Vikas Kumar Shrivastava vs Adhisthata Gajraraj Chikitsa Mahavidyalaya Gwalior And others

This petition under Article 226 of the Constitution of India has been filed seeking following reliefs:-

"7.1 यह कि, रेस्पोडेन्ट क्रमांक 4 को यह दिशा निर्देश जारी करें कि याचिकाकर्ता का पंजीयन करें व उस पंजीयन के आधार पर रेस्पोडेन्ट क्रमांक 1 याचिकाकर्ता को ज्वाईन करानें हेतु आदेश पारित करने की कृपा करें।"

The necessary facts for disposal of the present petition in short are that the respondents had issued an advertisement for recruitment on the post of EEG Technician on 27/2/2017. The petitioner also appeared in the said examination and was placed at serial No.1 in the merit-list. On 5/4/2018 a letter was sent to the petitioner with a direction that the petitioner should remain present on 9/4/2018 alongwith his original documents for the purposes of scrutiny. During scrutiny, the live registration certificate of the petitioner was demanded and the petitioner was not having the said certificate.

During arguments, it is submitted by the counsel for the petitioner that the petitioner has applied for issuance of a live registration certificate and very soon he would get the same, therefore, the respondents may be directed to give appointment to the petitioner.

The submission made by the counsel for the petitioner is misconceived. Admittedly, the petitioner did not have minimum qualification on the last date of submission of the application form.

The Supreme Court in the case of Rakesh Kumar Sharma v. State (NCT of Delhi) and others reported in (2013) 11 SCC 58 and in the case of Rakesh Bakshi and another v. State of J&K and others passed in SLP (C) No.7843-7844/2014 by judgment dated 22/1/2019 has held that the cut off date is the last date of submission of application.

In the case of Rakesh Kumar Sharma (supra) it has been held as under:-

"11. There can be no dispute to the settled legal proposition that the selection process commences on the date when applications are invited. Any person eligible on the last date of submission of the application has a right to be considered against the said vacancy provided he fulfils the requisite qualification.

In U.P. Public Service Commission v. Alpana, this Court, after considering a large number of its earlier judgments, held that eligibility conditions should be examined as on the last date for receipt of applications by the Commission. That too was a case where the result of a candidate was declared subsequent to the last date of submission of the applications. This Court held that as the result does not relate back to the date of examination and eligibility of the candidate is to be considered on the last date of submission of applications, therefore, a candidate, whose result has not been declared up to the last date of submission of applications, would not be eligible.

A three-Judge Bench of this Court in M.V. Nair v. Union of India held as under: (SCC p. 434, para 9)

"9. ... It is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date."

(emphasis supplied)

In Harpal Kaur Chahal v. Director, Punjab Instructions this Court held: (SCC p. 707, para 2)

"2. ... It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates, who possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment according to the rules."

(emphasis supplied)

This Court in Rekha Chaturvedi v. University of Rajasthan held: (SCC p. 175, para 10)

"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 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. ... Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission v. B. Sarat Chandra and Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi."

In Ashok Kumar Sharma v. Chander Shekher [hereinafter referred to as Ashok Kumar (1993)], the majority view was as under: (SCC pp. 616-17, para 15)

"15. The fact is that the appellants did pass the examination and were fully qualified for being selected prior to the date of interview. By allowing the appellants to sit for the interview and by their selection on the basis of their comparative merits, the recruiting authority was able to get the best talents available. It was certainly in the public interest that the interview was made as broad based as was possible on the basis of qualification. The reasoning of the learned Single Judge was thus based on sound principle with reference to comparatively superior merits. It was in the public interest that better candidates who were fully qualified on the dates of selection were not rejected, notwithstanding that the results of the examination in which they had appeared had been delayed for no fault of theirs. The appellants were fully qualified on the dates of the interview and taking into account the generally followed principle of Rule 37 in the State of Jammu & Kashmir, we are of opinion that the technical view adopted by the learned Judges of the Division Bench was incorrect...."

(emphasis supplied)

However, the opinion of R.M. Sahai, J. had been that these 33 persons could not have been allowed to appear for the interview as they did not possess the requisite eligibility/qualification on the last date of submission of applications.

A three-Judge Bench of this Court in Ashok Kumar Sharma v. Chander Shekhar reconsidered and explained the judgment of Ashok Kumar Sharma (1993) observing: (Chander Shekhar case, SCC pp. 21-22, para 6)

"6. 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."

(emphasis added)

The Court in Ashok Kumar Sharma further explained that the majority view in Ashok Kumar Sharma (1993) was not correct, rather the dissenting view by R.M. Sahai, J. was correct as the Court held as under: (SCC p. 22, para 6)

"6. ... 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 respondents could not have been allowed to appear for the interview."

(emphasis added)

It may also be pertinent to mention here that in the aforesaid case reference to Rekha Chaturvedi appears to have been made by a typographical error as the said judgment is by a two-Judge Bench of this Court. In fact the Court wanted to make a reference to the case of Ashok Kumar Sharma (1993).

In Bhupinderpal Singh v. State of Punjab this Court placing reliance on various earlier judgments of this Court held: (SCC p. 268, para 13)

"13. ... The High Court has held (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut -off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with."

(emphasis supplied)

This Court lately in State of Gujarat v. Arvindkumar T. Tiwari held: (SCC p. 550, para 14)

"14. A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See Prit Singh v. S.K. Mangal and Pramod Kumar v. U.P. Secondary Education Services Commission.)"

(emphasis supplied)

A similar view has been reiterated by this Court in Pramod Kumar v. U.P. Secondary Education Services Commission and State of Orissa v. Mamata Mohanty."

In the case of Rakesh Bakshi (supra) it has been held as under:-

"11.......It is reiterated that the person who clears the prescribed qualification after the cut-off date cannot be considered qualified and their applications ought to have been rejected."

As the petitioner is still not having the minimum qualification, therefore, no direction, as prayed by the petitioner, can be issued.

Accordingly, this petition fails and is hereby dismissed.