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2008 DIGILAW 376 (HP)

Dolly Devi v. State of H. P.

2008-07-28

DEEPAK GUPTA, V.K.AHUJA

body2008
JUDGMENT (V.K. Ahuja, J.) (Oral) - This is a writ petition filed by the petitioner under Article 226/227 of the Constitution of India, for setting aside the judgment dated 6.8.2004 passed by the H.P. State Administrative Tribunal, hereinafter to be referred as ‘the Tribunal’. 2.Briefly stated, the facts of the case are that respondent No. 7 filed an application under Section 19 of the Administrative Tribunal Act, 1985. She has challenged the appointment of Dolly Devi, respondent No. 7 before the Tribunal and the petitioner in this case, on the ground that she had wrongly been given weightage being a graduate whereas on the last date of submission of application for the post of ‘Gram Vidya Upasak’, she was not graduate and, therefore, her appointment was liable to be quashed and accordingly, respondent No. 7 prayed that she be appointed against the said post. 3.It was allegedly by respondents before the Tribunal that the appointment to the said post was governed by the policy framed by the State Government known as “Gram Vidya Upasak Yozna 2001”, which was amended by notification dated 28.3.2002. Respondent No. 7 claimed that she was qualified and submitted application for appointment against posts which were advertised alongwith relevant certificates to the respondents. The present petitioner who was respondent No. 7 before the Tribunal, submitted application on the last date of application i.e. on 25.6.2002 when she was not a graduate. However, she had acquired the graduation certificate before the date of interview was awarded 10 marks wrongly for his graduation qualification. The respondent/State pleaded that the selection of respondent No. 7 Dolly Devi was made by a duly constituted Selection Committee headed by the S.D.O. (Civil) of the area and comprising three other members as provided under the policy guide-lines formulated by the State of Himachal Pradesh. It was alleged that according to the comparative chart, respondent No. 7 Chander Rekha had obtained a total of 53.3 marks as against 55.12 marks obtained by respondent No. 7 Dolly Devi (petitioner in the present case) and she was, therefore, selected being higher in merit. The plea taken by respondent No. 7 was that the last date of submission of application form was 25.6.2002 by which date respondent No. 7 had not cleared B.A. examination. The plea taken by respondent No. 7 was that the last date of submission of application form was 25.6.2002 by which date respondent No. 7 had not cleared B.A. examination. Thus, a plea was taken that since respondent No. 7 Dolly Devi had obtained the graduate qualification subsequent to the submission of his application by 25.6.2002/22.6.2002, therefore, she could not have been granted 10 marks for being a graduate. 4.Respondent No. 7 Dolly Devi before Tribunal and petitioner before us, had also taken the plea that Chander Rekha, present respondent No. 7 had concealed the material fact in regard to marriage and, therefore, she was not entitled to get 10 marks meant for the residents of Local Panchayat. 5.Consequently, after considering the pleadings of the parties, the learned Tribunal held that the appointment of respondent No. 7 Dolly Devi to the post of Gram Vidya Upasak is liable to be quashed and set aside and fresh selection should be made in accordance with the rules, since she became graduate subsequent to last date of application. 6.Being aggrieved by the said order, the petitioner has filed the present petition. 7.It is not disputed before us that the posts of Gram Vidya Upasak were advertised and the present petitioner and respondent No. 7, both applied for the same. The last date of application was 25.6.2002/22.6.2002, but by that date, the present petitioner had not passed B.A. final examination and, therefore, was not graduate. However, since she had passed the graduation on the date of the interview, she was, therefore, awarded 10 marks under the scheme framed by the Government in regard to the selection. The only question worth consideration is as to when the certificate of gradation was to be considered as to whether it was to be considered on the date of last date of submission of applications or it was to be considered on the date on which interviews were taken for these posts. 8.A reference can be made to the policy framed by the State Government and it is clear that the candidate eligible to apply for the post of Vidya Upasak, the graduation was not the essential qualification and the essential qualification was 10+2. But in case a person was having higher academic qualifications, he/she was eligible to apply and in case a person was graduate he/she was entitled to 10 marks extra for being a graduate. But in case a person was having higher academic qualifications, he/she was eligible to apply and in case a person was graduate he/she was entitled to 10 marks extra for being a graduate. Thus, the question to be considered is as to whether the weightage of 10 marks can be given to a candidate who was graduate by the date of interview and not by the last date for submission of applications. Rule 11.9 of the policy for appointment of Gram Vidya Upasak 2001 reads as under :- “Based on all relevant certificates enclosed with the application, a merit list will be drawn up within 15 days by the Block Primary Education Officer (Member Secretary) concerned and the person(s) at the top will be recommended for appointment to the concerned Gram Panchayat subject to verification of all information and certificates against the originals.” 9.It is clear that a merit list has to be drawn keeping in view all the relevant certificates enclosed with the application and not that the merit was to be drawn on the basis of the certificates produced at the time of the interview. 10.Our attention has been drawn to the decision of Division Bench of this Court in Babu Ram v. State of H.P. and others, CWP No. 873 of 2004, decided on 25.7.2008, wherein a similar question arose in regard to giving of 10 marks for graduation. It was considered by the Division Bench of this court as to whether the graduation certificate is to be considered on the last date of filing of the application or it can be considered at the time of interview. The relevant provisions of the Policy of Gram Vidya Upasak as in the present case were considered by this Court. A reference was also made to the decision of the Apex Court in Bhupinderpal Singh and others v. State of Punjab and others, 2000(5) Supreme Court Cases 262. In that case, an advertisement was issued on 12.1.1996 inviting application latest by 15.2.1996. The upper age limit prescribed was 36 years as on 1.1.1996. However, a corrigendum was issued on 7.10.1996 raising upper age limit to 42 years as on 1.1.1996. Candidates who could not apply earlier due to over age were advised to apply latest by 30.10.1996. In that case, an advertisement was issued on 12.1.1996 inviting application latest by 15.2.1996. The upper age limit prescribed was 36 years as on 1.1.1996. However, a corrigendum was issued on 7.10.1996 raising upper age limit to 42 years as on 1.1.1996. Candidates who could not apply earlier due to over age were advised to apply latest by 30.10.1996. Some candidates who did not have requisite educational qualifications as on 15.2.1996, the last date of receipt of applications, also applied and some of them were selected for appointment in view of the decision of the Government that the candidates who have acquired requisite qualification at the time of interview and have been selected, may be given appointments though they did not have a requisite qualifications by 15.2.1996. The circular was subsequently withdrawn. It was observed by the Apex Court as under :- “Held, High Court rightly discerned the law on the subject as follows : (i) if cut-off date is laid down in relevant rules, it has to be followed otherwise it may be prescribed in advertisement, and (ii) if no such date is prescribed, eligibility has to be determined as on the last date of receipt of applications. Further held, State of Punjab was followed a wrong practice of determining eligibility conditions as on the date of interview. The practice directed to be discontinued.” 11.It is clear from a perusal of the above decision as well as the rules framed that the merit list has to be drawn in accordance with the certificates attached with the application. In case the rules framed by the State Government for appointment of these posts had prescribed that all the certificates can be considered on the date of the interview, the decision would have been different. The rules as have been framed under the policy have to be interpreted and no other meaning can be given by the Court of its own. We may clarify that the graduation was not the essential qualification for the post of Gram Vidya Upasak though it was an added qualification but that added qualification was liable to be considered on the date of the submission of the application i.e. upto the last date of submitting of the application when the merit list was to be prepared. We may clarify that the graduation was not the essential qualification for the post of Gram Vidya Upasak though it was an added qualification but that added qualification was liable to be considered on the date of the submission of the application i.e. upto the last date of submitting of the application when the merit list was to be prepared. In case the rules were silent as to when the certificate of graduation has to be considered by giving 10 marks, this could have been interpreted that certificate could have been considered at the time of interview when the merit list is prepared. However, the rules specifically prescribe that the merit list will be drawn up in accordance with the certificates enclosed with the application and, therefore, no different meaning can be given by this court. The rules simply lays down that this certificate of graduation could not have been considered on the date when the interview took place and since the petitioner was not having graduation certificate at the time of submitting the application, therefore, she was not entitled to 10 marks given to her for having the certificate of graduation. 12.It was finally held by this Court that the merit list has to be drawn in accordance with the certificates attached with the application and, therefore, no different meaning can be given to the rules which provide that the merit list has to be prepared on the date the applications are submitted and, therefore, certificate of graduation could not have been considered on the date when the interview took place and since the petitioner was not having graduation certificate at the time of submitting the application, therefore, she was not entitled to 10 marks given to her for possessing the certificate of graduation. 13.The learned Tribunal had considered this question as to whether the petitioner was entitled to 10 marks or not for graduation certificate and has also observed on the facts of the case that the date of application as well as date of interview were deferred to accommodate respondent No. 7 in order to giver her the benefit of graduation. Therefore, the proceedings of the Selection Committee and appointment on that basis were rightly quashed and we find no infirmity in the said order passed by the learned Tribunal keeping in view the earlier decision of Division Bench of this Court referred to above. Therefore, the proceedings of the Selection Committee and appointment on that basis were rightly quashed and we find no infirmity in the said order passed by the learned Tribunal keeping in view the earlier decision of Division Bench of this Court referred to above. 14.Respondents No. 1 to 6 are directed to hold fresh selection for the post in accordance with the rules as in existence for the present, since it has been pointed out by the learned Deputy Advocate General that afresh rules have been framed and therefore, the rules as at present shall be considered for making selection afresh. 15.In view of the above discussion, there is no merit in the writ petition filed by the petitioner, which is dismissed accordingly. There is no order as to costs. CMP No. 1372 of 2004 : 16.In view of the orders passed in the main petition, this application stands disposed of and the interim order dated 24.12.2004 also stands vacated. M.R.B. ———————