Ashok
Kumar Sharma & Ors Vs. Chander Shekhar & ANR [1997] INSC 264 (10 March
1997)
B.P.
JEEVAN REDDY, S.B. MAJMUDAR, S. SAGHIR AHMAD
ACT:
HEADNOTE:
B.P.
JEEVAN REDDY, J.
These
two review applications are filed by the respondents in Civil appeal Nos. 5407-5408
of 1992 decided on February
18, 1993 (reported in
1993 Suppl.(2) S.C.C.
611).
On January 9,1982 an advertisement was published
inviting applications for appointment to the post of Junior Engineer in the
service of the Jammu
and Kashmir State. The last date for submitting
applications was specifically sated as July 15, 1982. A pass in B.E. (Civil) examination
was the minimum academic/technical qualification required for applying for the
said post. A number of persons applied pursuant to the advertisement. Out of
them, 33 persons ( referred to hereinafter as the Respondents) had not passed
the B.E. (Civil) Examination on or before July 15, 1982.
They
had appeared for the said examination earlier to the said date but the results
were published only on August
21, 1982. Interviews
were held on various dates commencing on August 24,1982. Though these 33 persons
(respondents) were not qualified as on the specified date, they were yet
interviewed pursuant to certain instructions given by the government. They were
selected along with some other candidates.
Certain
candidates who were fully qualified to apply for the said post according to the
aforesaid advertisement and who were selected but paced in the selected but
placed in the select List below the respondents, filed a write petition in the
Jammu and kashmir High Court contending that the 33 respondents could not have
been allowed to appear for the interview because they had not acquired the
requisite academic/technical qualification by the prescribed date, viz., July
15, 1982. The write petition was dismissed on 27.5.83. No Letters patent Appeal
having been filed against the said order, it became final. (It is, however, not
known how many persons have joined as petitioners in the said writ petition -
W.P. No 250 of 1983).
Write
Petition 483 of 1983, from which the present proceedings arise, was fled by
four candidates, who are the review petitioners herein, in Jammu and Kashmir
High Court, questioning the selection of the said 33 respondents on the very
same ground as was urged in the Write petition No. 250 of 1983. While this
write petition was pending, appointment orders wee issued as per the Select
Lists. (The petitioners in Writ Petition No. 483 of 1983 were placed in the
Select List below the 33 respondents) another batch of selected candidates was
appointed on 5th
September, 1984.
Thereafter on 20th
December 1984, Write
Petition No. 483 of 1983 came up for final hearing and was dismissed following
the order dated 27.5.83 dismissing writ Petition No. 250 of 1983.
Thereupon,
the petitioners filed a letters patent appeal which was allowed by a Division
Bench on 13th December,
1991. The Division
Bench held that the 33 respondents could not have been allowed to appear in the
interview for the reason that they had not acquired the requisite
academic/technical qualification by the prescribed date.
The
Division Bench, however, thought it just and proper to direct that while the
appointment of the said 33 respondents be not set aside, they should be treated
as qualified by the prescribed date. In other word, the candidates who were not
qualified by the prescribed date (15th July, 1982) were treated as Juniors en bloc to
the candidates who were fully qualified by the prescribed date and were
selected. It may be mentioned that all the 33 respondents were impleaded as
respondents both in Writ Petition No. 483 of 1983 as well as in the Letters
Patent Appeal.
The 33
respondents filed civil Appeal no 5407 of 1992 in this Court, while the State
of Jammu and Kashmir filed Civil appeal no. 5408 of 1982
questioning the decision of the Division Bench aforesaid. The appeals came up
for hearing before a Bench comprising Dr. T.K. Thommen, V. Ramaswami and R.M. Sahai,
JJ. There was a difference of opinion on one question though all the three
learned judges agreed on the result. The Majority (Dr. Thommen and V. Ramaswami,
JJ) held that allowing the said 33 candidates to appear for interview was not
impermissible. the learned Judges were of the opinion that by allowing the said
persons to appear for the interview "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 learned Judges held that inasmuch as the 33
respondents (appellants before them ) were qualified by the date of interview,
though not by the date prescribed in the advertisement inviting applications,
there was no illegality in allowing them to appear for the interview. R.M. Sahai,
J., however, held that the said 33 candidates should not have been allowed to
appear for the interview since they did not possess the requisite
academic/technical qualifications by the prescribed date. Even so the learned
Judge agreed with the majority that the seniority of the said 33 Candidates vis-a-vis
the qualified candidates ( who are placed at lower position in the Select List)
need not be disturbed in the particular facts and circumstances of the case.
The Result was that all the three learned Judges allowed the appeals preferred
by the 33 respondents and the State of Jammu and Kashmir and set aside the Judgment of the Division Bench. The
present review petitions are filed by the four original writ Petition No. 483
of 1983. who were respondents in the Civil appeals in this court. After hearing
the counsel for the review petitioners, we had passed the following order on
1.9.95.
"Heard
Mr. Rohinton Nariman for the petitioners.
Mr. Nariman
has attempted to bring to our notice several new questions of fact which were
not urged in the high Court or in this Court. Their letters patents appeal too
failed, except for a certain modification. This court dismissed their appeal
restoring the judgement of the learned Single judge. All this took ten years.
It is only
in these Review Petitions that certain new facts are sought to be brought to
the notice of the Court. We cannot permit them to do sos at this distance of
time. We are of the opinion that the petitioners have not been diligent. We
cannot re- open the whole case on the basis of new facts. We are, therefore,
not inclined to permit them to put forward new facts or issues before us. The
Review Petitions are admitted confined to the following two issues.
(1)
Whether the view taken by the majority (Hon'ble Thommen & V. Ramaswami, JJ)
that it is enough for a candidate to be qualified by the date of interview even
if he was not qualified by the lasts date prescribed for receiving the
applications, is correct in law and whether the majority was right in extending
the principle of Rule 37 of the public Service Commission Rules to the present
case by analogy? (2) Whether in the facts and circumstances of the case, would
it not be just to restore the direction of the Division Bench with respect to
the inter se seniority between the two sets of candidates, namely those who
were qualified as on the last date for receiving applications and those who
were not so qualified. In other words, the question is whether the direction of
the Division Bench to treat the candidates who were not qualified by the lasts
date of receipt of applications as juniors, as a class, to those who were
qualified, was not a just one ? Notice of theses Review Petitions shall go to
Respondent Nos. 1 to 33 in the Writ Petition.
Dasti
service also permitted.
List
after service of notice." The Review petitions came up for final hearing
on March 3, 1997. We heard the learned counsel for
the review petitioners, for the State of Jammu and Kashmir and for the 33
respondent So far as the first issue referred to in our order dated Ist
September, 1995 is concerned, we are of the respectful opinion that majority
judgment (rendered by the 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 fling the applications, the
eligibility of the candidates shall have to be judged with reference to that
date and that dat e 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 would be allowed to
appear for the interview, other similiarly 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 application ought to
have been rejected at the inception itself. This proposition is indisputable
and in fact was not doubted or disputed in the majority Judgement. This is also
the proposition affirmed in Rekha Chaturvedi (Smt.) v. University of Rajasthan and others [1993 Suppl. (3) S.C.C 168]. The reasoning in
majority opinion that by allowing the 33 respondents to appear for the
interview, the Recruiting Authority was able to get the bests talent available
and that such course was in furtherence of public interest is, with respect, an
impermissible Justification It is, in our considered opinion, a clear error of
low 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 allowed to appear for interview.
Mr. Rakesh
Dwivedi, learned counsel for the 33 candidates, submitted that these 33
candidates had appeared for the B.E. Examination prior to their applying for
the post and that there was some delay in publishing the results and that these
respondents cannot be punished for the delay on the part of the concerned
authorities in publishing the results. In our opinion, the said contention is
beside the point. In these proceedings, we cannot examine the reasons for delay
- assuming that there was delay in publishing the results. That issues is
outside the purview of the write petition. Whatever may be the reason, the 33
persons were not qualified as on the prescribed date and, there fore, could not
have been allowed to appear for the interview. on the first issue (mentioned in
the order dated 1st
September, 1995),
therefore, we hold in favour of the review petitioners, affirming the opinion
of Sahai, J.
The
question then arises as to the relief to the granted in these review
applications. Mr. R.K. Jain , Learned counsel for the review petitioners, says
that the necessary and logical consequence of our opinion on the first issue
would be to set aside the appointment of the 33 respondents, or at any rate to
restore the order of the Division Bench of High Court. On the other hand, Mr. Rakesh
Dwivedi and the learned counsel for the State of Jammu and Kashmir Brought to our notice several reasons for which,
they submitted, we should not interfere with the order under review on this
score. The Facts pointed out are : (a) Writ Petition No. 250 of 1983 filed by
certain similarly placed persons (similar to the review petitioners who are the
writ petitioners in Writ Petition No. 483 of 1983 from which these proceedings
arises) was dismissed on 27.5.1983. that order has become final, which means
that so far as those writ petitioners are concerned, no relief can be granted
to them in these proceedings. (b) Even the present Writ Petition No. 483 of
1983 was filed only by four candidates and not by all the candidates affected. these
four petitioners did not sue in a representative capacity but in their
individual capacity. The other affected persons have not chosen to implead
themselves at any stage of these proceedings. It cannot be said that they were
not aware of these proceedings. (c) Even though Sahai, J.
disagreed
with the Majority on the question of law, he too opined (for reasons stated in
Paragraphs 22 and 23) that the seniority of the 33 respondents vis-a-vis other
candidates ought not to be disturbed. In other words, all the three leaned
Judges are unanimous in holding that the seniority given to the 33 candidates
(by the selecting Authority ) should not be disturbed. This Bench, sitting in
review jurisdiction, should not interfere with the said unanimous opinion of
three learned judges, more so because the matter lies with in the realm of
discretion and is a case of moulding the relief in exercise of this Court's
power under Article 142 of the Constitution. (d) the 33 respondents were
appointed as far back as in 1984 and have earned two promotions namely to the
post of assistant Engineer and thereafter to the post of Assistant Executive
Engineer. The Review petitioners and other similarly placed persons have also
been promoted once i.e., to the post of Assistant Engineer. Thirteen Years have
passed by since their initial appointment. upturning the inter-se seniority at
this distance of time would not be just and equitable.
Having
given our anxious and earnests consideration to the question and keeping in
view the fact that we are sitting in review jurisdiction and that this
particular aspect is a matter lying within the discretion of the Court, we do
not think it appropriate to interfere with the unanimous opinion of the three
learned Judges of this Court on this aspect. It is true that the Division Bench
of the High Court had granted the relief not only to the four review
petitioners/writ petitioners but to all the candidates falling in that category
yet we cannot ignore the fact that even Sahai, J. who agreed with the review
petitioners on the first issue, thought it just and proper not to disturb the
inter-se seniority between these two groups of selected candidates. The said seniority
was determined by the selecting Authority. Though certain allegations are made
with respect to the fairness of the process of selection, that issue is not
open in these review applications nor was it gone into by this court in the
civil appeals.
For
the above reasons, these review petitions are dismissed subject to the
clarification on the legal issue, viz., Issue No. 1 mentioned in our order
dated September 1, 1995. there shall be order as to costs.
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