IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 956 of 1999 LAXMAN SARIYALA V/S STATE & ORS Mr. RN UPADHYAY, for the appellant / petitioner Mrs. R.R. Kanwar, Government Counsel, for the State. Mr.Vineeet Kumar Mathur) Mr.M.S.Godara ), for the respondents. Date of Order : 2.4.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI SANGEET LODHA,J. ORDER ----- This appeal has been filed against the judgment of the learned Single Judge, dated 5.8.98, dismissing the petitioner's writ petition. The brief facts of the case are, that one post of Projectionist was advertised vide Annexure 3, by the Principal-cum-Controller, Dr. S.N. Medical College and Associated Group of Hospitals, Jodhpur on 26.8.91. The qualification prescribed therein was, that the applicant should possess Hr. Secondary or equivalent qualification, and should be having a license of Cinema Projector Operating. In response to this advertisement, the petitioner applied, and the private respondent also applied. Then, petitioner applied for other post also, however, for the post of Projectionist, there were only two candidates, being the petitioner and the private respondent, and in that interview, the private respondent was selected, and given appointment. It is alleged by the petitioner, that the petitioner applied for being supplied copy of the select list, which application was duly received by the respondent no. 2, however, it is alleged that the petitioner has come to know, that the private respondent does not possess the requisite qualification, inasmuch as, he did not possess the requisite license to operate cinema machine, and that, it is only on 28.12.91, that the Chief Electrical Inspector has advised the private respondent to appear for interview on 8.1.92, for grant of license for operating Cinema Projector. Thus, in substance, he contended that as on the relevant date, given in the advertisement, the private respondent did not possess, or hold the Cinema Projector Operating license. Obviously, the private respondent did not fulfill the requisite qualification criteria, and he could not be appointed, and since the petitioner was only other candidate, he was required to be appointed, as he is possessing all the requisite qualification. A reply to this writ petition has been filed by the private respondent, inter-alia contending, that he was fully qualified to be appointed, and has been duly selected after interview, wherein his experience and knowledge 2 regarding operation of projectors was considered. Then, in para 11 it is pleaded, that grant of license was under consideration, and issue of license was in consideration with the competent authority. A letter to that effect was submitted to the appointing authority, and the respondent was granted time to produce the license, as and when issued, and as soon as the answering respondents received the license, he submitted the photo copy of the license to the appointing authority. With this, the private respondent has produced the photo copy of the license. At this stage, we have looked the license produced by the respondent, which does not show, to be bearing any date, whether in the column meant for issuance of the license, or under the signatures of the Electrical Inspector. Be that as it may. It is not clear as to when the private respondent received the license, and when he submitted it, to the appointing authority. Then, the reply has also been filed on behalf of the State, contending inter-alia, that the private respondent submitted a certificate issued by the office of the Chief Electrical Inspector, dated 19.8.91, to the effect, that issuance of license of Cinema Operator is under process, and after completion of certain formalities, the certificate will be issued. On the basis of this certificate, the selection committee considered him as 3 eligible, and after consideration of the qualifications of both the candidates, the selection committee found, the private respondent most suitable, and recommended for selection, while the petitioner was kept in waiting list. Later on, the respondent has produced this certificate in the Department. Then, in para 5 (ii), reliance has been placed on Rule 68 of the Rajasthan Cinema Operator (Regulation)Rules, 1959, to contend, that according to sub-rule (2)(f), an operator may obtain certificate from the Electrical Inspector having jurisdiction, by presenting himself within the period of three months, from the date of his appointment, before the said Inspector, at his headquarters or, at any other place, the inspector can examine the operator, and if, for a valid reason, the Inspector is not in a position to examine the applicant, he may extend the time limit, not exceeding two months, in writing, to the applicant, under intimation to the licensing authority. Thus, it is sought to be contended, that the private respondent could produce license within three months after his appointment, and there was no necessity to produce certificate at the time of interview by the respondent no.3. Then, a rejoinder has also been filed to the reply of the State respondents, mainly contending inter-alia, that it is established, that on the date when the petitioner appeared for post as also for interview, the private 4 respondent did not possess the license of cinema operator, while the qualification prescribed is, that the candidates should be a holder of this certificate, and the same qualification is prescribed in the Rajasthan Medical & Health Subordinate Service Rules, which does not contain any provision for any relaxation. Consequently, it was not within the powers of the selection Committee, to have relaxed the same. The learned Single Judge has found, that it is not in dispute, that there is no regular course of any kind, which after completion, a license is issued to the incumbent, and if license has been issued without attending a course, then, issuance of the license cannot be equated with any kind of qualification, which could be said to be necessary qualification, to be possessed by the incumbent. Rather, the qualification is, to know how to operate, and license is only certification, which is not granted after the completion of any course. Rather, it is only a recognition of a skill, and if a man has possessed the skill, then the employer was at liberty to judge his capacity, and after judging capacity, if the employer found him suitable, then, it cannot be said, that private respondent was not qualified to hold the post, and the selection cannot be vitiated on that count. It has also been considered, that at the time when the judgment was rendered, the petitioner was in some temporary appointment with the Central Labour 5 Department. We have heard learned counsel for the parties and have gone through record. At the outset, it may be observed, that by now, it is settled legal position, consistently laid down by the various judgments of Hon'ble Supreme Court starting, from Harpal Kaur Chahal Vs. Director, Punjab Instrutions, Punjab & Anr. reported in 1995 Supp (4) SCC 706, State of Uttar Pradesh Vs. Vijay Kumar Misra reported in AIR 2002 SCW 2608 and onwards, that the eligibility of a candidate has to be judged with reference to the date specified in the advertisement. Significantly, even the learned Single Jude has considered, that there can be no dispute about the proposition of law, as canvassed by the learned counsel for the appellant, (being a one mentioned above). This finding of the learned Single Judge is a million dollar finding in favour of the appellant, and a look at the advertisement Annexure 3 shows, that it provided, that the application should be received upto 25.9.91, duly filled in all respects, and the application should be accompanied by all concerned certificates, like academic qualifications, technical qualifications etc., and it is further stipulated, that in the event of any application being incomplete, or received belatedly, shall not be 6 considered. In our view, this clearly contemplates, that the applicant was required to submit the application, duly specifying the academic and technical qualifications, possessed by him, and the application was also required to be accompanied by the requisite certificates in that regard. From looking at the reply of the private respondent, and the State, it is clear, that the application of the private respondent was not accompanied by any document, showing him to be holding the Cinema Projector Operating license. Rather, a certificate was produced, to the effect, that the matter is under process, and after completion of certificate formalities, the certificate will be issued, and that certificate has been subsequently produced. In our view, may be, that for obtaining certificate, any particular academic or curriculum may not be required to be followed, or even any examination may not be prescribed as such, but then, the conditions of the advertisements, which are in line with the prescribed qualification, as prescribed by the aforesaid service Rules, do clearly contemplate, that the incumbent should be holding a particular academic and technical qualification certificate. 7 In that view of the matter, it was not open to the learned Single Judge, to undertake an inquiry, and that too without any basis, as to what are the considerations for issuance of certificate, and that the certificate is only a recognition, or certification of that particular skill. The advertisement, or the Rules, does not contemplate the eligibility, to be possessing of a requisite particular skill, the Cinema Projector Operating, in the present case. Thus, since, it is more than clear, that as on the relevant date, the private respondent was not holding any such license while, it is not in dispute, that the petitioner was possessing such license, duly issued way back on 8.1.98, being Annexure 1, the action of the State respondents, in selecting the private respondent, who was not holding the license, as against the petitioner, who was very much holding license, cannot be sustained, on the principles enshrined in Articles 14 and 16 of the Constitution . The result is, that the appeal is allowed. The impugned judgment of the learned Single Judge is set aside. The writ petition is allowed, and the appointment of the private respondent is quashed. The State respondents are directed, now to consider candidature of the petitioner, on the basis of his having eligibility on the relevant date, and if he is otherwise found suitable, to give him 8 appointment, with consequential benefits, including assigning him seniority and pay fixation from the date the private respondent was appointed, but actual emoluments will be receivable by the petitioner, from the date, he joins the service. ( SANGEET LODHA ),J. ( N P GUPTA ),J. /aditya / 9