Hon'ble Mahendra Dayal,J.
(Delivered by Hon'ble V.K.Shukla,J) Dr. Anand Pandey has approached this Court for following relief.
" (i) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 19.10.2012 passed by respondent no. 2 upholding the appointment of Respondent no. 5 on the post of Assistant Professor (Pediatric Surgery) in Respondent No. 1 University, a copy whereof is annexed as Annexure No. 1 to the instant Writ Petition.
(ii) To issue a writ, order or direction in the nature of certiorari quashing the impugned appointment order dated 4.5.2012 issued by Respondent no. 1 appointing Respondent No. 5 on the post of Assistant Professor (Pediatric Surgery) in Respondent no. 1 University, a copy whereof is annexed as Annexure No. 2 to the instant Writ Petition.
(iii) To issue a writ, order or direction in the nature of mandamus commanding the Respondent Nos. 1 to 3 to consider the candidature of the petitioner for appointment at the post of Assistant Professor (Pediatric Surgery) with Respondent No. 1 University as per advertisement dated 1.9.2010.
(iv) To issue such other writ, order or direction as the Hon'ble court may deem fit and proper may be issued so as to protect the right & interest of the petitioner."
Brief background of the case, as has been narrated in the writ petition is that the petitioner is pediatric surgeon, who completed his M.B.B.S in the year 2000 and thereafter completed his M.S (surgery) from King George's Medical College, Lucknow (now Respondent No. 1 University) in the year 2005. The petitioner completed his super specialization course in M.Ch. (Pediatric Surgery) from Institute of Medical Sciences, Banaras Hindu University in the year 2008. Petitioner has stated that at the relevant time in the year 2009, the sanctioned cadre strength of department of Pediatric Surgery of Respondent No. 1 University was of four consultants, and therefore, one post was vacant, and the table below sets out clearly the names of person holding the post the cadre structure and applicable reservations if any, at the said point of time and same has been as follows:-
Petitioner has stated that on 03.07.2009 an advertisement No. 17/B-2009 was issued by Respondent No. 1 University, where under at serial No. 14 of the advertisement applications were invited for one (1) post of Assistant Professor in the Department of Pediatric Surgery but the post in question was reserved for Other Backward Caste category, and if the said reservation was to be given effect to the said reservation would have exceeded 50% restriction. In view of the aforesaid facts, the aforesaid Advertisement dated 03.07.2009 bearing No. 17/B-2009 was challenged by one Dr. Ramanuj Kumar before this Court by means of writ petition no. 1246 (S/B) of 2009 (Dr. Ramanuj Kumar Vs. Chhatrapati Sahuji Maharaj Medical University and another) and in the aforesaid writ petition this Court has proceeded to pass an order on 02.09.2009 whereby the operation and implementation of the aforesaid Advertisement impugned therein dated 03.07.2009 was stayed and latter on the said Advertisement was cancelled by Respondent No. 1 on 31.08.2010. Thereafter another fresh advertisement was published being Advertisement No. 25/B-2010 for the post of Assistant Professor which was unreserved. The aforesaid Advertisement was published on 01.09.2010, which contained number of vacancies of the departments including the post of Assistant Professor (Pediatric Surgery) at Serial No. 23. Pursuant to the aforesaid Advertisement dated 01.09.2010, the petitioner who possessed requisite qualification applied for the said vacancy for consideration of his candidature in the prescribed format. Besides the petitioner, various other candidate also applied for the said posts. The last date for submission of applications pursuant to the Advertisement dated 01.09.2010 was 30.09.2010.
In the Department of Pediatric surgery, in spite of publication of advertisement for one post of Assistant Professor that was unreserved no interviews were taking place and when the petitioner contacted the office of University, the petitioner came to know that the interviews were not taking place for the unreserved post of Assistant Professor in Department of Pediatric Surgery on account of an order dated 26.11.2010, issued by the Joint Secretary of U.P. State, whereby certain information in respect of the faculty presently working in the department was sought. It was provided in the said order that till the final decision by State Government in the matter the process for filling up the vacancy is cleared, selection in Pediatric Surgery Department shall be kept in abeyance.
The aforesaid order dated 26.11.2010 was challenged by the petitioner before this Court by means of writ petition no. 1801 (S/B) of 2010 (Dr. Anand Pandey Vs. State of U.P. and others and the aforesaid writ petition has been allowed vide judgment and order dated 14.12.2010 and the order dated 26.11.2010 issued by the Joint Secretary was quashed and an explicit direction was also issued by this Court while passing judgment and order dated 14.12.2010 in the aforesaid writ petition that the University is directed to proceed with the selection process expeditiously. In pursuance of the aforesaid order of this Court selection committee interviewed the candidates including the petitioner on 12.10.2011. Besides the petitioner other candidates who were interviewed were Dr. Tanvir Khan, Dr. Archika, Dr. Rakesh Ttripathi, Dr. Pramila, and Dr. Prabudh Goel (Respondent No. 5). Out of all these aforesaid candidates, the petitioner claims that he was surprised to see Respondent No. 5 as an applicant invited for interview for the said post because Respondent No. 5 had not completed his three years tenure of teaching experience on the last day of the submission of the application from for the said post, i.e 30.09.2010 and accordingly Respondent No. 5 did not posses requisite qualification for the said post at the time of making application for the said post, he could not have been even called for the interview, and his application was liable to be rejected for not fulfilling the requisite qualifications/ conditions of eligibility. Petitioner has stated that in spite of the fact that respondent no. 5 did not possess requisite qualification for the said post at the point of time of making application for the said post in question he was not only called for interview but recommendation has also been made in his favour for being offered appointment for the post of Assistant Professor (Pediatric Surgery) Chhatrapati Sahuji Maharaj Medical University. Said recommendation made by the selection committee was accepted by the University concerned and appointment order was issued in favour of Dr. Prabudh Goel on 04.05.2012. Petitioner at the said point of time moved representation under section 53 of U.P. Chhatrapati Sahuji Maharaj Medical University Act, 2002 in compliance of the order dated 31.05.2012 passed by this Court in Writ Petition No. 807 (S/B) of 2012 (Dr. Anand Pandey Vs. Chattrapati Sahuji Maharaj Medical University) wherein he has questioned the validity of the order offering appointment to Dr. Prabudh Goel on the post of Assistant Professor Pediatrics Surgery and thereafter before the Chancellor, representation has been moved and before the Chancellor the University concerned as well as Dr. Prabudh Goel submitted reply. Thereafter Chancellor has proceeded to turn down the representation that has been so moved on behalf of petitioner and same has impelled the petitioner to be once again before this Court.
In the present case pleadings inter se parties have been exchanged and when the matter has been taken up for consideration it has been informed at the Bar that as far as Dr. Pradudh Goel is concerned he has already left the post of Assistant Professor Pediatric Surgery at King George's Medical University Lucknow and it has also been informed that petitioner has also been selected and has been performing and discharging duties at Institute of Medical Sciences Saifai, Etawah and this fact has also been accepted that after accepting the resignation of Dr. Pradudh Goel the vacancy in question has been advertised for filling up the vacancy afresh.
From the side of petitioner, Sri Gaurav Mehrotra, Advocate, made much insistence to the fact that Dr. Prabudh Goel, though he was at all not eligible on the relevant date, the field of the eligibility has been got enlarged by misreading the provision and the term and condition of the advertisement and in view of this once his candidature goes and his selection is held to be bad then petitioner who was placed at serial no. 1 of the wait list his claim should be considered for offering appointment before undertaking the processes of selection pursuant to fresh advertisement in question and accordingly in the facts of the case requisite relief be accorded.
Said request has been resisted by the University concerned through its counsel Sri Kishan Chandra Advocate and from the side of Chancellor, Sri Sameer Kalia, Advocate has put in appearance and Sri Sandeep Dixit, Advocate represents the contesting respondent no. 5 and all of them have consistently contended that in the present case opinion that has been formed is a rightful opinion and once academic experts have proceeded to exercise their discretion in favour of meritorious candidate then this Court should not interfere and intervene in the matter and it has also been contended that merely because petitioner has been placed at serial no. 1 of the wait list same does confer indefeasible right upon the petitioner for offering appointment to him, in view of this writ petition in question is liable to be dismissed in the format as it has been drafted and as on date fresh process of selection is in pipeline, as such also writ petition be dismissed.
After respective arguments have been advanced, this Court proceeds to consider the issue of eligibility of Dr. Prabudh Goel on which parties to the dispute have advanced substantial arguments. At the very outset this Court takes note of the advertisement dated 01.09.2010 that has been so published by Chhatrapati Sahuji Maharaj Medical University mentioning therein that applications are invited for the recruitment of suitable candidates against General & Backlog/Special Drive vacancies for the following listed faculty posts and in the said advertisement in question post of Assistant Professor (Pediatric Surgery) is provided for at item no. 23 and same reads as follows:
S. No. Advertisement No. Department Name of the Post/Category/No. of posts Qualification/Experience 23 25/B-10 Pediatric Surgery Assistant Professor UR-01 M.Ch. (Paediatric Surgery)
1. Three years of teaching experience in the subject in a recognized Med. College as Chief Resident/Senior Resident [Tutor/Demonstrator/ Registrar] or equivalent for Assistant Professor Item no. 8 of the said Advertisement clearly proceeds to mention that last date of submission of application is 30.09.2010. Self attested photocopies of supporting documents must be enclosed with the application form in support of various entries filled by the applicant in the application form. Incomplete applications shall not be entertained and shall be rejected by the University. Application should be sent of "Registrar, C.S.M.M.U. U.P. Lucknow. Item no. 13 of the said advertisement provided for as follows:
"Only the candidates who possess the minimum requisite recognized qualification can apply. Those who have appeared in the qualifying examination or whose result is awaited may also apply as per provisions of the Statutes of the University but they have to produce the requisite certificate/degree when ever desired by the University otherwise their application shall stand rejected."
Bare perusal of item no. 13 of the aforesaid advertisement would go to show that only those candidates are entitled to apply, who possess the minimum requisite recognized qualification and liberty was also given to those incumbents, who have appeared in the qualifying examination or whose result is awaited to apply as per provisions of the Statutes of the University but they were required to produce the requisite certificate/degree whenever desired by the University otherwise their application shall stand rejected. This was the exception carved out to the condition that has been mentioned at item no. 13 that only those candidates who possess the minimum requisite recognized qualification should apply. This exception has given chance to those candidates who have appeared in the qualifying examination or whose result was awaited to apply with the rider that they have to produce the requisite certificate/degree whenever desired by the University failing which application was to be rejected.
At this juncture this Court also proceeds to examine the prospectus of All India Institute of Medical Sciences New Delhi in reference of (6 Yrs) Course of M.Ch that was being pursued by Dr. Pradudh Goel.
M.Ch. is a 6 years course and duration of course has been provided for as follows:-
"DURATION OF COURSE A minimum period of 6 academic years is the duration for those registering after MBBS degree and completion of one year's compulsory internship. The candidates selected for this course will spend first six months in the super specialities opted for. At the end of six months there will be a departmental examination to assess the suitability of the candidate to pursue training in the super speciality. On successfully qualifying in this assessment, the candidate would proceed to the next phase and this period would be included as a part of the full course. In case a candidate fails to qualify in the assessment or decides to discontinue the course, he/ she would be given a certificate of six months Junior Residency.
The next phase will consist of a period of one year devoted to a course in principles of surgery. It will consist of pre-determined course of didactic teaching and clinical work concerned with the basic principles of surgery. At the end of this period, i.e. 18 months after selection for the course, the candidates would appear for a qualifying examination in the basic principles of surgery. The examination would be conducted jointly by the Departments of Surgery and the super speciality to which the candidate belongs. The candidate must pass this examination before he/she is permitted to appear in the final examination.
A candidate shall become eligible to appear for final examination at the end of five years. He/She can also appear for the final exam at the end of 5½ or 6 years as well. However in any case, the period of registration will remain six academic years which is mandatory.
In the present case selection and appointment of Dr. Prabudh Goel as Assistant Professor (Pediatric Surgery) has been questioned in following term:
"Dr. Prabudh Goel did not possess the minimum required qualifications for the said post by 30.09.2010 i.e. the last date mentioned in the advertisement for submission of application forms by the candidates as he (Dr. Prabudh Goel) had not completed his three years tenure of M. Ch. Degree by that date which was the most essential qualification for the said post. Dr. Prabudh Goel ought to have been screened out at the very outset of the selection process and for want of requisite qualifications; he could not have been called for interview for the said post. M. Ch. (Pediatric Surgery) and three years of teaching experience in the subject in a recognised Medical College as Chief Resident/ Senior Resident ( Tutor/Demonstrator/Registrar) or equivalent for Assistant Professor were the required qualifications/experience for the post of Assistant Professor (Pediatric Surgery). Dr. Prabudh Goel had started his tenure of direct six years M. Ch. Course on 1.1.2005 which was due for completion on 31.12.2010 and as such he was three months short in the three years of teaching experience on the last date of submission application form i.e. 30.9.2010. The six years M. Ch Course includes both the three years of Post Graduation (equivalent to three years M.S. General Surgery course) and three years super specialization (Equivalent to three years M. Ch Course). The last three years of the course are counted for teaching purposes of Undergraduate and postgraduate students and as such, irrespective of the examinations of M. Ch Course, the teaching period is of three years. In the case of Dr. Prabudh Goel, the requisite qualification of three years of teaching had started on 1.1.2008 and was achieved only on 31.12.2010 , much after the deadline for making applications for the said post. The qualification prescribed in the said advertisement dated 1.9.2010 was in terms of teaching experience and that was an essential condition as provided in the prospectus of All India Institute of Medical Sciences from where Dr. Prabudh Goel was pursuing his course. The required three years teaching experience for the said post could not have been relaxed, and there being no cut-of date specified in the advertisement for eligibility, the date for eligibility would be the last date mentioned in the advertisement for submission of application forms by the candidates for the post."
Said stand has been countered by submitting that the Selection Committee comprises of experts and recommendations made by experts cannot be questioned by other authorities unless the composition etc. of the Selection Committee itself is found illegal or any patent irregularity has been committed by them. Dr. Prabudh Goel has given the details of the qualifications required from the candidates for the post of Assistant Professor (Paediatric Surgery) in the advertisement dated 1.9.2010 and has submitted that he fulfills the above qualifications mentioned in the advertisement for submission of application forms by the candidates. Dr. Prabudh Goel submitted that he has been an M.B.B.S. And Gold Medallist from the KGMU Lucknow and has done M. Ch (Pediatric Surgery) from All India Institute of Medical Sciences New Delhi and was a Gold Medallist of the said course and he has also worked as Pool Oficer in Chacha Nehru Bal Chikitsalaya , Delhi. Dr. Prabudh Goel further stated that he had completed his MBBS course during the period from 1998 to 2004, M. Ch during 2005 to 2010, worked as Junior Resident during the period from 2005 to 2007 and as Senior Resident during 2008 to 2010, appeared in M. Ch Examination in the month of May, 2010 and was declared successful in the last week of May, 2010 and was interviewed by the Selection Committee on 12.10.2011 for the post of Assistant Professor (Pediatric Surgery). On the recommendations of the Selection Committee, Dr. Prabudh Goel was appointed on 4.5.2012 by the Executive Council on the post of Assistant Professor (Pediatric Surgery). Dr. Prabudh Goel has also relied upon condition No. 13 mentioned in the advertisement dated 1.9.2011 and claims to have fulfilled the aforesaid conditions meant for the post of Assistant Professor (Pediatric Surgery) as the said advertisement specifically provided that all such candidates who had appeared in the qualifying examination or whose result was awaited on the date of submission of the application forms, where also eligible to apply for the said post and he accordingly deserved to apply for the same and relevant date for judging eligibility would be the date of interview. Dr. Prabudh Goel stated that Dr. Anand Pandey was lesser meritorious in comparison to him and being comparatively more meritorious, he was selected for the said post.
University in the facts of the present case has proceeded to support the case of Dr. Prabudh Goel and view to the similar effect has been taken by the Chancellor.
Relevant issue is as to whether in the facts of the present case the selection committee has rightly proceeded to entertain the candidature of Dr. Prabudh Goel for being appointed as Assistant Professor (Pediatric Surgery).
In the present case respondent no. 5 Dr. Prabudh Goel has pursued his M.Ch course w.e.f. 01.01.2005 and the said course in question was to complete by 31.12.2010 and the last date of submission of application, as per the Advertisement was 30.09.2010 and six years M.Ch Course includes both (a) three years of Post graduation (equivalent to three years M.S. General Surgery course) and; (b) three years of Super specialization (equivalent to three years M.Ch course). Incumbent admitted to the said course for the first three year works as Junior Resident and after completing three year, then works as Senior Resident. The candidate in M.Ch (Pediatric Surgery Course) becomes eligible for appearing in examination after completion of five academic sessions, however completion of six academic sessions is a condition precedent for obtaining the degree of 6 years M.Ch. Petitioner in this background is submitting that a person cannot be said to have obtained M.Ch Degree or have 3 years of teaching experience unless the person actually completes 6 years of the M.Ch Pediatric Surgery Course.
Requisite qualification for the post of Assistant Professor is M.Ch Pediatric Surgery with three years of teaching experience in the subject in a recognized Medical College, as Chief Resident/Senior Resident [Tutor/ Demonstrator/ Registrar] or equivalent for Assistant Professor. Item no. 13 of the Advertisement in question clearly proceeds to mention that those candidates who have appeared in the qualifying examination or whose result is awaited can apply but as per the Statute of the University they have to produce the requisite certificate/degree whenever desired by the University. The zone of consideration has been enlarged by giving opportunity to such candidates also who have appeared in the qualifying examination and whose result is awaited to also apply. Thus, those who have appeared in the examination of M.Ch course and whose result has been awaited were also entitled for applying for consideration of their candidature.
In the case in hand, precise case of the petitioner has been that as far as Dr. Prabudh Goel is concerned, at no point of time he has been falling in the said category of Item No. 13 for the reason that he had already appeared in the final examination of M.Ch. and his result stood already declared, as such item no. 13 of the aforesaid advertisement in question could not have been pressed for bringing him within the fold of eligibility zone. In the present case this Court finds that on this aspect of the matter that Dr. Prabudh Goel has already appeared and result of his of M.Ch has already been declared, no issue has been raised and entire emphasis has been that Item No. 13 of Advertisement pertained to such incumbents, who have been pursing course of M.Ch to be also provided opportunity to participate in selection process, who have already undertaken the examination and whose results were awaited and in the garb of the same eligibility zone could not be enlarged.
Eligibility conditions comprises of qualification and experience both and both have always been treated on different parameter, as qualification envisages a basic degree in the respective field for which recruitment process is to be undertaken, in the present case referable to M.Ch degree for the post of Assistant Professor (Pediatric Surgery) whereas experience is referable to knowledge or practical wisdom gained from what one has observed, encountered or undergone in the present case referable to three years of teaching experience in the subject in a recognized Medical College as Chief Resident/Senior Resident [Tutor/Registrar/Demonstrator or equivalent and it was only in reference of minimum requisite recognized qualification that item no. 13 provided for that those candidates who have appeared in the qualifying examination or whose result is awaited can also apply and as far as three years teaching experience is concerned same was an additional essential condition prescribed in the term and condition of the advertisement qua number of years of teaching experience required in the subject concerned by the respective candidate.
In the case of Dr. Prabudh Goel at no point of time said contingency as mentioned in Item No. 3 of the Advertisement was there as he had already appeared in the examination in May, 2010 and his result has already been declared in the last week of May, 2010 and his course in question was to complete by 31.12.2010 and accordingly as per petitioner by the last date of submission of application form he ought to have to his credit three years teaching experience in the subject in a recognized Medical College, as Chief Resident/Senior Resident (Tutor/Demonstrator/Registrar] or equivalent and said duration could not have been extended, as it has been done in the present case.
In the present case reliance has also been placed on the provision as contained under Minimum Qualification for Teacher of Medical Institutions Regulations 1998. Regulations of 1998 in its schedule-I specifically provides that for appointment of an Assistant Professor in the subject of Paediatric surgery, the following two conditions are an absolute necessity which must be cumulatively fulfilled.
(i) Requisite recognized specialisation qualification in the subject.
(ii) Three years teaching experience in the subject in a recognized medical college as resident/Registrar/Demonstrator/Tutor.
Condition (i) above relates to postgraduate specialized qualification and refers to qualifications of the M.Ch (Pediatric Surgery) M.Ch (Pediatric Surgery) is of three years duration almost universally, and generally as per practice prevailing prior to pursuing M.Ch (Pediatric Surgery) degree one has to obtain the degree of M.S. (General Surgery) after three years M.S. Course. However, there are situations where a person who holds M.Ch Degree has not obtained the aforesaid postgraduate qualifications (i.e. M.S. (General Surgery) because in certain institutions such as All India Institute of Medical Science New Delhi even a graduate with M.B.B.S could register and obtain the Degree of M.Ch after six years without doing MD or MS. However, in majority of other institutions, the M.Ch. is a three years course. Therefore, the following explanation had been provided in schedule II of the 1998 Regulations:
In case of qualifications in higher specialities (M.Ch D.M.) the holder should have also obtained M.D. (Gen. Medicine) or M.S. (Gen. Surgery) or on equivalent qualification as prescribed by the Council in its recommendations on Postgraduate Medical Education. This requirement may be relaxed in suitable cases in cases of candidates who have obtained M.Ch./DM after a direct 5 years course, which are recognized by the council.
This is evident that the relaxation is meant as regard to obtaining the degree of MS/MD or an equivalent qualification as prescribed by the council where direct 5 years course is undertaken for obtaining M.Ch/D.M. It is not meant to relax the duration of the course, and this fact has also been specifically mentioned in the brochure of AIIM'S that completion of 8 academic terms is a must for obtaining the degree after 6 years M.Ch.
On these facts, as to what should be the relevant date for consideration of candidature is an issue to be answered but before such exercise is undertaken, we proceed to examine the precedents on the subject concerned.
In the case of U.P. Public Service Commission, U.P., Allahabad & Anr. v. Alpana, (1994) 2 SCC 723, Apex 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. That too was a case where the result of a candidate was declared subsequent to the last date of submission of the applications. The Apex Court held that as the result does not relate back to the date of examination, the 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 upto the last date of submission of applications, would not be eligible.
In the case of Dr. M.V. Nair v. Union of India & Ors., (1993) 2 SCC 429, Apex Court held as follows:-
"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."
In the case of Smt. Harpal Kaur Chahal v. Director, Punjab Instructions, Punjab & Anr., 1995 (Suppl) 4 SCC 706, the Apex Court held as follows:
"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."
Apex Court in the case of Rekha Chaturvedi v. University of Rajasthan, 1993 Supp (3) SCC 168 held as follows:
"The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/ notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission v. B. Sarat Chandra(1990) 2 SCC 669; and District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi (1990) 3 SCC 655."
Apex Court in the case of Ashok Kumar Sharma v. Chander Shekhar, 1993 Supp (2) SCC 611 [hereinafter referred to as Ashok Kumar (1)], the majority view taken was as under:
"The fact is that the appellants did pass the examination and were fully qualified for being selected prior to the date of interview. By allowing the appellants to sit for the interview and by their selection on the basis of their comparative merits, the recruiting authority was able to get the best talents available. It was certainly in the public interest that the interview was made as broad based as was possible on the basis of qualification. The reasoning of the learned Single Judge was thus based on sound principle with reference to comparatively superior merits. It was in the public interest that better candidates who were fully qualified on the dates of selection were not rejected, notwithstanding that the results of the examination in which they had appeared had been delayed for no fault of theirs. The appellants were fully qualified on the dates of the interview and taking into account the generally followed principle of Rule 37 in the State of Jammu & Kashmir, we are of opinion that the technical view adopted by the learned Judges of the Division Bench was incorrect". (Emphasis added) However, the opinion of Justice R.M. Sahai had been that these 33 persons could not have been allowed to appear for the interview as they did not possess the requisite eligibility/qualification on the last date of submission of applications."
A three-Judge Bench of Apex Court in the case of Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18 reconsidered and explained the judgment of Ashok Kumar Sharma (1) (supra) by observing as follows:
"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."
The Apex Court further explained that the majority view in Ashok Kumar Sharma (1) (supra) was not correct, rather the dissenting view by Justice R.M. Sahai was correct and the Apex Court held as under:
"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."
Apex Court in the case of Bhupinderpal Singh v. State of Punjab, AIR 2000 SC 2011, placing reliance on various earlier judgments of this Court held:
"The High Court has held (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with."
Law on the subject i.e date of eligibility has been clarified by the Apex court in the case of Rajasthan Public Service Commission Versus Kaila Kumar paliwal and another reported in (2007) 10 SCC 260 by taking the view that recruitment to a post must be made strictly in terms of the Rules operating in the field. Essential qualification must be possessed by a person as on the date of issuance of the notification or as specified in the Rules and only in absence thereof, the qualification acquired till the last date of filing of the application would be relevant date. It has also been mentioned therein that where there exists a provision for relaxation the same must be strictly complied with. It has also been mentioned, as to whether a person fulfils the criteria of teaching experience or not would depend upon the rules operating in the field and when the rules are clear and explicit, the same have to be given effect to and only in a case where the rules are not clear, the candidate concerned must place adequate material to show that he fulfils the requisite qualification.
Apex Court in the case of Rakesh Kumar Sharma Vs. Government of NCT of Delhi & Ors. reported in 2013 (11) SCC 58 has reiterated the same view that a person elligible on the last date of submission of application has a right to be considered against the said vacancy provided he fulfills the requisite eligibility.
There can not be any doubt to the preposition of law, settled and enunciated by Apex Court and the main consideration for taking such a view has been, that an advertisement or notification issued/published constitutes a representation to public, and in case there is no mention in the advertisement, that candidates who are not qualified and are in the process of acquiring qualification, would also be considered then other persons would also have applied, who obtained there qualification by the time interview took place. The other reason has been that the candidates who were not qualified but were in the process of acquiring eligibility qualification on being permitted to participate, would create confusion, as they may be called for interview but would have to return blank and account of non-fulfillment of eligibility criteria on the said date.
Here in the case in hand, the incumbents who have appeared in the examination and whose result has not been declared, have also been permitted to undertake the process of selection. Certainly as far as such category of candidates are concerned, their eligibility cannot be seen in reference of the last date of filling up of application form and the said date would certainly shift after the last cut of date i.e. the last date of filing up of application form. Such practice may not be approved of, but this a ground realty in the present case, that all such candidates who were in the process of acquiring qualification have also been permitted to participate.
In none of the cases referred to above, in the advertisement inviting application, there was such a condition introduced, as it has been done in the present case by adding Item No. 13 to the advertisement and insertion of Item No. 13 in the advertisement clearly indicated shifting of date beyond the last date of moving of application for consideration of candidature.
Apex Court in the case of Mohd. Sohrab Khan Vs. Aligarh Muslim University and others reported in (2009) 4 SCC 555, has taken the view that selection committee cannot act arbitrarily and cannot change the criteria/qualification in the selection process midstream. Generally decision taken by the Selection Committee has to be accepted as final but in the appropriate cases interference could be made.
There are two requirements for consideration of candidature of a candidate i.e that he should possess essential qualification as well as experience provided for or equivalent experience. From the plain reading of item no. 13 of the aforesaid advertisement, the term and condition part would go to show that in reference of essential qualification even all those candidates who have appeared in the qualifying examination or whose result was awaited, they were also entitled to apply and such candidates were required to have teaching experience in the concerned subject of three years. Once the intent of Advertisement was clear i.e to take the date of eligibility beyond the last cut of date, then in reference of same selection, there cannot be two cut of dates, i.e. one cut of date for candidates who were already having M.Ch degree to their credit and other cut of date for candidates who were in the process of acquiring qualification. At no point of time, Condition/Item No. 13 has been subjected to challenge, and each one of the candidate participated in the selection process. In this peculiar background, once the intent of item no. 13 was to provide opportunity to even those candidates who were in the process of acquiring qualification, the intent was clear to take the date of eligibility beyond the last date of filling up of application form and once the date of interview has been accepted to judge the eligibility then in the facts of the case, same can not be faulted and selection committee has done no wrong in proceeding to entertain the candidature of Dr. Pradudh Goel also. In case Item No. 13 of Advertisement is read in any other manner, as has been suggested it will have the impact of making item no. 13 of advertisement as redundant and otiose.
Once, there is a provision enabling candidates who are in the process of acquiring qualification, namely candidates, who have appeared in the examination and whose results are awaited, to also apply the same is clearly reflective of the fact that the candidates who were in the process of acquiring qualification have been provided opportunity to apply for consideration of their candidature. M.Ch is a 6 yrs course, and at All India Institute of Medical Science a candidate is eligible to undertake final exam at the end of five years, and he/she can also appear at the end of 5½ or 6 yrs as well, and the period of 6 years registration is mandatory and the last three years of registration are counted for teaching purpose. Once 6 yrs period is mandatory, and it is true that Dr. Prabudh Goel has passed his final exams in the last week of May, 2010, but the fact of the matter is that he would be conferred his degree, only after 6 yrs period is over by 31.12.2010, then it has to be accepted in the facts of the case that he has been pursuing his M.Ch course and on account of this he cannot be put to a disadvantageous situation only on account of fact that his result stood already declared. Item No. 13 has been correctly considered by the Selection Committee in the facts of present case.
The authorities have dealt with the matter in the said perspective, and as of now much water has flown since then as Dr. Prabudh Goel has already left the University as it has been informed at the Bar that he has been selected at All India institute of Medical Sciences, New Delhi and in reference to petitioner also, it has been informed at the Bar that he has joined at All India Institute of Medical Science, Saifai, Etawah, and petitioner's insistence is that post in question has been re-advertised and once Dr. Prabudh Goel has left then his claim be directed to be considered.
Once such is the opinion formed by this Court, as noted above then this Court would not direct the University-authority to consider his claim even without applying for alongwith other candidates whereas the post has been re-advertised after the vacancy has come into existence on account of resignation of Dr. Prabudh Goel. Prayer that has been made by the petitioner cannot be accorded for the simple reason that law on the subject is clear that merely because one gets placement in the wait list, then he does not get indefeasible right in the matter of appointment as well as once the select list has exhausted itself on account of joining of selected candidate, then on account of his relinquishing the job, the vacancy will have to re-advertised and fresh denovo exercise will have to be undertaken.
Apex Court in the case of Mohd. Sohrab Khan (Supra) has proceeded to non-suit the procedure adopted by the Selection Committee but at the point of time when it came to accept the request of the petitioner for offering him appointment, the Apex Court did not accept said request whereas in the said case facts were that where a candidate at first position has been appointed and then his appointment however has been invalidated on the ground that he did not possess prescribed educational qualification, the Apex Court held that the select list lapsed and second candidate in the select list could not claim appointment by virtue of his inclusion in the select list and fresh recruitment process had to be undertaken by advertising the post again.
Similar view has been taken by the Apex Court in the case Raj Rishi Mehra and others Vs. State of Punjab and another reported in (2013) 12 SCC 243, after taking note of that all other judgments of Apex Court holding the field, that the candidates whose names are included in the waiting list cannot claim appointment as a matter of right.
Once such is the factual situation then this Court refuses to accord any relief to the petitioner.
In the result, the writ petition is dismissed.
Order Date :- 30.10.2014 Dhruv