Madras High Court
J.Starmi vs State Of Tamil Nadu on 29 March, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.03.2012
CORAM:
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.Nos.26489 and 26490 of 2011
and
MP.Nos.1,1,1, 2 and 2 of 2011
J.Starmi ..Petitioner in WP.No.26489 of 2011
S.Manjula ..Petitioner in WP.No.22490 of 2011
.. Vs ..
1. State of Tamil Nadu
Rep.by the Secretary to the Government,
Law Department, Fort St.George, Chennai -9
2. The Chairman,
Teachers Recruitment Board
EVK Sampath Maligai, DPI Compound
College Road, Chennai 6
3. The Director of Legal Studies
Purasaiwakam High Road
Kilpauk, Chennai -10 ..Respondents in both petitions
Prayer:- Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of mandamus directing the 2nd respondent to consider the application of the petitioner on par with the applicants who have the completed NET prior to 30.04.2010 and have applied for the post of Lecturer Senior Scale (Law) pursuant to the Notification No.5 of 2010 published in Indian Express Daily dated 30.3.2010.
For Petitioner : Mr.Vedavallilkumar
For respondents : Mr.R.Ravichandran, A.G.P. &
P.Karthikeyan, G.A.
*****
COMMON ORDER
As the common question of law and facts are involved in these two writ petitions, these are being disposed of by common order.
For the sake of brevity, the facts are taken from W.P.No.26489 of 2011.
2 The petitioner prays for issuance of a writ in the nature of mandamus, directing the Chairman, Teachers Recruitment Board to consider the application of the petitioner at par with the applicants who had completed N.I.T. prior to 30.04.2010 and applied for the post of Lecturer (Senior scale) (Law), in response to the notification No.5 of 2010 published in Indian Express daily on 30.03.2010.
3 The admitted facts are, that the petitioner got degree of law in the year 2007 from the Central Law College, Salem and thereafter did Master of law from Dr.Ambedkar Law University, Chennai in the year 2009.
4 The petitioners also specialised in the subject of Crime and tort, and obtained 63% marks.
5 The petitioner at present is working as Guest Lecturer in the Dr.Ambedkar Govt. Law College, Chennai.
6 An advertisement was published on 30.03.2010 inviting applications for direct recruitment to the post of Lecturer (Senior scale) in Govt. Law Colleges. The qualification advertised reads as under:
(i) Master's degree in Law of any recognised University with not less than 55 percent marks and a good academic record.
(ii) must have qualified in the National Eligibility Test (NET) or an accredited Test and
(iii) must have enrolled as an advocate in the Bar Council.
7 The last date for submission of the application forms was fixed as 30.04.2010 at 5.45 p.m. 8 Thiru K.Diraviyanathan, one of the aspirant for appointment to the post of Lecturer, filed W.P.(MD) No.5057 of 2010 in Madurai Bench of this Court. This Court issued interim direction, that the candidates, who were not qualified in the NET Examination be also permitted to apply for the post of Lecturer (Senior scale). It was in view of the interim direction of this court, that the petitioner also applied for appointment to the post of Lecturer (Senior scale). though, the petitioner did not possess the requisite qualification as prescribed in the advertisement on the last date for submission of application forms i.e. 30.04.2010.
9 The petitioner appeared in the NET Examination in the month of June 2010, and was declared successful in JRF/NET Examinations. The certificate showing that the petitioner qualified in JRF/NET Examinations was also submitted by the petitioner to the second respondent.
10 Another aspirant Thiru Gouthaman, challenged the notification No.5 of 2010 dt.30.03.2010 praying therein for direction of this Court, to amend the notification by identifying subject-wise vacancies for the post of Lecturer (Senior scale). It was also prayed for in the writ petition that the respondent be directed to entertain the applications of the candidates who had Master degree with specialisation in particular subject.
11 This Court allowed the writ petition, and directed the respondent to issue a corrigendum to advertisement No.5 of 2010 dt.30.03.2010 by incorporating subject-wise vacancies for the post of Lecturer (Senior scale). The corrigendum was issued by the respondent in compliance with the order of this Court, on 22.06.2011, but by way of corrigendum, no fresh applications were invited, nor the date of submission of application was enclosed.
12 It is submitted by the petitioner for 9 vacancies advertised, only 3 eligible candidates applied for the post of Lecturer (Senior scale) on the cut-off date i.e. 30.04.2010.
13 Another aspirant Thiru Suresh filed writ petition, in the Madurai Bench of Madras High Court, W.P.(MD) No.7360 of 2011 for direction to the respondent No.2 to accept the NET qualification certificate obtained by him after the cut-off date. This writ petition was also allowed, and the respondent No.2 was directed to accept the NET qualification certificate. Again in W.P.(MD) No.6864 of 2011 filed by Tmt.Samundeeswari, similar order was passed.
14 The date for written examination was fixed on 20.11.2011. The petitioner in W.P.(MD) No.7360 of 2011 as also the petitioner in W.P.(MD) No.6864 of 2011, though not having requisite qualification as on the last date for submitting the applications, but had acquired the requisite qualification subsequently, but were allowed to apply for the post under the direction of this Court were issued the hall tickets.
15 The case of the petitioner is, that the respondents are duty bound to approach the University Grants Commission (hereinafter called as "U.G.C."), New Delhi, for relaxation of NET qualification for limited period, for those who were not qualified in NET Examination, but had applied for the post under the interim direction of this Court, for being considered for appointment. The petitioner also prays for direction to the respondents to consider her candidature for appointment.
16 In support of the prayer, reliance is placed on the judgment of this Court in W.A.(MD) No.469 of 2010 decided on 10.02.2011 (K.Diravianathan vs The University Grants Commission) laying down as under:
"the respondents are duty bound to consider as to whether sufficient number of candidates are available for selection to the post of Lecturer in Law Colleges in each branch with required NET qualification. After the selection is made, if it is found that sufficient number of candidates are not available for filling up the posts in any discipline, the respondents 2 to 4 are bound to approach the first respondent for the grant of relaxation of the requirement of pass in NET examination for a limited period, so that all the posts in Law Colleges can be filled up and the direction issued by the Division Bench by order dated 1.12.2008 could be complied with. By adopting the same,the Law Students will be in a position to get some coaching to prepare for law examinations and acquire basic knowledge in Law, professional ethics and procedures. More number of properly trained law graduates are essential for upholding the Rule of Law and to enforce the fundamental rights of the citizen conferred under Articles 21 and 39-A of the Constitution of India. The Supreme Court in the decision reported in AIR 1996 SC 1 : (1995) 5 SCC 730 (State of Maharashtra v. Manubhai Pragaji Vashi) in paragraphs 9 and 16 held thus, "9. ........... One facet of education cannot be selected for hostile discriminatory treatment, whatever may be the other laudable activities pursued by the Government in the matter of education or its discretion to assign the order of priorities in different spheres of education. In a fit case, it is open to the court to direct the executive to carry out the directive principles of the Constitution, when there is inaction or slow action by the State.
........
16............... In order to enable the State to afford free legal aid and guarantee speedy trial, a vast number of persons trained in law are essential. Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought about by scientific, technological and other developments, and the all-round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums or levels and should be made available. The need for a continuing and well-organised legal education, is absolutely essential reckoning the new trends in the world order, to meet the ever-growing challenges. The legal education should be able to meet the ever-growing demands of the society and should be thoroughly equipped to cater to the complexities of the different situations. Specialisation in different branches of the law is necessary. The requirement is of such a great dimension, that sizeable or vast number of dedicated persons should be properly trained in different branches of law, every year by providing or rendering competent and proper legal education. This is possible only if adequate number of law colleges with proper infrastructure including expertise law teachers and staff are established to deal with the situation in an appropriate manner. It cannot admit of doubt that, of late there is a fall in the standard of legal education. The area of 'deficiency' should be located and correctives should be effected with the cooperation of competent persons before the matter gets beyond control. Needless to say that reputed and competent academics should be taken into confidence and their services availed of, to set right matters. .........."
17 The learned counsel for the petitioner also placed reliance on the judgment of the Hon'ble Supreme Court in Bhupinderpal Singh and others vs State of Punjab and others (2000(2) S.C.T. 826), wherein the Hon'ble Supreme Court had allowed certain appeals by recording as under:
"A copy of the report dated 24.12.1998 which is an outcome of the enquiry held in compliance with the order of the High Court dated 18th February, 1998 in CWP 7322/97 has been placed on the record of CWP 356/99. According to the Report there were 1015 candidates who were ineligible though selected. The break-up is as under:-
1.Candidates not fulfilling prescribed qualifications by 15.2.1996 (due date) 939
2. Candidates whose subject combination was nor appropriate 75
3. Candidates who have not passed Punjabi 15
4. Candidates possessing degrees from un-recognised Universities 13
5. Candidates whose diploma was not from recognised Institution 1
6. No. of candidates having more than one type of ineligibility 28 ------ 1015 ------
(Note : Figures and total as given in the report) It is also stated in the enquiry report that total number of candidates issued appointment letters and joined was 305 while total number of candidates issued appointment letters but not joined was 277. There were another 433 candidates who, though selected, were not issued appointment letters.
It was conceded during the course of hearing that candidates belonging to category-1 had acquired the requisite eligibility qualifications by the extended date. As to category-3 it was conceded that the candidates had given Punjabi examination before the cut off date and though the results were not declared but their answer books were evaluated before 30.10.1996 and the results were formally declared after the cut off date and they had passed the requisite examination in Punjabi. The appellants and the petitioners before us are either in category-1 or in category-3. In our opinion in view of the appointment letters having been issued, the selection and appointment of such candidates should not be disturbed and that order we make under Article 142 of the Constitution to do complete justice in the facts and circumstances of the cases before us as already stated.
For the foregoing reasons all the appeals are allowed. The judgment of the High Court, to the extent of which it has dismissed the writ petitions filed by such petitioners who were the selected candidates, is set aside. CWP 356/99filed in this Court is also allowed. It is directed that such of the selected candidates as have already been issued appointment letters shall forthwith be issued posting orders at the earliest, say within a maximum period of two months from the date of this order. Those who have already been posted shall continue with their appointments. The appeals and the writ petition are disposed of accordingly. No order as to the costs."
18 On consideration, I find no force in this contention. It is well settled law that a candidate is required to possess the requisite qualification on or before the last date of making the application, which in this case is 30.04.2010. This proposition of law is no longer res integra.
19 In the case of Ashok Kumar Sharma v. Chander Shekhar, 1993 Supp (2) SCC 611, Hon'ble Supreme Court held that the essential qualifications could be acquired upto the date of interview. This view was, however, reversed by the Hon'ble Supreme Court by reviewing its own order in the case of Ashok Kumar Sharma v. Chander Shekhar and another (1997(2) S.C.T. 123). The relevant observations are recorded in paragraph 6 of the judgment as under:-
"6. The review petitions came up for final hearing on 3-3-1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by 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 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. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan2. 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 view was reiterated in almost all subsequent judgments. Hon'ble Supreme Court in the case of Bhupinderpal Singh and others v. State of Punjab and others, 2002(2) S.C.T. 826: 2000(2) RSJ considered similar questions of acquiring eligibility. It has been held that where the cut off date for acqquiring eligibility is prescribed under the statutory rules, the same shall prevail and where no cut off date is mentioned in the rules, the cut off date notified in the advertisement is to be treated as the date for acquiring eligibility and in absence of any such stipulation in the statutory rules or advertisement, the last date of receipt of applications is to be considered as the date for acquiring eligibility. Relying upon a number of judgments of Hon'ble Supreme court, the Hon'ble Supreme Court observed as under:-
"13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar & another, JT 1997(4) SC 99; A.P. Public Service Commissionv. B.Sarat Chandra & others, 1990(4) SLR 235; The Distt. Collector and Chairman Vizianagaram (Social Welfare Residential School Society) Vizianagaram and another v. M.Tripura Sundari Devi, 1990(4) SLR 237; Mrs.Rekha Chaturvedi v. University of Rajasthan & others 1993(2) S.C.T. 77: 1993(2) SCC 429; and U.P. Public Service Commission, UP., Allahabad & another v. Alpana, 1994(1) S.C.T. 701: JT 1994(1) SC 94, 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......"
The issue was again considered by a Division Bench of the Hon'ble Punjab and Harayana High Court in the case of Sachin Sharma v. Punjab University, (2002(1) S.C.T. 1124 wherein following observations were made:
"4. We have heard learned counsel for the parties at some length. The facts are hardly in dispute in the present case. The petitioner along with number of other candidate could not submit their final year result or even detailed mark-sheet before the competent authority within the prescribed period i.e. 4.7.2001. They were unable to produce the said documents even by extended date i.e. 20.7.2001. The result was declared on 20.8.2001. Thereafter, the petitioner could have produced the said result before the authorities. It is clear that no fault is attributable to any of the respondents. As per the Full Bench judgment of this Court in the case of Amardeep Singh Sahota v. State of Punjab and others, 1993(4) SCT 328 (P&H) (FB): 1993(4) SLR 673 and Rahul Prabhakar v. Punjab Technical University, Jalandhar and others, 1997(3) SCT 526 (P&H) (FB): 1997(3) PLR 13 terms and conditions of the brochure are binding........"
20 In view of the settled law that the reliance placed by the learned counsel for the petitioner in the judgment of the Hon'ble Supreme Court in Bhupinderpal Singh and others vs State of Punjab and others (2000(2) S.C.T. 826) is of no help, as the Hon'ble Supreme Court in this case also held that the last date in the advertisement is to be taken as date to consider whether the candidate is eligible or not.
21 The petitioners admittedly were not qualified as on 30.04.2010, which was the last date for submission of the application.
22 The judgment of this Court in W.A.(MD) No.469 of 2010 decided on 10.02.2011 (K.Diravianathan vs The University Grants Commission) also cannot advance the case of the petitioner. The Division Bench of this Court has merely recommended the U.G.C. to grant relaxation in the qualification for want of qualifying teachers to man the post.
23 The Hon'ble Supreme Court in the State of Maharashtra vs. Manul Pragaji Vashi [(1995)5 SCC 730] was pleased to direct, that the standard of Law education should be lifted by taking help of competent academicians etc. The lowering of standard therefore, will rather be against the law laid down by the Hon'ble Supreme Court.
24 In any case, even if the U.G.C. decided to relax the qualification for appointment, in that case also, the petitioner cannot be considered, as it would be necessary for the respondents to advertise the available vacancies afresh so as to enable all the eligible persons to compete for public employment, who may not have earlier applied for want of qualification.
25 The appointment of the petitioners by excluding other eligible aspirants for being considered will be constitutionally invalid, as every eligible citizen has right to be considered for public post. In case the posts are offered to the petitioners by relaxing the qualification without fresh advertisement, the selection will hit by Article 14 and 16 of the Constitution of India.
26 The Hon'ble Supreme Court in the case of State of Orissa and another vs Mamta Mohanty (2011(2) SCT 718 : 2011(3) SCC 436 has laid down, that it is mandatory on the part of the employer to invite applications from all eligible candidates from open market by advertising vacancies in the newspaper having wide circulation or by announcement in Radio and Television. The Hon'ble Supreme Court in that case did not approve the calling of names from employment exchange alone. Whereas the petitioners in these cases, are seeking direction to appoint the petitioners though they were ineligible for consideration being not in possession of requisite qualification, as on the last date of submission of the application.
27 The Hon'ble Supreme Court in this case also considered the question of relaxation of qualification and laid down as under:
"Relaxation:
42. In J.P. Kulshrestha (Dr.) v. Allahabad University issue of relaxation of eligibility came up for consideration before this Court wherein it was held as under: (SCC pp. 425-26, paras 15-16) 15. We regretfully but respectfully disagree with the Division Bench and uphold the sense of high second class attributed by the learned Single Judge. The midline takes us to 54% and although it is unpalatable to be mechanical and mathematical, we have to hold that those who have not secured above 54% marks cannot claim to have obtained a high second class and are ineligible.
16. We have earlier held that the power to relax, as the Ordinance now runs, insofar as high second class is concerned, does not exist. Inevitably, the appointment of the 3 respondents violate the Ordinance and are, therefore, illegal. (emphasis added)
43. In Rekha Chaturvedi v. University of Rajasthan25 this Court again dealt with the power of relaxation of minimum qualifications as the statutory provisions applicable therein provided for relaxation, but to what extent and under what circumstances, such power could be exercised was not provided therein. Thus, this Court issued the following directions: (SCC p. 176, para 11) A. The University must note that the qualifications it advertises for the posts should not be at variance with those prescribed by its Ordinance/Statutes.
B. The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement/ notification for the purpose. C. When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement/ notification both that the qualifications will be relaxed and also the conditions on which they will be relaxed, the relaxation will be illegal.
D. The University/Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made.
E. The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of. An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are not available. (emphasis added)
44. In P.K. Ramachandra Iyer v. Union of India this Court while dealing with the same issue, held that once it is established that there is no power to relax the essential qualifications, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.
45.In A.P. Public Service Commission v. B. Swapna this Court held that: (SCC p. 160, para 15) 15. Another aspect which this Court has highlighted is scope for relaxation of norms. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. (emphasis supplied)
46. This Court in Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy28 held: (SCC p. 675, para 11) 11. The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age-limits. The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof.
47. In Food Corpn. of India v. Bhanu Lodh29 this Court held: (SCC p. 628, para 12) 12. Even assuming that there is a power of relaxation under the Regulations, the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations. The power of relaxation is intended to be used in marginal cases. We do not think that they are intended as an open sesame for all and sundry. The wholesale go-by given to the Regulations, and the manner in which the recruitment process was being done, was very much reviewable as a policy directive, in exercise of the power of the Central Government under Section 6(2) of the Act.
48. In Bhanu Prasad Panda (Dr.) v. Sambalpur University30 one of the questions raised has been as to whether a person not possessing the required eligibility of qualification i.e. 55% marks in Master's degree can be appointed in view of the fact that UGC refused to grant relaxation. On the issue of relaxation of eligibility, the Court held as under: (SCC p. 536, para 5) 5. the essential requirement of academic qualification of a particular standard and grade viz. 55%, in the relevant subject for which the post is advertised, cannot be rendered redundant or violated. The rejection by UGC of the request of the Department in this case to relax the condition relating to 55% marks at post graduation level is to be the last word on the claim of the appellant and there could be no further controversy raised in this regard. (emphasis added)
49. In view of the above, this Court held that the appointment of the appellant therein has rightly been quashed as he did not possess the requisite eligibility of 55% marks in Master's course.
50. In the absence of an enabling provision for grant of relaxation, no relaxation can be made. Even if such a power is provided under the statute, it cannot be exercised arbitrarily. (See Union of India v. Dharam Pal31.) Such a power cannot be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. Even an implied power is to be exercised with care and caution with reasonable means to remove the obstructions or overcome the resistance in enforcing the statutory provisions or executing its command. Incidental and ancillary powers cannot be used in utter disregard of the object of the statute. Such power can be exercised only to make such legislation effective so that the ultimate power will not become illusory, which otherwise would be contrary to the intent of the legislature. (Vide Matajog Dobey v. H.S. Bhari32 and State of Karnataka v. Vishwabharathi House Building Coop. Society.).
51. More so, relaxation in this manner is tantamount to changing the selection criteria after initiation of selection process, which is not permissible at all. Rules of the game cannot be changed after the game is over. (Vide K. Manjusree v. State of A.P. and Ramesh Kumar v. High Court of Delhi.)"
28 For the reasons stated hereinabove and keeping in view of the admitted position that the petitioners did not possess the requisite qualification as on the last date of submission of application i.e. 30.04.2010, therefore, the petitioners do not have any right of consideration for appointment.
29 Furthermore, as observed above, even in case the relaxation is granted by the U.G.C., then also it shall be obligatory on the part of the respondent to re-advertise the post, by giving opportunity to all eligible persons, as per the constitutional mandate to compete for the post.
No merit, dismissed.
Consequently, connected miscellaneous petitions are also dismissed.
No cost.
vaan To
1. The Secretary to the Government, State of Tamil Nadu, Law Department, Fort St.George, Chennai -9
2. The Chairman, Teachers Recruitment Board EVK Sampath Maligai, DPI Compound, College Road, Chennai 6
3. The Director of Legal Studies Purasaiwakam High Road, Kilpauk, Chennai 10