PETITIONER: ASHOK KUMAR SHARMA & OTHERS Vs. RESPONDENT: CHANDER SHEKHAR & ANOTHER DATE OF JUDGMENT: 10/03/1997 BENCH: B.P. JEEVAN REDDY, S.B. MAJMUDAR, S. SAGHIR AHMAD ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
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 alongwith 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.