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Gujarat High Court · body

2009 DIGILAW 623 (GUJ)

Pareshadan Jitudan Gadhavi v. State of Gujarat

2009-09-18

M.R.SHAH

body2009
ORDER : M.R. Shah, J. 1. Rule. Shri Pranav Dave, learned AGP waives service of notice of Rule on behalf of the respondent No.1 and Shri Chhaya, learned Advocate waives service of notice of Rule on behalf of the respondent Nos. 2 to 4. With the consent of the parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order declaring the action of the respondent in not issuing the call letter to the petitioner for appearing in the written examination for the post of Sanitary Sub Inspector scheduled on 20.9.2009 as arbitrary and illegal. Petitioner has also prayed for an appropriate writ, direction and order directing the respondents to permit the petitioner to appear in the written examination for the post of Sanitary Sub Inspector scheduled on 20.9.2009. 3. It is the case on behalf of the petitioner that pursuant to the advertisement issued by the respondent No.2 Rajkot Municipal Corporation inviting the applications for the post of Sanitary Sub Inspector. The petitioner has submitted the application along with he bonafide certificate dated 5.6.2008 issued by the College i.e. All India Institute of Local Self Government, Rajkot certifying that the petitioner is a bonafide student of the said institution for Sanitary Inspector Diploma Course and has appeared in the final examination held in the month of January, 2008 and that result is awaited. It is the case on behalf of the petitioner that before the date for scrutiny of the applications the result was declared and petitioner obtained the marksheet and submitted the same by giving an application on 12.8.2008 which was given inward number by the concerned respondent i.e. 852 dated 12.8.2008, whereby the petitioner submitted the result/ mark sheet. That the Corporation sent the applications to the respondent No. 5 Deputy Director (Examination) Sardar Patel Institute of Administration for holding the examination, however petitioner did not get call letter from the respondent No.5 for appearing in the written examination for the post of Sanitary Sub Inspector though the respondent No.5 had issued the call letter to other candidates. Therefore, petitioner submitted an application to the Commissioner, Rajkot Municipal Corporation seeking some information and also permitting the petitioner to appear in the examination but there is no reply given by the concerned authority. Therefore, petitioner submitted an application to the Commissioner, Rajkot Municipal Corporation seeking some information and also permitting the petitioner to appear in the examination but there is no reply given by the concerned authority. Hence, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for an appropriate writ, direction and order directing the respondent to permit the petitioner to appear in the written examination scheduled on 20.9.2009 for the post of Sanitary Sub Inspector. 4. Shri SK Gadhavi,learned Advocate appearing on behalf of the petitioner has submitted that petitioner is having the requisite qualification and even submitted his mark sheet before scrutiny of the applications to the concerned respondent. It is submitted that the day on which the advertisement was published inviting the applications for the post in question and even on the last date of submitting the application petitioner had already appeared in the examination for Sanitary Sub Inspector Diploma Course, however the result was not declared though the examination was conducted in the month of January 2008. It is submitted that as such for the lapse on the part of concerned college / institute in not declaring the result at the earliest the petitioner should not be made to suffer. It is submitted that as such on the date of the scrutiny of the application the result was already declared and the petitioner was already having the requisite qualification and, therefore, the action of the concerned respondents in not issuing the call letter for appearing in the examination for the post in question and thereby not permitting the petitioner to appear in the written examination is absolutely illegal and most arbitrary which requires to be quashed and set aside. Shri Gadhavi, learned advocate appearing on behalf of the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of Ashok Kumar Sharma And Another Chander Shekher And Another reported in 1993 Supl. (2) SCC 611 : (1993 AIR SCW 613). By making above submission and relying upon the above decision, it is requested to allow the present Special Civil Application. 5. Petition is opposed by Shri RM Chhaya, learned Advocate appearing on behalf of the respondent Nos. 2 to 4. Shri Pranav Dave, learned AGP has appeared on behalf of the respondent No.1 State of Gujarat. By making above submission and relying upon the above decision, it is requested to allow the present Special Civil Application. 5. Petition is opposed by Shri RM Chhaya, learned Advocate appearing on behalf of the respondent Nos. 2 to 4. Shri Pranav Dave, learned AGP has appeared on behalf of the respondent No.1 State of Gujarat. Shri Chhaya, learned Advocate for the respondent Corporation has submitted that considering the fact that on the last date of receiving the application admittedly petitioner was not having the requisite qualification as required for the post in question. It is submitted that admittedly on the last date of receiving the application the result was not declared and on that day petitioner had only appeared in the examination for Sanitary Sub Inspector Diploma Course. It is submitted that as merely because the petitioner had appeared in the examination it cannot be said that petitioner had actually acquired the requisite qualification. It is submitted that only on declaration of the result and having declared successfully passes it can be said that such a candidate has acquired the requisite qualification. It is submitted that merely appearing in the examination cannot be said to have acquired the requisite qualification. Therefore, it is submitted that petitioner is rightly not issued the call letter for appearing in the written examination treating the petitioner as ineligible as petitioner was not having the requisite qualification on the last date of receiving the application. 6. Shri Chhaya, learned Advocate appearing on behalf of the respondent Nos. 2 to 4 has further submitted that even the decision of the Hon'ble Supreme Court in the case of Ashok Kumar Sharma And Another (1993 AIR SCW 613)(supra) relied upon by the learned advocate for the petitioner was subject to review application and subsequently the Hon'ble Supreme Court in the case of Ashok Kumar Sharma And Anotehr Chander Shekher And Another reported in (1997) 4 SCC 18 has disapproved the majority view in the main judgment and as held that the minority judgment in the main decision was right. It is submitted that the view taken by the majority in the main decision in the case of Ashok Kumar Sharma And Another (supra) that it is enough for candidate to be qualified by the date of interview even if he was not qualified by the last date prescribed for receiving the application is held to be not a correct law. It is further submitted by Shri Chhaya learned Advocate for the respondent Nos. 2 to 4 that in the subsequent decision in the case of Ashok Kumar Sharma And Anotehr v. Chander Shekher and Another reported in (1997) 4 SCC 18 the Hon'ble Supreme Court has held that in absence of any rule or any specific date having been fixed in the advertisement the date for the purpose of determining the eligibility of the candidates concerned would be the last date for filing the applications. 7. It is further submitted by Shri Chhaya, learned Advocate for the respondent Nos.2 to 4 that there are as such other 40 similarly situated candidates who are held to be ineligible and are not permitted to appear in the written examination. Therefore, it is submitted that the decision of the respondent is neither discriminatory nor violative of Article 14 of the Constitution of India. By making above submissions and relying upon the above decision, it is requested to dismiss the present Special Civil Application. 8. Heard the learned Advocates appearing on behalf of the respective parties. The applications were invited by the respondent corporation for filling up the post of Sanitary Sub Inspector and the last date for submitting / receiving the application was 30.6.2008. It is not in dispute that requisite qualification for the said post in question is that a candidate must be a graduate and is having the requisite qualification for Sanitary Sub Inspector Diploma Course. It is an admitted position that as on last date of receiving the application the petitioner was not having the requisite qualification of Sanitary Sub Inspector Diploma Course. On the last date of receiving the application, petitioner had only appeared in the examination for the aforesaid post and admittedly the result was not declared and which came to be declared only on 12.8.2008. On the last date of receiving the application, petitioner had only appeared in the examination for the aforesaid post and admittedly the result was not declared and which came to be declared only on 12.8.2008. Merely because a candidate has appeared in the examination for a particular course, it cannot be said that he has acquired the requisite qualification in a particular course for which he has appeared in the examination. Only on declaration of result and having declared successful and having declared pass in the said examination then and then only it can be said that such a candidate has acquired the qualification. Under the circumstances, as result of the Examination of Sanitary Sub Inspector Diploma Course, in which petitioner had appeared, was not declared as on 30.6.2008 it can be said that on the last date of receiving the applications petitioner was not having the requisite qualification of Sanitary Sub Inspector Diploma Course. Therefore, petitioner is rightly held ineligible for appearing in the written examination for the post in question. However, it is the case on behalf of the petitioner that on the date of scrutiny of the application the result was already declared and petitioner had submitted necessary application on 12.8.2008 producing the mark sheet, the petitioner should be held eligible for appearing in the written examination as by the time, the petitioner had already acquired the requisite qualification. In support of his submission, the learned Advocate for the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of Ashok Kumar Sharma And Another Chander Shekher And Another reported in 1993 Supp.(2) SCC 611 : (1993 AIR SCW 613). It is submitted that as held by the Hon'ble Supreme Court in the aforesaid decision requirement of educational qualification can be said to have been fulfilled if they are possessed on the date of interview. It is submitted that as observed by the Hon'ble Supreme Court in order to have wider selection, it was in public interest to entertain applications of the candidates who did not possess requisite educational qualification on the date of application but possessed it on the date of interview. It is submitted that as observed by the Hon'ble Supreme Court in order to have wider selection, it was in public interest to entertain applications of the candidates who did not possess requisite educational qualification on the date of application but possessed it on the date of interview. However, it is to be noted that a Review Application was filed in the very matter i.e. in Ashok Kumar Sharma And Anotehr Chander Shekher (supra) and the matter was placed before Three Judge Bench of the Hon'ble Supreme Court and one of the issue fell for consideration of the Bench in issue No. 1 reads as under: Whether the view taken by the majority (Hon'ble 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 ? The Hon'ble Supreme Court in para 6 observed and held as under: "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 wellestablished 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. 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 v. University of Rajasthan (1993 Lab IC 1250) (SC). 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 . The judgment of the Hon'ble Supreme Court in Review Application in Ashok kumar Sharma and Others V. Chander Shekhar And Another is reported in (1997) 4 SCC 18 . That the decision of the Hon'ble Supreme Court in the Review Application again came to be considered by the Hon'ble Supreme Court in the case of Ashok Kumar Sonkar Union of India and Others reported in (2007) 4 SCC 54 and considering both the decisions of the Hon'ble Supreme Court in the case of Ashok kumar Sharma (supra) as observed and held by the Hon'ble Supreme Court that decision of requisite educational qualification is mandatory. The same should not be uncertained. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut of date for the purpose of determining the eligibility of the candidates, concerned must, therefore, be fixed. In the absence of rule or any specific date having been fixed in the advertisement, the last date for filing the application should be considered as cut off date for the purpose of determining the eligibility of candidates. 9. A cut of date for the purpose of determining the eligibility of the candidates, concerned must, therefore, be fixed. In the absence of rule or any specific date having been fixed in the advertisement, the last date for filing the application should be considered as cut off date for the purpose of determining the eligibility of candidates. 9. Considering the aforesaid decisions of the Hon'ble Supreme Court and facts of the case on hand as the petitioner was not having the requisite qualification of having Sanitary Sub Inspector Course on the last date of receiving the application i.e. 30.6.2008 petitioner is rightly held ineligible for appearing in the written examination for the post in question. It is held that subsequent acquiring the qualification by the petitioner cannot make the petitioner eligible for appearing in the written examination for the post in question. No illegality has been committed by the Corporation in not calling the petitioner for appearing in the written examination treating the petitioner as ineligible. 10. In view of the above and for the reasons stated above, petition fails and deserves to be dismissed and is accordingly dismissed. Rule discharged. No costs. Petition dismissed.