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Himachal Pradesh High Court · body

2017 DIGILAW 1265 (HP)

Jyoti Thakur v. State Of H. P.

2017-11-17

PREM KUMAR, V.K.SHARMA

body2017
JUDGMENT V.K. Sharma, Chairman. (Oral) - Rejoinder not filed. 2. Heard at admission stage. 3. The original application has been filed on the following substantive prayers vide para 7(i) and (ii):- 7(i) "That the impugned order dated 20.02.2017 (Annexure A-3) may kindly be quashed and set aside. (ii) That the appointment of Respondent No. 5 to the post of Part Time Worker Class IV in Patwar Circle Sirad, Tehsil Bharmour, District Chamba, H.P. may kindly be quashed and set aside and further, the respondents may kindly be directed to give appointment to the applicant to the post of Part Time Worker Class IV in Patwar Circle Sirad, Tehsil Bharmour, District Chamba, H.P. since the applicant is the meritorious candidates as compared to Respondent No. 5 which fact is otherwise evident from the perusal of merit-list Annexure A-2 and also fulfils all the eligibility criteria." 4. In the relevant portion of reply to para 3 of the original application, the following averments have been set upon behalf of respondents No. 1 to 4-State:- Para 3. "It is further submitted that when all the codal formalities were completed for the selection of candidates at the end of Sub Divisional level, Tehsildar Bharmour being Member Secretary submitted patwar wise lists of successful candidates in order of their merit for taking further action at the end of respondent No. 2 vide his office communication No. Teh/Bhr/Acctt-9(21) 2016-1430 dated 7.11.2016.(Copy enclosed as Annexure R-5 along with its English translation Annexure R-5/1.) While the merit lists of the applicant examined, it has no doubt that applicant was stand in the order of merit in the selection list shown at serial No. 8 & has scored 16.9 marks out of 30 whereas her junior who shown at serial No. 9 namely Radha Devi wife of Tej Singh has scored 14.8 marks out of 30 (Merit list enclosed as Annexure R-6 for the kind perusal of the Hon''ble Court). But while the criteria of age of both the candidates including applicant have been scrutinized before issuing of their appointment order, it has been found that applicant is not fulfilling the criteria of her age as she did not completed her age of 18 years on the cut off date i.e. 01/01/2016 in the light of rules Rules 6(1) as envisaged in the Notification issued by the Department of Personnel (AP-III) Government of Himachal Pradesh as shown above vide Annexure R-2, therein it is clearly stated that age limit for direct recruitment will reckoned on the first day of the year in which the post(s) is/are advertised for inviting applications or notified to the Employment Exchanges or as the case may be. Therefore, applicant Smt. Jyoti Thakur did not completed her age criteria of 18 years on 1.1.2016 in the light of rules ibid even on the date of advertising of advertisement applicant has also did not complete her age of 18 years, therefore applicant did not completed her age criteria within the cut off date i.e. 1.1.2016. As a result, applicant was not found eligible and did not fulfilled the criteria as per norms and conditions of the Government, hence next candidate, shown at serial No. 9 (Radha Devi wife Sh. Tej Singh respondent No. 5) in the selection list was found eligible and fulfil all the quorum as required for the selection under rules. Therefore kept in view her eligibility, she has been given appointment as part-time worker vide office order No.CBA-SK(LRK)-19 (12)/2015-6223-6368 dated 22.12.2016 (copy enclosed as Annexure R-7)" 5. Shorn of details, the factual matrix is that the applicant had successfully participated in the process for recruitment of Part-Time Worker in the Revenue Department. However, her candidature was rejected at the final stage, vide communication dated 20th February, 2017, Annexure A-3, on the ground that she had not completed the requisite lower age of eighteen years as on issuance of the advertisement notice dated 19.9.2016, Annexure A-1. 6. However, as per advertisement notice date 19.9.2016, Annexure A-1, the last date for submission of applications for the post was 20.10.2016, by which time, admittedly, the applicant had already attained the age of eighteen years as on 01.10.2016 as also reflected in the marks sheet, Annexure A-2 (Sr. No. 8). 7. 6. However, as per advertisement notice date 19.9.2016, Annexure A-1, the last date for submission of applications for the post was 20.10.2016, by which time, admittedly, the applicant had already attained the age of eighteen years as on 01.10.2016 as also reflected in the marks sheet, Annexure A-2 (Sr. No. 8). 7. It is by now fairly settled by a catena of authoritative pronouncements rendered by the Hon''ble Supreme Court, one of which is (2005) 9 SCC 779 , Dolly Chhanda v. Chairman, JEE and others (paras 7, 9 and 10, which are extracted below) that in case a candidate fulfils the eligibility conditions on or before the last date of submission of applications, his/her candidature cannot be rejected:- 7. "The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or mark-sheets. Similarly, in order to avail of the benefit of reservation or weightage, etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement to benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature. 9. The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29-6-2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29-6-2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal. 10. The appellant had qualified in JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude, and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current academic year." 8. In view of the factual and legal position emerging as above, the original application is allowed along with all consequential benefits including seniority, but without any back wages, with a direction to respondents No. 1 to 4/competent authority(s) to issue appointment order as Part Time Worker in favour of the applicant in Patwar Circle Sirad, Tehsil Bharmour, District Chamba, at the earliest, but in any case not later than 31st December, 2017. 9. However, the respondents/competent authority may consider not to disturb private respondent No. 5, who though was less meritorious than the applicant, but was given appointment after wrongful cancellation of the candidature of the applicant. 10. It shall be the responsibility of the applicant to produce certified copy of this order before the said authority(s) forthwith, but not later than a week from today. 11. The original application stands disposed of in the above terms.