Madhumita Das vs State of Orissa and Others

B.P. Das, J.—This Writ Application has been filed by the petitioner with a prayer to direct the Opp. Parties to allow her to appear at the Orissa Judicial Service Examination, Class II, conducted in pursuance of Advertisement No. 10 of 2003-04 (Annexure-1) and was scheduled to be held on 29.2.2004.

The facts, as delineated in the Writ Petition, in a nutshell are that the petitioner after completing her school career with English back ground ultimately prosecuted her study in Five Years Integrated Bachelor of Laws under Utkal University. On 17.11.2003 the Opp. Party-Orissa Public Service Commission (''Commission'' hereinafter) issued an advertisement being Advertisement No. 10 of 2003-04 under Annexure-1 inviting applications from intending candidates for admission to the competitive examination to be conducted by the Commission for recruitment to the Orissa Judicial Service, Class-II by direct recruitment. The last date for submission of the application in the prescribed form was 15.1.2004. According to the petitioner, she submitted her application in the prescribed form on 12.1.2004 along with the required documents except the certificate of passing Oriya Language Test equivalent to M. E. School standard as, to her knowledge, the result of the Oriya Language Test at which she had appeared on 23.11.2003 was not published by that date, even though the result declaring her to have passed was published on 9.12.2003. The petitioner along with her application submitted an undertaking to the effect that since she had already appeared at the Oriya Second Phase Language Test bearing Roll No. OTTC-009 conducted by the Board of Secondary Education, Orissa, on 23.11.2003, the Oriya Language Test Certificate would be produced as soon as the same would be issued to her. The application of the petitioner dated 12.1.2004 was rejected by the Commission on 7.2.2004 vide Annexure-6 on the ground that the petitioner had not enclosed the certificate of passing the Oriya Language Test. The petitioner has, therefore filed this Writ Application challenging the action of the opposite parties in rejecting her application.

After issuing notice to the Opp. Parties, this Court passed an interim order on 24.2.2004 directing the Commission to permit the petitioner to take the recruitment test for O.J.S. but not to publish her result without the leave of the Court and it would be subject to result of Writ Application.

According to the petitioner, pursuant to the interim order passed by this Court, she appeared and succeeded in the written test and thereafter appeared at the viva voce test the result of which has not been published till date. Learned Counsel for the petitioner emphatically submits that the petitioner had appeared at the Oriya Language Test conducted by the Board of Secondary Education, Orissa and though her result was published on 9.12.2003, she was unaware of the fact that she had passed the Oriya Language Test and with the impression that her result had not been published, she gave undertaking to furnish the certificate soon after declaration of her result. Now, the petitioner challenges the action of the Commission saying that in view of the undertaking, the Commission should not have rejected her application. That too, according to the petitioner, by the date she submitted her application, she had already passed the Oriya Language Test Certificate on 20.1.2004, she submitted the same before the Commission on the next day, i.e. 21.1.2004, and appeared at the Viva Voce test on 23.6.2004.

The Opp. Parties in their counter affidavit have taken a stand that on scrutiny of the petitioner''s application, as it was found that the petitioner had not submitted any evidence/document regarding passing of the Oriya Language Test equivalent to M.E. school standard along with her application as stipulated in paragraphs 7(ii), 9(vii) and 10(vii)(g) of the Advertisement, Annexure-1, read with Rule 10(1)(c) of the Orissa Judicial Service Rules, 1994, the Commission had rejected her application.

This being the factual matrix, the question that falls for determination is whether the application submitted by the petitioner before the Commission for recruitment to the Orissa Judicial Service, Class-II, was valid on the last date fixed for submission of applications.

In order to appreciate the point at issue, we may quote the relevant parts of the Advertisement (Anexure-1) :

"ORISSA PUBLIC SERVICE COMMISSION

Advertisement No. 10 of 2003-2004

The last date for receipt of application is 15th January, 2004

Warning : Applications received incomplete in any respect are liable to be summarily rejected. No correspondence on that score will be entertained.

*** *** *** 7. Other Eligibility Conditions :

*** *** *** (v) Only those candidates who fulfil the requisite qualification and experience by the closing date of receipt of applications will be considered eligible.

*** *** *** 9. Certificates to be Attached : Candidates are required to submit along with their applications, true copies of the following documents duly attested by Gazetted Officer or Notary Public. They must not attach with their applications the original certificates. Only those who will be called to the interview must bring with them the original certificates in support of the attested copies for verification at the time of interview.

*** *** *** (vii) Oriya Test pass certificate from Board of Secondary Education, Orissa in support of passing Oriya language test equivalent to M.E. School standard if not passed H.S.C. or equivalent Examination having Oriya as one of the subjects :

Other Conditions :

*** *** *** (vii) Candidates are required to take due care to annex with the applications the copies of certificates and other documents as stated above and mention the total number of the annexed documents at the appropriate column of the application form. The documents should be enclosed in the following order:

*** *** *** *** *** *** (g) Oriya Test Pass Certificate, if any;

*** *** ***

(emphasis supplied)

We may now refer to the relevant provisions of Rules 10 & 12 of the Orissa Judicial Service Rules, 1994.

"10 Eligibility of candidates : (1) In order to be eligible for recruitment under Rule 5 a candidate may be of either sex and shall be :

(c) able to speak, read and write Oriya fluently and must have passed an examination in Oriya language equivalent to that of Middle English School standard.

*** *** *** *** *** ***

"12. Manner of submitting application: (1) Every candidate shall submit his/her application in his/her own handwriting in the form prescribed by the Commission to the Secretary to the Commission along with the attestation form for verification of character and antecedents, so as to reach him by such date as may be notified by the Commission in this behalf.

Provided that ....

(2) ...

(3) Every application shall be accompanied by the following documents, namely :

(i) ...

(ii) certificate from the Board of Secondary Education of Orissa in support of passing Oriya language test equivalent to Middle English School standard.

*** *** *** Notes (I) : Copies of documents, duly attested by a Gazetted Officer, shall be submitted with the application but the original shall be produced at the time of viva voce test.

(II): The Commission may, at their discretion require such additional proof on any of the above matters as they may think fit.

(III): The application of a candidate shall be summarily rejected if it is not complete in all respects as specified by the Commission in the application form."

(emphasis supplied)

The argument of Shri B. K. Das, the learned Counsel for the Opp. Parties, is that the application submitted by the petitioner for recruitment to the Orissa Judicial Service, Class-II, being incomplete was liable to be rejected summarily and there was no illegality in the decision of the Commission in rejecting the application of the petitioner. But, according to the learned Counsel for the petitioner, on the date on which the application was submitted the petitioner had already possessed the required qualification, i.e., Oriya Language Test equivalent to M.E. School standard, but due to her misfortune she was not aware of publication of her result in the Oriya Language Test for which she had submitted an undertaking along with her application.

In order to fortify his argument, learned Counsel for the petitioner, draws our attention to a decision of the Apex Court in Ashok Kumar Sharma v. Chander Shekhar 1993 (I) SLR 379 The learned Counsel relying upon the aforesaid decision submits that the petitioner was fully qualified prior to the date of the interview. So the action of the Opposite Parties in rejecting the application of the petitioner was wrong. He further refers to a decision of this Court in Smt. Urmila Beura Vs. Director, Higher Education and Others, wherein it was held that if the candidate had already appeared at the particular examination by the time of making application and results were out before the date of interview; it would be deemed that the candidate has acquired requisite qualification.

In the case of Urmila Beura (supra), selection of candidate for appointment to the post of Lecturer in Education in Bhadrak Women''s College was challenged on the grounds, firstly, that the appointee did not have the requisite qualification of Master''s Degree in Education as on the last day of receipt of applications and, secondly, the appointment was on extraneous consideration, such as, political pressure and influence. But the candidate, who was selected and appointed, was allowed to appear at the interview by the Governing Body of the College even though she did not have the requisite qualification on the last date of submission of applications whereas the petitioner had the requisite qualification. The fact narrated in the present case are totally different from that of Urmila Beura''s case. In the case at hand, the Commission on scrutiny of the application of the petitioner rejected the same summarily as the same was incomplete. It is worthwhile to mention here that in the advertisement, Annexure-1, the candidates were warned that applications received incomplete in any respect are liable to be summarily rejected. The petitioner could only appear at the written test as well as at the viva voce test by virtue of the interim order passed by this Court. In our considered opinion, the interim order of this Court can never confer any right on the petitioner.

Learned Counsel for the Opposite Parties in this regard has drawn our attention to a decision of the Apex Court in U. P. Public Service Commission, Uttar Pradesh v. Alpana (1994) 2 ATT (SC) 423 : AIR 1994 SCW 2861 wherein the Apex Court referred to its earlier decision in Ashok Kumar Sharma (supra) and ultimately came to hold in paragraph 6 that candidates must have the required qualification by the last date fixed for submission of applications.

In order to appreciate the point involved, it is necessary to state the relevant facts of Alpana''s case (supra), which reveal that the U.P. Public Service Commission issued an advertisement inviting applications for appearing at a competitive examination called the U. P. Nayayik Seva (Munsif) Examination, 1988" for selection of candidates for appointment to the said post. The qualification for appearing at the examination was that the candidate must have possessed on the last date fixed for receipt of applications a degree of Bachelor of Laws of a University established by law in Uttar Pradesh or any other University of India recognised for that purpose by the Governor which entitled him to practice in courts of law or be an Advocate, Vakil or Pleader on the roll of or be entitled to practice in the High Court of Judicature at Allahabad or Courts Subordinate thereto, etc. It was further required that the application would be accompanied by an attested copy of High School and Intermediate Certificates, Bachelor Degree and Law Degree Examination Certificates and Mark Sheets of each examination. The last date for receipt of the applications was stated in para 2 of the advertisement to be August 20, 1988.

On a plain reading of the advertisement it became clear that a candidate applying in pursuance of the advertisement had to possess a Degree of Bachelor of Laws on the last date fixed for receipt of applications, i.e., August 20, 1988. Not only that, but it was further provided that the applications would be accompanied by attested copies, inter alia, of the Law Degree Examination Certificate and Mark Sheet of such examination. This requirement could never have been fulfilled by those who had not passed the examination by August 20, 1988.

Admittedly, the respondent in Alpana''s case had appeared at the law degree examination, the result whereof had not been declared till August 20, 1988. As per the advertisement, her application was therefore, liable to be rejected. It was an undisputed fact that she had applied in pursuance of the advertisement even though she had not passed the law degree examination till August 20, 1988. However, she had mentioned in her application that she had appeared for the law degree examination and was awaiting her result. In the meantime she successfully cleared the law degree examination, the result whereof was declared sometime thereafter in October, 1988. Being aware of it, the Public Service Commission allowed her to appear at the examination held on 3rd, 4th and 5th May, 1990 and on her coming out successful in the written examination she expected a call for interview. As she did not receive such call, she made enquiries and learnt that the Public Service Commission had taken the view that since she had not passed the law degree examination on or before August 20, 1988, she was not eligible to be selected for appointment to the post advertised.

Thereupon, she approached the High Court by way of a Writ Petition which was allowed and the Public Service Commission was directed to call her for interview. The Court, however, stated that the Public Service Commission should withhold the result until further orders. Pursuant to the said order, she was interviewed and her result was kept in abeyance. Thereafter the High Court finally disposed of the matter directing the Public Service Commission to declare her result and if she was successful, to forward her name to the State Govt. for appointment within the time specified. A further direction was given that in the event there was no post available, a supernumerary post should be created for her and appointment made thereon. It was that order of the High Court, which was challenged before the Apex Court in appeal by special leave.

The Apex Court held that the aforesaid order of the High Court for creation of a supernumerary post to accommodate the respondent therein could not be supported on any rule or prevalent practice nor could it be supported on equitable considerations. In paragraph 6 of the judgment, the Apex Court further held that :

"... In fact there was no occasion for the High Court to interfere with the refusal of the Public Service Commission to interview her in the absence of any specific rule in that behalf. We find it difficult to give recognition to such an approach of the High Court as that would open up a flood of litigation. Many candidates superior to the respondent in merit may not have applied, as the result of the examination was not declared before the last date for receipt of applications. If once such an approach is recognized there would be several applications received from such candidates not eligible to apply and that would not only increase avoidable work of the selecting authorities but would also increase the pressure on such authorities to withhold interviews till the results are declared; thereby causing avoidable administrative difficulties...."

In this regard we may also refer to a decision of the Apex Court in the case of State of Rajasthan v. Hitendra Kumar Bhatt, AIR 1998 SC 91, wherein it was held in paragraph 6 as follows :

"Looking to the clear terms of the advertisement which we have referred to above, the respondent was not eligible for consideration. It is submitted by the respondent before us that since he has been continued and has now been confirmed we should not disturb his appointment. He has requested that his case should be considered sympathetically. The fact, however, remains that the appellants have taken the correct stand right from the beginning. The respondent''s application was not considered and he was not called for an interview. It was on account of interim orders, which were obtained by the respondent that he was given appointment and continued. He was aware that his appointment was subject to the outcome of his petition. One cannot therefore, take too sympathetic a-view of the situation in which the respondent finds himself. A cut-off date, by which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would have applied had they known that the date of acquiring qualifications was flexible. They may not have applied because they did not possess the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to others."

In view of the aforesaid judicial pronouncements of the Apex Court, we are of the considered opinion that neither the ratio of Urmila Beura''s case of this Court nor of Ashok Kumar Sharma''s case of the Apex Court is applicable to the facts of the present case since the petitioner had not submitted her application complete in all respect by the last date of receipt of applications. We find no infirmity in the action taken by the Commission in rejecting the application of the petitioner and in not calling her for interview.

For the reasons indicated above, we dismiss the Writ Petition. There shall, however, be no order as to cost.

A.K. Samantray, J.

I agree.