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2008 DIGILAW 1845 (PNJ)

Anil Kumar v. State Of Haryana

2008-11-04

AUGUSTINE GEORGE MASIH, MEHTAB S.GILL

body2008
Judgment 1. Augustine George Masih, J. - By this order, we propose to decide three writ petitions i.e. C.W.P. Nos. 17523 of 2008 (Anil Kumar and others vs. State of Haryana and others), 17719 of 2008 (Sukhwant Singh and others vs. State of Haryana and another) and 18207 of 2008 (Raj Kumar and others vs. State of Haryana and others) as common question of facts and law is involved. 2. These writ petitions have been preferred by the candidates who, in response to the advertisement issued by the Haryana Staff Selection Commission (hereinafter referred to as the Commission) vide advertisement No. 6/2006 published in the newspaper Chandigarh Tribune dated 20.7.2006 wherein applications were invited under category No. 22 for 816 posts of Art and Crafts Teacher, had submitted their applications. In the said advertisement, the closing date for receipt of applications was mentioned as 21.8.2006. The petitioners were issued interview cards by the Commission for appearing in interview at different places for the Art and Crafts Teacher on different dates. The Commission also published notice dated 31.7.2006 in various newspapers informing the candidates about the interview for the posts of Art and Crafts Teacher of the Education Department, Haryana who had submitted their forms in response to advertisement No. 6/2006 about the dates fixed for interview and the places as well. Still further, the Commission vide its notice dated 19.9.2008 published in the newspapers stated as follows: "HARYANA STAFF SELECTION COMMISSION BAYS NO. 67-70, SECTOR-2, PANCHKULA-134151 Notice to the candidates for interview for the post of Art and Craft Teachel, Education Department, Haryana. Reference Commission notice dated 31.7.2006, which published in the various newspapers for interview for the post of Art & Craft Teacher, Education Department, Haryana against Advt. No. 6/2006, Act. No. 22, dated 20.7.2006. According to the condition of advertisement the eligibility of the candidate in respect of academic qualification and age etc. is required to be determined on the cut off date i.e. 21.8.2006 for the post of Art & Craft Teacher and only such candidates are eligible for interview who fulfill the aforesaid condition on the said date. All the applicants have since been called for interview and as such it has been observed that even some ineligible candidates, who have acquired the academic qualification after cut off date i.e. 21.8.2006, are also reporting for interview. All the applicants have since been called for interview and as such it has been observed that even some ineligible candidates, who have acquired the academic qualification after cut off date i.e. 21.8.2006, are also reporting for interview. These ineligible candidates are now advised through this notice to check up their documents before coming for interview and in case they do not possess the qualification on fee cut off date i.e. 21.8.2006 they need not require to report for interview. Inconvenience is regretted. Place: Panchkula Secretary Dated: 19.9.2008 Haryana Staff Selection Commission, Panchkula" It is this notice issued by the Commission which is under challenge before this Court. 3. It is the contention of the petitioners that there was no stipulation as such in the advertisement but however, after considering their candidature, they have been issued interview letters. Now vide this notice the cut off date i.e. 21.8.2006 has been fixed to determine the academic qualification and age etc. which is impermissible. Petitioners have contended that they have attained the educational qualifications after the now determined cut off date i.e. 21.8.2006 although they are now fully eligible for appointment to the post. It is their contention that the eligibility of the candidates is to be seen at the time of the interview and not at the time of submission of the application or on the last date of the submission the application. 4. In C.W.P. No. 17523 of 2008, Mr. Pritam Saini, counsel for the petitioners contends that the relevant date for determining the eligibility of the candidates would be the date of interview and not the last date of submission of the application. The petitioners have also relied upon Sub-rule (2) of Rule 4 of the Haryana Primary School (Group C) Service Rules, 1994 (hereinafter referred to as Service Rules, 1994) to contend that a person in whose case certificate of eligibility is necessary, may be admitted to an examination or interview conducted by the Commission or any other recruiting Authority but the offer of appointment may, however, be given only after the necessary eligibility certificate has been issued to him. 5. 5. In C.W.P. No. 17719 of 2008, Mr, Pritam Saini, counsel for the petitioners has submitted that before the cut off date, the petitioners though had appeared in the diploma in Art and Craft Final Year Examination in May, 2006, the result whereof was declared on 14.8.2006 but there was a Re-appear should be declared eligible. The petitioners appeared in the Reappear Examination in November 2006 and, the result was declared on 25.4.2007 where the petitioners were, declared Pass, It is, therefore, contended that since the petitioners had qualified the examination before the interview, they were entitled to be considered as eligible for appointment to the post and therefore, cannot be debarred from appearing in the interview. 6. In C.W.P. No. 18207 of 2008, Ms. Alka Chatrath, counsel forthe petitioners, has contended that after passing their matriculation examination, the petitioners were admitted to Two Year Diploma Course in Art and Craft in the institutions run by the Department of Industrial Training and Vocational Education, Haryana for the session 2004-2006. It is contended tjnat as per the duration of the course of the Department of Haryana, Industrial Training and Vocational Education, the final examination was to be conducted in June, 2006. Since the Department failed to hold the examination in June, 2006, the result of the petitioners was not declared by the Industrial Training and Vocational Training Department before the cut off date and, thus, no fault can be attributed to the petitioners and they cannot be penalized for an act which was not in their control and the Haryana Industrial Training Vocational Education Department which is a Government Department should owe the responsibility and extend the last date for submission of the application forms or the petitioners be permitted to take the interviews since they were eligible for consideration after having attained the required qualification in September, 2006 and in case their cases are not considered, the petitioners would suffer an irreparable loss. Further, the purpose of selection is to be able to get the best talent available which would be in furtherance of public interest. 7. Upon notice having been issued, in C. W.P. Nos. 17523 and 17719 of 2008, the respondents put in appearance and filed their written statement. Further, the purpose of selection is to be able to get the best talent available which would be in furtherance of public interest. 7. Upon notice having been issued, in C. W.P. Nos. 17523 and 17719 of 2008, the respondents put in appearance and filed their written statement. It is the contention of the respondents that the claim of the petitioners is totally unjustified as in the advertisement dated 20.7.2006, it was specifically mentioned that the closing date prescribed for receipt of the applications in the Office of the Commission was 21.8.2006 and the candidates were required to posses the requisite qualification for the above post before the cut off date i.e. the last date of the submission of the application forms. It has been submitted that all the petitioners did not append the Final Year Diploma Certificate with the application forms and indicated therein that the result is awaited. All the petitioners have therefore, acquired the essential qualification after the cut off date and as such, they are ineligible. The respondents have further contended that in a similar matter, this Court in CMP. No. 11142 of 2007 (Karan Singh and others vs. State of Haryana and others) decided on 23.1.2007, while considering the candidature of the petitioners who had applied under the same advertisement but for the post of JBT Teachers, has held that if the petitioners do not possess the required qualification on the last date of the submission of the application forms which was stated to be the cut off date, or have acquired the said qualification after the cut off date, they cannot be considered for appointment to the post. 8. We have heard counsel for the parties and have gone through the records of the case. The contention of counsel for the petitioners that the cut off date for determining the qualification was not mentioned in the advertisement dated 20.7.2006 only deserves to be noted and rejected for the simple reason that the advertisement does provide for it. The relevant portion of the advertisement is reproduced hereinbelow: "HARYANA STAFF SELECTION COMMISSION BAYS No. 67-70, SECTOR 2, PANCHKULA Advt. No. 6/2006, Date of Publication: 20.7.2006 Closing date for receipt of applications in the Commissions office : 21.8.2006 Note:- i) xxxx xxxx xxxx xxxx ii) Qualification will be determined with regard to the last date fixed for receipt of applications. The relevant portion of the advertisement is reproduced hereinbelow: "HARYANA STAFF SELECTION COMMISSION BAYS No. 67-70, SECTOR 2, PANCHKULA Advt. No. 6/2006, Date of Publication: 20.7.2006 Closing date for receipt of applications in the Commissions office : 21.8.2006 Note:- i) xxxx xxxx xxxx xxxx ii) Qualification will be determined with regard to the last date fixed for receipt of applications. iii) Candidate applying for a post must ensure that they fulfill all the eligibility conditions on the last date of application. If on verification at any time before or after the written examination or interview or appointment, it is found that they do not fulfill any of the eligibility condition or it is found that the information furnished is false or incorrect their candidature will be cancelled." - "DOCUMENTS TO BE ATTACHED WITH THE APPLICATION FORM 1 to 4 xxxx xxxx xxxx xxxx 5. Copies of the following documents duly attested by a Gazetted Officer: (i) to (ii) xxxx xxxx xxxx (iii) Detailed Marks-Sheets and certificates, degrees etc., of all examinations passed from Matriculation to the highest qualification the candidate possesses. (iv) xxxx xxxx xxxx xxxx Note :- An application form will be summarily rejected in the following events : (i) to (ii) xxxx xxxx xxxx xxxx (iii) If the applications is unsigned/incomplete/not accompanied by attested copies of the detailed marks sheets and other relevant documents. (iv) to (v) xxxx xxxx xxxx xxxx IMPORTANT INSTRUCTIONS FOR CANDIDATES FOR WRITTEN TEST/ INTERVIEW 1. to 10. xxxx xxxx xxxx xxxx 11. The candidate should ensure that he possesses the requisite qualifications and age etc. for the said post as per advertisement on the cut off date, i.e. the last date for submission of Application Form. If at any stage, it is found that he does not possess the prescribed qualification, his candidature shall be cancelled. 12. to 16. xxxx xxxx xxxx xxxx" A perusal of the above would show that the petitioners have tried to mislead this Court. If at any stage, it is found that he does not possess the prescribed qualification, his candidature shall be cancelled. 12. to 16. xxxx xxxx xxxx xxxx" A perusal of the above would show that the petitioners have tried to mislead this Court. Not only the advertisement states that the last date for receipt of the applications would be the date for determining the qualifications but it further says that the candidates applying for the posts must ensure that they fulfill all the eligibility conditions on the last date of application and if on verification at any time before or after the written examination or interview or appointment, it is found that they do not fulfill the eligibility condition or it is found that the information furnished is false or incorrect, their candidature would be cancelled. The candidates were also required to submit.the attested copies of all the certificates, degrees etc. along with the marks-sheets also accompanied by the applications forms and failure to do so, would render rejection of their application summarily. 9. As regards the contention of the counsel that the eligibility certificates are to be seen and submitted at the time of appointment, reliance whereof has been placed upon Sub-rule (2) of Rule 4 of the Service Rules, 1994, the same is also devoid of any merit. Rule 4 of the above-mention Rules reads as follows: "4. Nationality, domicile and character of candidates appointed to service. (1) No person shall be appointed to any post in the services, unless he is: (a) a citizen of India; or (b) a subject of Nepal; or (c) a subject of Bhutan; or (d) a Tibetan refugee who came over to India, before 1st January, 1962, with the intention of permanently settling in India; or (e) a person of Indian origin who has migrated from Pakistan, Burma, Sri Lanka or any of the East African countries of Kenya, Uganda, the United Republic of Tanzania (formerly Tanganyika and Zanzibar), Zambia, Malawi. Zaire and Ethiopia with the intention of permanently settling in India; Provided that a person belonging to any of the categories, (b), (c), (d) or (e) shall be a person in whose favour a certificate of eligibility has been issued by the Government. Zaire and Ethiopia with the intention of permanently settling in India; Provided that a person belonging to any of the categories, (b), (c), (d) or (e) shall be a person in whose favour a certificate of eligibility has been issued by the Government. (2) A person in whose case a certificate of eligibility is necessary may be admitted to an examination or interview conducted by the Commission or any other recruiting authority, but the offer of appointment may be given only after the necessary eligibility has been issued to him by the Government. (3) A person shall be appointed to any post in the service by direct recruitment unless he produces a certificate of character from the Principal Academic Officer of the University, College, School or Institution last attended, if any, and similar certificate from two other responsible persons, not being his relatives who are well acquainted with him in his private life and are unconnected with his University, College, School or Institution." . 10. The claim of the petitioners is totally misplaced as the Rule deals with the candidates whose nationality, domicile and character is to be seen. The context in which the petitioners have placed reliance on Sub-rule (2) does not apply to the claim of the petitioners. This rule does not deal with the educational qualifications as required for appointment. We are pained to observe that again the petitioners through their counsel, have tried to keep the Court in dark by reproducing only sub- rule (2) of Rule 4 and referring this Sub-rule (2) as Rule 2 of the Haryana Primary School (Group C) Service Rules, 1994 by omitting the mention of Rule 4, even reference to the main Rule 4, is missing. The writ petition deserves to be dismissed on this ground alone. 11. The qualification prescribed under the Statutory Rules and as mentioned in the advertisement reads as follows: "E. Q. (i) Matric from Haryana School Education Board or an equivalent qualification recognized by the Haryana School Education Board. (ii) Two-year Diploma in Art and Crafts examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. (iii) Knowledge of Hindi up to Matric standard." 12. (ii) Two-year Diploma in Art and Crafts examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. (iii) Knowledge of Hindi up to Matric standard." 12. As regards the educational qualifications prescribed for appointment and with special reference to the cut-off date for determining the qualifications i.e. 21.8.2006, the petitioners were required to possess Two Years Diploma in Art and Crafts examination conducted by the Haryana Industrial Training and Vocational Institute recognized by the Haryana Education Department by the said cut off date. The petitioners being not possessed of the said qualification and cut off date are ineligible to be considered for appointment to the post of teacher. 13. With reference to the petitioners in C. W.P. No. 17719 of 2008, it is an admitted position of the petitioners that in May, 2006, they appeared in Final Year Diploma Examination of diploma in Art and Crafts conducted by the Kurukshetra University, the result whereof was declared on 14.8.2006 and all the petitioners got re-appear in one of the subjects as mentioned in para 4 of the petition. All the petitioners appeared in Supplementary Examination and cleared the Reappear/ Compartment in November, 2006. 14. In the written statement, it has been specifically stated that all the petitioners did not append the final year diploma with the application form and indicated therein that the result is awaited. Petitioner No. 1 acquired the diploma on 12.4.2007 and the remaining petitioners No. 2 to 4 on 2.3.2007 whereas the cut off date for determining the eligibility was 21.8.2006. Petitioners, therefore, did not possess the essential qualifications as on the cut off date for determination of their eligibility. 15. As regards the petitioners in C. W.P. No. 18207 of 2008, wherein according to Ms. Alka Chatrath, learned counsel for the petitioners, the petitioners who had taken admission in the Two Years Diploma Course for the Session 2004-06, the examination whereof was scheduled to be held in June, 2006 to be conducted by the Department of Haryana, Industrial Training and Vocational Education, who having failed to conduct the examination in June, 2006 resulting in the late declaration of the result, the said petitioners cannot be held responsible and punished for the delay on the part of the Examination Holding Body rendering them ineligible, the same also cannot be accepted. The advertisement provides for a cut off date for determining the eligibility. Any candidate who does not fulfill the requirements of the said eligibility cannot be considered for appointment to the said post. It is the Competent Authority which could have taken a decision with regard to the extension of the date of eligibility for a particular post. However, the same having not been done, it does not confer any right upon the petitioners to claim the same as a matter of right. The selection and appointment is to be made strictly in accordance with the terms of the advertisement issued for the purpose of recruitment and also in accordance with the Statutory Rules/Instructions governing the service. If any deviation from the Rules allows entry to ineligible persons and deprives many others who could have competed for the post would not be justified and would rather encourage arbitrariness. For holding this, we rely upon the judgment passed by the Honble Supreme Court in the case of Yogesh Kumar and others vs. Government of NCT, Delhi and others, 2003(3) RSJ 707. 16. Mr. Pritam Saini, one of the counsel for the petitioners, has relied upon the judgment passed by the Honble Supreme Court in the case of Ashok Kumar Sharma and others vs. Chander Shekhar and another, 1993 Suppl. (II) SC611 to contend that the last date for determining the eligibility of the petitioners is to be the date of interview and not the last date of the receipt of the applications or the cut off date as given in the advertisement. It would suffice to observe here that the said judgment referred to above by Mr. Saini, learned counsel, has already been reviewed by the Honble Supreme Court vide its order dated 10.3.1997 which has been reported as Ashok Kumar Sharma and others vs. Chander Shekhar and another, 1997(4) SCC 18. The Honble Supreme Court has held as follows: "1 to 4. xxxx xxxx xxxx xxxx 5. xxxx xxxx xxxx xxxx After hearing the counsel for the review petitioners, we had passed the following order on 1-9-1995: "xxxx xxxx xxxx xxxx xxxx xxxx xxxx" The review petitions are admitted confined to the following two issues : (1) Whether the view taken by the majority (Honble Dr. xxxx xxxx xxxx xxxx 5. xxxx xxxx xxxx xxxx After hearing the counsel for the review petitioners, we had passed the following order on 1-9-1995: "xxxx xxxx xxxx xxxx xxxx xxxx xxxx" The review petitions are admitted confined to the following two issues : (1) Whether the view taken by the majority (Honble Dr. Thommen and V. Ramaswami, JJ.) that it is enough for a candidate to be qualified by the date of interview even if he was not qualified by the last date prescribed for receiving the applications, is correct in law and whether the majority was right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy ? (2) xxxx xxxx xxxx xxxx 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 and 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 vs. University of Rajasthan. 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 vs. University of Rajasthan. 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. 7. Mr. Rakesh Dwivedi, learned counsel for the 33 candidates, submitted that these 33 candidates had appeared for the B.E. Examination prior to their applying for the post and that there was some delay in publishing the results and that these respondents cannot be punished for the delay on the part of the authorities concerned in publishing the results. In our opinion, the said contention is beside the point. In these proceedings, we cannot examine the reasons for delay assuming that there was delay in publishing the results. That issue is outside the perview of the writ petition. Whatever may be the reason, the 33 persons were not qualified as on the prescribed date and, therefore, could not have been allowed to appear for the interview, on the first issue (mentioned in the Order dated 1.9.1995), therefore, we hold in favour of the review petitioners, affirming the opinion of Sahai, J." In the light of the above as also the order of this Court in C. W.P.No. 11142 of 2007 (Karan Singh and others vs. State of Haryana and others) decided on 23.1.2007, the contentions raised by the counsel for the petitioners Mr. Pritam Saini and Ms. Alka Chatrath cannot be accepted and are hereby rejected. We do not find any merit in these petitions and dismiss the same.