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2009 DIGILAW 588 (JK)

Madhu Syal (Dr. ) v. State Of J. &K.

2009-11-26

BARIN GHOSH, MUZAFFAR HUSSAIN ATTAR

body2009
Muzaffar Hussain Attar, J. 1. Petitioner, an ineligible candidate on the facts specified by her in her writ petition, still has plucked up the courage to approach this court by filing writ petition praying therein for issuance of direction to respondents to allow her to compete in the process of selection to post of B-Grade Specialists (Gynae) under S.C. Category. The further prayer made by her is that the notification providing rejection of candidature of the petitioner, be quashed by issuance of writ of certiorari. 2. Public Service Commission (for short PSC), a Constitutional Authority, issued notification No. 15-PSC of 2009 dated 27th July 2009 wherein and whereunder applications on prescribed form were invited from permanent resident of J&K State for the posts of B-Grade Specialists in Health and Family Welfare Department. Thirteen categories were notified. At paragraph 2 of notification, qualification for item 1 to 12 was prescribed, requiring the candidates to have Post Graduation Degree with two years experience or to be in possession of Post Graduation Diploma with four years experience. Paragraph 2 is reproduced as under:- "2. possession of post Graduation Degree qualification mentioned for the concerned subject in part "A" of the Annexure to the J&K Heath and Family Welfare (Gazetted) Service Rectt. Rules 2006 with 02 years experience in the profession in a responsible position connected with the specialty. Or Possession of Post Graduate Diploma mentioned for the concerned subject in part "B" of the Annexure to the J&K Health and Family Welfare (Gazetted) Service Rectt. Rules 2006 with 04 years experience in the profession in a responsible position connected with the specialty." 3. At paragraph 2 under caption "Application Forms", clause (d) provided that last date for receipt of application forms in the Commission Office either by hand or by post is 19th Sept. 2009. It was also notified that the said date shall be cut off date for purposes of qualification and experience for determining eligibility. The said clause is reproduced as under: "(d) Last date for receipt of Application Forms in the Commission Office either by hand or by post is 09.09.2009 which shall be the cut off date for purposes of qualification and experience for determining the eligibility. In case the last date is declared a public holiday, then the last date for receipt of Application Forms shall be the next working day. In case the last date is declared a public holiday, then the last date for receipt of Application Forms shall be the next working day. Candidate should ensure that their Application Forms reach the Commission Office at Srinagar or Jammu on or before the last date fixed for the receipt of the Application Forms. Application Forms received after the last date shall be summarily rejected." 4. In terms of notice dated 28th Oct. 2009 issued by PSC, the candidates who had applied for the posts of B-Grade Specialists/Lecturer in GMC Jammu/Srinagar were informed that the candidature of candidates figuring in the said notice is rejected on the grounds mentioned against each. Petitioner figures at serial No.10 of the discipline Gynae/ Obstr. The candidature of the petitioner has been rejected as she was having less experience than what was required in terms of the advertisement notification. The PSC, accordingly, issued schedule for conducting interview of the candidates who were found to fulfill the requisite eligibility qualification. 5. We have heard learned counsel and considered the matter. 6. The documents placed on the writ record do show that petitioner as on cut off date was not possessed of the requisite experience of four years, a requirement since she is a diploma holder, so admittedly she was ineligible in seeking consideration for being selected/appointed as B-Grade Specialists in the discipline of Gynae/Obstr. Ld. counsel submitted that two of petitioners batch-mates, Dr. Shabir Ahmed and Dr. Khalida Parveen, who have obtained Diploma in Gynae in the same session in which petitioner obtained the said qualification, have been called for interview by PSC. Learned counsel submitted that petitioner also deserves to be given same treatment which has been meted out to said doctors. 7. An advertisement notification is a representation to all eligible candidates from the Selection Authority providing therein the post(s) which are to be filled in and the eligibility qualifications which the candidates aspiring to seek consideration for being selected/appointed to a particular post(s) must possess. In order to avoid uncertainty which may arise in case date is not fixed for determining the eligibility, the Selection Authority in the advertisement notification also provides the cut off date for determining the eligibility of candidate(s) who may seek consideration for being selected/appointed to the post notified. In order to avoid uncertainty which may arise in case date is not fixed for determining the eligibility, the Selection Authority in the advertisement notification also provides the cut off date for determining the eligibility of candidate(s) who may seek consideration for being selected/appointed to the post notified. The moment, the advertisement notification along with terms and conditions is made public, it binds the authority who issues the same. A candidate who responds to the said notification on the basis of the terms and conditions mentioned therein, without any reservation, is also thereafter bound by the terms and conditions of the said notification. 8. The Honble Supreme Court in case titled Ashok Kumar Sharma and ors petitioners/appellants v. Chander Shekhar and anr, respondents, reported in (1997) 4 SCC page 18 has held that an advertisement or notification issued/published calling for applications constitutes a representation to the public and the issuing authority is bound by such representation. It cannot act contrary to it. The relevant portion of para 6 is reproduced as under:- "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" 9. On scrutiny of the Application Forms as also the testimonials attached therewith, if it is found, that the candidate is not fulfilling any of the terms and conditions contained in the advertisement notification his/her Application Form is liable to be rejected. A person being ineligible, in accordance with the terms and conditions of the advertisement notification, cannot seek consideration for being selected/appointed to a post. 10. Article 14 and 16 of the Constitution of India do mandate that it is only those candidates who on the terms and conditions of advertisement notification are eligible, form one class, and they alone under the scheme of the said constitutional provisions have guaranteed right of being considered for being selected/appointed to a post. 11. A person who does not satisfy the terms and conditions of the advertisement notification, and is also not aggrieved of the terms and conditions notified therein, and does not challenge them on any valid and legal ground, cannot file Application Form in response to said notification and cannot seek consideration for being selected/appointed to the post. 11. A person who does not satisfy the terms and conditions of the advertisement notification, and is also not aggrieved of the terms and conditions notified therein, and does not challenge them on any valid and legal ground, cannot file Application Form in response to said notification and cannot seek consideration for being selected/appointed to the post. Such a candidate being not eligible on the terms and conditions of the advertisement notification forms a different class, and has no enforceable right in law to pray for issuance of a direction to the selection authority to consider his/her candidature. An ineligible candidate being not clothed with any right in law cannot approach the court of law that too a Constitutional Court for issuance of high prerogative writs to command the selection authority to do an act in breach of the terms and conditions notified in the advertisement notification. Such a direction cannot be, otherwise, also issued as the eligible candidates on the terms and conditions of the advertisement notification form distinct and separate class, whereas ineligible candidate on the same set of terms and conditions forms a separate class. The competent authority cannot be directed to give same treatment to an ineligible candidate which is being given to the eligible candidates as that would amount to clubbing of two different and distinct classes in one single class, which would be voilative of Constitutional Guarantees as contained in Article 14 and 16 of the Constitution. 12. The prayer made in the writ petition cannot also be allowed as the eligible candidates on the terms and conditions of advertisement notification become a class apart, and if ineligible candidate is ordered to be given same and similar treatment then the rights of the other class will be adversely affected as it will be allowing to have competition between eligible and ineligible candidates. The principles underlying Article 14 and 16 of the Constitution of India would not permit such situation to be created. These constitutional provisions cannot be implored for achieving negative ends. The writ petition on the established principles of law is not maintainable. 13. The certificate on which petitioner relies to suggest her eligibility on account of experience clearly indicates she did not have the required experience. 14. Ld counsel for petitioner referred to averment made in the writ petition disclosing therein that Dr. Shabir Ahmed and Dr. The writ petition on the established principles of law is not maintainable. 13. The certificate on which petitioner relies to suggest her eligibility on account of experience clearly indicates she did not have the required experience. 14. Ld counsel for petitioner referred to averment made in the writ petition disclosing therein that Dr. Shabir Ahmed and Dr. Khalida are similarly situated with the petitioner and have been called for interview. Neither said persons are parties in the writ petition nor any evidence pertaining to their experience has been placed on the record of the writ petition. In the writ petition, petitioner has to plead the facts and annex evidence in support thereof. The writ petition is also held not maintainable for twin reasons; first, that the two persons are not parties in the writ petition and nothing can be said against them in their absence as that would violate the procedural proprietary and will also tantamount condemning these persons without being heard. Secondly, there is no evidence annexed with the writ petition, the pleadings thereof thus cannot be looked into. The courts of law are meant to correct illegalities and irregularities committed by the authorities in decision making process. Court of law itself cannot commit the same mistake. 15. Mr. A. M. Magray, ld. Sr. AAG has produced communication No. PSC/Secy/2009 dated 18th Nov. 2009 addressed to him by Secretary J&K Public Service Commission. Perusal of the said communication reveals that petitioner is ineligible as she is not possessing the requisite experience as notified vide aforesaid advertisement notification. The communication also reveals that name of Khalid Parvaiz and Khalida Parveen were initially included in the list of candidates to be called for interview provisionally but have since been deleted from the said list after verification of their documents. The copy of the communication is taken on record. 16. For the above stated reasons, we find the petition to be merit less and, is accordingly dismissed, along with connected CMPs.