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2012 DIGILAW 1769 (RAJ)

Anoop Kumar Meena v. State of Rajasthan

2012-08-14

M.N.BHANDARI

body2012
Hon'ble BHANDARI, J.—The petitioner appeared for selection to the post of Junior Engineer (Civil). He was called for counselling along with required documents and thereupon, declared ineligible for want of required qualification as on 01st July, 2012. 2. It is stated that petitioner appeared in B.E. Final Year examination sometime in the year 1991. He was declared failed in one subject, thus got supplementary. He appeared in supplementary examination sometime in the month of January, 2012 and result of which was declared on 28th July, 2012. The declaration of result was prior to date of counselling, thus petitioner should not have been made ineligible. 3. A reference of judgment of this Court in the case of Suresh Kumar Meena vs. State of Rajasthan & Ors. reported in 2009(3) WLC (Raj.) 460 = 2010(1) RLW 914 has been given to show that result of supplementary should relate back to the date when original result was declared, accordingly declaration of result of supplementary on 28th July, 2012 should relate back to the date original result was declared. In the aforesaid circumstances also, petitioner would be eligible for appointment. 4. I have considered the submissions made by learned counsel and perused the record. 5. It is not in dispute that petitioner was not in possession of required qualification on the crucial date given in the advertisement, which is 01st July, 2012. The date aforesaid was given as per the amended rules providing crucial date to possess required qualification to be on or before the date of examination for selection. The selection was held on 01st July, 2012, thus petitioner was required to possess qualification as on 01st July, 2012 whereas he possessed it on 28th July, 2012, hence, rightly held ineligible. The law on the issue is well settled holding that last date to possess qualification would be as provided under the rules. If rules are silent then as provided in the advertisement and if rules and advertisement are silent, then last date for submission of application form. Relevant part of the judgment of Hon'ble Apex Court in the case of Shankar K. Mandal & Ors. vs. State of Bihar & Ors. reported in (2003) 9 SCC 519 is quoted hereunder for ready reference: “The principles culled out from the decisions of this Court (See Ashok Kumar Sharma & Ors. vs. Chander Shekhar & Anr. Relevant part of the judgment of Hon'ble Apex Court in the case of Shankar K. Mandal & Ors. vs. State of Bihar & Ors. reported in (2003) 9 SCC 519 is quoted hereunder for ready reference: “The principles culled out from the decisions of this Court (See Ashok Kumar Sharma & Ors. vs. Chander Shekhar & Anr. ( 1997(4) SCC 18 , Bhupinderpal Singh vs. State of Punjab ( 2000(5) SCC 262 and Jasbir Rani & ors. vs. State of Punjab & Anr. ( 2002(1) SCC 124 ) are as follows: (1) 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; (2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications; and (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.” 6. In the light of the aforesaid judgment, petitioner has rightly been held ineligible as he was not in possession of required qualification on the date of examination. The date of counselling is not material for the aforesaid purpose because it is not part of examination or interview but is only for verification of documents, thus date of counselling is not material to determine crucial date. If date of counselling is taken to be crucial date then it will go against the rules and the terms of the advertisement. 7. The question now comes as to whether declaration of result in supplementary can relate back to the date when original result was declared. 8. A reference of judgment in the case of Suresh Kumar Meena (supra) has been given wherein theory of relation back has been applied in reference of the judgment of Hon'ble Apex Court in the case of Council of Homeopathic System of Medicine vs. Suchintan & Ors. reported in AIR 1994 SC 1961. If the judgment in the case of Council of Homeopathic System of Medicine (supra) is looked into, it goes contrary to what has been decided by this Court. reported in AIR 1994 SC 1961. If the judgment in the case of Council of Homeopathic System of Medicine (supra) is looked into, it goes contrary to what has been decided by this Court. Para Nos.33, and 36-39 of the judgment in the case of Council of Homeopathic System of Medicine (supra) are quoted hereunder for ready reference: “33. Supposing he passes in that subject or 'subjects in the supplementary examination he is declared to have passed at the examination as a whole. This should obviously be so; because once he completes all the subjects, he has to necessarily be declared to have passed. Merely on this language, "declared to have passed at the examination as a whole", we are unable to understand as to how the "doctrine of relation back" could ever be invoked. The invocation of such a doctrine leads to strange results. When a candidate completes the subjects only in the supplementary examination, then alone, he passes the examination. It is that pass which is declared. If the "doctrine of relation back" is applied, it would have the effect of deeming to have passed in the annual examination, held at the end of 12 months, which on the face of it is untrue. 36. The word 'supplement' is defined in Oxford Dictionary, Seventh Edition, page 1072: "thing added to remedy deficiencies; part added to book etc, with further information, or to periodical for treatment of particular matter(s) of an angle,(Math.)its deficiency from 180 (of. COMPLEMENT); hence Al, ARY, (mem) adjs. (supplementary benefit). [ME,f.L. Sup (plementum f -plere fill; see-ment]" 37. Therefore, the adjective 'supplementary' means and examination to makeup the deficiencies. Thus, it stands to reason only when deficiencies are made up, the whole becomes complete. 38. On this score to say that passing the supplementary examination would relate back to the annual examination will be totally incorrect. What counts is when the whole is made up. From that time of making up one year or one and half years must elapse for second or Third D.H.M.S. Examinations as the case Amy be. The stand of the appellants counsel as seen from letter dated 12.12.1989 is as follows: "From: Dr. P.L. Verma, Secretary, Central Council of Homeopathy, 10, Community Centre, Basant Lok, Vasant Vihar, New Delhi - 110037. To The Chairman, The Council, Homoeopathic Systems of Medicine, 3027-28, Sector 22-D, Chandigarh. The stand of the appellants counsel as seen from letter dated 12.12.1989 is as follows: "From: Dr. P.L. Verma, Secretary, Central Council of Homeopathy, 10, Community Centre, Basant Lok, Vasant Vihar, New Delhi - 110037. To The Chairman, The Council, Homoeopathic Systems of Medicine, 3027-28, Sector 22-D, Chandigarh. Sub: Enforcement of D.H.M.S (Diploma Course) Regulation 1983 w.e.f. 1983-84 Academic Sessions students demand for grant of provisional promotion with reappearance in only one subject to the next higher class even beyond supplementary examination even prior to his passing the lower class examination as a whole. With reference to your letter No.CHSM-PV- 134/89/1253 dated 29/ 30 November, 1989 on the subject noted above. I am to say that the question of permitting to appear simultaneously for two examinations i.e. lower reappear subjects and complete subjects of the next higher class does not arise as no candidate has to be admitted to the Second D.H.M.S. examination unless he had passed the first D.H.M.S. examination at the end of one year previously and has regularly, attended the course for one year. Similarly, no candidate shall be admitted to the Third D.H.M. S. examination unless he has passed the second D.H.M.S. examination 1 ½ years previously and has also attended the course for a period of 1 - 1/2 years subsequent to his passing of the Second D.H.M.S. Examination. COUNCIL OF HOMOEOPATHIC SYSTEM OF MEDICIN 3027-28, Sector 22-D CHANDIGARH (UT) No. CHCH-PV 9134/89/AT-198-200 Dated 5.2.90 Copy forwarded to the Principal, Lord Mahaveera Homeopathic Medical College, Ludhiana/Abohar/Chandigarh for information and necessary action. This may please be notified for information of all the students under intimation to the undersigned. The above guidelines/directions of the Central Council may please be strictly followed and observed in respect of matters indicated therein. sd/- (R.K. Sharma) Registrar, No.CHMS/PV/134/89/AI-201-210 Dated 5.2.90." This stand in our opinion is correct. 39. If a student were to sit idle at home after passing the supplemen-tary examination that is his own making. To avoid such a situation, the Regulation cannot be construed causing violence to the language.” 9. The perusal of para quoted above reveals that doctrine of relation back cannot be invoked in such cases, otherwise there was no reason for the Hon'ble Apex Court to give liberty to make representation to the Council of Homeopathic System of Medicine for consideration of case. The perusal of para quoted above reveals that doctrine of relation back cannot be invoked in such cases, otherwise there was no reason for the Hon'ble Apex Court to give liberty to make representation to the Council of Homeopathic System of Medicine for consideration of case. The judgment of the Hon'ble High Court was reversed by the Hon'ble Apex Court, hence, judgment of this Court in the case of Suresh Kumar Meena (supra) runs counter to the judgment of the Hon'ble Apex Court, thus, cannot be applied to the present matter. 10. In the background aforesaid, declaration of result in the supplementary cannot relate back to the date when original result was declared. It is not even logical, inasmuch as, if one failed in one of the subject and declared supplementary then such candidate cannot be benefited for his own failure or default by treating his result from the date when original result was declared on passing supplementary examination. 11. Looking to all these reasons given and in the light of the judgment of Hon'ble Apex Court in the case of Council of Homeopathic System of Medicine (supra), the judgment of this Court in the case of Suresh Kumar Meena (supra) cannot be applied. 12. In view of the aforesaid, I do not find any merit in the writ petition, hence, the same is dismissed so as the stay application.