Kailash Gupta v. State of Rajasthan — 1993 DIGILAW 750 (RAJ)

Honble MATHUR, J.—All these writ petitions involve common questions of law and facts, therefore, they are disposed of by this common order. (2). For the convenient disposal of all these writ petitions the facts given in the case of Kailash Gupta & others vs. State of Rajasthan & another (S.B. Civil Writ Petition No. 978 of 1992) are taken into consideration. (3). The petitioners by this writ petition have prayed that by an appropriate writ, order or direction the Rajasthan Public Service Commission, Ajmer may be directed to allow the petitioners to apply for the posts of Agriculture Officers advertised by the Rajasthan Public Service Commission vide Advertisement No. 9/91- 92. It is also prayed that the Condition No. 6 of the Information Booklet published by the Rajasthan Public Service Commission, requiring the candidates to possess the qualifications on 28.2.1992 may be quashed. (4). The petitioners were students of M.Sc. (Agriculture), Final Semester, Rajasthan College of Agriculture, Udaipur a Unit of the Rajasthan Agricultural University, Bikaner. The M.Sc. (Agriculture) Final Written Examination of the petitioners was held in the month of November, 1991 and only thesis work was not submitted and the result was to be declared after the submission of the thesis. The petitioners after passing the M.Sc. (Agriculture) final Examination are entitled to be considered for appointment to the post of Agriculture Officer advertised by the Rajasthan Public Service Commission, Ajmer (referred to hereinafter as the respondent Commission) vide Advertisement No. 9/91-92. A copy of the Information Booklet in relation to the aforesaid advertisement has been placed on the record as Annex.l. The last date for submission of the application fixed by the respondent Commission was 28.2.1992. The Rajasthan Agricultural Service Rules, 1960 (referred to hereinafter as the Rules of 1960) govern the service conditions of the petitioners. The advertisement required that the applicant must passes the qualifications on the last date fixed for submission/receipt of the applications by the respondent Commission. It is alleged that the fixation of the qualifications on the last date of the application is arbitrary and discriminatory. It is alleged that even the Union Public Service Commission does not insist that the applicant should be eligible on the last date of submission of the application fixed by the Commission and it also permits the candidates provisionally subject to their passing in the qualifying examination. It is alleged that even the Union Public Service Commission does not insist that the applicant should be eligible on the last date of submission of the application fixed by the Commission and it also permits the candidates provisionally subject to their passing in the qualifying examination. It is alleged that the object of holding of the examination by the Commission is to select the best candidatures from amongst those who are eligible for to the post. It is alleged that all those who are qualified and eligible to be appointed at the time of the appointment, are entitled to be considered for appointment subject to the condition that they qualify the examination held by the Commission. It is alleged that the post of Agriculture Officer has been advertised after a lapse of 5 years and it is not known as to when the posts will be advertised again. It is also alleged that all the petitioners were students of M.Sc. (Agriculture) final examination which was scheduled to be held but, before the date of the final examination, the posts were advertised by the respondent Commission. These petitioners were permitted to appear in the written examination under the orders of this Court dated 26.2.1992 and it is alleged that some of them have passed the examination but those who have passed are not being called for interview because on the last date they were not possessing the qualifications i.e. degree of M.Sc. (Agr.). (5). A reply has been filed by the respondent Commission and the respondent Commission has taken the position that those candidates who have obtained the requisite qualification on 28.2.1992 are only eligible to appear in the examination. The candidates who have acquired the educational qualification i.e. M.Sc. (Agriculture) after this date in response to the aforesaid advertisement cannot be held to be eligible for the post of Agriculture Officer as on the date i.e. 28.2.1992 they were not M.Sc. (Agriculture). It is submitted that the Commission is an autonomous body and it can regulate its own business by laying down the procedure and in terms of that autonomy the Commission has issued the advertisement that the candidate should be eligible on the last date of submission of the application and such fixation of the last date cannot be said to be arbitrary. It is also pointed out by the learned counsel for the petitioners that meanwhile some of the petitioners have already passed the M.Sc. (Agriculture) examination and also passed the written examination conducted by the respondent Commission for short listing the candidates but still those candidates have not been called for interview for the reason that on the last date of submission of the applications these candidates were not having the degree of M.Sc. (Agriculture). (6). Mr. Purohit, learned counsel for the petitioners submitted that Rules 21 of the Rules of 1960 deals with the scrutiny of applications. Rules of 1960 no where require that the candidate should be eligible on the last date for submission of the application. Rule 21 of the Rules of 1960 only says that after receipt of the application the Commission shall scrutinies the applications. Learned counsel further submitted that it is the normal practice that the ad-vertisement for the posts are issued with long intervals and on account of insisting on the condition that the candidates should have obtained the necessary academic qualifications on the last date for filing of the applications, the candidates, who are likely to became eligible in that year will have to wait for 5 years. Therefore, the Commission should have considered the applications of all those candidates who have already appeared for final examination of the M.Sc. (Agriculture) and if they have cleared the M.Sc. (Agriculture) Final Examination before the interview after passing the written test then the candidature of such candidates should not be rejected merely on the ground that on the last date for submission of the applications they were not eligible. (7). As against this, Mr. Joshi, learned counsel appearing for the respondent Commission, submitted that the fixation of the last date is the prerogative of the Commission as the Commission is an autonomous body and it can always fix the last date for holding the examination and in that exercise of administrative power the Commission has fixed the last date for filing the application i.e. 28.2.1992 and on that that the candidate is required to be eligible otherwise it will operate as discriminatory. (8). I have considered the rival submissions of the learned counsel for the parties and have also perused the record. (9). (8). I have considered the rival submissions of the learned counsel for the parties and have also perused the record. (9). It is true that the Commission while advertising the post has to fix some date for filing of the applications and the candidate should be eligible on that date. But I also cannot lost sight of the fact that the posts are not advertised frequently by the Commission because of the pressure of work on it and the posts are advertised with longer intervals. But so far as the fixation of the last date for submission of the applications by the Commission is concerned, it is definitely the prerogative of the Commission as it is the Commission which has to regulate its business and, therefore, it is necessary for the Commission to fix the last date for filing of the applications and the candidate is normally required to be eligible in all respects on the last date of submission of the applications. In the present case, the basic qualifications for the post of Agricultural Officer is M,Sc. (Agriculture) and it is a fact that on the last date for submission of the applications i.e. 28.2.1992 the petitioners were not eligible as they have not awarded the degree of M.Sc. (Agriculture). Though the written test was held and the thesis was submitted yet the result was not declared. Therefore, it is a fact that on the last date the petitioners were not having the degree of M.Sc. (Agriculture) i.e. they were not holding the qualification required for the post. (10). Now, the question is whether such fixation of the last date can be said to be arbitrary and discriminatory and whether the respondent Commission is right in rejecting the candidature of the petitioners because they were not having the minimum requisite qualification for the post on the last date of submission of the application. (11). Mr. Purohit, learned counsel for the petitioners has led great stress on a decision of Honble Supreme Court delivered in the case of Ashok Kumar Sharma & Anr. vs. Chander Shekhar & Anr. (1). (11). Mr. Purohit, learned counsel for the petitioners has led great stress on a decision of Honble Supreme Court delivered in the case of Ashok Kumar Sharma & Anr. vs. Chander Shekhar & Anr. (1). In this case, the question was whether the candidates who were fully qualified to be appointed as Junior Engineers on the date of the interview but whose results of B.E. examination had not been declared on the dedates of submission of their applications were entitled to be appointed as Junior Engineers by obtaining higher marks in the interview. The posts of Junior Engineers were advertised by the J & K. Public Service Commission on 9.6.1982. The last date of submitting applications was specifically stated to be 15.7.1982. By that date, the appellants and the respondents had submitted their applications. The appellants had appeared for the B.E. (Civil) examination and were awaiting their results until the results were published on 21.8.1982. The interviews were held on various dates commencing from 24.8.1982. The appellants were declared selected on 21.4.1993 and appointed as Junior Engineers. By reason of their merits they Were placed seniors to the respondents. The respondents contended before the High Court that since the appellants were not qualified to apply for the post on the date of submission of applications as their results had not been declared until after that date, they were not qualified to appear for interview and the results announced on the basis of the interview and the marks obtained by them were invalid and their applications ought to have been rejected and they should not have been declared selected in the interview. The respondents challenged the selection of the, appellant before the High Court but they failed before the Single Judge because the writ was belated and secondly the selected candidates have secured higher marks and it was held that they were fully qualified prior to the dates of interview for selections. The Division Bench however, reversed the judgment and held that the appellants were wrongly selected. Therefore the appellants filed a special leave petition before the Honble Supreme Court and the Honble Supreme Court consisting of three Honble Judges i.e. Honble T.K. Thommen and Honble V. Ramaswami, JJ. The Division Bench however, reversed the judgment and held that the appellants were wrongly selected. Therefore the appellants filed a special leave petition before the Honble Supreme Court and the Honble Supreme Court consisting of three Honble Judges i.e. Honble T.K. Thommen and Honble V. Ramaswami, JJ. concurring held that since the appellants were fully qualified on the dates of interview then they cannot be made to suffer as a result of the delay in the declaration of the result of B.E. (Civil) Examination but their result was declared before the date of interview. Therefore, they were entitled to be appointed as Junior Engineers by virtue of their obtaining higher marks and they cannot be made to suffer on account of delay in the result as it is not a fault of theirs. However, Honble R.M. Sahai, J. recorded dissent though on equitable consideration he also agreed with the order of the other two Honble Judges. But he observed that candidate should possess the qualification in the present i.e. on the last date of filing of the applications. (12). But as against this, Mr. Joshi, learned counsel for the respondent Commission has invited my attention to various other decisions of the Honble Supreme Court in which a contrary view has been taken. In that connection, learned counsel has invited my attention to Dr. M.V. Nair vs. Union of India and Ors. (2). This judgment is also of a bench consisting of three Honble Judges but concurring. Here, in this case, the question was in regard to appointment to the post of Director in National Research Laboratory for Conservation of Cultural Property (N.R.L.C.) on transfer on deputation basis. On 26.6.1989 the Deputy Education Advisor to the Government of India in Ministry of Human Resources Development (Department of Culture) addressed a letter to the Chief Secretaries of all the State Governments and Union Territories and all Universities and Heads of recognised research institutions asking them to send the names of suitable officer urgently required on transfer on deputation basis on the post of Director (N.R.L.C). It was requested that the said vacancy be circulated amongst all concern and in pursuance of this six names were received including Dr. M.V. Nair and Dr. I.K. Bhatnagar. Only two persons were found suitable by the Union Public Service Commission viz. Dr. M.V. Nair and Dr. Tandon. But since the record of Dr. It was requested that the said vacancy be circulated amongst all concern and in pursuance of this six names were received including Dr. M.V. Nair and Dr. I.K. Bhatnagar. Only two persons were found suitable by the Union Public Service Commission viz. Dr. M.V. Nair and Dr. Tandon. But since the record of Dr. Tandon was not made available, therefore, he was not called for interview with the result that only Dr. M.V. Nair remained in the field and selected. His selection was challenged by Dr. Bhatnagar before the Central Administrative Tribunal, Principal Bench at New Delhi. It is alleged that Dr. Nair was given relaxation, therefore, he may also be given the same relaxation. It was submitted that no relaxation was granted in favour of Dr. Nair by the Union of India but he satisfied the eligibility criteria. The Tribunal recorded that Dr. Bhatnagar should also have been interviewed by the Union Public Service Commission since in their opinion he too was equally qualified and eligible for the said post like Dr. Nair. Therefore, a direction was given to the respondents to hold a fresh selection for the post. While reversing the judgment of the Tribunal it was observed that as per the application filed by Dr. Bhatnagar he also sought a relaxation as given in the case of Dr. Nair. It shows that Dr. Bhatnagar was not eligible and it was observed that the direction given by the Tribunal that since Dr. Bhatnagar has become eligible in all respects, therefore, his suitability may also be considered along with other eligible candidates and if he is found suitable for appointment, he should be appointed to the post of Director, N.R.L.C. This finding was reversed by the Honble Supreme Court and it was observed as under: — "It is well settled that suitability and eligibility has to be considered with reference to the last date for receiving the applications, unless, of course, the notifications calling for applications itself specifies such a date." (13). Similarly, in the case of Mrs. Rekha Chaturvedi vs. University of Rajasthan & Ors. (3), the Honble Supreme Court while considering the appointment to the post of Asstt. Similarly, in the case of Mrs. Rekha Chaturvedi vs. University of Rajasthan & Ors. (3), the Honble Supreme Court while considering the appointment to the post of Asstt. Professor (Lecturer) in the University of Rajasthan, found irregularities in advertising the post at variance with those qualifications prescribed by Ordinance/Statutes of the University Hand-book and their Lordships observed as under : — "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 for the purpose. The qualifications acquired by the candidates after the said date be taken into consideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement/notification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do not have such qualifications do not apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be considered and may even be better than those who apply, can have a legitimate grievance since they are left out of consideration." (14) Learned counsel has also invited my attention to State of Bihar and others vs. Ramjee Prasad and others (4). In this case, the question was of fixation of cut off date i.e. the last date of filing the applications and in that case, it was observed as under: — "The choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or Whimsical or wide off the reasonable mark. The choice of the date of advertising the posts had to depend on several factors, e.g. the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It was not the case of anyone that experienced candidates were not available in sufficient numbers on the cut off date. The choice of the date of advertising the posts had to depend on several factors, e.g. the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It was not the case of anyone that experienced candidates were not available in sufficient numbers on the cut off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications was shifted from January 31, 1988 to June 30, 1988 is no reason for dubbing the earlier date as arbitrary or irrational." (15). Therefore, the emphasis was that once the last date has been fixed then the eligibility has to be seen on that date i.e. last date. (16) Similarly, in the case of A.P. Public Service Commission, Hyderabad & Anr. vs. B. Sarat Chandra and Ors. (5), the question was regarding the age of the candidate and in that context the Honble Supreme Court observed as under : — "The date to attain the minimum or maximum age must, therefore be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the Rule making authority." (17). Therefore, it was held that the maximum or minimum age for suitability of a candidate has to be seen from that cut off date fixed by the recruiting agency and it cannot be allowed to depend upon fluctuating or uncertain date. It is possible that the final stage of selection can be delayed and it more often happens for various reasons the candidates might become eligible or ineligible as the case may be. Therefore, the date must therefore be specific and to determine as on a particular date and it was observed that the factum of selection cannot be decisive in the matter. Thus, they emphasised that the minimum or maximum age must be determined on the date fixed in the advertisement. It could happen that the candidate may become ineligible because of delay in the selection because of the candidate becoming over- age. Thus, they emphasised that the minimum or maximum age must be determined on the date fixed in the advertisement. It could happen that the candidate may become ineligible because of delay in the selection because of the candidate becoming over- age. But what is to be seen is whether on the cut off date he has been eligible or not and if he is eligible then he is to be considered. In this connection, my attention was also invited to a full bench decision of this Court also in which one of the questions formulated was whether the eligibility of a candidate for a post is to be seen on the last date of application for the post or to any subsequent date?. The Full Bench in the case of Krishna Kumar Sharma vs. State of Rajasthan and another (6), answered the question in the following manner: — "The eligibility in our opinion is to be seen on the date of application, i.e. in this case on the last date of receipt of application." (18). In the light of these decisions I may advert back to the advertisement issued by the respondent Commission Annex.l and in that clause 6 reads as under : — ^^izkFkhZ dks izkFkZuk i= izkfIr dh vafre fnukad 28-2-1992 dks fu/kkZfjr ;ksX;rk izkIr gksuh pkfg, vU;Fkk vizik=A** (19). Therefore, as per the advertisement the candidate should have the requisite qualification on the last date of receipt of the application i.e. on 28. 2.1992 and admittedly on that date the petitioners do not have the degree of M.Sc. (Agriculture) at their credit. Therefore, in terms of the advertisement the petitioners were not eligible. It is true that in the case i.e. Ashok Kumar Sharma (supra) cited by the learned counsel for the petitioners, a view has been by the Honble Supreme Court that the candidates were eligible on the date of interview then candidature of such candidates should not be rejected. Therefore, in terms of the advertisement the petitioners were not eligible. It is true that in the case i.e. Ashok Kumar Sharma (supra) cited by the learned counsel for the petitioners, a view has been by the Honble Supreme Court that the candidates were eligible on the date of interview then candidature of such candidates should not be rejected. This judgment appears to be more on equity because the selected Junior Engineers i.e. one lot was eligible on the last date and the other lot became eligible at the time of interview and their inter se seniority was sought to be challenged and in that the one lot of Junior Engineers challenged the selection of the other lot on the ground that they were placed higher then this lot on account of their merit in the selection by way of interview before the Commission. It was contended that their appointment itself was invalid because they had not passed their B.E. (Civil) Examination on the last date fixed for inviting the application. But they obtained their B.E. (Civil) Degree prior to the date they were deemed to be eligible. In that context the Honble Supreme Court keeping in view the equity maintained the selection of these candidates though they obtained the B.E. Degree prior to the dates of interview. Therefore it cannot be said to be a ratio laid down by the Honble Supreme Court, whereas the other cases of the Honble Supreme Court which have been referred to above have not been brought to the notice of the Honble Judges deciding Ashok Kumar Sharmas case (supra) and a ratio has been laid down that if the candidate is not eligible on the last date fixed for submission of the application then such candidate cannot be said to be eligible if they acquired the eligibility subsequent to the last date fixed in the advertisement. Therefore, Ashok Kumar Sharmas case (supra) was more on equity then on laying down any ratio. Moreover, in the other cases of the Honble Supreme Court has taken the view that the eligibility of the candidate has to be seen on the last date of the application appears to be more consonance with justice. Therefore, Ashok Kumar Sharmas case (supra) was more on equity then on laying down any ratio. Moreover, in the other cases of the Honble Supreme Court has taken the view that the eligibility of the candidate has to be seen on the last date of the application appears to be more consonance with justice. Normally, a candidate who applies in pursuance of the advertisement will feel satisfied that on the last date fixed for the application if he is not eligible he will not apply for the same and if it is construed that the last date shall be the date of interview then it will be arbitrary and discriminatory and that candidate who has taken the terms of the advertisement to the correct will be misled and he will be discriminated and wrongly deprived of his right to apply for the post. Therefore, the date which has been given and the terms and conditions laid down in the advertisement should normally be deemed to be conclusive unless they are contrary to the service rules. This approach, in my opinion, is the correct approach as it would be fair and equitable to all that they know that on a particular cut off date they are required to have all the qualifications and if they are not holding the qualifications then that makes it clear that they are not supposed to apply. Therefore, to construe such date to be indeterminate then even a person who is not having the requisite educational qualifications on a particular date but he acquires the qualifications on the date of interview is also eligible then that will be a fraud on the advertisement. The date should be construed in a manner which is ordain thereunder and it will be unfair and inequitable to construe them otherwise. Therefore, I am of the view that since the petitioners were not eligible on the last date of filing of the application invited in pursuance of the advertisement No. 9/91-92 Annex.l i.e. they were not having the degree of M.Sc. (Agriculture) on 28.2.1992. Therefore, they were not eligible and the Rajasthan Public Service Commission is right in not calling them for interview being ineligible. (20). Hence, dont find any merit in this writ petition and the other writ petitions mentioned above and they are, therefore, dismissed without any order as to costs.