Punjab-Haryana High Court
Sukhraj Singh And Others vs Chandigarh Housing Board And Another on 25 January, 2012
Bench: Hemant Gupta, A.N.Jindal
CWP No.19175 of 2010, 1
CWP No.21804 of 2010 &
CWP No.3685 of 2011
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
Date of Decision: 25.01.2012
CWP No.19175 of 2010
Sukhraj Singh and others ...Petitioners
Vs.
Chandigarh Housing Board and another ...Respondents
Present: Mr. Puneet Bali, Advocate,
for the petitioners.
M/s Sanjay Kaushal, A.P.Setia & A.S.Gill, Advocates,
for respondent Nos.1 & 2.
Mr. R.K.Malik, Senior Advocate, with
Ms. Renu Chaudhari, Advocate, for respondent Nos.3 to 21.
CWP No.3685 of 2011
Amit Kumar Sharma and others ...Petitioners
Vs.
Chandigarh Housing Board and another ...Respondents
Present: Mr. Suman Jain, Advocate,
for the petitioners.
M/s Sanjay Kaushal, A.P.Setia & A.S.Gill, Advocates,
for the respondents.
CWP No.21804 of 2010
Narinder Kumar Patney and others ...Petitioners
Vs.
Union Territory of Chandigarh and others ...Respondents
Present: Mr. Arun Palli, Senior Advocate, with
Mr. Tushar Sharma, Advocate, for the petitioners.
M/s Sanjay Kaushal, A.P.Setia & A.S.Gill, Advocates,
for the respondents.
CWP No.19175 of 2010, 2
CWP No.21804 of 2010 &
CWP No.3685 of 2011
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N.JINDAL
HEMANT GUPTA, J.
This order shall dispose of aforementioned three writ petitions. In CWP No.19175 of 2010 & CWP No.3685 of 2011, the claim of the petitioners is that on account of revision of pay scales on the recommendations of the 6th Pay Commission, they are eligible to be considered for flats as Group 'B' employees. In the third writ petition i.e. CWP No.21804 of 2010, the petitioners i.e. the original applicants of Group 'B' category, have challenged the list of successful applicants prepared in terms of an interim order passed by this Court in earlier writ petition, permitting the consideration of Group 'C' employees in the list of Group 'B' as well provisionally. Since the issue is common, all such writ petitions are taken up for hearing together.
In the year 2008, Chandigarh Housing Board (for short 'the Board') introduced a "Self-Financing Housing Scheme, 2008" (for short 'the Scheme') proposing to allot flats on lease-hold basis for 99 years for the employees of Chandigarh Administration. The date of opening of the Scheme was 14.01.2008 and the closing date was 29.02.2008, which was extended to 26.03.2008.
It is the assertion of the petitioners that prior to acceptance of the recommendations of 6th Pay Commission, the petitioners in CWP Nos.19175 of 2010 & CWP No.3685 of 2011 were Group 'C' employees, but in terms of the revised pay-scales w.e.f. 01.01.2006 after the acceptance of the recommendations of 6th Pay Commission by the Central Government as well as by the Chandigarh Administration vide notification dated 07.07.2009, the CWP No.19175 of 2010, 3 CWP No.21804 of 2010 & CWP No.3685 of 2011 petitioners were placed in Group 'B'. It is, thus, alleged that since in terms of the revised pay scales, the petitioners are Group 'B' employees with retrospective effect i.e. 01.01.2006, therefore, they are eligible for flats reserved for Group 'B' employes of the Chandigarh Administration.
To appreciate such argument, certain provisions of the Scheme and the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 (for short 'the Regulations') are required to be extracted. The same are as under:
Self Financing Housing Scheme - 2008 II. THE SCHEME xxx xxx
(b) The number of flats in each category shall depend upon the number of applications received for each category of flats and the availability of land, generally keeping the same proportion as the number of applications received in each category. An employee shall be eligible for a dwelling unit according to his group. The Group 'A' employee shall be eligible for Three Bed Room Flat, the Group 'B' employee shall be eligible for Two Bed Room Flat, the Group 'C' employee shall be eligible for One Room Flat. (However, an employee from a higher group shall be eligible to apply for a lower category of dwelling unit) -- the portion in italics has been struck down vide order dated 18.09.2008 passed in CWP No.2215 of 2008 titled "Shiv Kumar & others Vs. Chandigarh Housing Board" ) xxx xxx III. ELIGIBILITY
(i) The applicant should be a regular employee of Chandigarh Administration or its Board/Corporation or Punjab & Haryana High Court or on deputation with the Chandigarh Administration on the date of the opening of the Scheme or should have retired in last three years from the date of opening of the scheme.
(ii) The applicant will be eligible for allotment of a dwelling unit CWP No.19175 of 2010, 4 CWP No.21804 of 2010 & CWP No.3685 of 2011 in case he/she or his/her spouse or any of his/her minor children does not own on free hold or leasehold or on hire-
purchase basis a residential plot/house in the Union Territory of Chandigarh or in either of the Urban Estates of Mohali or Panchkula.
xxx xxx
VIII. MODE OF ALLOTMENT
xxx xxx
(ii) The eligibility of the applicants shall be determined as per
provisions of the Regulations and the terms of the Scheme. Lists of eligible and ineligible persons shall be prepared and displayed before the draw of lots. The applicants who are not able to establish their eligibility shall not be considered for allotment of flats.
(iii) The date of draw of lots shall be published in the newspapers.
(iv) A waiting list to the extent of 20% of the total number of units available under each category subject to minimum one, shall also be prepared by draw of lots which shall remain operative for a period of one year from the date of draw of lots. However, the applicants on the waiting list can withdraw from the scheme at any time during the validity of the waiting list and the amount of initial deposit shall be refunded in full, without interest. If the validity of waiting list has lapsed, the applicant(s) of the said waiting list shall be refunded the 6 initial deposit without interest within 30 days of the date of expiry of the validity period.
xxx xxx
(vii) The result of draw of lots, for registration of eligible applicants and draw of lots for allotment of specific unit numbers shall be final and binding upon the applicants.
xxx xxx The Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979
1. Short title, application and commencement -
xxx xxx (2) These regulations shall apply to those schemes in which built-up properties are to be disposed of by way of sale or hire-purchase lease CWP No.19175 of 2010, 5 CWP No.21804 of 2010 & CWP No.3685 of 2011 or in such manner as prescribed by the Board
2. Definitions - In these regulations, unless there is anything inconsistent with the context or meaning -
xxx xxxx
26. "Scheme" means a scheme prepared by the Board for the construction of a group of houses for dwelling purposes;
xxx xxx
4. Disposal of Property - (1) The disposal of a property shall be effected by either hire-purchase or sale on lease-hold basis for 99 years or in such manner as prescribed by the Board.
(2) The disposal of property shall be subject to such terms and conditions as may be decided by the Board from time to time or as may be imposed on the Board by the Chandigarh Administration, from time to time.
6. Eligibility of Allotment - (1) A dwelling unit or flat in the Housing Estate of the Board shall be allotted only to such person who or his wife/her husband or any of his/her minor children does not own on free- hold or lease-hold or on hire-purchase basis or on the basis of an Agreement to Sell, GPA, Will etc. a residential plot or house, in full or in part, in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula. If, however, individual share of a persons in the jointly owned plot or land under the residential houses is less than 100 sq. yards, he/she shall be eligible for allotment of a D.U. by the Board. However, a person who has already been owning on freehold, leasehold or hire-purchase basis a residential plot or house or flat in the U.T. of Chandigarh or in any of the Urban Estates of Mohali or Panchkula, shall not be eligible for the allotment of a D.U. by the Board. Further, persons who have been allotted a residential plot/dwelling unit in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula through Government/ Semi-Government/ Statutory Corporation/Board/Municipal Committee/ Corporation/Registered Society like A.W.H.O. or a Co- operative House Building Society, in their name or in the name of their spouse or any minor children, shall also not be eligible for allotment of a dwelling unit or flat. The applicant shall further continue to fulfill these eligibility conditions from the date of opening of the scheme up the date of delivery of possession of the dwelling unit by the Chandigarh Housing Board. In addition to the above provisions, the applicant should be a bona fide resident of U.T., Chandigarh on the date of opening of scheme; CWP No.19175 of 2010, 6 CWP No.21804 of 2010 & CWP No.3685 of 2011 Provided that the condition of eligibility regarding the applicant being a bona fide resident of U.T., Chandigarh on the date of opening of the scheme shall not apply tot he following categories of persons :-
(i) Defence/Ex-defence personal including pensioners belonging to the defence forces; and
(ii)employees of the Government of India, Punjab Government, Haryana Government and the U.T. Administration and then Boards/Corporation and undertaking.
In the written statement filed on behalf of the officials respondents, it is asserted that number of flats were planned by the Board on the basis of number of applications received in the respective categories. The Scheme does not provide for alteration/change of category or number of flats. Thus, there could not be any change in the category of the applicants after the date of closing of the Scheme. Any revision of pay or categorization of posts subsequent to the closing of scheme cannot change the fundamental characteristics of the scheme. It is pointed out that the notifications in respect of revision of pay scales and categorization of posts have been issued after approximately one and a half years from the date of closing of the scheme and that such categorization has been adopted with immediate effect and has no retrospective effect except the payment of arrears which has been given w.e.f. 01.01.2006.
In the written statement filed on behalf of respondent Nos.3 to 21 i.e. the Group 'B' employees, who are in the waiting list in the draw of lots of Group 'B' category, the assertion is that if ineligible applicants, who are Group C employees, are excluded from consideration, then they should be declared successful. It has been pointed out had the draw of lots held within the reasonable time, the petitioners would not have any grievance, but since CWP No.19175 of 2010, 7 CWP No.21804 of 2010 & CWP No.3685 of 2011 due to litigation on one ground or the other, the draw of lots has delayed and in the meantime, the pay-scales were revised. It is asserted that the subsequent revision of pay scales after the date of closing of scheme is inconsequential.
The details of the applications received in each category and the number of flats available has been disclosed, which is as under:
Category/ Total %age of Number of %age of flats %age of flats Group applicants as applicants flats allocate with to number of on last date with ref. To allocated by ref. to total applicants of closing of total number the flats (Probability scheme i.e. of Chandigarh of success) 26.03.2008 applications Housing received Board A 560 7.21% 252 6.41% 45.00% B 322 4.15% 168 4.27% 52.17% C 6009 77.40% 3066 78.00% 51.02% D 872 11.23% 444 11.29% 50.92% Total 7763 100.00% 3930 100.00% It is also not disputed that in terms of interim order passed on 15.11.2009 in CWP 15111 of 2009, which was followed in the present writ petitions, all those employees, who are willing and have become eligible from Group 'C' to Group 'B' category flats on account of the revision of pay scales were ordered to be included provisionally in the draw of lots against Group 'B' category flats as well. In terms of such directions, 369 Group 'C' employees have opted for inclusion of their names in Group 'B'. On the basis of the original applicants i.e. 322 and 369 additional applicants, draw of lots in respect of 168 flats was held on 04.11.2010. Out of such 168 applicants, 89 applicants, who originally fall under Group 'C' employes, but have upgraded themselves to Group 'B' category in terms of the interim order dated 15.11.2009, were successful. In addition to such 89 applicants, name CWP No.19175 of 2010, 8 CWP No.21804 of 2010 & CWP No.3685 of 2011 of 53 applicants were kept in the waiting list in terms of the condition of the Scheme. It may be mentioned that such 369 applicants have participated in the draw of lots for Group C employees as well.
The grievance of the petitioners in CWP No.21804 of 2010 is that 369 applicants could not be included in Group 'B' category. By consideration of such applicants in Group 'B' category, their chances of being successful have diminished. Challenge is also to the preparation of waiting list prepared such as for respondent Nos.3 to 21 in CWP No.19175 of 2010.
Mr. Bali, learned counsel representing the petitioners in CWP No.19175 of 2010, has relied upon the judgments in State of Kerala and another Vs. B. Six Holiday Resorts Privte Limited and others (2010) 5 SCC 186, State of Tamil Nadu Vs. M/s Hind Stone and others (1981) 2 SCC 205, Howrah Municipal Corporation and others Vs. Ganges Rope Co. Ltd. and others (2004) 1 SCC 663 and Union of India and others Vs. Indian Charge Chrome and another (1999) 7 SCC 314 to contend that the relevant date for consideration of claim of the petitioners is the date on which draw of lots was held and not the date of closure of the Scheme. Mr. Bali has also relied upon Clause VIII (ii) & (vi) of the Scheme to contend that the eligibility of the applicants is to be examined in terms of the Regulations and the Scheme, which is the date of draw of lot. Reliance is also made to Regulation 6, which stipulates that the applicant has to satisfy the eligibility conditions from the date of opening of scheme up to the date of delivery of possession of the dwelling unit by the Chandigarh Housing Board. Therefore, the revision in the pay scales leading to up-gradation of the category of the petitioners to Group 'B', entitles them to be considered for a CWP No.19175 of 2010, 9 CWP No.21804 of 2010 & CWP No.3685 of 2011 flat as a Group 'B' applicant.
On the other hand, Mr. Kaushal has pointed out that the date of closing of the Scheme has direct nexus with the flats to be planned. The Scheme is not an open ended scheme. Therefore, the eligibility has to be considered at the time of closing of the scheme. Any subsequent revision of pay is a fortuitous circumstance, which cannot be taken into consideration so as to effect the eligibility of the petitioners. It is contended that the condition in the scheme permitting an employee from a higher group to apply for a lower group having been struck down by this court, therefore, the converse that the applicants from lower category cannot apply for a higher category is also not permissible. It is also pointed out that, in fact, the eligibility as per Clause III is that the applicant should be (i) a regular employee of Chandigarh Administration or (ii) its Board/Corporation or (iii) Punjab & Haryana High Court or (iv) on deputation with the Chandigarh Administration on the date of the opening of the scheme or (v) should have been retired in the last 3 years from the date of opening of the Scheme. The aforesaid conditions are the essential conditions for eligibility. The other terms of the Clause III are, in fact, the conditions to regulate the aforesaid basic eligibility conditions.
On the other hand, Mr. Malik, learned senior counsel representing the private respondents, has relied upon a judgment of Hon'ble Supreme Court in Ashok Kumar Sharma and others Vs. Chander Shekhar and another 1997 (2) SLR 409, wherein the cut off date was held to be relevant to determine the eligibility of a candidate for appointment to a post. Mr. Malik has argued that the claim of the petitioners is more akin to that of CWP No.19175 of 2010, 10 CWP No.21804 of 2010 & CWP No.3685 of 2011 application for appointment to a post rather than grant of licenses or sanction of the building plans, as is the case in the judgments referred to by the learned counsel for the petitioners. The petitioners have no vested right for allotment of a flat as observed in Howrah Municipal Corporation's case (supra) relied upon by the petitioners. In the absence of any vesting right, the petitioners cannot claim up-gradation to Group 'B' on subsequent revision of pay scales.
We have heard learned counsel for the parties at length, but find no merit in CWP No.19175 of 2010 & CWP No.3685 of 2011. In the Regulations, the disposal of a property shall be effected by either hire- purchase or sale on lease-hold basis for 99 years or in such a manner, as prescribed by the Board. Still further, Regulation 4(2) contemplates disposal of property subject to such terms and conditions as may be decided by the Board from time to time. The 'Scheme' is defined in Regulation 2(26) to mean a scheme prepared by the Board for the construction of a group of houses for dwelling purposes. In terms of Regulations 2(26) and 4(2), the Board has framed "Self-Financing Housing Scheme, 2008" inviting applications for allotment of flats on lease-hold basis for 99 years for the employees of Chandigarh Administration. In terms of such Regulations, the eligibility conditions are defined in Clause III of the Scheme. We are of the opinion that the basic eligibility criteria is mentioned in Clause III, as reproduced above. The other conditions i.e. (ii), (iii), (iv), (v) & (vi) are the conditions, which are required to be fulfilled by the applicants in furtherance of the basic eligibility mentioned in clause (i).
Clause VIII (ii) deals with determination of eligibility as per the CWP No.19175 of 2010, 11 CWP No.21804 of 2010 & CWP No.3685 of 2011 provisions of the Regulations and the terms of the Scheme. The Scheme is in terms of the Regulations, which determines the eligibility, as mentioned in Clause III. The reliance of the petitioners on some part of Regulation 6 i.e. "The applicant shall further continue to fulfill these eligibility conditions from the date of opening of the scheme upto the date of delivery of possession of the dwelling unit by the Chandigarh Housing Board" is misconcieved. In fact, it is a proviso, which disentitle an applicant from a dwelling unit, in case he or his family member possesses a dwelling unit in Tricity i.e. Chandigarh, Mohali & Panchkula in the capacity mentioned therein. The eligibility to apply for a particular category of dwelling unit is not within the scope of Regulation 6. Therefore, the reliance of the petitioners on the above mentioned part of Regulation 6 is misconceived.
The judgments referred to by the learned counsel for the petitioners have no applicability to the facts of the present case. The judgment in B. Six Holiday Resorts Privte Limited case (supra), relates to non-grant of license under Foreign Liquor Rules. There was amendment in the Rule prohibiting the issuance of new licenses with retrospective effect. The claim of the petitioner was rejected in terms of the amendment carried out. The High Court found that the amendment would be effective only prospectively and, therefore, the state were directed to consider the claim of the petitioner with reference to the Rules, as it existed on the date of application. Aggrieved against the said decision, the State's appeal was allowed. It was held to the following effect:
"22. Where the rules require grant of licence subject to the fulfilment of certain eligibility criteria either to safeguard public interest or to maintain efficiency in administration, it follows that the application for licence would CWP No.19175 of 2010, 12 CWP No.21804 of 2010 & CWP No.3685 of 2011 require consideration and examination as to whether the eligibility conditions have been fulfilled or whether grant of further licences is in public interest. Where the applicant for licence does not have a vested interest for grant of licence and where grant of licence depends on various factors or eligibility criteria and public interest, the consideration should be with reference to the law applicable on the date when the authority considers applications for grant of licences and not with reference to the date of application."
The said judgment even remotely does not help the case set up by the petitioners. The vehement argument of the petitioners is that mere submission of an application no vested right accrues to them i.e. what has been held in the aforesaid judgment and also in Howrah Municipal Corporation case (supra). It does not mean that the subsequently, the petitioners can improve their status. In the aforesaid case, it has been held that the consideration should be with reference to law applicable on the date, when the authority considers applications for grant of licences and not with reference to the date of application. The situation considered in the aforesaid case is materially different. In the present case, the application were required to be submitted for participation in the draw of lots for a flat. The eligibility has to be seen in terms of the scheme published. Any subsequent improvement in the status of the parties cannot be taken into consideration. If such is permitted, the sanctity attached to the last date of submission of application forms shall have no meaning. In fact, the declaration of result after the last date of submission of application form has not been found to be permissible in Ashok Kumar Sharma's case (supra). It was observed 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 & CWP No.19175 of 2010, 13 CWP No.21804 of 2010 & CWP No.3685 of 2011 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. ............. 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.
In Hind Stone's case (supra) relied upon by the petitioners, the claim of the petitioner was for renewal of mining lease. There was amendment in the Rules and the applications for renewal of mining lease were considered for insertion of Rule 8-C. The contention was that Rule 8-C will not apply for grant of renewal of lease, as such Rule has come into force subsequently. It was held that there is no right to seek renewal of licence on the basis of Rules at the time of making of applications. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant of renewal of a lease dealt with in a particular way, by applying particular provisions.
In Howrah Municipal Corporation's case (supra), the sanction for construction of additional three floors was delayed by the Municipal Corporation. When the application for sanction of the construction was pending, the Building Rules were amended restricting the height of high- CWP No.19175 of 2010, 14 CWP No.21804 of 2010 & CWP No.3685 of 2011 rising building to the prescribed level. In these circumstances, the question posed was; whether by the order of the Court in which a period was fixed for the Corporation to take a decision on the application for sanction of construction of additional floors, any vested right has been created in favour of the Company to seek sanction for the construction of additional three floors irrespective of subsequent amendment of the Building Rules and the resolution of the Corporation putting restrictions on the height of high-rising buildings. It was observed as under:
"30. This Court, thus, has taken a view that the Building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regualtions existing on the date of application for sanction. This Court has envisaged a reverse situation that if subsequent to the making of the application for sanction, the Building Rules, on the date of sanction, have been amended more favourably in fvour of the person or party seeking sanction, would it then be possible for the Corporation to say that because the more favourable Rules containing conditions came into force subsequent to the submission of application for sanction, it would not be available to the person or party applying.
xxx xxx xxx
32. Rlying on Usman Gani J. Khatri Vs. Cantonment Board (1992) 3 SCC 455, this Court reiterated that "builders do not acquire any legal right in respect of the plans until sanctioned in their favour"."
In the aforesaid case, the petitioner claimed vested right in terms of the direction of the Court for considering the sanction of the building plans. It was the said claim, which was declined with the following observations:
"37. ....In our considered opinion, such "settled expectation", if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in CWP No.19175 of 2010, 15 CWP No.21804 of 2010 & CWP No.3685 of 2011 exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T.Road and other wards, such "settled expectation" has been rendered impossible of fulfilment due to change in law. The claim based on the alleged "vested right" or "settled expectation" cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such "vested right" or "settled expectation" is being sought to be enforced. The "vested right" or "settled expectation" has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a "settled expectation" or the so-called "vvested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon.
38. In the matter of sanction of buildings for construction and restricting their height, the paramount consideration is public interest and convenience and not the interest of a particular person or a party. The sanction now directed to be granted by the High Court for construction of additional floors in favour of the respondent is clearly in violation of the amended Building Rules and the resolution of the Corporation which restrict heights of buildings on G.T.Road. This Court in its discretionary jurisdiction under Article 136 of the Constitution cannot support the impugned order of the High Court of making an exception in favour of the respondent Company by issuing directions for grant of sanction for construction of building with height in violation of the amended Building Rules and the resolution of the Corporation passed consequent thereupon."
Having gone through the above judgments, we are of the opinion that if some of the applicants fulfill the eligibility conditions subsequent to date of closing of the scheme, then entire purpose of having a date of closing of scheme become otiose. The subsequent eligibility conditions cannot be taken into consideration to make an ineligible applicant as eligible or to upgrade such applicants from one category to another. It is the date of closing of the scheme, which is relevant.
Similarly, a question arose before a Division Bench of this Court CWP No.19175 of 2010, 16 CWP No.21804 of 2010 & CWP No.3685 of 2011 in Rajinder Kaur (Ms.) Vs. Guru Nanak Dev University, Amritsar & another 1998(8) SLR 468 in respect of eligibility of a candidate, whose result of M.Phil was declared after cut off date. It was held that the eligibility has to be seen with reference to cut off date. In the aforesaid case, the result of first semester of the candidate was declared on 12.07.1993 and that of the second semester on 21.03.1994. The argument raised was that declaration of result after cut off date will relate back to the date of examination. The Court found that declaration of result cannot be preponed and approval has been rightly declined.
In Ruchi Rajpurohit Vs. Baba Farid University of Health Sciences, Faridkot 2007(2) SLR 849, the candidate qualified 10+2 examination in the supplementary examination. The result of the candidate was declared before the second counselling. The argument raised was that the doctrine of Eclipse would be attracted and the petitioner would be eligible for consideration in the second counselling. The said argument was negated by a Division Bench of this Court with the following observations:
"16. With regard to the second argument raised by the learned counsel for the petitioner also, we are satisfied that doctrine of Eclipse has absolutely no application to the case in hand. The doctrine of Eclipse would be attracted only when to start with if a person is eligible for consideration but only because of some disability, his claim cannot be considered at a particular point of time. In such a situation, if on the happening of a subsequent event, the said disability is removed, then the original eligibility of such a person would revive and the eclipse of disability having been removed, the claim of such a person would be liable to be considered in accordance with law. However, in the present case, the petitioner on her own showing was not eligible even to start with, inasmuch, as she had not qualified her 10+2 annual examination held in March/April 2006, having been placed in compartment in the subject of Chemistry. Once the petitioner was not eligible even to start with, any subsequent happening CWP No.19175 of 2010, 17 CWP No.21804 of 2010 & CWP No.3685 of 2011 cannot make her eligible. The doctrine of Eclipse would be absolutely be not attracted in such a situation.
17. We may also take note of reliance placed by the learned counsel for the petitioner on the judgment of the Supreme Court in Dularey Lodh, appellant Vs. The IIIrd. Addl. District Judge, Kanpur and others, AIR 1984 SC 1260 with regard to the fact that once the subsequent event/enactment removed the disability, then the original rights of the party would revive at once and become operative."
In another recent judgment, the Hon'ble Supreme Court in Alka Ojha Vs. Rajasthan Public Service Commission, (2011) 9 SCC 438, observed in respect of the eligibility and the cut off date:
15. The question whether the candidate must have the prescribed educational and other qualifications as on the particular date specified in the Rule or the advertisement is no longer res integra. In Bhupinderpal Singh v.
State of Punjab (2000) 5 SCC 262 this Court referred to the earlier judgments in A.P.Public Service Commission v. B. Sarat Chandra (1990) 2 SCC 669, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi (1990) 3 SCC 655, M.V. Nair v. Union of India (1993) 2 SCC 429, Rekha Chaturvedi v. University of Rajasthan 1993 Supp. (3) SCC 168, U.P. Public Service Commission v. Alpana (1994) 2 SCC 723 and Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18 and approved the following proposition laid down by the (Punjab and Haryana High Court) (sic - Supreme Court): (Bhupinderpal Singh case (supra), SCC p.268, para 13) "13. ... (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."
16. The same view was reiterated in M.A. Murthy v. State of Karnataka (2003) 7 SCC 517 and Ashok Kumar Sonkar v. Union of India (2007) 4 SCC 54. Therefore, the Full Bench of the High Court rightly held that a candidate who does not possess a driving licence on the last date fixed for CWP No.19175 of 2010, 18 CWP No.21804 of 2010 & CWP No.3685 of 2011 submission of the application is not eligible to be considered for selection. In view of the above, we have no hesitation to hold that subsequent revision of pay scale, may be from retrospective date, cannot be deemed to improve the status of the applicants.
We also found that the pay-scales were revised vide circular dated 07.07.2009 (Annexure P-9) with immediate effect. In terms of the said circular, the petitioners got benefit of arrears of pay revision from 01.01.2006. The substantive increase in pay scale was from the date of the circular i.e. 07.07.2009. Therefore, the petitioners cannot take benefit of such circular to seek their up-gradation to Group 'B' category after the closing of the Scheme. Consequently, we do not find any merit in CWP No.19175 of 2010 & CWP No.3685 of 2011. The same are accordingly dismissed.
In CWP No.21804 of 2010, the challenge is to the conduct of draw of lots for Group 'B' category with increased number of applicants without proportional number of dwelling units. The petitioners' claim compliance of the original eligibility conditions and that their interest has been prejudicially affected on account of consideration of 369 applicants as Group 'B' employees in terms of the interim order passed by this Court.
The Board has conducted the draw of lots in respect of 168 applicants, which incidentally includes 89 applicants out of 369 applicants of Group 'C', who have upgraded themselves to Group 'B'. In view of the present order, such 89 applicants cannot be considered in Group 'B'. We do not find any justification for conduct of another draw of lots for the entire Group 'B' category. The illegality is to the extent of considering Group 'C' CWP No.19175 of 2010, 19 CWP No.21804 of 2010 & CWP No.3685 of 2011 employees as Group 'B' employees alone. The consideration of Group 'C' to Group 'B' was provisional and the same being found as without merit, the petitioners do not get any right to seek draw of lots again. The applicants, who are in waiting list after excluding the Group 'C' applicants, would be successful applicants. It is admitted at the Bar that even after exhausting waiting-list, still 59 (approximately) dwelling units would be available, for which draw of lots is required to be held.
In view of the said fact, we dispose of CWP No.21804 of 2010 with a direction to the Chandigarh Housing Board to conduct draw of lots for the remaining dwelling units after excluding the applicants, who originally applied for Group 'C' category, but considered in Group 'B' category by virtue of an interim order passed by this Court.
Mr. Kaushal has pointed out that certain applicants of Group 'B' have withdrawn their earnest money. We find that it will not be fair to exclude them from consideration in the fresh draw of lots. Therefore, we direct that the Chandigarh Housing Board shall give an opportunity to all those applicants of Group 'B', who have withdrawn their earnest money, to deposit the same, if ready & willing, before conducting draw of lots expeditiously. The board shall prepare a list of successful applicants equal to the number of dwelling units available and the waiting list in terms of the conditions of the Scheme.
(HEMANT GUPTA)
JUDGE
25.01.2012 (A.N.JINDAL)
Vimal JUDGE