U.P.
Public Service Commission Vs. Alpana [1994] INSC 35 (17 January 1994)
Ahmadi,
A.M. (J) Ahmadi, A.M. (J) Venkatachala N. (J)
CITATION:
1994 SCR (1) 131 1994 SCC (2) 723 JT 1994 (1) 94 1994 SCALE (1)98
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by AHMADI, J.- Special leave granted.
2. The
Uttar Pradesh Public Service Commission issued an Advertisement No.
A-1/E-2/88-89 inviting applications for appearing at a competitive examination
called 'the U.P. Nyayik Seva (Munsif) Examination, 1988' for selection of
candidates for appointment to the said post. The total number of vacancies
available at that date was 50. The qualification for appearing at the
examination was that the candidate must possess 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 this purpose by the Governor which entitles 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 shall 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 becomes clear that the 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, such date in the
instant case being August
20, 1988. Not only
that, but it was further provided that the applications shall be accompanied by
an attested copy, 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 herein 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 is 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. She had mentioned in the
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 some time thereafter in October
1988. Aware of this position, the Public Service Commission allowed her to
appear at the examination held on 3rd, 4th and 5th May 1990 and on her successfully clearing the written examination
she expected a call for the interview. As she did not receive the call she made
inquiries and learnt that Public Service Commission have 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 in
question. Thereupon, she approached the High Court by way of a Writ Petition
No. 18918 of 1991 which was allowed by 726 the order dated July 12, 1991 whereby the Public Service
Commission was directed to call her for interview to be held on 15th and 16th
of July, 1991. 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 the result was kept in abeyance.
Thereafter,
on March 17, 1993 the High Court finally disposed of the matter by directing
the Public Service Commission to declare her result and if successful to
forward her name to the State Government for appointment within a month from
the date of presentation of the certified copy of the High Court order. 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
is this order of the High Court which is challenged in this appeal by special
leave.
3. As
already pointed out, on a plain reading of the advertisement pursuant to which
she had made the application, it is obvious that she was required to possess
the degree of Bachelor of Laws on the last date fixed for receipt of
applications which was August 20, 1988. This becomes clear from the requirement
of production of an attested copy of the law degree examination certificate and
mark sheet thereof. A candidate who had not passed the law degree examination
before August 20, 1988 would obviously not be in a position to comply with this
requirement.
Admittedly,
she did not comply with this requirement and had stated in her application that
on the last date fixed for receipt of the applications, i.e. August 20, 1988,
she did not possess the degree of Bachelor of Laws, but that she had appeared
at such examination and was awaiting the result.
The
result was declared sometime in October 1988. She was also permitted to appear
at the written test held by the Public Service Commission but as she did not
receive any intimation in regard to the oral test she moved the High Court by
way of writ petition and obtained an interim order directing the Public Service
Commission to interview her at the interviews to be held on 15th and 16th of
July 1991. In obedience to that order the Public Service Commission interviewed
her, but kept her result in abeyance, which was declared after the writ
petition was finally disposed of by the impugned order of March 17, 1993. By
the final order the High Court not only directed the Public Service Commission
to declare the result but further directed that her name should be forwarded to
the Government for appointment and the Government should, if necessary, create
a supernumerary post and appoint her thereon. In taking this view, the High
Court placed reliance on two of its earlier judgments as well as the judgment
of this Court in Ashok Kumar Sharma v. Chander Shekher dated December 18, 1992.
Therefore, in order to examine the correctness or otherwise of the conclusion
reached by the High Court we deem it necessary to briefly refer to this Court's
decision in the case of Ashok Kumar Sharma1.
1 1993
Supp (2) SCC 611 :1993 SCC (L&S) 857: (1993) 24 ATC 798: (1993) 1 SLR 379
727
4. The
factual background of that decision was that pursuant to an advertisement
issued by the State Government, applications were invited for appointment to
the post of Junior Engineers. The last date for submission of applications was
July 15, 1982. Both the appellants as well as the contesting respondents had,
admittedly, submitted their applications before the last date. The appellants
had appeared for the B.E. (Civil) Examination and were awaiting the result
which was published on August 20, 1982.
5.
Interviews were thereafter held and the appellants were declared selected on
April 21, 1983 and they were duly appointed as Junior Engineers. On merits they
were placed senior to the respondents whereupon the respondents challenged
their appointments on the plea that they were not qualified to apply. The
challenge came to be spurned by two separate judgments rendered by Single
Judges of the High Court on the ground that the same was barred by laches and in
any event what had happened was that the selection process was made
broad-based. The Division Bench of the High Court, however, reversed the
decisions. On appeal this Court after examining the legal position and in
particular Rule 37 of the Public Service Commission Rules which, inter alia,
provided that applications of candidates who had appeared at the examination
the result whereof was awaited may be accepted provisionally but no such
candidate shall be permitted to take the interview unless he is declared
successful at the examination, speaking through Thommen, J., for himself and V.
Ramaswami, J. conceded that although Rule 37 is not directly applicable the
principle of that rule can be applied in the facts and circumstances of the
case notwithstanding the fact that the -advertisement did not say that such
candidates could apply. In paragraph 14, the majority view was expressed thus:
"If
the principle of Rule 37 is by analogy applicable, the fact that notice of
provisional entertainment of applications, subject to passing of the
examination before the date of interview, is a requirement in the interests of
candidates who fell within that category. The appellants are by analogy persons
of that category, but they have no complaint on any such ground." Taking
note of the fact that the appellants had passed the examination before the
interviews commenced and were interviewed, selected and appointed, it held that
the recruiting authority had made the selection process broad- based and
secured the best available talent on comparative merits. They, therefore,
upheld the view taken by the two learned Single Judges in their separate
judgments and reversed the view of the Division Bench. Sahai, J., however,
while agreeing with the conclusion of the majority observed that a rule framed
under one statute cannot be invoked for carrying out the objective of another
enactment.
He,
therefore, expressed a grave doubt if the rules framed by the Public Service
Commission could be utilised for the purposes of construing the notification
issued by a government department having a separate set of rules. In other
words, the learned Judge was not inclined to take the view that Rule 37 could
be made applicable on the principle stated 728 in paragraph 14 of the judgment
extracted earlier. However, he noticed that before the candidates were
interviewed their demand was examined by the Secretary in the department
concerned who being satisfied that the prevalent practice was that such
candidate should be interviewed directed the board to do so. Therefore, it was
not a case of extension of Rule 37 by analogy but factually the appropriate
authority had taken a decision to follow the same procedure.
Whether
this decision was correct or not was not gone into as Sahai, J. was of the view
that it would be unfair to quash selection after such a long lapse of time. It
was thus on equitable considerations that the learned Judge ultimately agreed
with the order proposed by the majority.
Two
things stand out from this judgment, namely, the majority applied by analogy
the principle of Rule 37 whereas Sahai, J. endorsed the decision on equitable
considerations.
It
must, however, be noticed that in that case a conscious decision was taken by
the Secretary of the Department that such candidates who submitted the
applications after the last date for receipt of applications but before the
interviews were held should be considered eligible for appointment. This
decision was not challenged and its validity was not required to be gone into.
Pursuant to this decision such candidates were examined and selected on merits
and were ultimately appointed. It was only when they were granted seniority
over others that the latter challenged their appointments after a long lapse of
time.
The
Court was, therefore, reluctant to disturb the status quo.
6. In
the facts of the present case we fail to appreciate how the ratio of the said
decision of this Court can be attracted. The facts of this case reveal that the
respondent was not qualified to apply since the last date fixed for receipt of
applications was August
20, 1988. No rule or
practice is shown to have existed which permitted entertainment of her
application. The Public Service Commission was, therefore, right in refusing to
call her for interview. The High Court in Writ Petition No. 1898 of 1991
mandated the Public Service Commission to interview her but directed to
withhold the result until further orders. In obedience to the directive of the
High Court the Public Service Commission interviewed her but her result was
kept in abeyance. Thereafter, the High Court while disposing of the matter
finally directed the Public Service Commission to declare her result and, if
successful, to forward her name for appointment. The High Court even went to
the length of ordering the creation of a supernumerary post to accommodate her.
This approach of the High Court cannot be supported on any rule or prevalent
practice nor can it be supported on equitable considerations. 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 recognised there would be several applications
received from such candidates not 729 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. This would
also leave vacancies unfilled for long spells of time. We, therefore, find it
difficult to uphold the view of the High Court impugned in this appeal.
7. In
the result, the appeal is allowed. The impugned order of the High Court is set
aside and the writ petition of the respondent will stand dismissed. However, if
the respondent has been appointed in obedience to the High Court's order her
appointment shall not be cancelled, but if she is not appointed she will not be
entitled to appointment on the basis of the High Court decision reversed
hereby.
There
will be no order as to costs.
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