IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 5119 of 2011. Reserved on: 11.10.2011. Decided on 21.10.2011. _____________________________________________________ Dr. Kartik Syal. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner : Mr. B.C. Negi, Advocate. For respondents No. 1 and 2. : Mr. R.P. Singh, Assistant Advocate General. For respondent No. 3. : Mr. D.K. Khanna, Advocate. For respondent No. 4. : Mr. Ajay Mohan Goel, Advocate. For respondent No. 5. : Mr. Tarlok Jamwal, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner has obtained his M.B.B.S. degree in the month of May, 2005. He obtained his M.D. degree in the subject of Anesthesiology in the month of May, 2008. Respondent No. 3 issued an advertisement on 2nd June, 2011, whereby applications were invited for filling up two posts of Assistant Professor in the subject of Aneasthesiology. The last date of receipt of applications was 1st July, 2011. The minimum experience required as a Registrar/Resident was three years after doing Post Graduation. 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - Petitioner submitted his application in the prescribed proforma, though there was shortage of 7 days in teaching experience. 2. Mr. B.C. Negi, learned counsel for the petitioner has strenuously argued that the advertisement dated 2nd June, 2011 be quashed to the extent whereby it prescribes three years’ experience as a Registrar/Resident after doing Post Graduation. He also argued that the respondents No. 1 and 3 be directed to consider the candidature of the petitioner for the post of Assistant Professor by ignoring shortage of 7 days in teaching experience. 3. Mr. R.P. Singh, learned Assistant Advocate General, Mr. D.K. Khanna, Mr. Ajay Mohan Goel, Mr. Tarlok Jamwal, learned counsel for respondents No. 3, 4 and 5, respectively have strenuously argued that the candidature of the petitioner could not be considered for the simple reason that he was not in possession of three years teaching experience on the last date of receipt of application, i.e., 1st July, 2011. Mr. Ajay Mohan Goel, learned counsel for respondent No. 4, has also argued in addition that the petitioner has not challenged the Recruitment and Promotion Rules framed in the year, 1999, whereby three years teaching experience has been prescribed for filling up the posts of Assistant Professor. He also argued that in case the contention of the petitioner is accepted, it would lead to multiplicity of litigation and delay in selection process. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. It is evident from the combined reading of the Recruitment and Promotion Rules called “The Himachal Pradesh Medical Education Service Rules, 1999”, Annexure R-4/1 read in - 3 - conjunction with Annexure P-2 that the candidate must possess three years minimum teaching experience. The advertisement was issued on 2nd June, 2011. The last date prescribed for receipt of application was 1st July, 2011. 6. Admittedly, the petitioner was falling short by 7 days, as far as teaching experience is concerned. It is settled law by now that a candidate must possess the minimum essential qualification on the date prescribed under the rules or in absence thereof, on the last date receipt of application mentioned in the advertisement. In the instant case, the last date of receipt of application was 1st July, 2011. The minimum essential qualification cannot be relaxed. It is not the case of petitioner that there was no other experienced candidate available other than the petitioner. 7. Mr. B.C. Negi, learned counsel for the petitioner has also argued that as per the Rules of Business framed by respondent No. 3, Himachal Pradesh State Public Service Commission, 30/45 days time should be given in case of Gazetted posts where direct applications have been invited. In the instant case, the advertisement was issued on 2nd June, 2011 and the applications have been invited by 1st July, 2011. Thus, it falls within 30/45 days, as prescribed under Chapter-III(item No. ‘b’ (i) titled “TIME LIMIT FOR SUBMISSION OF APPLICATIONS”. 8. Mr. B.C. Negi, learned counsel for the petitioner has also argued that the selection process should be broad based. However, there has to be cut-off-date for receipt of applications to avoid multiplicity of litigation and delay in selection process. The - 4 - cut off date, i.e., 1st July, 2011 in the present case cannot be dubbed as arbitrary or unreasonable. 9. It has come in the reply that the process for filling up of 29 posts of Assistant Professors have been initiated and still 13 posts of Assistant Professors in direct quota are lying vacant and the process for the same would be initiated by sending requisition to the Himachal Pradesh State Public Service Commission after the approval of C.M.M.. In that eventuality, the petitioner will have a fair chance to be considered for appointment to the post of Assistant Professor. 10. In order to complete the facts, it will be pertinent to mention that the petitioner has been permitted to participate in the selection process. He is at No. 1 in the merit list, as per the result produced before this Court. The fact that the petitioner has secured 1st position in the merit list will not advance his case, since he was not eligible on the last date of receipt of application, i.e. 1st July, 2011. The appointments are to be made from those candidates who were duly eligible and qualified on 1st July, 2011 and whose names also find mentioned in the merit list. 11. The Court cannot direct for the relaxation of the minimum essential qualification, as argued by Mr. B.C. Negi, learned counsel for the petitioner. The high standards are to be maintained for filling up the posts of teachers in medical colleges. 12. Their Lordships of the Hon’ble Supreme Court in State of Bihar and others Vs. Ramjee Prasad and others, AIR 1990 Supreme Court 1300 have held that the choice of the date for advertising the posts had to depend on several factors, e.g., the number of vacancies in different disciplines, the need to fill up the - 5 - posts, the availability of candidates, etc.. In that case, it was not the case of anyone that experienced candidates were not available in sufficient numbers on the cut-off-date and merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January, 1988 to 30th June, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. Their Lordships have held as under: “7A. In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as 31st Jan., 1988. Those who had completed the required experience of three years by that date were, therefore, eligible to apply for the posts in question, The respondents and some of the interveners who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as 31st January, 1988, the State Government had only followed the past practice and if the High Court's attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice of the date - 6 - for advertising the posts had to depend on several factors, e.g., the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of any one that experienced candidates were not available in sufficient numbers on the cut-off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31 st Jan., 1988 to 30th June, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. We are, therefore, of the opinion that the High Court was clearly in error in striking down the Government's action of fixing the last date for receipt of applications as 31st January, 1988 as arbitrary. 13. Their Lordships of the Hon’ble Supreme Court in Bhupinderpal Singh and others Vs. State of Punjab and others, (2000) 5 SCC 262 have held that the action of the State of Punjab for determining the eligibility condition as on date of interview was bad in law. Their Lordships have further held that this practice should be discontinued. Their Lordships have held as under: “13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 JT (SC) 99; A. P. Public Service Commission v. B. Sarat Chandra, (1990) 4 Serv LR 235 (SC); Dist. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram v. M. Tripura Sundari Devi, (1990) 4 Serv LR 237 (SC); Mrs. Rekha Chaturvedi v. University of Rajasthan, (1993) 1 JT (SC) 220 : (1993 AIR SCW 1488 : 1993 Lab IC 1250); Dr. M. V. Nair v. Union of India, (1993) 2 SCC 429 : (1993 AIR SCW 1412 : 1993 Lab IC 1111); and U. P. Public Service Commission, U. P., Allahabad v. Alpana, (1994) 1 JT (SC) 94 : (1994 AIR - 7 - SCW 2861), 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. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice. 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 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 candidateshave 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 - 8 - 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 herein above which have now to be treated as the settled service jurisprudence. 14. In Ashok Kumar Sonkar Vs. Union of India and others (2007) 4 SCC 54, the Apex Court has held that in order to avoid any uncertainty in such matters, fixation of a cut-off date is must. Their Lordships have further held that in the absence of any cut-off date specified in the advertisement or in the rules, the last date for filing the application must be considered as a cut-off date. Their Lordships have held as under: “11. The question as to what should be the cut- off date in absence of any date specified in this behalf either in the advertisement or in the reference is no longer res integra. It would be last date for filing application as would appear from the discussions made hereinafter. - 9 - 20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application.” 15. The Apex Court in Rajasthan Public Service Commission Vs. Kalia Kumar Paliwal and another, (2007) 10 SCC 260 have reiterated that essential qualification must be possessed on the date of issuance of the notification or as specified in the rules. Their Lordships have held as under: “21. 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 the relevant date. See Ashok Kumar Sharma and Others v Chander Shekhar and Another [(1997) 4 SCC 18], U.P. Public Service Commission U.P., Allahabad and Another v Alpana [(1994) 2 SCC 723] and Harpal Kaur Chahal (Smt.) v Director, Punjab Instructions, Punjab and Another [1995 Supp (4) SCC 706].” 16. The instances relied upon by Mr. B.C. Negi, learned counsel for the petitioner on the basis of the additional material placed on record, cannot be taken into consideration. - 10 - 17. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma) Judge October 21, 2011. (bhupender) - 11 -