Heard Mr.S.P.Singh, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.
Through the instant writ petition the petitioner has prayed for issuing a writ of mandamus commanding to the opposite parties, to allow the petitioner to participate in the physical test for recruitment on the post of Sub Inspector Civil Police, Platoon Commander Armed Constabulary Direct Recruitment Combined Examination, 2011, on the basis of eligibility acquired by him prior to the date of interview.
The learned counsel for the petitioner submits that the Notification advertising the posts does not disclose any cut of date for acquiring the qualification, rather it provides only the qualification, therefore, the petitioner being eligible on the date of test, is entitled to participate in the same.
The last date for submission of application was fixed on 25th of June, 2011. Admittedly the result of the petitioner of B.A.final year was declared on 8th of July, 2011 and the mark sheet was issued to him on 19th of July, 2011. The candidates were required to participate in the physical test w.e.f. 4th of September, 2011 to 22nd of October, 2011. Accordingly, since prior to the commencement of physical test the petitioner acquired the qualification of graduation, he claims his entitlement to participate in the test.
The controversy involved in the matter has already been settled by the Hon'ble Supreme Court in the case of Ashok Kumar Sharma and others versus Chander Shekhar and another, reported in (1997) 4 SCC 18. In this case 33 candidates had not passed the B.E. (Civil) Examination on the last date of submission of application i.e. 15th of July, 1982, but they had appeared in the examination earlier, the result of which was declared later on i.e. 21st of August, 1982. Both the sets of candidates were permitted to appear in the Interview. The candidates, who were qualified to apply for the post, according the the said advertisement, were selected, but placed in the select list below to the candidates, who had acquired the qualification later on, therefore, they challenged the select list before the High Court, but the writ petition was dismissed. Then the review petition was filed. In the meantime a different writ petition challenging the same very selection was filed, which too was dismissed in terms of the order passed in the earlier set of writ petitions. In terms of the order passed in the earlier set of writ petitions, the petitioners filed a letters patent appeal, which was allowed by the court of appeal. The court of appeal held that those candidates could not have been allowed to appear in the Interview for the reason that they had not acquired the academic/technical qualification by the prescribed date. However, the Division Bench did not set aside the selection, but observed that they should be treated as juniors to all those selected persons, who were qualified by the prescribed date. Then those 33 respondents filed civil appeal before the Hon'ble Supreme Court questioning the decision of the Division Bench of the High Court. The majority view of the Hon'ble Supreme Court held that allowing the said 33 candidates to appear for Interview was not impermissible. Thus, they allowed the appeal preferred by those 33 respondents. However, a review petition was filed before the Hon'ble Supreme Court. Though the Hon'ble Supreme Court, keeping in view the subsequent facts that those 33 respondents were appointed as far back as in 1984 and have earned two promotions, did not disturb the result of the selection, but made the following observations:-
"6. The review petitions came up for final hearing on 3.3.1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our Order dated 1.9.1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr.T.K.Thommen and V.Ramaswami, JJ.) is unsustainable in law. 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. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the preposition affirmed in Rekha Chaturvedi v. University of Rajasthan, (reported in 1993 Supp(3) SCC 168). The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview."
Thus, it has been concluded by the Hon'ble Supreme Court that in absence of any cut of date specified in the advertisement or under the Rules, the last date for filing of application shall be considered as the cut of date for acquisition of qualification.
In the case of Bhupinderpal Singh and others versus State of Punjab and others, reported in (2000) 5 SCC 262, the Hon'ble Supreme Court considered its judgment rendered in the case of Ashok Kumar Sharma (Supra) as well as other decisions and on the controversy formed the following opinion:-
"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. It was pointed out on behalf of the several appellant-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 scrutinized 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 the decided cases of this court and stated hereinabove which have now to be treated as the settled service jurisprudence."
Thus, the controversy involved in the matter is not res integra and the case of the petitioner has to be dealt with on the basis of the law propounded by the Hon'ble Supreme Court, as above.
The law as propounded by the Hon'ble Supreme Court, in the decisions referred to here-in-above, clearly lays down that the advertising agency should mention the cut of date for acquiring the requisite qualification and if the cut of date is not mentioned in the advertisement, the last date of submission of application shall be treated the cut of date for acquiring the qualification. Though the cut of date for acquiring the qualification was not mentioned in the advertisement, pursuant to which the petitioner applied, but as has been held here-in-above, the cut of date to acquire the qualification shall be taken the last date of submission of application. Admittedly the petitioner acquired the requisite qualification after the last date of submission of application.
Therefore, I am of the view that the writ petition is devoid of merit and the same is dismissed accordingly.
Order Dated:9th of November, 2011.
Banswar