Judgment RAM MOHAN REDDY, J 1. The subject matter of these Writ Petitions relate to selection and admission of in-service candidates to the Post Graduate Super Specially Course in the discipline of MCh-Urology, against in service quota, for the Academic year 2010-11 in the second respondent-Rajiv Gandhi University of Health Sciences (for short ‘RGUHS’). 2. The core question for decision making is: Whether three years service in the definition of the term ‘in-service candidate’ in Rule 2 (d) of the Karnataka Medical Education Department (Deputation of in-service candidates to Post Graduate Super Speciality Course) Rules 2006, is to be reckoned from the date of entry into service in the cadre of Tutor etc,. upto the date of commencement of the Academic Session of Post Graduate Super Speciality Course for the Academic year 2010-11? 3. Petitioner in W.P. No.22000-01/2010 are Assistant Professors in the State Medical Department having put in more than eight years of service, while petitioner in W.P. No.20018/2010 also arraigned as respondent No.4 in W.P.22000-01/2010, when appointed a Tutor in the State Medical Department on 11.6.2007 reported on 29.6.2007. The fifth respondent – Dr.C.S. Manohar in Writ Petition No.22000-01/2010 arraigned as respondent No.4 in W.P.No.20018/2010, entered the State service as a Tutor on 16.6.2007. 4. The second respondent – RGUHS issued a Notification dt. 3.5.2010 to conduct an entrance test for admission to Post Graduate Super Speciality Course in M.Ch. Urology amongst other disciplines, with a calendar of events fixing 10.6.2010 as the last date for on-line registration of application; 20.6.2010 as the date of Entrance Test; 1.7.2010 as the tentative date for viva voce and announcement of selection, and 2.8.2010 the date of commencement of the academic session for the academic year 2010-11. Under the heading ‘eligibility’, it is stated that a person shall be eligible for admission to Post graduate Super Speciality degree course only if he/she has not completed 48 years as on the date found as the last date for submitting the application for the entrance test. Appendix-I to the form of application issued by the RGUHS, requires in-service candidates to furnish information relating to the date of entry into service; number of years of service, etc., to be verified by the Head of the Department and certify that the candidate is eligible to apply for the entrance test 2010. Appendix-I to the form of application issued by the RGUHS, requires in-service candidates to furnish information relating to the date of entry into service; number of years of service, etc., to be verified by the Head of the Department and certify that the candidate is eligible to apply for the entrance test 2010. The petitioners and respondents filed applications through proper channel indicating the date of their entry into service while respondents 4 and 5 though, fell short of few days for completion of three years service as on the last date of filing the applications, nevertheless, stated that they had completed three years of service. 5. Dr. V. Shivakumar, petition in W.P.20018/2010 received a Short Message Service (SMS) from RGUHS at 4.59 P.M. on 9.6.2010 stating that his application having been considered as in-service candidate though he had not completed three years of service, was required to give an undertaking in writing to be considered under the in-service quota, which was responded by letter dt. 10.6.2010 stating that his application could be considered under the general quota for Karnataka in the Entrance Examination 2010 if not eligible under the in-service quota due to technical reasons and further requested if RGUHS could relax the last date and accept his application under the in-service quota. 6. The petitioners and respondents having filed their applications through proper channel, appeared in the examination held on 20th June 2010 along with other candidates, whereafter the second respondent issued a list of eligible candidates, Annexure ‘D’ relating to entrance quota and Annexure ‘E’ relating to in-service quota. petitioners Dr. H.S. Prakash and Dr. Mahantesh Gudleppa Todakar in W.P. No.22000-01/10 having secured 51 and 50 marks respectively, were placed at Sl. Nos. 6 and 7 while Dr. V. Shivakumar, petitioner in E.P. No.20018/10 arraigned as respondent No.4 in W.P.No. 22000-01/10 having secured 70 marks, was placed at Sl. No.32 in the entrance quota list. The 5th respondent – Dr. C.S. Manohar having secured 68 marks (highest), was placed at Sl. No.1 in the in-service list. 7. The State Government by Notification dt. 12.7.2010 indicated the distribution of seats in respect of various Post Graduate Super Speciality Courses reserved for in-service and entrance quota, whereunder six seats were reserved for in-service quota in the discipline of Urology. 8. Dr. C.S. Manohar having secured 68 marks (highest), was placed at Sl. No.1 in the in-service list. 7. The State Government by Notification dt. 12.7.2010 indicated the distribution of seats in respect of various Post Graduate Super Speciality Courses reserved for in-service and entrance quota, whereunder six seats were reserved for in-service quota in the discipline of Urology. 8. Dr. Shivakumar having filed W.P. No.20018/10 on the premise that he ought to be treated as an in-service candidate, this Court, on 12.7.2010 directed RGUHS to permit the petitioner to appear in the viva-voce to be held on 13th July 2010 as an in-service candidate and keep in abeyance the results of all the in-service candidates. 9. The Karnataka Medical Education Department (Deputation of in-service candidates to Post Graduate Super Speciality Course) Rules 2006 (for short ‘Rules’) as Amended by (Amendment) Rules 2007, applies to selection of in-service candidates for admission to Post Graduate Super Speciality Course in medical colleges in Karnataka against seats reserved under Government quota. The term “in-service candidate” is defined under Rule 2(d) to reads thus: “(d) In-service candidates” means a person in the service of the State Government working in the Medical Education Department in the cadre of Tutor, Lecturer, Assistant Professor, Associate Professor or Professor in the Government Medical College and General Duty Medical Officer, Specialist and Senior Specialist in Health and Family Welfare Services Department, IMOs with PG qualification. Deputy Surgeon, Surgeon working in ESI(M)S under Labour Department, under the control of Health & Family Welfare Department and Health & Family Welfare Department (Medical Education), whose probation period is declared to have been completed satisfactorily and who has put in a minimum period of three years of service.” Rule 3 reads thus: “3. Xxxx (1)xxxx (2) Any in-service candidate who has taken the entrance test and who is declared to be qualified for admission to post-graduate Super Speciality Courses by the Entrance Test Committee, shall be eligible for selection to be deputed for acquiring Post-Graduate Super Speciality Course among other in-service candidates based on merit-cum-seniority.” Rule 4(5) runs thus: “4. Xxxx (1)xxxx (2) Any in-service candidate who has taken the entrance test and who is declared to be qualified for admission to post-graduate Super Speciality Courses by the Entrance Test Committee, shall be eligible for selection to be deputed for acquiring Post-Graduate Super Speciality Course among other in-service candidates based on merit-cum-seniority.” Rule 4(5) runs thus: “4. Xxxx (5) An in-service candidate who is above forty eight years of age as on the last date specified for the receipt of applications for entrance test, shall not be eligible for deputation to Post Graduate Super Speciality Courses under these Rules.” Rule 6 under the nomenclature ‘Preparation of selection list of in-service candidates reads thus: “6. A list of in-service candidates selected for deputation to post graduate super speciality shall be prepared by the selection committee on the basis of merit-cum-seniority which shall be determined on the basis of marks secured in the entrance test and the weightage being given as one mark for each year of completed service subject to a maximum of ten marks. For each academic year. The list shall be published in the notice board of the Directorate of Medical Education, Rajiv Gandhi University of Health Sciences and the Government Medical Colleges.” (emphasis supplied) 10. The Rules as amended by (Amendment) Rules 2007 gazetted on 2.11.2007 substituted the words “period of 10 years of service” to read as “period of 3 years of service” in Rule 2(d), while the words “seniority cum inter-se merit” was substituted as “merit cum seniority” in rule 3(2), and in Rule 6 to substitute the word “seniority cum merit”, the words “merit cum seniority which shall be determined on the basis of the marks secured in the entrance test and weightage being given as one mark for each year of completed service, subject to a maximum of 10 marks”. 11. Learned Counsel for the petitioners in W.P.No.22000-01/10 contends that neither Dr.Shivakumar the petitioner in W.P.No.20018/10 arraigned as respondent No.4 nor respondent No.5 in W.P.Nos. 22000-01/10 had the eligibility as on 10.6.2010 the last date to register applications on-line for the entrance test for admission to Post Graduate Super Speciality Course in the discipline of MCh. – Urology, having entered service as tutors on 29.6.2007 and 16.6.2007 respectively, did not complete three years of service as on that date. 22000-01/10 had the eligibility as on 10.6.2010 the last date to register applications on-line for the entrance test for admission to Post Graduate Super Speciality Course in the discipline of MCh. – Urology, having entered service as tutors on 29.6.2007 and 16.6.2007 respectively, did not complete three years of service as on that date. Learned Counsel points out to the definition of the term ‘in service candidate’ to contend that minimum period of three years of service ought to be reckoned as commencing from the date of joining service in the cadre of Tutor, upto the last date for on-line registration of the application and any other interpretation would render oitose Rule 2(d). In addition Learned Counsel points out to sub-rule (5) of Rule 4 to contend that the Rule making authority in its wisdom while denying the benefit of admission to in-service candidates above 48 years of age as on the last date specified for receipt of the application for the entrance test, is a clear indication that the cut off date to reckon minimum period of 3 years service for an in-service candidate ought to be the last date for receipt of applications. Learned Counsel lastly contends that qualification and eligibility being sacrosant cannot be diluted on a broad based undertaking to include candidates who had not completed minimum period of three years service as on the last date for receipt of applications. Learned Counsel places reliance upon the following reported opinions of the Apex Court: 1. ASHOK KUMAR SONKAR vs. UNION OF INDIA AND OTHERS( (2007) 4 SCC 54 ) 2. ASHOK KUMAR SHARMA AND OTHERS vs. CHANDER SHEKHAR AND ANOTHER( (1997) 4 SCC 18 ) 3. BHUPINDERPAL SINGHAND OTHERS vs. STATE OF PUNJAB AND OTHERS ( (2000) 5 SCC 262 ) 12. Sri D. N. Nanjunda Reddy, Learned Senior Counsel for respondent No.5 – Dr. C.S. Manohar contends that the period of 3 years service contained in the definition of the term, “in-service candidate” in Rule 2(d) ought to be reckoned from the date of entry into service upto the date of commencement of the academic session which in this case is 2.8.2010. C.S. Manohar contends that the period of 3 years service contained in the definition of the term, “in-service candidate” in Rule 2(d) ought to be reckoned from the date of entry into service upto the date of commencement of the academic session which in this case is 2.8.2010. According to the Learned Senior Counsel, the Rule making Authority in its wisdom Amended Rule 2(d) and Rule 3 to ensure relatively young in-service candidates having superior merit inter-se rather than seniority cum-merit, are extended the benefit of the in-service quota, while allowing candidates less than 48 years of age and in service for more than 3 years to complete with the youngsters by adding weightage of one mark per year of service by amending Rule 6 of the Rules. Learned Senior Counsel contends that the decisions of the Apex Court referred to by the Learned Counsel for the petitioners are in cases of recruitment based on educational qualification as the eligibility criteria which are inapplicable to the facts of these cases relating to eligibility criteria not based on educational qualification. Learned Senior Counsel is candid in his submission that R5 in Appendix 1 to the application – Annexure R1 to the statement of objections, did mention 3 years against column ‘No. of years of service rendered’, as on 11.5.2010, the date of application, though short of five days since the date of entry into service was 16.6.2007, nevertheless cannot be a serious mistake or a discrepancy disentitling the 5th respondent to a consideration of his application. 13. Sri Satish Doddamani, Learned Counsel for the petitioner in W.P.No.20018/10 while adopting the submissions of the Learned Senor Counsel adds that the State Government having fixed the cut off date of 3 years, as on the date of commencement of the academic session i.e., 2.8.2010, for in-service candidates, following the norms prescribed by All India Institute of Medical Sciences (AIIMS) and National Institute of Mental Health and Neuro Sciences (NIMHANS), the petitioner as well as the respondent No.4 Dr. C.S. Manohar are eligible to seek admission under the in-service quota. 14. C.S. Manohar are eligible to seek admission under the in-service quota. 14. Sri M. Keshava Reddy, Learned Additional Government Advocate contends that the State Government being alive to the possible dispute that may arise, as the definition of “inservice candidate, does not prescribe the cut off date, has taken a conscious decision to fix the cut-off date as the commencement of the academic sessions as has been done by two premier institutions, namely NIMHANS and AIIMS. 15. Before considering the merit or demerit of the contentions advanced by the Learned Counsel for the parties there is a need to appraise the legal position in the reported opinions of the Apex Court. (i) In REKHA CHATURVEDI (SMT.) vs. UNIVERSITY OF RAJASTHAN AND OTHERS4, THE Apex Court having regard to selection of University teachers, repelled the Selection Committee’s consideration of requisite educational qualification as on the date of selection rather than the last date for filing applications by observing thus: “10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date of candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the Advertisement/Notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the Selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra, (1990) 2 SCC 669 and District Collector & Chairman, Vizianagaram Social Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram vs M. Tripura Sundari Devi, (1990) 3 SCC 655 .(ii) The observation of a larger Bench of the Supreme Court in Ashok Sharma’s case (supra), reads thus: 6. x x x 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 knows 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 date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. Just because some of the persons had applied notwithstanding that they had not acquired 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 is fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in REKHA CHATURVEDI vs. UNIVERSITY OF RAJASTHAN (Supra). 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.” (iii) So also the opinion of the Supreme Court, following a line of precedents in Bhupendra Pal Singh’s case (supra) reads thus: “13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma vs. Chander Shekhar (1974)4 SCC 18, Public Service Commission vs. B. Sarat Chandra (1990)2 SCC 669 District Collector and Chairman, Vizianagaram Social Welfare Residential School Society vs. M. Tripura Sundari Devi (1990) 3 SCC 655 , Rekha Chaturvedi vs. University of Rajasthan (1993) Supp (3) SCC 168, M.V. Nair (Dr) vs. Union of India (1993) 2 SCC 429 and U.P. Public Service Commission U.P. Allahabad vs. Alpana (1994) 2 SCC 723 . The High Court has held (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent Authority. The view taken by the High Court is supported b y several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice be done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice. 14. In view of several decisions of this Court relied on by the High Court and referred to hereinabove, it was expected of the State Government notifying the vacancies to have clearly laid down the stated the cut-off date by reference to which the applicants were required to satisfy their eligibility. This was not done, It was pointed out on behalf of the several appellant – petitioners before this Court that the practice prevalent in Punjab has been to determine the eligibility by reference to the date of interview and there are innumerable cases wherein such candidates have been seeking employment as were not eligible on the date of making the applications or the last date appointed for receipt of the applications but were in the process of acquiring eligibility qualifications and did acquire the same by the time they were called for and appeared at the interview. Several such persons have been appointed but no one has challenged their appointments and they have continued to be in public employment. Such a loose practice, though prevalent, cannot be allowed to be continued and must be treated to have been put to an end. The reason is apparent. The applications made by such candidates as were not qualified but were in the process of acquiring eligibility qualifications would be difficult to be scrutinised and subjected to the process of approval or elimination and would only result in creating confusion and uncertainty. Many would be such applicants who would be called to face interview but shall have to be returned blank if they failed to acquire requisite eligibility qualifications by the time of interview. In our opinion the Authorities of the State should be tied down to the principles governing the cut-off date for testing the eligibility qualifications on the principles deducible form the decided cases of this Court and stated hereinabove which have now to be treated as the settled service jurisprudence.” 16. In our opinion the Authorities of the State should be tied down to the principles governing the cut-off date for testing the eligibility qualifications on the principles deducible form the decided cases of this Court and stated hereinabove which have now to be treated as the settled service jurisprudence.” 16. Rule 2(d) as it stood prior to the Amendment prescribed 10 years of service for an in-service candidate to seek admission to Post-Graduate Duper Speciality Course on deputation and by Amendment the period was reduced to a minimum of three years. While Rule 3(2) was amended to substitute the word ‘seniority-cum-merit’ to ‘merit-cum seniority’ and Rule 6 entitling in-service candidates to weightage of one mark for every years of service. A conjoint reading of the amended rules, it is possible to infer that the Rule making Authority, perhaps, sought to hone in the best of young talent on the basis of their comparative superior merit, certainly in public interest, while extending the benefit of one mark per year of completed service for those who were less than 48 years of age and had completed more than three years of service. Although Learned Sr. Counsel for 5th respondent submits that seniors in the department when pitted against juniors would certainly be at a disadvantageous position since juniors would have had the benefit of latest trends in medicine while the seniors, with experience, and despite adding weightage of one mark for every academic year if did not measure up to comparative merit, must be treated as deadwood, that by itself and nothing more cannot advance the case of the respondents, to reckon three years of service by extending the cut off date upto the date of commencement of the academic session i.e. 2.8.2010.17. Admittedly, Rule 2(d) of the Rules specifies completion of a minimum of three years service an in-service candidate to be eligible to apply for in-service quota. In Appendix-I to the application the applicants are required to state the date of entry into service and the number of years of service rendered. Admittedly, Rule 2(d) of the Rules specifies completion of a minimum of three years service an in-service candidate to be eligible to apply for in-service quota. In Appendix-I to the application the applicants are required to state the date of entry into service and the number of years of service rendered. Fifth respondent, admittedly stated that he entered service on 16.6.2007 while Dr.Shivakumar, petitioner in W.P.No.20018/10 entered service on 26.6.2007 and therefore, as on 10.6.2008 late date of registering the application, had made a wrong statement of fact of having completed three years of service, while as a matter of fact they fell short of three yeas by a few days. The applications furnishing incorrect statement of facts, at the threshold were required to be rejected. The 2nd respondent-RGUHS in the Notification for the entrance test 2010, prescribed eligibility norm entitling a person who has not completed 48 years of age as on the date fixed as the last date for submitting the application for the entrance test, so also is the eligibility for an in-service candidate. This condition when read along with the information to be provided by an in-service candidate in Appendix-I supra, there is no merit in the contention that form of application did not provide for a cutoff date to reckon the completion of minimum period of three years service for in-service candidates. Rule 4(5) specifically provides that in-service candidates above 48 years of age as on the last date specified for receiving applications for entrance test are ineligible for deputation to Post-Graduate Super Speciality Courses under the Rules. Thus cut off date being last date for receipt of the application, is equally applicable to in-service candidates who have not completed a minimum period of three years service as on the last date for receipt of the application. The adage “What sauce is good for the goose is good for gander”, in the circumstances is apposite. IF that is so there can be no justification for the very same in-service candidates who have not completed minimum period of three years service as on the last date to register application on-line, for the entrance test, to be extended to the date of commencement of the academic session. In my opinion if the contentions advanced by the Learned Senior Counsel are accepted, it would lead to invidious discrimination amongst in-service candidates. In my opinion if the contentions advanced by the Learned Senior Counsel are accepted, it would lead to invidious discrimination amongst in-service candidates. The contention when tested on the anvil of the postulates of Article 14 of the Constitution of India, must necessarily fail.18. Hence there is no merit in the contention that the 5th respondent and Dr.Shivakumar were eligible by fixing the cut-off date to reckon minimum period of three years service as on 2.8.2010 the date of commencement of the academic session. 19. The decision of the department of the State in reckoning 2.8.2010 the date of commencement of the academic session as the completion of minimum period of three years service for an in-service candidate, must suffer the consequences. (i) AIMS in its prospectus for PG/Post Doctoral Courses fixed 19.12.2009 as the date for declaration of final result in the examination Schedule and in the note to Educational qualification under the nomenclature ‘Eligibility’ stated thus: “M.Ch. Note The candidate who are likely to complete three years requisite tenure and degree by 30th January 2010 may also apply. However, the candidates who complete their three years requisite tenure after 30th January 2010 are not eligible to take up this examination” (ii) As regards the requirement of qualifying examination for various medical courses and more appropriately to Super Speciality in NIMHANS, the commencement of courses fixed as 2.8.2010, permits candidates who are awaiting results to appear for the entrance test subject to production of proof of having passed the examination, in writing, issued by the University on or before the date of commencement of course. In the facts and circumstances of these petitions and more appropriately Rule 4(5) of the Rules, there is no justification for the State to follow what AIIMS and NIMHANS considered as cut off dates. 20. Having regard to the opinion of the Larger bench of the Apex Court in ASHOK KUMAR SHARMA’s case (supra), it cannot but be said that 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, being well established, applies on all its fours to the facts of these cases, and therefore the answer to the question formulated supra in the negative. Writ Petition Nos.22000-01/10 is allowed. W.P.No.20018/10 is rejected. The interim order dated. Writ Petition Nos.22000-01/10 is allowed. W.P.No.20018/10 is rejected. The interim order dated. 12.7.2010 in W.P.20018/2010 is dissolved. The second respondent – RGUHS is directed to open the sealed cover and re-do the process of selection of in-service candidates by rejecting the applications of the petitioner in W.P. No.20018/10 as ineligible in-service candidate, and 5th respondent – Dr. C.S. Manohar, as ineligible. There shall be no order as to costs.