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2024 DIGILAW 562 (MP)

Nikhil Yadav v. State of Madhya Pradesh

2024-08-12

SANJEEV SACHDEVA, VINAY SARAF

body2024
ORDER Sachdeva, Ag. C.J. -- 1. Issue notice on early hearing application being I.A.No.1979/2024. 2. Notice is accepted by learned counsel appearing for respondents. 3. For the reasons stated in the application, application is allowed. 4. With the consent of parties, the appeal is taken up for final disposal today itself. 5. Appellant impugns judgement dated 10.8.2023 whereby the Writ Petition filed by the appellant impugning an order dated 27.2.2019 passed by the Director Animal Husbandory cancelling the appointment of the appellant to the post of Assistant Veterinary Field Officer was dismissed. 6. An advertisement was issued by the respondents on 27.2.2017 for recruitment to the post of Assistant Veterinary Field Officer. The last date of submission of application was 18.3.2017. Appellant submitted the application online on 11.3.2017. 7. The eligibility qualification for appointment to the post of A.V.F.O. was Higher Secondary and Diploma of 2 years of A.V.F.O. Training. 8. It is the admitted case of the appellant that as on the last date of submission of application, appellant had not yet completed the last semester of the 2 years Diploma Course. In the application form, appellant had stated that appellant possessed the eligibility and in response to the question as to whether he had the minimum qualification or not, he had answered in the affirmative by mentioning “Yes”. It is not in dispute that as on the date of application, appellant did not possess the eligibility qualification of 2 years Diploma. The course of the appellant concluded in December 2017, whereas the last date for submitting the application was 18.3.2017. However, counselling took place on 23.2.2019, by which time, appellant had already completed the course. 9. Learned Single Judge in the impugned order has considered the question as to whether the candidate must have minimum qualification on the last date of submission of application form or they could acquire the same at a later stage. 10. Learned Single Judge relied on the decision of the Supreme Court in Rakesh Kumar Sharma v. State (NCT of Delhi) and Others, (2013) 11 SCC 58 wherein the Supreme Court has laid down that any person eligible on the last date of submission of application has a right to be considered against the said vacancy provided he fulfils the requisite qualification. Suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, the notification calling for applications itself specifies a different date. 11. Learned Single Judge also relied on the judgment of the Supreme Court in Ashok Kumar Sharma & Others v. Chander Shekher & Other (1997) 4 SCC 18 wherein the Supreme Court has 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 have to be judged with reference to that date and that date alone, is a well-established proposition. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. 12. Considering the judgment of the Supreme Court, learned Single Judge has noticed that the last date for submitting the application was 18.3.2017 and the appellant admittedly as of the said date did not possess a diploma in A.V.F.O. Training. Appellant admittedly concluded the course in December, 2017 much after the cut off date. 13. In our view, learned Single Judge has correctly appreciated the judgments of the Supreme Court and also the factual matrix and held that there was no error in the Director Animal Husbandory in cancelling the appointment of the appellant to the post of A.V.F.O. 14. Reliance placed by learned counsel for the appellant on the judgment of the Supreme Court in Bhupinderpal Singh vs. State of Punjab, AIR (2000) 5 SCC 262 to contend that once the appointment order has been issued, same should not be disturbed to do complete justice in the facts and circumstances of the case is misplaced. 15. We may note that in Bhupinderpal Singh (Supra), the Supreme Court has held that a loose practice of permitting candidates to have their eligibility in relation to public employment determined by reference to the date of interview is not correct and must be put to an end. The Supreme Court has held as under :-- “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 and stated the cut off date by reference to which the applicants were required to satisfy their eligibility. This was not done. 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 and 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 appellants/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 from decided cases of this Court and stated hereinabove which have now to be treated as the settled service jurisprudence. *** *** **** 18. *** In our opinion in view of the appointment letters having been issued, the selection and appointment of such candidates should not be disturbed and that order we make under Article 142 of the Constitution to do complete justice in the facts and circumstances of the cases before us as already stated.” (Underlying supplied) 16. *** *** **** 18. *** In our opinion in view of the appointment letters having been issued, the selection and appointment of such candidates should not be disturbed and that order we make under Article 142 of the Constitution to do complete justice in the facts and circumstances of the cases before us as already stated.” (Underlying supplied) 16. In Bhupinderpal Singh (supra), the Supreme Court noticing an earlier prevalent practice exercised the powers under Article 142 of the Constitution of India in the facts of the said case to do complete justice and declined to disturb the appointments. 17. Learned counsel for the appellant submits that any order passed by the Supreme Court in exercise of powers under Article 142 of the Constitution of India becomes binding on this Court under Article 141 of the Constitution of India and as such the appointment given to the appellant could not have been cancelled. 18. We find no merit in the contention of learned counsel for the appellant for the reason that Article 142 of the Constitution of India empowers the Supreme Court of India to pass such decree or make an order as may be necessary for doing complete justice in any cause or matter pending before it. It does not empower any High Court to start exercising powers akin to the powers exercised by the Supreme Court under Article 142 of the Constitution of India merely because the Supreme Court in the facts of a particular case has passed an order under Article 142 of the Constitution of India. 19. The Supreme Court in Indian Bank v. ABS Marine Products (P) Ltd. 2006 (5) SCC 72 has held as under : “26. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice.While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Article 142. Be that as it may.” (Underlying supplied) 20. The Supreme Court in ABS Marine Products (supra), has laid down that Courts should be careful to ascertain and follow the ratio decidendi and not the relief given by the Supreme Court on the special facts exercising power under Article 142. 21. Further Supreme Court in Ram Pravesh Singh v. State Of Bihar (2006) 8 SCC 381 held that law declared by the Supreme Court is binding under Article 141 but any direction given on special facts, in exercise of jurisdiction under Article 142 is not a binding precedent. 22. In Bhupinderpal Singh (supra), the Supreme Court exercised the powers under Article 142 of the Constitution of India to do substantial justice in the facts of that case noticing the then prevalent practice in the State of Punjab and also the fact that there were several individuals involved in the said case. The exercise of powers under Article 142 by the Supreme Court in the case of Bhupinderpal Singh (Supra) would not empower this Court to pass similar orders as have been passed in the said case. For the reason that such a similar power is not vested in the High Court to pass such orders. 23. In view of the above, we find no infirmity in the view taken by the learned Single Judge in holding that the eligibility of the appellant had to be considered as of the last date of submitting the application and since appellant was not eligible as of the said date, his appointment was correctly cancelled. 24. We find no merit in the appeal. 24. We find no merit in the appeal. The appeal is consequently dismissed.