Posted On by &filed under High Court, Rajasthan High Court.

Rajasthan High Court
Naresh Bhansali vs State Of Rajesthan And Ors. on 21 August, 2000
Equivalent citations: 2000 (4) WLC 590, 2007 (3) WLN 521
Author: B Chauhan
Bench: B Chauhan


B.S. Chauhan, J.

1. The instant writ petition has been filed for issuing direction to respondents to fill up the vacancies of Engineers as per the eligibility on the date of initial advertisement dated 18.1.1997.

2. The facts and circumstances giving rise to this case are that the Rajasthan Public Service Commission (for short, “the Commission”) advertised 444 posts of Assistant Engineers (Civil) in the Public Works Department (B & R), Irrigation and Public Health & Engineering Department under the provisions of the Rajasthan State Engineering Services (Direct Recruitment by Combined Competitive Examination) Rules, 1954. The last date for submitting the application, as per the said advertisement, had been 15.3.1997. The said Rules stood amended vide order dated 22.1.1997 providing for horizontal reservation in favour of woman candidates. A corrigendum was issued by the Commission on 10.2.1997 to give effect to the said amendment dated 22.1.1997. The result of the examination was declared on 2.12.1997 and petitioner’s name appeared in the select list. However, as the Commission realised that the orders dated 22.1.1997 and 10.2.1997 could not be implemented properly, it rearranged the select list and a fresh select list was prepared on 5.1.1997 and vide letter dated 17.12.1997, petitioner was informed that he was lowered down in the merit list and his name did not appear in the select list. Hence this petition.

3. Petitioner filed this writ petition on 5.1.1998 and an interim order was passed by this Court on 7.1.1998 staying the operation of the order dated 17.12.1997. It has been pointed out by the learned Counsel for respondent that all appointments have been made and none of the successful candidates has been impleaded as a party in the petition and the petition is not maintainable.

4. The only question for consideration in the instant case is: whether the criteria of eligibility existing on the date of advertising the vacancies or on the last date of submission of applications would apply, for the reason that in the instant case though the vacancies were advertised on 18.1.1997 but the eligibility stood amended on 22.1.1997 and for the same, the corrigendum had been issued on 10.2.1997 though the last date for submission of applications was 15.3.1997.

5. Be that as it may, as the advertisement dated 18.1.1997 stood amended vide corrigendum dated 10.2.1997, issued much prior to the last date of submission of applications i.e. 15.3.1997, petitioner cannot have any grievance whatsoever and even if he was aggrieved, he ought to have challenged the corrigendum prior to the last date of submission of applications or at the most, before holding the test. I am of the considered opinion that once petitioner has submitted to the corrigendum, he is not entitled to raise the issue at such a belated stage.

6. It is settled proposition of law that delay, even of one day, in a particular case may be fatal for the petitioner and may unable the Court to grant any relief even if he has good case on merit. (Vide Smt. Sudama Devi v. Commissioner and Ors. .

7. Petitioner faced the selection process with his eyes open, knowing well the criteria Laid down in the corrigendum and amended advertisement without raising any protest and merely because at this stage he stood unsuccessful, he cannot be heard. (Vide M/s. Pannalal Binjraj and Ors. v. Union of India ; Manak Lal v. Prem Chand ; Madan Lal and Ors. v. State of J & K and Ors. AIR 1975 SC 1088; Dr. G. Sarana v. University of Lucknow AIR 1976 2428; Maj. Chander Bhan Singh v. Latafat Ullah Khan and Ors. ; Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. ; Power Control Appliances and Ors. v. Sumeet Machineries Pvt. Ltd. ; State of Punjab v. Krishan Niwas ; State of Orissa v. Narain Parasad ; U.D. Lama v. State of Sikkim , Union of India and Ors. v. N. Chandrasekharan ; Suneeta Agrawal v. State of Haryana and Ors. ; and State of Rajasthan and Ors. v. Anilkumar Sunilkumar & Party .

8. In Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors. ; A.A. Cotton v. Director of Education and Anr. ; P. Gyaneshwar Rao and Ors. v. State of Andhra Pradehs and Ors. ; and P. Mahendran and Ors. v. State of Karnataka and Ors. , the Hon’ble Supreme Court has taken the view that candidates have to be assessed for selection as per the eligibility criteria existing on the date of advertisement of vacancies for the reason that selection process starts with advertisement and all those persons who apply in response to the same, would be eligible to be considered.

9. All the judgments, referred to above, have been given by the two Hon’ble Judges’ Bench except P. Mahendran (supra), which was given by the Bench of three Hon’ble Judges.

10. The Three Judges Bench of the Hon’ble Supreme Court, in Dr. M.V. Nair v. Union of India and Ors. , without taking note of P. Mahendran (supra), held as under:

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.

In U.P. Public Service Commission v. Alpana , the Hon’ble Supreme Court, after considering a large number of its earlier judgments, held that eligibility conditions should be examined as on last date for receipt of applications by the Commission though that was a case where result of a candidate was declared subsequent to the last date of submission of the applications. The Hon’ble Supreme 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 the applications, a candidate, whose result has not been declared upto the last date of submission of applications, would not be eligible.

11. In State of M.P. and Ors. v. Raghuveer Singh Yadav and Ors. , the Apex Court examined a case where during process of selection, the Rules were amended but subsequently the Commission/State abandoned the selection process and advertised vacancies afresh to be filled up in accordance with the amendment. The Hon’ble Supreme Court upheld the action of the State on the ground that the persons, who had applied earlier, had not acquired any vested right, therefore, the State’s action was justified.

12. In Harped Kaur Chahal v. Director, Punjab Instructions 1995 (Suppl) 4 SCC 706, the Hon’ble Supreme Court held:

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 recuitment according to Rules.

In State of Rajasthan v. R. Dayal and Ors. , the Hon’ble Supreme Court, while considering the case for promotion, held that the eligibility for promotion must be as in the year when the vacancies arose, but that was not a case of direct recruitment.

13. In Ashok Kumar Sharma v. Chandra Shekhar and Ors. , the Hon’ble Supreme Court held 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 adjudged with reference to that date and that date alone, is a well established proposition of law.

14. In Dr. Ramulu and Anr. v. Dr. S. Suryaprakash Rao and Ors. , the Hon’ble Apex Court considered a large number of its earlier judgments and held that if the Rules’ have been amended, person has a right to be considered as per the amended Rules unless his existing rights prior to the amendment have specifically been saved and for the reason that he cannot claim to have acquired any vested right for being considered in accordance with the Rules existing prior to the amendment.

15. In Utkal University etc. v. Dr. Nurstngha Charon Sarangi and Ors. ; and Gopal Krushna Rath v. M.A.A. Baig , the Hon’ble Supreme Court again reiterated that the eligibility is to be assessed as per the Rules existing on the last date of submission of the applications.

16. In State of J & K. v. Shiv Ram Sharma and Ors. , the Apex Court considered the scope of amended Rules providing for promotion to the employees and observed as under:

The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts… In Roshan Lal Tandon v. Union of India , it was held by this Court that once appointed, an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by the consent of the parties, but by statute or statutory rules which may be promoted and altered unilaterally by the Government…. The principle of avoiding stagnation in % particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such. As long as the Rules provide for conditions of service, making an avenue for promotion to higher grades, the observations made in T.R. Kothandaraman v. Tamil Nadu Water Supply and Drainage Board , stand fulfilled.

17. The concept of “vested right” has been explained by the Apex Court in Bibi Sayeeda v. State of Bihar , wherein it has been described as under:

The word Vested is defined in Black’s Law Dictionary (6th Edition) at page 1563, as “vested”, Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent.” Rights are “vested” when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster’s Comprehensive Dictionary, (International Edition), at page 1397, “vested” is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interests.

18. From the above discussion, the picture which clearly emerges is that the Three Judges Benches of the Supreme Court, in M.V. Nair, Ashok Kumar Sharma and Ramulu (supra), have consistently held that eligibility is to be applied as on the last date of submission of applications. The view taken earlier by the Hon’ble Apex Court in A.A. Calton and P. Mahendra (supra) stands impliedly repelled and the law, as it exists today, remains to assess the eligibility as on the last date of submitting the applications.

19. So far as the selection impugned is concerned, this Court in Pragya Saxena v. State of Rajasthan and Ors. 1999(1) WLC 269, placed reliance upon the decision in Umesh Chandra and Ors. v. State of Rajasthan and Ors. 1998(3) WLC 476, and upheld the selection. The same again stood upheld in Writ Petition No. 164/1998 – Sushil Kumar Jandu v. State of Rajasthan and Ors. 12.11.1999. The judgment in Pragya Saxena (supra) has been upheld by the Division Bench of this Court (Jaipur Bench) in D.B. Civil Special Appeal No. 104/1999–Rajasthan Public Service Commission v. Pragya Saxena, 3.4.2000. I see no cogent reasons to take a contrary view. More so, there can not be two inconsistent judgments in respect of the same selection process.

20. In view of the above, the petition fails and is accordingly dismissed. Interim order, if any, stands vacated. There shall be no order as to costs.

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