^-' \ 'i •Sssiy ^i-Ne*^ i.ShW-'!" •• .A ?lLiij ^ "'l IN THE HIGH COURT OF CHHATTISGARH JUDICATURE Petitioners -"\ /^/ o /^/ N^w^ ^'^^y ^'^y ^/^/ .^ ^ .^/ ;.?- w •^;., \\ V- Respondents AT BILASPUR 1. Smt. Deepti Dewangan fic' W.PS-No. -"-^- 2010 Wife of Shri Mukesh Kumar Dewangan Dewangan Kirana Stores, Sudheer Mukerjee Ward, Mahadeo Ghaat Road, Ashwani Nagar Raipur, Tah. & Dist. Raipur (C,G.) / 2. Kumari Nivedita Xalxo D/o Shri Mahesh Kumar Xalxo Qr. No. 1/A, Street No. 6 , Sector-8 Bhilai Nagar, Durg. Tah. & Dist. Durg (C.G.) ,3. Kumari Archana Markaam D/o Shri G.S. Markaam Resident ofBasantpur, Ward No. 38, Near Swami Vivekanand School Rajnandgaon, Tah. & Dist. Rajnandgan, (C.G.) 4. Arun Kumar Sahu aged 25 years S/o Shri Mahendra Das Sahu Resident ofBachhera Bhaata (Dongargarha) Tah. Dongargarha, Dist. Rajnandgaon (C.G.) . 5. Shail Raj aged about 27 years S/o Shri Jeewan Lal Resident ofVillage Domerdiha Post Vtai, Tah. & Dist. Durg. Versus 1. Examination Controller, Chhattisgarh Assistant Professors, ? Public Service Commission Examination, ShankerNagar, Raipur, 492001 ^ 2. State ofChhattisgarh Through the Secretary Higher Education D.K.S. Bhawan, Mantraalaya Raipiir Tah. & Dist. Raipur (C.G.) 3. Pt. Ravishanker Shukla Vishwaviddyalaya Through the registrar, Pt. Ravishanker Shukla Vishwaviddyalaya, G.C. Road Raipur, Tah. & Dist. Raipur (C.G.) iS ^^h'i- :!^i^: f.i!MIP: y w 9. B! WRIT PETITION UNDER ARTICLE 226 AND 227 OF THE COSTITUTION OF INDIA ii'» !!-I SSSSH .,« B& HIGHGSGlfl.lRTSFCHHATTrSGARHATBlLASPUR (Hon. Mr. JusticePritinker Diwaker) WritPetition (S)No. 881 of 2010 PETITIONER RESPONDENTS VERSUS Jayant Kumar Dhurandhar State of Chhattisgarh and others Writ Petition (S) No. 882 of 2010 PETITIONER Ku. Nusrat Hashmi VERSUS RESPONDENTS State of Chhattisgarh and others Writ Petition (S) No. 890 of 2010 PETITIONER Smt. Deepti Dewangan and others VERSUS RESPONDENTS Examination Controller and others Post for pronouncement of order on \%.10.2010 Sd/- pritinker Diwakar Judge ^a 'a ll>f0 HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 881 of 2010 PETITIONER RESPONDENTS VERSUS Jayant Kumar Dhurandhar State of Chhattisgarh and others Writ Petition (S) No. 882 of 2010 PETITIONER Ku. Nusrat Hashmi VERSUS RESPONDENTS State of Chhattisgarh and others Writ Petition (S) No. 890 of 2010 PETITIQNER Smt. Deepti Dewangan and others VERSUS RESPONDENTS Examination Controller and others Shri O.P. Agrawal, Shri Viprasen Agrawal and Shri P.R. Patankar counsel for the petitioners. Shri Pravin Das Dy. GA for State of Chhattisgarh Shri Y.C. Sharma counsel for C.G. Public Service Commission. Shri Neeraj Choubey counsel for Pt. Ravi Shankar University, Raipur. WRIT PETITLQNS UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ORDER (1%.10.2010) Since subject matter of all the aforesaid three petitions is one and the same, they are being disposed of by this common order. 2. Grievance of the petitioners in the aforesaid petitions is that though they have been permitted to appear in the written examination conducted by Chhattisgarh Public Service Commission (for short the "PSC") on 29 & 30th November, 2009 for the post of Assistant Professor Law, Bio Science and Physics they are not likely to be permitted to appear in the interview to be held in future. 3. Facts of the case in brief are that on 20.5.2009 (Annexure P-3) an advertisement was issued by the PSC for the posts of Assistant Professor in 32 subjects including that of Law, Bip science and Physics. Pursuant to this advertisement the petitioners had filled in their forms before the last date fixed for the same i.e. 22.6.2009 but as their result of M. Phil. Examination for the Academic Session 2008- 2009 could not be declared by the University in time, they may be deprived of appearing in the interview. According to the petitioners' case, their M. Phil examination was held from 20.4.2009 to 29.4.2009 of various subjects of law, Bio Science and Physics but their result was declared only on 26.11.2009 and 22.9.2009. M. Phil examination in respect of 15 subjects was conducted and out of these subjects result of 9 subjects was declared by the University prior to 22.6.2009 which is evident from Annexure P-11. However, petitioners' result was belatedly declared on, 31.8.2009, 22.9.2009 and 26.11.2009 for no fault on their part and that is why on 26.6.2009 a request letter was written by the University to the PSC apprising it of the entire factual scenario and requesting to accept the forms of all those candidates who had participated in the l\yi. Phil final examination whose results are yet to be declared. Further case of the petitioners is that admit cards were issued to them pursuant to which they have been permitted to appear in the written examination. Case of the petitioners is that result of M. Phil examination was declared on 31.8.2009, 22.9.2009 and 26.11.2009 and therefore for all practical purposes they were qualified to appear in the examination and their candidature cannot be rejected for the fault of the university. Petitioners' have averred that on 2.2.2010 a notice was issued to all the candidates asking them to submit duly certified photocopies of the relevant certificates before 22.2.2010 which the petitioners had submitted on 18.2.2010 and 6.2.2010 respectively. Petitioners' further case is that one of the fi y.iY^ "s-^ petitioners had earlier filed a writ petition being W.P. 4164/2009 challenging yet another action of the respondents in respect of conducting the written examination and for granting relaxation in age to a class of persons and in the said writ petition on 16.11.2009 an interim order was passed in his favour and other similarly situated persons to permit them to appear in the written examination which was to be held on 29 & 30th November 2009. Similarly, in W.P. (S) 890/2010 out of total five, the first four petitioners had filled in their forms for the post of Assistant Professor (Bio Science) and the fifth one had applied for the said post in Physics subject before the last date fixed for the same i.e. 22.6.2009 but as their result of M.Phil. examination for the Academic Session 2008-2009 could not be declared by the University in time, they may be deprived of appearing in the interview. According to the petitioners' case in this petition their results M. Phil examination were declared on 22.9.2009 and 31.8.2009. 4. Counsel for the petitioners submits that when the result of the petitioners of M. Phil examination was not declared in time, they cannot be made to suffer and ultimately before written examination could be held, their result of M. Phil was declared and thus for all practical purposes they were holding M. Phil degree and thus they were having requisite qualification to appear in the examination. It has been pointed out by the counsel for the petitioners that result of written examination was declared on 17.9.2009 and the petitioners have been declared successful in the same but simultaneously they have been declared ineligible due to obtaining M. Phil degree after the cut off date. Counsel for the petitioners submit that 57 posts of Assistant Professors in law subject were advertised and only 31 candidates have been called for interview and as number of posts are lying vacant, no harm would be caused if the petitioners are permitted to participate in the interview. He submits that after 16 years respondents have advertised the posts of Assistant Professors and for one of the petitioners this would be the first and last chance. In support of his submission, reliance is placed on the decision of the Madhya Pradesh High Court in the matter of Nikhil Kumar Godha and another v. State u\ ^- of M.P. and others reported in 2007 (4) MPLJ 77 and in the matter of Dolly Chhanda v. Chairman, JEE and others reported in 2004 AIR SCW 5699. 5. Counsel for PSC submits that in the advertisement the last date for receiving the application form was specified as 22.6.2009 and as per clause 3 of the said advertisement the candidates were required to have requisite qualification before the said cutoff date. He submits that admittedly before the cut off date i.e. 22.6.2009 the petitioners had not passed their M. Phil exarriination but they passed the said examination on 31.8.2009, 22.9.2009 and 26.11.2009 and therefore they cannot be permitted to participate in the selection process. He submits that whenever cut off date is given in the advertisement itself, few people may suffer on account of that but the said date cannot be extended by any means and the persons who have the requisite qualification before the cut off date would only be entitled to appear in the selection process. He submits that while filling in the application forms in particular OMR (Optical Mark Reader) the petitioners had given an information that they had requisite qualification and therefore the admit cards were issued to them but after receiving various complaints in respect of number of candidates a scrutiny was made and the candidates were asked to submit the certified photocopies of their certificates showing their qualification as on 22.6.2009 and as the petitioners were not having valid degree of M. Phil on or before the cut off date, they are not entitled to participate in the selection process. According to him, if the University has committed any fault for not declaring the result, PSC cannot be blamed for the same and the petitioners are at liberty to take appropriate action before the appropriate forum against the University. He submits that the judgment of the M.P. High Court cited by the counsel for the petitioners is distinguishable from the case of the petitioners. Furthermore, the said case will not have any binding effect on this Court and it has only the persuasive value. 6. Counsel for the University in its initial reply has merely submitted that M.Phil examination was conducted in the month of March-April c ,1 'l ^7 2009 but the result of some of the subjects including Law, Bio science and Physics could not be declared in time. He however submits that the University has requested the PSC to permit even those candidates whose results could not be declared in time. Subsequently, on 30.9.2010 an additional affidavit has been filed on behalf of the University inter alia stating that petitioner in W.P. (S) 881/2010 submitted his dissertation on 11.6.2009, petitioner in W.P. (S) 882/2010 on 15.6.2009 and the petitioners in W.P. (S) 890/2010 on 27.7.2009, 4.8.2009, 29.7.2009, 24:7.2009 and 3.8.2009. Thereafter, the dissertations were sent to the examiners for valuation on 7.8.2009 and 18.8.2009 and after the same were received back the result was prepared and declaration of the same was made accordingly. 7. Heard counsel for the parties and perused the documents placed before this Court. 8. The question to be decided by this Court is as to whether the petitioners are entitled to participate in the selection process being conducted by the PSC. 9. Undisputedly, advertisement for the post of Assistant Professor was issued on 20.5.2009 and last date of submitting the application forms was 22.6.2009. Clause 3 of the said advertisement contains the requisite qualification prescribed by the PSC, which reads as under: (3) aii'i^'ii* ^af&ra; 3i^di>{" :- 3-1 (cp) ST^ tgTPrai RqiT^ ^ ^{IST "i^d^ 55 % SfcS ^ ^HTO 312^ '^T ^gf?l 4 ^S -^t ^ 'BTO WtT fli^STf ^rfStT Wffel fSt^ET if •MltlctilTCR ^f ^SV^I Sf^SSf} fSti^t iTreftil Rl<c|R<yic|« ^ gaRT fSl^gft p^rfzraTgra cft wraisr ^qrfSri 7rte : ^uftA ^t uIT^iH 'iirt Fi*-iRiRgii t :- Grade o A B c ^ SP^HR Grade point 5.50- 6.00 4.50- 5.49 3.50- 4.49 2.50- 3.49 swf ^ fcTOT % Equivale nt 75-100 65-74 55-64 45-54 ^ -6 D E F 1.50- 2.49 0.50- 1.49 0.00- 0.49 35-44 25-34 0-24 'Mldct'lcTl'i ^RR tf ^Kf^ 55% 3R7f if 3<-i'qfS|t1 '31^ ^ ST^ijfiRT cRt 05% s } ^t ^e ^t ^rpTift i ^a) '^i.'^. aaicir ^.^i. an^. STR. gRr -MiiiRid TRRTT TftsiT ( NET) sissen VWf WcpR gRT 3f|<<|[uf() ( SET) TftgIT ^JN q?t Sf 1 TR:g WlfSRT fSWT if lft.^E[A feft qi^ ginr JT •ERt 'MldctilTCl'! ~cn 3iE;nIT:r ig T?teiT •dvS\u\ sl^ ^ tse '?) ^i^'fl i v^, ?i? sfr; ift fSf; '•airfSRi fStro ^ 'rq.ft??[ tefl cir?t sinrfaf.iff cpf ^RR ^ SISTf^T i^ ^ift T?teIT 4 •.inti"! ?>4 ^ ^5 ^t ull^'Fl 1 '•rle :- 'd4<i<w 3iiciM<t> ai^mif sniR^ ^i^ ^t RriST aisraT 15^ i};? qiT ?Hr srf?Rp} tl aii^t;-) ^4 ^ «IR^t v ^ ^taPR; ai^grif ITPI ^ sfrt wir aiiclt;*!' ^ SRT gft.ipf.siR. gn^r vs ttui^ ^ «ir?'s^ srt.ipt.aiR aii^'i ira 4 ^r^V ift tRiR ^ TOTltH 'aiV SR^R '^f f^EIT vf\{\'ll \ 3KI: 311^c;<b qit VolfS ^l Siltft t R> ^ 3[t.?fI.3IR OT^T Tra SIW^T Wqwft '?( fl^ 1 A bare reading of the above-mentioned clause makes it clear that the candidate was required to possess all the educational qualification on or before filling in the form. tt was also mentioned in the said advertisement that the qualification acquired after due date shall not be entertained. In the present cases the last date for submission of application form was 22.6.2009 whereas on the said date the petitioners were not having the degree of M.Phil and they acquired the same on or about 26.11.2009. It will not be out of place to mention here that the petitioners had filled-in their form based on their degree of M. Phil and thus according to them they are not required to have the qualification of NET or SET. In the matter of Ashok Kumar Sharma and others v. Chander Shekhar and another reported in (1987) 4 SCC 18, it has been held by the Apex Court as under: "(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 c 7 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 acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. The applications ought to have rejected at the inception itself. This proposition is indisputable and in factwas not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajsthan. 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 impressible 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. Sahay, 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." Following the aforesaid decision in the matter of Ashok Kumar Sonkar v Union of India and others reported in (2007) 4 SCC 54, it has been held by the Apex Court 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 not longer res integra. It would be last date for filing application as t would appear from the discussions made hereinafter. (15) It was held: (SCC pp. 21-22, para 6) "So far as the first issue referred to in our order dated 1.9.1995 is concerned, we are ofthe 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 Cl < &- 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 qualification 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 proposition affirmed in Rekha Chaturvedi v. University of Rajsthan 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. Sahay, 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. (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." 10. In the case before the High Court of Madhya Pradesh in the matter of Nikhil Kumar Godha (supra) the point involved was that the candidates who appeared in the entrance examination for the appointment of Civil Judge which was in two parts i.e. preliminary and main whereas in the present cases this is not the position. Furthermore, C)^ •^- in the case before the High Court of Madhya Pradesh, the candidates were permitted to participate in the preliminary examination by the order of the Courtand pursuant to the order passed by the High Court of Madhya Pradesh a corrigendum was also issued by the State of Madhya Pradesh. Division Bench was dealing with the prayer of the candidates who had appeared in LL.B. final examination and their results had not been declared. The Court had referred to the earlier order in the writ petition where the candidates were allowed to take the preliminary examination subject to the condition that they would produce proof of having passed LL.B. examination along with the applications forms for the main examination. As the results were not published by the University, the Court observed that the petitioners therein should not suffer. The Court referred to Rule 7 of the 1994 Rules which stipulates that no person would be eligible for appointment by direct recruitment to the post of Civil Judge Class-11 unless he possesses a Degree in law from any recognized University and, therefore, before appointment by direct recruitment a Civil Judge Class -II has to have a degree in law from a recognized University and hence, no illegality would be committed if the candidates who have taken Final Year Examination and had been permitted to take the Preliminary Examination were allowed to take the Main Examination. Thus it is clear that the facts of the present cases are entirely different from that of Nikhil Kumar Godha (supra) and therefore, the petitioners cannot take any benefit from the said judgment 11. Likewise, the decision of the Supreme Court in the matter of Dolly Chhanda v. Chairman, JEE and others reported in 2004 AIR SCW 5699 is also of no help to the petitioners herein because the point for consideration before the Apex Court was entirely different from the cases before this Court. In the said case on the relevant date the candidate was having the requisite qualification but the correct certificate to this effect could not be produced by her in due time and that is why her candidature was rejected. However, n the present cases, admittedly on the date of filling-in the application form or before the last date fixed for it, the petitioners were not having the degree of /"'• ' L'l -; o M. Phil which is one of the requisite qualifications for the post of Assistant Professor in the subject concerned. 12. In view of the aforesaid factual and legal position, this Court is of the considered view that the petitions have absolutely no merit and being so they are liable to be dismissed and they are dismissed as such. ^—--—_-_- Sd/- pritinker Diwakar Judge M{*