IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.3099 of 2009 DATE OF DECISION : AUGUST 2, 2010 RATTAN SINGH ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Rajeshwar Singh, Advocate, for the petitioner(s). Ms. Charu Tuli, Sr. DAG, Punjab. AJAI LAMBA, J. (Oral) 1. This petition under Article 226 of the Constitution of India has been filed praying for issuance of a writ in the nature of mandamus directing the respondents to consider the claim of the petitioner for selection as 'Teaching Fellow' on the basis of higher qualification of the petitioner, the petitioner having passed M.A. in Political Science in Ist division. 2. Learned counsel for the petitioner contends that the State of Punjab issued an advertisement (Annexure P-8) in newspapers advertising Civil Writ Petition No.3099 of 2009 2 9998 posts of Teaching Fellows for employment. 945 posts had to be filled up in District Gurdaspur. The petitioner belongs to District Gurdaspur and applied for the post of Teaching Fellow, the petitioner being eligible and suitable. No written test was provided and the selection was to be made only on the basis of merit determined on the basis of certificates. The minimum eligibility criteria provided was in the following terms :- “1. ACADEMIC QUALIFICATION a) 10+2, 40% of the marks obtained in the Basic qualification b) JBT/ETT two years' course of Punjab State or from any other State or Union Territory declared equivalent and recognized by NCTE Punjab Govt. 40% of the marks obtained in the professional qualification.” 3. Learned counsel for the petitioner further contends that higher qualification was to be given weightage. The following has been provided in para-7 of the advertisement, to which reference has been made:- “7. HIGHER QUALIFICATION (NLY ACADEMIC): (Only Academic) i) M.A./M.Sc./M.Com./M.Ed. Max. 08 Marks (a) Ist Division 08 Marks (b) 2nd Division 06 Marks (c) 3rd Division 04 Marks Experience: Max. 07 Marks” 4. The petitioner, therefore, wants to take benefit of having Civil Writ Petition No.3099 of 2009 3 passed M.A. in Political Science in Ist division and claims 8 marks to be added to his merit marks. It is the conceded position that the petitioner had appended the degree in M.A. in History. The petitioner has been given 4 marks for the higher qualification, the petitioner having passed M.A. in History in 3rd division. 5. It transpires that the merit of the petitioner was assessed at 56.34 while giving advantage to the petitioner of M.A. in History. The petitioner, accordingly, was not invited for interview/counselling as only candidates 1-1/2 times the number of posts were called for counselling. The merit of the petitioner was lower than the last person invited for counselling. 6. The respondents issued a notice on 7.3.2008 inviting candidates 1-1/2 times the number of posts on the basis of cut-off merit. Objections, if any, were invited by 14.3.2008. It is the conceded position that the petitioner had not filed any objection claiming advantage of having passed M.A. in Political Science in Ist division. 7. It further transpires that another notice was issued on 24.3.2008, wherein opportunity was given to those candidates who could not appear for counselling earlier. Thereafter, the result was declared and was published in newspapers on 15.4.2008 and appointment letters were issued to the selected candidates. 8. Learned counsel for the petitioner has not made a clear statement as to when the petitioner approached the respondents, to take credit of higher qualification viz. M.A. in Political Science in Ist division. 9. The respondents have not given the benefit of 8 marks to the Civil Writ Petition No.3099 of 2009 4 petitioner on the ground that the degree in M.A. in Political Science was not appended with the application form. The case of the respondents is that since the certificate/degree in M.A. in Political Science was not appended with the application form, as is the conceded position, the petitioner has no right to claim merit marks for the said degree/higher qualification. 10. Learned counsel for the petitioner contends that provisional degree was given to the petitioner on 25.4.2008 and, therefore, the degree/certificate could not have been appended with the application form. The petitioner claims a right to be considered in response to the advertisement/Public Notice (Annexure P-9). 11. Learned counsel for the respondent-State contends that there was a clear stipulation in the advertisement for filing applications by 30.9.2007 along with all affidavits/certificates. The petitioner having not done the same, cannot claim any benefit at this late juncture. 12. I have considered the contentions of the learned counsel for the parties, in the context of the case pleaded. 13. Reference needs to be made to the judgment of the Hon'ble Supreme Court of India in Rekha Chaturvedi (Smt.) v. University of Rajasthan and others, 1993 Supp (3) Supreme Court Cases 168, in the context of the issue raised in this petition. In para-10 of the judgment, the following has been held:- “10. 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 Civil Writ Petition No.3099 of 2009 5 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. We have, therefore, no hesitation in holding that when the selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra, (1990) 2 SCC 669 and District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram v. Civil Writ Petition No.3099 of 2009 6 M. Tripura Sundari Devi, (1990) 3 SCC 655.” 14. When the above reproduced portion from the case of Rekha Chaturvedi is considered in the context of the present case, it transpires that a cut-off date was given in the advertisement, however, the petitioner did not present the certificate of higher qualification to claim merit marks. No objections were filed in response to repeated publications issued by the respondents. In such circumstances, the petitioner is not entitled to claim benefit of higher qualification viz. M.A. in Political Science. 15. So far as the claim of the petitioner in the context of the Public Notice (Annexure P-9) is concerned, the notice is in the following terms:- “....... Now in continuation of the earlier public notice wherein it is informed that to fill the unfilled vacancies the candidates who are available in merit in their category and who have appeared in counseling shall be issued offer of appointment upto 20.2.2009 by the concerned District Education Officer through registered post. xx xx xx xx xx xx xx xx xx xx xx xx ........ By this notice, it is also informed that candidates who come within merit and could not appear in earlier counseling due to any reason they are given last opportunity to participate in the process by bringing the original documents and to appear for counseling.” 16. A collective reading of the document indicates that only those candidates have been invited for counselling who could not appear in earlier counselling. It, thus, follows that those candidates who did not figure in the merit prepared earlier and had not been invited for Civil Writ Petition No.3099 of 2009 7 counselling, would have no claim to appear under the Public Notice (Annexure P-9). 17. The advertisement (Annexure P-8) is in clear terms and stipulates as under:- “...... These applications should reach on the above address on or before 30.9.2007 only by registered post. By hand applications or through courier service will not be entertained. Applications of only those candidates will be considered who fulfill the requisite academic as well as professional qualifications on 30.9.2007. The applications received after 30.9.2007 will not be entertained. ........” 18. There is, thus, no ambiguity in facts. The petitioner, admittedly, did not have higher qualification on 30.9.2007, i.e. the last day for submission of application as provisional degree was given to the petitioner on 25.4.2008. Public Notice (Annexure P-9) is only continuation of the advertisement (Annexure P-8). Under the advertisement (Annexure P-8), the petitioner, admittedly, could not take the benefit of higher education, he having acquired the said qualification after 30.9.2007. In such circumstances, the judgment referred to above covers the case of the petitioner, against him. 19. The issue has also been considered by the Hon'ble Supreme Court of India in Ashok Kumar Sharma and others v. Chander Shekhar and another, (1997) 4 Supreme Court Cases 18. Following needs to be extracted therefrom:- “6. . . . . . . . . . The proposition that where applications are called for prescribing a particular date as the last date for fling the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date Civil Writ Petition No.3099 of 2009 8 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 application 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 Rajasthan, (1993 Supp. (3) SCC 168).. . . . . . . . . . . . 7. Mr. Rakesh Dwivedi, learned counsel for the 33 candidates, submitted that these 33 candidates had appeared for the B.E. Examination prior to their applying for the post and that there was some delay in publishing the results and that these respondents cannot be punished for the delay on the part of the concerned authorities in publishing the results. In our opinion, the said contention is beside the point. In these proceedings, we cannot examine the reasons for delay - assuming that there was delay in publishing the results. That issues is outside the purview of the writ petition. Whatever may be the reason, the 33 persons were not qualified as on the prescribed date and, therefore, could not have been allowed to appear for the interview. On the first issue (mentioned in the order dated 1st Civil Writ Petition No.3099 of 2009 9 September, 1995), therefore, we hold in favour of the review petitioners, affirming the opinion of Sahai, J.” 20. Taking a cue from the law as settled by the Hon'ble Supreme Court of India, as referred above, in the context of the facts of this case viz. the petitioner did not append the certificate indicating higher qualification with the application form, the petitioner has no right to invoke the extra ordinary writ jurisdiction directing the respondents to consider the claim of the petitioner of having higher qualification (M.A. in Political Science). There might be a number of other candidates similarly placed as the petitioner. In case, the benefit of higher qualification acquired by the petitioner on 25.4.2008 is allowed to the petitioner, it shall be totally arbitrary, unreasonable and injudicious to deprive other similarly placed candidates. 21. The action of the respondents in the facts and circumstances of the case, cannot be said to be arbitrary or unreasonable. 22. The petition is, accordingly, dismissed. August 2, 2010 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?