CWP No.10463 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10463 of 2010 (O&M) Decided on : 08-03-2011 Nikhil Hooda ....Petitioner VERSUS Haryana Public Service Commission and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr.Suresh Ahlawat, Advocate for the petitioner Mr. H.N.Mehtani, Advocate for respondent no.1. Mr. Namit Kumar, Advocate for respondent no.2. MAHESH GROVER, J In this petition, the petitioner has prayed for issuance of writ in the nature of Mandamus directing respondent no.1 to treat the application of the petitioner as within time to permit him for interview for the post of Jail Superintendent. According to the case of the petitioner, he submitted his application vide registered post on 29.1.2010 which was received by the respondents on 1.2.2010 which was the last date for submission of the applications but yet he was not called for the interview and the reason given out by the respondents is that the application has been received late. Notice of motion was issued to the respondents and the petitioner was permitted to be interviewed provisionally. In the reply a categoric stand has been taken that the CWP No.10463 of 2010 (O&M) 2 application of the petitioner was received beyond the cut off date. A preliminary objection has been raised that this raises a disputed question of fact as to whether the application was received on 1.2.2011 or on 2.2.2010. The factum of the application having been received late was communicated to the petitioner vide letter dated 8.4.2010. The postal authorities have also filed their reply by way of affidavit of Sh. S.C.Kalra, Assistant Post Master General who has stated in para no.4 as follows:- “That the contents of this para are wrong and hence denied. However, it is submitted that the article, in question, was dispatched to Rohtak RMS on 29.1.2010 by the Rohtak Head Post Office and the same was delivered in Sector 8 Head Post Office, Panchkula on 1.2.2010 through Railway Mail Service, Chandigarh. Thereafter, the same was sent to Sector 4 Post Office, Panchkula on 1.2.2010 at about 11:45 A.M from where the same was to be delivered to the Haryana Service Public Commission and was delivered on 2.2.2010 as all the postmen leave the post office at 10:30 A.M for delivery of the Articles. A copy of the receipt dated 1.2.2010 and delivery list dated 2.2.2010 are annexed as Annexure R-1 and R-2 with this written statement. In fact, the petitioner himself is negligent as the advertisement is dated 1.1.2010 and he applied vide registered letter at 5:58 PM on 29.1.2010 whereas from the record it appears that the last date for submission of application was 1.2.2010. In between there was holiday on 31.1.2010 being Sunday.” CWP No.10463 of 2010 (O&M) 3 It is evident that the respondents are denying that the application was received by them on 1.2.2010. Rather a categoric case of the respondents is that they have received application on 2.2.2010. To the mind of this Court, this raises a disputed question of fact that whether application was received on 1.2.2010 or on 2.2.2010. This assumes significance as the cut off date for receipt of the application was 1.2.2010. There does not appear to be any reason to interfere in the writ jurisdiction and specially when the application of the petitioner was received beyond the cut off date. It has to be accorded some sanctity otherwise there would be no end to the acceptance of applications which are filed beyond the cut off date which will further jeopardize the entire selection process. The Division Bench of this Court in case titled as Nikhil vs. Maharishi Dayanand University 2008 (4) SCT 571 has held as under:- “The full bench of this Court has placed reliance upon Institute of Chartered Accountants of India v. Inder Chand Jain, JT 1991(4) SC 39 and has concluded as under: “18. Validity or otherwise of the Information Brochure and its binding nature has to be examined by the generality of cases it covers and not be the inconvenience or resultant prejudice that may be caused to persons who could not strictly adhere to its terms. In this connection, we consider it appropriate to recall the observations made by Krishana Iyer, J. in R.S. Joshi Vs. Ajit Mills, AIR 1977 Supreme Court 2279.” A law has to be adjudged for its constitutionality by the generality of cases it covers, not by the freaks and exceptions it martyrs.” If the argument advanced by the learned counsel is CWP No.10463 of 2010 (O&M) 4 accepted, or if the principles stated by the Division Bench in Saurabh Aggarwal’s case (supra) are followed then consequence will be to amend the provision contained in the Information Brochure. If the provision contained in the Information Brochure is found to be unsustainable, the same can be struck down by this Court in exercise of the powers under Article 226 of the Constitution of India. By striking down the provision in the Brochure, the petitioner will not be getting any benefit. So this Court will have to amend the provision contained in the Brochure or in other words re-write the same. This Court is not venture such a course of action. High Court cannot assume the role of rule making authority and re-write the rule nor can this Court in exercise of the powers under Article 226 of the Constitution substitute its views to that of the competent authority which framed the Brochure. 19. In view of what has been stated above, we hold that the date and time for the receipt of the application forms by the Co-ordinator, CET 1997, is fixed in the Information Brochure. It is not to be altered by this Court in exercise of the powers under Article 226 of the Constitution of India. We also hold that law settled by a Division Bench in Saurabh Aggarwal vs. Kurukshetra University, 1995 (1) S.L.R. 80 and the decision in Anurag Sharma vs Regional Engineering College, Kurukshetra and others, 1996 (1) RSJ 795 do not lay down the correct law and we overrule the same.” Having regard to the aforesaid, I do not deem it to be a fit case CWP No.10463 of 2010 (O&M) 5 where the petitioner can be permitted to join the selection process as his application was clearly received beyond the cut off date. The interim order granted by this Court in favour of the petitioner does not create any equitable right in his favour. Hence, the instant petition being devoid of any merit is hereby dismissed. March 8 , 2011 (Mahesh Grover) rekha Judge