Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 712 (GAU)

Jyoti Kumar Das v. State of Assam

2020-10-14

M.R.PATHAK

body2020
ORDER : M.R. Pathak, J. 1. Mr. N. Unni Krishnan Nair, learned Senior counsel assisted by Mr. Jiten Payeng, learned counsel for the petitioners. Also heard Mr. Devajit Saikia, learned Senior Standing counsel assisted by Mr. B. Kaushik, learned counsel Education Department, Assam for the respondent Nos. 1 to 4. 2. The Director of Elementary Education, Assam on 11.09.2020 issued an advertisement inviting online applications from the eligible candidates and permanent residents of Assam qualified in Assam TET (Teacher Eligibility Test) for filing up of 3941 numbers of vacancies of Assistant Teacher of Lower Primary Schools and Assistant Teacher Science Teacher, Assamese Language Teacher and Manipuri Language Teacher in Upper Primary Schools of the State under the Directorate of Elementary Education, Assam, wherein mid-night of 26.09.2020 was the last date of submission for filled up application. 3. Further, the Mission Director of Axom Sarba Siksha Abhiyan Mission on 24.9.2020 issued another advertisement inviting online applications from the eligible candidates and permanent residents of Assam qualified in Assam TET for the post of Assistant Teachers in the Lower Primary and Upper Primary Schools of Assam on contractual basis in which mid-night of 11.10.2020 was the last date of submission for filled up application. 4. The petitioners stated that they passed the Assam TET for Lower Primary and Upper Primary Schools conducted on 10.11.2019. As such they are qualified for Assistant Teachers in Lower Primary and Upper Primary Schools. 5. Since 2018 petitioners are also pursuing two years D.El.Ed. Course (Diploma in Elementary Education Course) under the State Council for Education and Research Training (SCERT), Assam for the Academic Session 2018-2020 and the said course should have ended by June/July 2020. But due to the changed circumstances, i.e., Pandemic COVID 19, Final Semester Examination could not be held in time, which was lastly scheduled on 28.09.2020. 6. Mr. Nair, learned Senior counsel for the petitioners, on instructions, submits that the result' of the same has been declared on 9.10.2020 and therefore, the petitioners are not pressing their prayer for extension of the last date for filing applications pertaining to the Advertisement dated 24.09.2020 issued by the Mission Director of Axom Sarba Siksha Abhiyan Mission. 7. Mr. 6. Mr. Nair, learned Senior counsel for the petitioners, on instructions, submits that the result' of the same has been declared on 9.10.2020 and therefore, the petitioners are not pressing their prayer for extension of the last date for filing applications pertaining to the Advertisement dated 24.09.2020 issued by the Mission Director of Axom Sarba Siksha Abhiyan Mission. 7. Mr. Nair, however submits that petitioners at this stage are praying for extension of the last date of submission of application with regard to the Advertisement dated 11.09.2020 issued by the Director of Elementary Education, Assam, noted above. Mr. Nair stated that had there been no Pandemic of Covid 19, the petitioners in usual course would have passed the said D.El.Ed. Course by June/July, 2020 and they would have been eligible to participate in the selection process in terms of the said Advertisement dated 11.09.2020. Petitioners stated that they submitted online application in pursuance of the Advertisement dated 11.09.2020 giving their D.El.Ed. Course Registration numbers even after knowing that authorities will certainly reject their applications for not having the requisite Diploma of D.El.Ed. 8. Mr. Nair, learned Senior counsel further submits that after the said Advertisement dated 11.9.2020, the petitioners on 14.9.2020 submitted a representation before the Director of Elementary Education, Assam praying for extension of time to file their applications and that the same is still pending for disposal. 9. Hence this writ petition by the petitioner praying for direction to the respondent Director of Elementary Education, Assam to extend the last date of submitting filled up application for the post of Assistant Teacher etc. in the Elementary Schools of the State in terms of said Advertisement dated 11.09.2020 issued by the Director of Elementary Education, Assam to a suitable date or any date as may be fixed by the Court so that the petitioners can submit their applications with the marks which they have obtained in the D.El.Ed. Course, where the Final Semester Examination was held recently, which could not be conducted earlier in Jun/July, 2020 by the SCERT due to the circumstances beyond their control, i.e. because of Pandemic COVID 19. 10. Mr. Saikia, learned Senior counsel appearing for the respondents in the Education Department by relying the judgment of the Division Bench of this Court in the case of Arup Talukdar & Ors. Vs. 10. Mr. Saikia, learned Senior counsel appearing for the respondents in the Education Department by relying the judgment of the Division Bench of this Court in the case of Arup Talukdar & Ors. Vs. State of Assam & Ors., reported in : 2016 (2) GLT 788 submitted that it is well settled that with regard to any public employment, a candidate must possess the eligibility criteria on the last date of submission of filled up application so as to be considered for the post advertised. He stated that with regard to the said Advertisement dated 11.09.2020 of the Director of Elementary Education, Assam, 'Diploma in Elementary Education Course' is one of the eligibility criteria. Mr. Saikia also submitted that many candidates did not apply because of not having the said Diploma on the last date of filing application and now if it is allowed for the petitioners; it will amount to giving them an undue benefit depriving the others not having the Diploma at the relevant time. 11. Mr. Saikia, learned Senior Standing counsel, further submits that it is the priority of the employer to decide any such cutoff date for submission of filled up applications by the intending candidates with regard to the advertisement issued by it and the Court should not interfere in extending such cutoff date, if it is not arbitrary. It is not the case of the petitioners that the cutoff date prescribed in the said Advertisement dated 11.09.2020 is arbitrary. Mr. Saikia, learned Senior Standing counsel on instructions submits that in pursuance to the said Advertisement dated 11.9.2020 already a large numbers of candidates have already submitted their online applications and presently those are under scrutiny. 12. On perusal of the copy of the representation dated 14.09.2020 that was submitted before the Director of Elementary Education, Assam, annexed to this writ petition as Annexure-C goes to show that the petitioners have only prayed for declaration of their D.El.Ed. Examination result at an early date so that they can participate in the selection process as already advertised with regard to the posts under the Directorate of Elementary Education. In the said representations petitioners did not make any prayer for relaxation/extension of the last date/cutoff date for submission of filled up application form as specified in the advertisements dated 11.09.2020 and 24.09.2020, noted above. 13. In the said representations petitioners did not make any prayer for relaxation/extension of the last date/cutoff date for submission of filled up application form as specified in the advertisements dated 11.09.2020 and 24.09.2020, noted above. 13. A three-Judge Bench of the Hon'ble Supreme Court in the case of Ashok Kumar Sharma Vs. Chander Shekhar, reported in (1997) 4 SCC 18 , have held 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 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 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. 14. In a similar situation, including the circumstances beyond control, a Single Bench of this Court allowed some of the Diploma (D.El.Ed.) Holders to participate in the selection process who obtained their Diplomas after the last date of submission of application forms pertaining to an advertisement for the posts of Assistant Teachers in the Elementary Schools of the State. The said decision of the learned Single Judge was referred to a Special Bench (Division Bench) as it is differed from the opinion of the previous order passed by a Co-ordinate Bench. The said decision of the learned Single Judge was referred to a Special Bench (Division Bench) as it is differed from the opinion of the previous order passed by a Co-ordinate Bench. Said Special Bench following the decision of the three Judges Bench of the Hon'ble Supreme Court in the case of Ashok Kumar Sharma (supra) as well as the changed circumstances by its Judgment and Order dated 10.03.2016 passed in the case of Arup Talukdar (supra) held that where a particular date is specified as the last date for submission of application, eligibility of the candidates have to be judged with reference to that date. A person who acquires the prescribed qualification subsequent to such notified date cannot be considered at all. The reasoning given to justify the contrary proposition that by allowing candidates acquiring eligibility subsequently, the recruiting authority would have a greater pool of talent to choose from is impermissible. 15. Another three-Judge Bench of the Hon'ble Apex Court in the case of M.V. Nair Vs. Union of India, reported in (1993) 2 SCC 429 have held that:- It 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 a date. 16. In a case where the result of a candidate was declared subsequent to the last date of submission of the applications, the Hon'ble Supreme Court, after considering a large number of its earlier judgments, in the case of U.P. Public Service Commission Vs. Alpana, reported in (1994) 2 SCC 723 have held that:- As the result does not relate back to the date of examination, eligibility of the candidate is to be considered on the last date of submission of applications. Therefore, a candidate, whose result has not been declared up to the last date of submission of applications, would not be eligible. 17. The Hon'ble Apex Court in the case of Harpal Kaur Chahal Vs. Director, Punjab Instructions, reported in 1995 Supp (4) SCC 706, have held that:- It is to be seen that when the recruitment is sought to be made, the last date has been 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. 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 had 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 thereof are illegal. 18. In the case of State of Gujarat Vs. Arvindkumar T. Tiwari, reported in (2012) 9 SCC 545 , the Hon'ble Supreme Court have held that:- A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the Court for any relief for the reason that he does not have a right which can be enforced through Court. 19. The Hon'ble Apex Court in the case of Rakesh Kumar Sharma Vs. State (NCT of Delhi), reported in (2013) 11 SCC 58 , have held that:- It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement. 20. After hearing the learned counsels for the parties, considering the entire aspect of the matter and for the reasons above, this Court is of the view that prayer of the petitioners for a direction to the respondents to modify the said advertisement dated 11.9.2020 issued by the Director of Elementary Education, Assam extending the last date of submission of application till 30.10.2020, enabling them to participate in the said selection process, who acquire their requisite eligibility criteria, i.e. D.El.Ed., subsequent to the last date of submission of filled up application form is not tenable in law. 21. 21. Accordingly, this writ petition being devoid of merit stands dismissed.