion to the post of Executive Engineer also, wherein there is no separate quota assigned to degree-holders or to diploma- holders and the promotion is to be made from the cadre of Assistant Engineers. The rules provide for different service experience for degree- holders and diploma- holders. Degree-holder Assistant Engineers having eight years of service experience would be eligible for promotion to the post of Executive Engineer, whereas diploma- holder Assistant Engineers would be required to have ten years' service experience on the post of Assistant Engineer to become eligible for promotion to the higher post. This indicates that the rule itself makes differentia in the qualifying service of eight years for degree-holders and 10 years' service experience for diploma- holders. The rule itself makes qualitative difference in the service rendered on the same post. It is a clear indication of qualitative difference of the service on the same post by a graduate Engineer and a diploma- holder Engineer. It appears to us that different period of service attached to qualification as an essential criterion for promotion is based on administrative interest in the service. Different period of service experience for degree-holder Junior Engineers and diploma-holder Junior Engineers for promotion to the higher post is conducive to the post manned by the Engineers. There can be no manner of doubt that higher technical knowledge would give better thrust to administrative efficiency and quality output. To carry out technical specialized job more Page 12 of 21 HC-NIC Page 12 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER efficiently, higher technical knowledge would be the requirement. Higher educational qualifications develop broader perspective and therefore service rendered on the same post by more qualifying person would be qualitatively different.
44. After having an overall consideration of the relevant rules, we are of the view that the service experience required for promotion from the post of Junior Engineer to the post of Assistant Engineer by a degree-holder in the limited quota of degree-holder Junior Engineers cannot be equated with the service rendered as a diploma- holder nor can be substituted for service rendered as a degree-holder. When the claim is made from a fixed quota, the condition necessary for becoming eligible for promotion has to be complied with. The 25% specific quota is fixed for degree-holder Junior Engineers with the experience of three years. Thus, on a plain reading, the experience so required would be as a degree- holder Junior Engineer. 25% quota for promotion under the rule is assigned to degree-holder Junior Engineers with three years' experience, whereas for diploma-holder Junior Engineers eight years' experience is the requirement in their 25% quota. Educational qualification along with number of years of service was recognized as conferring eligibility for promotion in the respective quota fixed for graduates and diploma-holders. There is watertight compartment for graduate Junior Engineers and diploma- holder Junior Engineers. They are entitled for promotion in their respective quotas. Neither a diploma-holder Junior Engineer could claim promotion in the quota of degree-holders because he has completed three years of service nor can a degree-holder Junior Engineer make any claim for promotion quota fixed for diploma-holder Junior Engineers. Fixation of different quota for promotion from different channels of degree- holders and diploma- holders itself indicates that service required for promotion is an essential eligibility criterion along with degree or diploma, which is service rendered as a degree-holder in the present case. The particular years of service being the cumulative requirement with certain educational qualification providing for promotional avenue within the specified quota, cannot be anything but the service rendered as a degree-holder and not as a diploma- holder. The service experience as an eligibility Page 13 of 21 HC-NIC Page 13 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER criterion cannot be read to be any other thing because this quota is specifically made for the degree-holder Junior Engineers.
45. As a necessary corollary, we are of the view that the diploma-holder Junior Engineers who have obtained a Degree in Engineering during the tenure of service, would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers."
In Rakesh Kumar Sharma v. State (NCT of Delhi) and others, (2013)11 SCC 58, the Supreme Court observed in paragraphs 11 to 21 as under :
"11. There can be no dispute to the settled legal proposition that the selection process commences on the date when applications are invited. Any person eligible on the last date of submission of the application has a right to be considered against the said vacancy provided he fulfils the requisite qualification.
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.Page 14 of 21
HC-NIC Page 14 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER Union of India & Ors., (1993) 2 SCC 429, held as under:-
"9....It is well settled that suitability and eligibility have to be considered 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 Page 15 of 21 HC-NIC Page 15 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER 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."
16. In Ashok Kumar Sharma v. Chander Shekhar, 1993 Supp (2) SCC 611 [hereinafter referred to as Ashok Kumar (1993)], the majority view was as under:
"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 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..."
However, the opinion of Justice R.M. Sahai had been that these 33 persons could not have been allowed to appear for the interview as they did not possess the requisite Page 16 of 21 HC-NIC Page 16 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER eligibility/qualification on the last date of submission of applications.
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 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:
"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 Page 17 of 21 HC-NIC Page 17 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER 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."
18. 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).
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." (Emphasis added)
20. This Court lately in State of Gujarat v. Arvindkumar T. Tiwari, AIR 2012 SC 3281 held:
"14...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.Page 18 of 21
HC-NIC Page 18 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER (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.)"
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.
21. 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."
In such circumstances referred to above, I find it difficult to grant the relief as prayed for by the petitioners.
Mr.Pandya, the learned counsel appearing for the petitioners, made one last attempt to convince the Court by submitting that the Government may be directed to relax the criteria in the peculiar facts of this case. He pointed out that a detailed representation in that regard has been filed by the petitioners, which is at Annexure-G, page 30, dated 14th May 2015. He also pointed out the averments made in para 6 therein, in which it has been stated that in the past the authorities had relaxed the criteria.
Page 19 of 21HC-NIC Page 19 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER It is now a settled law that a person can approach a High Court under Article 226 of the Constitution of India if any of his legal or fundamental rights has been infringed by the action or inaction of a State within the meaning of Article 12 of the Constitution. So far as the writ of Habeas Corpus or of the nature of Public Interest Litigation are concerned, a writ- petitioner can, however, espouse even the cause of others if their legal or fundamental rights are violated.
But Article 226 of the Constitution does not vest the High Court with the power to interfere when there exists no legal or fundamental right of a person over the subject-matter of the dispute alleged. In the case before us, it is not the case of the writ-petitioners that although they have the legal right to be considered conferred under the existing Rules for appointment to the posts concerned, the respondent Corporation is denying such right.
On their own admission they have not put in minimum five years of service as Senior Clerks. Thus, there was no scope of permitting them to appear in the competitive examination. Such being the position, the High Court, in exercise of the powers under Article 226 of the Constitution of India, cannot confer a right to the writ-petitioners to appear in the competitive examination.
In this connection, I may profitably refer to the following observations of the Supreme Court in the case of SANJAY KUMAR MANJUL vs. CHAIRMAN, UPSC AND ANOTHER, reported in (2006) 8 SCC 42:
"25. The statutory authority is entitled to frame the statutory rules laying down the terms and conditions of Page 20 of 21 HC-NIC Page 20 of 21 Created On Fri Mar 18 02:10:04 IST 2016 C/SCA/3623/2016 ORDER service as also the qualifications essential for holding a particular post. It is only the authority concerned which can take ultimate decision therefor."
I may only say that the situation which has arisen in the present case could have been easily avoided had the examination been conducted time to time in accordance with the rules. When the rules provide that the examination shall ordinarily be held by the Board at Ahmedabad/Gandhinagar in the month of October every year, it is expected of the authorities to strictly adhere to such rules. The term "ordinarily" in the rules implies that in the absence of any extraordinary situation or administrative exigency the examination should be conducted. I expect the authorities concerned to strictly adhere to these rules in future so that persons like the petitioners may not have to suffer.
In view of the above, this petition fails and is hereby rejected. Notice is discharged.
(J.B.PARDIWALA, J.) MOIN Page 21 of 21 HC-NIC Page 21 of 21 Created On Fri Mar 18 02:10:04 IST 2016