IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 12187 of 2009 Date of Decision: 27.5.2011. Lovekesh Kumar --Petitioner Versus Haryana State Industrial & Infrastructure Development Corporation & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Namit Kumar, Advocate for the petitioner. Mr. Dheeraj Chawla, Advocate. Mr. Rajiv Godara, Advocate for respondent no.3. *** PERMOD KOHLI.J (ORAL) Selection/appointment of respondent no.3 vide appointment letter dated 4.12.2008 (Annexure P-15) to the post of Assistant Manager (Estate), Haryana State Industrial & Infrastructure Development Corporation Ltd. has been brought under challenge in the present writ petition on the ground of his ineligibility at the time of selection/appointment. Admitted factual background is that the petitioner and respondent no.3 both belong to S.C category. Respondent no.2 issued an Advertisement No.14 of 2007 on 8.11.2007 in various newspapers inviting applications for various posts including 11 posts of Assistant Manager (Estate) for the respondent no.1-Corporation against category no.37. Qualifications/eligibility criteria for the post in question as per the advertisement is as under:- CWP No. 12187 of 2009 -2- “ Cat. No.37- 11 posts of Assistant Manager (Estate). (Gen-6, SC-2, BCA-1, BCB-1, ESM GEN-1) E.Q. (i) Graduate in Arts, Science or Commerce with minimum 2nd Division and LL.B having at least 2 years relevant post qualification experience. (ii) Hindi/Sanskrit up to Matric standard.” Petitioner and respondent no.3 both applied in response to the said advertisement for the post of Assistant Manager (Estate). Both of them were called for interview held on 24.4.2008. Result of the selection was declared on 20.8.2008 (Annexure P-6). Respondent no.3 was shown to be selected against one of the two reserved posts for S.C category against Roll No.00095, whereas petitioner was placed at Sr. No.1 in the waiting list. Selection of the respondent no.3 has been challenged on the sole ground of not possessing the requisite experience of two years at the time of making application. It is pertinent to mention that as per the advertised qualifications a candidate was required to have at least 2 years post qualification experience. The qualification prescribed is graduation in Arts, Science or Commerce with minimum Second Division and LL.B. Thus, LL.B being an essential qualification, the candidate was required to possess two years experience after acquiring LL.B Degree. In order to establish that the respondent no.3 lacked requisite experience, it is alleged that respondent no.3 was pursuing LL.M. Course in Kurukshetra University, Kurukshetra after completing his LL.B Degree as a regular student during the period 2005-07. He was also a hostel inmate and was staying in Room No. C-15, 'C' Block of Tagore Bhawan during the period 2005-06. Petitioner made an application under R.T.I Act to the Kurukshetra University seeking information about the admission of the respondent no.3 to LL.M. Course as a regular student. Petitioner has also CWP No. 12187 of 2009 -3- placed on record copy of the Information Brochure issued by the Kurukshetra University for admission to LL.M. Course during the Session 2005-07. The brochure contained one of the conditions for suspension of the license during the period a student is required to pursue the LL.M. Course. In response to the petitioner's queries under R.T.I. Act, the university vide its letter dated 28.8.2008 informed the petitioner that respondent no.3 Mr. Jarnail Singh took admission in LL.M-I in the Session 2005-06 as a regular student. It is also informed that he was a hostler during the currency of LL.M. Course. In response to one of the query whether respondent no.3 had surrendered his license during the period he was pursuing the LL.M. Course, the information supplied is that the department has no such information nor any affidavit in this regard was submitted by him. Petitioner also obtained a copy of the application form of the respondent no.3 from the Haryana Staff Selection Commission as also other information regarding his selection under R.T.I. Act. A copy of the application form has been placed on record as Annexure P-12. From the application form it appears that there was an endorsement “no experience may reject”. However, this endorsement was later mutilated and he has been treated as eligible. The application form further reveals that in Clause 12 of the form the candidate was required to mention his experience. Against the column of experience, respondent no.3 mentioned two years and five days experience as Legal Adviser in the field of Estate. The total salary is mentioned as Rs.12,000/- per month. The Commission in its reply categorically admitted that when the application form was received from respondent no.3, he had not attached CWP No. 12187 of 2009 -4- any experience certificate, though, against column no.12 he had mentioned two years 5 days experience as Legal Adviser. It is further admitted that initially the application form was rejected for want of required experience certificate, however, subsequently he submitted the experience certificate dated 12.4.2008 from the District Bar Association, Kaithal regarding his practice as an Advocate since 25.10.2005 and on the basis of this certificate, he was found eligible and on the basis of overall performance he was selected for the post of Assistant Manager (Estate). Regarding the fact whether respondent no.3 was pursuing his LL.M. Course, it is stated that no such disclosure was made by respondent no.3 and the appointing authority was asked to examine the antecedents and documents of the selected candidates before allowing them to join while making recommendations. Respondent no.1, the appointing authority in its separate reply has stated that on the recommendations of respondent no.2, respondent no.3 has been appointed on the post in question, whereas the petitioner was in the waiting list. In so far the factum of respondent no.3 pursuing LL.M. Course is concerned, it is mentioned that a candidate pursuing LL.M. Course is not required to suspend the license. I have heard learned counsel for the parties. The only question which needs to be considered in the present case is whether respondent no.3 was having requisite experience of two years at the time of his selection on the basis of his enrollment as an Advocate even when admittedly he was pursuing LL.M Course during the period of alleged practice. Admittedly, respondent no.3 was enrolled as an Advocate by the Punjab & Haryana Bar Council in the year 2005. He produced the CWP No. 12187 of 2009 -5- practice certificate from the President, Bar Association, Kaithal which has been taken into consideration to count his experience as an Advocate. It is also equally established that the respondent no.3 was pursuing his LL.M. Course during the Session 2005-07 and the period of practice as also the study of LL.M. Course in fact is common. The contention of the petitioner is that since the respondent no.3 was pursuing LL.M. Course and there was a clear stipulation in the Information Brochure that the student who is admitted to LL.M. Course is required to surrender his Advocate's License; the experience claimed by the respondent no.3 for the said period should not be counted as respondent no.3 was not entitled to carry on practice during the said period. This contention of the petitioner is contested on behalf of the respondents placing reliance upon Division Bench judgements of this Court. In a case reported as 1997 (5) SLR 580 titled as Davinder Singh and others Vs. State of Haryana, a similar question arose whether a practicing Advocate while pursuing his LL.M. Course is required to suspend his license before he joined LL.M. Course as a regular student. The Hon'ble Division Bench considered this question and held that an Advocate is not required to suspend his license before he joins the LL.M. Course as a regular student and to arrive at this conclusion the Hon'ble Division Bench has relied upon a letter issued by the Bar Council of India which permits practicing Advocates joining the LL.M. Course as a regular student without suspending practice. A similar view has been held by another Division Bench of this Court in a case reported as 1996 (3) PLR 403 titled as Karan Jagdish Kaur Vs. The Punjab School Education Board, S.A.S Nagar (Mohali) CWP No. 12187 of 2009 -6- and others which is as under:- “ The next ground on which the appointment of respondent no.3 was challenged is that she was not eligible in terms of the qualifications prescribed in the advertisement. It is submitted that she did not possess three years experience as an Advocate on the last date of receipt of applications. The argument is that respondent no.3 who was enrolled as an Advocate in March, 1992 joined the L.L.M Part-I course in Panjabi University, Patiala as a regular student and therefore she did not practice thereafter and for this reason it is contended that she did not possess three years experience. On the other hand, what is urged by the respondents is that in terms of the instructions issued by the Bar Council of India practicing Advocates can join the L.L.M. Course without having to suspend their practice and this decision is being followed by the Bar Council of Punjab and Haryana. In our opinion, the argument of the learned counsel for the petitioner deserves to be rejected. When a practicing Advocate joins the L.L.M. Course as a regular student, he is not required to suspend his practice and can simultaneously continue with the same. Practice does not mean appearing in Courts only. One can even practice by making himself available for consultation and by giving legal opinion so long as he/she remains on the rolls as an Advocate.” In Davinder Singh's case (supra) the Hon'ble Division Bench has placed reliance upon the observations made by Hon'ble Supreme Court in case of Madan Lal and Others Vs. State of Jammu & Kashmir reported as 1995 (3) SCC 486. The relevant observations of the Hon'ble Supreme Court are contained in para 20 which reads as under:- “20. It was next vehemently contended by the petitioners that actual practice would mean that the concerned candidates should have appeared before courts and conducted cases during these two years. It is difficult to accept this contention. A member of the Bar can be said to be in actual practice for 2 years and more if he is enrolled as an Advocate by the concerned Bar Council since 2 years and more and has attended law courts during that period. Once the Presiding Officer of the District Court has CWP No. 12187 of 2009 -7- given him such a certificate, it cannot be said that only because as an advocate he has put in less number of appearances in courts and has kept himself busy while attending the courts regularly by being in the law library or in the bar room, he is not a member of the profession or if not in actual practice for that period.” In view of the above legal position, it cannot be said that respondent no.3 was not possessing the requisite experience of actual practice merely because he was pursing LL.M. Course. Certificate issued by the Bar President has not been challenged in any manner. Enrollment of the respondent no.3 since 2005 is also not disputed. Admittedly, he had more than two years enrollment at the time of applying for the post in question. As regards the condition in the brochure for admission to LL.M. Course, which inter alia requires suspension of license is concerned, it may be an irregularity for pursuing the LL.M. Course but contravention of such a condition by respondent no.3 cannot be construed to make him ineligible for want of experience. It is contended on behalf of the petitioner that respondent no.3 did not attach the experience certificate along with the application form as he was not possessed of the experience certificate till the last date of making application, hence, his application was liable to be rejected. In support of his contention, petitioner has relied upon a Full Bench judgement of this Court reported as 1997 (3) SCT 526. The Hon'ble Full Bench of this Court while considering the question of enforcement of conditions of Information Brochure/Advertisement/Prospectus held that Information Brochure/Prospectus has the force of law and its conditions are to be strictly adhered to. The Hon'ble Full Bench has further observed in respect to the sanctity of date and time for receipt of application. The relevant CWP No. 12187 of 2009 -8- observations are as under:- “18. 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.” Thus, it is argued that since the respondent no.3 had not annexed the experience certificate along with the application form, his application form was liable to be rejected. It is further contended that last date for receipt of the application form was 8.12.2007, whereas the experience certificate produced by respondent no.3 is dated 11.4.2008 (Annexure P-14) i.e after the last date of receipt of application form, the certificate cannot be relied upon to count his experience. To the contrary, it is contended on behalf of the respondents that the experience certificate clearly indicates that the petitioner was enrolled as a practicing Advocate in District Courts since 25.10.2005 which clearly establishes that his experience starts from the date of his enrollment and had completed more than two years of practice as on the last date of receipt of application i.e. 8.12.2007. Even though, certificate was produced later but the same cannot be ignored particularly when its genuineness is not in dispute. It is also argued on behalf of the respondents that Information Brochure/Prospectus no doubt has the force of law, however, the Prospectus/Advertisement contained certain conditions which are mandatory to be observed and certain conditions are directory in nature, non-observance thereof can only be construed as an irregularity which is curable in nature. CWP No. 12187 of 2009 -9- In a case reported as 2005 (9) SCC 779 titled as Dolly Chhanda Vs. Chairman, JEE, Hon'ble Supreme Court has held as under:- “7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. In the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or makr- sheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principles as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature.” In the present case, no doubt the requisite certificate had not been attached with the application form, though, respondent no.3 had specifically mentioned against column no.12 that he had two years and five days experience. It was only a question of furnishing the documentary proof relating to the experience. Respondent no.3 has also placed on record copy of a letter dated 31.3.2008 (Annexure R-3/1) issued from the Haryana Staff Selection Commission to the petitioner communicating him the deficiency of experience and respondent no.3 was asked to furnish the requisite documents in support of his claim of eligibility. The relevant extract of the aforesaid communication is reproduced hereunder:- “Note:- Your attention is invited to the observation/shortcomings indicated above. CWP No. 12187 of 2009 -10- If you wish to say anything in support of your claim of eligibility for the said post, you are requested to personally contact this office along with all original documents and Photostat copies during office hours within seven days from the date of receipt of this letter. It is further intimated that no correspondence will be entertained in this regard. Sd/- Superintendent Scrutiny, for Secretary Haryana Staff Selection Commission, Panchkula.” It is in response to this letter that the respondent no.3 seems to have secured the certificate dated 11.4.2008 from the President, District Bar Association and furnished the same to the respondent no.2. Thus, irregularity, if, any stands cured by rectifying the deficiency. Even though, no documentary proof was attached with the application form, however, the subsequent certificate, wherein the President, District Bar Association certified the enrollment of respondent no.3 as an Advocate with the Bar Council of India. Respondent no.3 had practice of more than 2 years on the last date of submission of the application form. At the first place the petitioner has not placed on record the complete advertisement nor reproduced any condition contained therein which inter alia required the applicant to attach all the certificates along with the application form and non-observance of this condition is shown to be fatal. Assuming that there is such condition, the same cannot be construed to be mandatory in nature in view of the observations of the Hon'ble Supreme Court in case of Dolly Chhanda, referred to above. The deficiency cannot be said to be fatal and sufficient for the rejection of the candidature of respondent no.3. It was only a curable irregularity which has been cured before the completion of the selection process. Challenge to the selection/appointment of respondent no.3 on this count also fails. In the totality of the circumstances, this petition is dismissed, however, with no order as to costs. (PERMOD KOHLI) JUDGE 27.5.2011. lucky Whether to be reported? Yes.