IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2394/2008 Reserved on: 30.12.2008 Decided on:9.1. 2009 Deepa Sharma. …Petitioner. Versus Himachal Pradesh State Environment Protection and Pollution Control Board and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the petitioner : Mr. Neel Kamal Sood, Advocate. For the Respondents : Mr. Suneet Goel, Advocate for respondents No. 1 to 3. Mr. Haminder Chandel, Advocate for respondent No.4. Mr. K.B. Khajuria, Advocate for respondent No.10. Rajiv Sharma, J. Brief facts necessary for the adjudication of this writ petition are that vide advertisement which was published in ‘Divya Himachal’ on 30th April, 2006, applications were invited for filling up the posts of Junior Scientific Assistant. The minimum qualification prescribed as per the advertisement for filling up the posts of Junior Scientific Assistant was M.Sc. Degree 1st 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 Class in Environmental Science/Chemistry/Biology from a recognized University or Institution with proficiency in computer. The last date for the receipt of the applications was 22.5.2006. The petitioner submitted application pursuant to advertisement. She was called for interview on 16.10.2006. Respondents No. 4 to 9 were selected for the post in question. Mr. Neel Kamal Sood, Advocate has strenuously argued that the selection and appointment of respondent No.4 is not in accordance with law. His precise submission is that respondent No.4 was not in possession of the requisite essential qualification i.e. M.Sc. Degree in Environmental Science on the last date of receipt of application i.e. 22.5.2006. Mr. Suneet Goel, Advocate, Mr. Haminder Chandel, Advocate and Mr. K.B. Khajuria, Advocates have supported the selections made. I have heard the learned counsel for the parties and perused the record carefully. The controversy falls in a very narrow compass. The advertisement was issued on 30.4.2006. It is not disputed by the parties that the last date of receipt of applications was 22.5.2006. It has come in the reply filed by respondent No.1 to 3 that at the time of submission of application, respondent No.4 had appeared in 4th semester of M.Sc. and the result of the last semester was awaited. It is evident from Annexure A-5 that she was issued the statement of marks for the examination of 5th semester on 15.7.2006. Mr. Neel Kamal Sood relying upon the following judgments rendered by the Hon’ble Supreme Court have strenuously argued that the respondent No.4 could not be selected for the post in question since she was not eligible on the last date of receipt of applications i.e. 22.5.2006. It 3 is now well settled that the candidate must be eligible on the date prescribed in the Recruitment and Promotions Rules or if there is no date prescribed in the rules in that eventuality it has to be the last date of receipt of applications. In the present case, the last date of receipt of applications was 22.5.2006. Admittedly, on this date, respondent No.4 was not eligible to be considered for the post of Junior Scientific Assistant and her candidature could not be considered at all by the selection committee. The selection committee has erred in law, rather committed gross illegality by considering the candidature of respondent No.4. She was not in possession of the requisite essential qualification on the last date of receipt of application i.e. 22.5.2006. The plea of the respondents that by the time the interviews were held on 16.10.2006, respondent No.4 had become eligible merits rejection. Her eligibility was to be seen on the last date of applications i.e. 22.5.2006 and not on 16.10.2006 i.e. date of interview. The instances quoted by respondent No.1 to 3 in their reply that the candidates are being considered in other organizations if they become eligible on the date of interview is contrary to the dicta of the Hon’ble Supreme Court. She was appointed for one year on 2.12.2006 on fixed emoluments of Rs. 9,000/- per month. The question raised in this petition is no more res integra in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court in Ashok Kumar Sharma and others versus Chander Shekhar and another, (1997) 4 SCC 18. Their Lordships have held that where the applications have been called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date alone. Their Lordships have further held that the persons acquiring the prescribed qualification subsequent to 4 such prescribed date cannot be considered at all. Their Lordships have held as under (pp 21&22 para 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 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 not acquired the prescribed qualifications 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 Rajasthan. 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. Sahai, J. (and the division bench of the High court) was right in holding that the 33 5 respondents could not have been allowed to appear for the interview.” Their Lordships of the Hon’ble Supreme Court in Bhupinderpal Singh and others versus 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 (pp 268 & 269 para 14): “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 candidates have 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 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 6 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.” In Ashok Kumar Sonkar versus 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 a 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 (pp 60 & 65 paras 11 and 20): “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. 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.” The Apex Court in Rajasthan Public Service Commission versus Kaila 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: “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 7 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].” The judgments cited hereinabove have been reconsidered by their Lordships of the Hon’ble Apex Court in Dipitimayee Parida versus State of Orissa and others, (2008) 10 SCC 687. Their Lordships have held that qualification or extra qualification laid down for recruitment should ordinarily be considered on the last date of filing the application. In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court it is held that the appointment of respondent No.4 was made in infraction of the prescribed procedure and the same would be violative of Articles 14 and 16 of the Constitution of India and being nullity it is liable to be cancelled. Mr. Neel Kamal Sood has also brought to the notice of the Court during the course of hearing that the initial appointment of respondent No.4 though was for a period of one year, however, the same was extended by respondent No.1 for another one year on 2.1.2008. It is declared that once the appointment of respondent No.4 was void ab initio, the same could not be extended by another one year. This action of the respondents is also declared, illegal, arbitrary and discriminatory, rather respondent No.1 has perpetuated the illegality. The learned counsel appearing on behalf of respondent No.4 has strenuously argued that the post of Junior Scientific Assistant has been advertised to be filled on regular basis and till then his client may be permitted to discharge her duties. This submission of the learned counsel appearing on behalf of respondent No.4 merits rejection as the 8 appointment of respondent No.4 was illegal and unjustifiable. . The candidate who is not eligible as per the law laid down by the Hon’ble Supreme Court cannot be permitted to discharge his/her duties. Consequently, in view of the above reasoning, the writ petition is allowed. The appointment of respondent No.4 as Junior Scientific Assistant pursuant to interview held on 16.10.2006 dated 2.12.2006 and extended by another one year on 2.1.2008 is struck down. Respondent No.4 shall cease to work as Junior Scientific Assistant forthwith. The copy of this order be sent to respondent No.10 for taking appropriate action against respondent No.1 for not filling up the post in accordance with law. It is further ordered that the salary paid to respondent No.4 shall be recoverable from the members of the Selection Committee by respondent No.1 in easy installments. In fact respondents No.1 to 3 have chosen to file a joint reply. This order has been necessitated by way of reminder that the appointments to the public offices must be made in a very very transparent manner in accordance with law and the persons, who are not eligible, should not be considered at all. If this tendency is not checked it will breed contempt for the system. The impression has gone in the society that once the appointment is made by any means, the same may not be interfered by the Courts generally with the passage of time and equity arising in their favour. This impression has to be dispelled by upholding the rule of law. There will, however, be no order as to costs. 9.12009. (Rajiv Sharma ), J. *awasthi*