Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 561 (ORI)

Maneeta Das v. State of Orissa

2016-07-26

S.N.PRASAD

body2016
JUDGMENT : S.N.PRASAD, J. This writ petition has been filed against the order dated 30.11.2002 (Annexure-3) passed by the President of the Governing Body of Mahamayee Mahila Mahavidyalaya, Gandhi Nagar, Berhampur in the District of Ganjam by which the claim of the petitioner for engagement as Lecturer in Zoology in the said college, which is purely on temporary basis has been rejected. 2. The fact of the petitioner in nutshell is that in pursuance to the advertisement published by the college on 26.7.1999, applications were invited for filing up of the posts of Lecturers in different subjects including Zoology. In the said advertisement, stipulation was made that the application was to be submitted latest by 31.7.1999 and further preference was to be given to the candidates having experience/Net/Ph.D/M.Phil qualifications. In the light of the advertisement dated 26.7.1999, the petitioner submitted her application for consideration of her candidature for engagement as Lecturer in Zoology in the said college. The petitioner along with others participated in the selection process, but she was not selected. According to the petitioner, she ought to have been given the benefit of 5 extra marks on account of having M.Phil qualification, but the selection committee has not considered this aspect of the matter and selected another candidate, namely, Miss. Y.Yosovanti. The grievance of the petitioner is that although she did not possess M. Phil degree as on the last date of submission of application i.e. 31.7.1999, but however, providing 5 additional marks on account of having M.Phil degree ought to have been taken into consideration in the light of the decision dated 27.6.1990 (Annexure-11) reiterated in the communication dated 15.3.2001 (Annexure-10), but the authorities have not considered the candidature of the petitioner on the basis of the said decision. The petitioner having not been considered by the selection committee, has approached this Court in O.J.C. No. 730 of 2002 and this Court by order dated 6.8.2002 directed the competent authority to take decision with respect to the grievance of the petitioner and accordingly, order has been passed by the authority rejecting her claim vide order dated 30.11.2002. Assailing the said order, the petitioner has filed this petition on the ground that she is entitled to be given 5 additional marks on account of having M.Phil qualification. Assailing the said order, the petitioner has filed this petition on the ground that she is entitled to be given 5 additional marks on account of having M.Phil qualification. It has been submitted by the learned counsel representing the petitioner that if she has got M. Phil degree after lapse of the period of 90 days, she is entitled to get 5 extra marks, but the authorities have not considered this aspect of the matter and rejected her claim. 3. The opposite parties after being noticed have appeared. Opposite party no. 3 has contested the case by filing detailed counter affidavit stating therein that there is no infirmity in the order passed by the authority for the reason that the advertisement contains a condition that the candidate was required to submit the application by 31.7.1999 and preference was to be given to the candidates having experience/Net/Ph.D/M.Phil qualification. The settled principle for consideration of eligibility of one or the other candidate is that the candidate is required to fulfill the eligibility condition on the last date of submission of application, but admittedly, the petitioner has not acquired M.Phil degree as on the date of application. It has been submitted that some relaxation has been made by the functionaries of the State regarding consideration of due weightage for awarding career marks to the candidates in possession of M.Phil degree in between the last date of application and the date of interview, i.e. 90 days, but even on the basis of that relaxation, since the petitioner has submitted her M.Phil certificate after lapse of 90 days, on that ground the petitioner is not entitled to be given 5 additional marks for consideration of her candidature. The authorities after taking into consideration these aspects of the matter have passed the order. Hence, the impugned order does not suffer from infirmity and accordingly, this Court should not interfere with the writ petition. 4. Heard the learned counsel for the parties. On perusal of the documents available on record, it is evident that the petitioner along with others had participated in the selection process in pursuance to the advertisement published on 26.7.1999 for appointment as Lecturer in Zoology in Mahamayee Mahila Mahavidyalaya. The statue provides that the candidate is required to possess the eligibility criteria at least on the last date of submission of application. The statue provides that the candidate is required to possess the eligibility criteria at least on the last date of submission of application. The settled proposition is that the candidate is required to possess the eligibility qualification or conditions on the basis of which one or the other candidate is to get additional marks by way of weightage for higher qualification, but the requirement as has been settled, would be that the candidate is required to possess the said qualification at least on the last date of submission of the application form. In this respect, reference may be made to the judgment of the Apex Court in Dr. M.V. Nair v. Union of India and others, (1993) 2 SCC 429 , wherein it has been observed as follows: "9. Xxxxxxxit is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such date." 5. Similar view has also been reiterated by the Apex Court in Harpal Kaur Chahal (Smt) v. Director, Pujban Instructions, Punjab and another, 1995 Supp (4) SCC 706 wherein in paragraph 2 it has been observed as follows: "2. Xxxx It is to be seen that when the recruitment is sought to be made, the last date has to be fixed for receipt of the applications. Such of those candidates who possessed of all the qualifications as on that date alone are eligible to apply for and to be considered for recruitment according to rules. Since the appellant has not possessed the Physical Training Instructor qualifications as on that date, her illegal consideration by the Board and recommendation for appointment and the appointment made in .furtherance therefore are illegal. Xxx" 6. In Ashok Kumar Sharma and others v. Chander Sekhar and another, (1997) 4 SCC 18 , the Apex Court in paragraph 6 has observed as follows: "6. Xxxxx 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. 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. 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 Supp. (3) SCC 168. Xxxx" 7. In Ashok Kumar Sonkar v. Union of India and others, (2007) 4 SCC 54 the Apex Court has held as follows: "20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application." 8. The Supreme Court in State of Gujarat and others v. Arvindkumar T.Tiwari and another, AIR 2012 SC 3281 has observed as follows: 8. The Courts and tribunal do not have the power to issue direction to make appointment by way of granting relaxation of eligibility or in contravention thereof. In State of M.P. & Anr. V. Dharam Sir, (1998) 6 SCC 165 , this Court while dealing with a similar issue rejected the plea of humanitarian grounds and held as under: "The Courts as also the tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the statutory provisions made by the Government under Article 309 of the Constitution." 9. The Apex Court in Rakesh Kumar Sharma v. State (NCT of Delhi) and others, (2013) 11 SCC 58 has observed as follows: "11. There can be no dispute to the settled legal proposition that the selection process commences on the date when applications are invited. Any person eligible on the last date of submission of the application has a right to be considered against the said vacancy provided he fulfils the requisite qualification." 12. In U.P. Public Service Commission, U.P. Allahabad & Anr. V. Alpana, (1994) 2 SCC 723 , this Court, after considering a large number of its earlier judgments, held that eligibility conditions should be examined as on last date for receipt of applications by the Commission. X x" 10. Admittedly, the petitioner has got M. Phil degree on 1.12.1999 and the provisional certificate to the effect was issued on 17.1.2000. The date of interview was 28.4.2000 though the last date of submission of application was 31.7.1999. so far as the settled proposition is concerned, admittedly the petitioner was not entitled to get 5 additional marks since on the last date of submission of application form she was not in possession of M.Phil degree, but the functionaries of the State Govt. has come up with a decision as contained in Annexures-10 and 11 annexed to the writ petition, whereby and whereunder it was decided for consideration of due weightage for awarding career marks to the candidates, who are in' possession on M.Phil degree certificate within 90 days in between last date of application and the date of interview. Admittedly, the petitioner has passed the M.Phil examination on 1.12.1999 and obtained the provisional certificate on 17.1.2000 and therefore, she is not entitled to get the weightage as provided by virtue of the decision contained in Annexure-10 and 11 since M. Phil degree certificate was issued after lapse of the period of 90 days. Taking into consideration this aspect of the matter, the authorities have taken a decision not to give 5 extra marks to the petitioner. 11. The submission of the learned counsel representing the petitioner is that since the word 'ordinarily' has been mentioned in Annexure-11. It can even go beyond the period of 90 days. Taking into consideration this aspect of the matter, the authorities have taken a decision not to give 5 extra marks to the petitioner. 11. The submission of the learned counsel representing the petitioner is that since the word 'ordinarily' has been mentioned in Annexure-11. It can even go beyond the period of 90 days. This submission of the learned counsel for the petitioner is not acceptable for the reason that the selection committee has been conferred with the power to take a decision as would be evident from the communication dated 15.3.2001 (Annexure-10) and accordingly, the selection committee has taken a decision after taking into consideration the settled proposition as discussed above and also after taking into consideration the relaxation period of 90 days. 12. The contention of the petitioner that the selection committed has not taken into consideration the M. Phil degree certificate is not correct. On perusal of the impugned order, it is evident that the President of the Governing Body has sought for clarification from the University in this regard and the clarification has been given by the University to the effect that the selection committee would take a decision in the matter for consideration of due weightage for awarding career marks to the candidates in possession of M.Phil degree in between the last date of application and the date of interview, i.e. 90 days, but since the petitioner is not coming within the parameters, she has not been given the benefit of 5 additional marks. 13. Taking into consideration all these aspects, the authority has passed the impugned order on 30.11.2002 refusing to interfere with the decision made by the selection committee in selecting Miss. Y.Yosovanti. 14. For the foregoing reasons and keeping in view the proposition of law as discussed above, I find no reason to interfere with the impugned order. Accordingly, the writ petition fails and the same is dismissed. Petition dismissed.