JUDGMENT
S. Nainar Sundaram, C.J.
1. The petitioner in Writ Petition No. 5770 of 1988 is the appellant in this Writ Appeal. The respondents in the Writ Petition are the respondents in this Writ Appeal. For the sake of convenience we shall refer to the appellant as “the petitioner” in this pronouncement of ours.
2. Both the petitioner and the third respondent were in the services of the first respondent as “Professional Assistants”. An advertisement was made by the first respondent on 5-10-1985 calling for applications for the post of ‘Assistant Librarian, hereinafter referred to as ‘the post’. The last date for the receipt of the applications was notified as 19-11-1985. The qualifications and experience criteria for the post were notified as follows:-
Qualifications & Experience
Qualification: (a) Good academic record with atleast a high second class Master’s degree in a subject other than Library Science.
(b) Master’s degree in Library Science with first class or high second class.
Experience: Atleast 5 years experience as a Professional Assistant in a large library preferably in University, through knowledge of classification, cataloguing and other library and information services. Experience of work in Documentation and knowledge of some foreign languages desirable.”
The position that emerged factually and over which there is no dispute now before us is that, on the last date for the receipt of the applications, both the petitioner and the third respondent did not satisfy the eligibility criteria in toto. However, the third respondent got selected to the post. Aggrieved over this selection the petitioner preferred the Writ Petition seeking for a writ of declaration that she is entitled to be appointed to the post and consequentially the appointment of the third respondent must be quashed. The learned single Judge, who dealt with the Writ Petition, took note of the position that neither the petitioner nor the third respondent satisfied in toto the eligibility criteria. The learned single Judge also opined that the selection and the appointment of the third respondent violated the principles countenanced by the pronouncement of a Bench of this Court, which we shall presently refer to. However, the learned single Judge proceeded to consider as to whether the selection of the third respondent should be invalidated on the facts and circumstances of the case. The learned single Judge taking note of the fact that the petitioner also did not satisfy the eligibility criteria in toto on the relevant date, deemed fit to uphold the selection and the appointment of the third respondent obviously on the basis of equitable considerations. The learned single Judge, thus, dismissed the Writ Petition preferred by the petitioner. This Writ Appeal is directed against the order of the learned single Judge.
3. That the eligibility criteria must be satisfied either on the date of the application or on the last date for the receipt of the applications or on any cut off date indicated therefor, and if a candidate or an applicant did not satisfy the eligibility criteria on the relevant date, his selection cannot be upheld is a proposition countenanced by a number of pronouncements of the Apex Court. Apart from the pronouncements of the Apex Court, there is also a pronouncement of a Bench of this Court. The pronouncements of the Apex Court are reported as follows:-
Principal, King George’s Medical College v. Vishan Kumar, ;
A.P. Public Service Commission v. B. Sarat Chandra, 1990 (4) S.L.R. 235;
District Collector & Chairman v. M.T. Sundari Devi, 1990 (4) S.L.R. 237;
Mrs. Rekha Chaturvedi v. University of Rajasthan and Ors., ;
Dr. M.V. Nair v. Union of India, ;
U.P.P.S.C. v. Alpana, 1994 (1) SCALE 98.
The pronouncement of the Bench of this Court is reported in S.B. Dwarakanath v. R. Dilip Kumar, 1993 (3) ALT 24. We had occasion to recapitulate the ratio settled by the pronouncements referred to above in a recent verdict of ours in Writ Appeal Nos. 5 and 79 of 1993 by judgment dated 7-2-1994 and we have adopted and applied the ratio to the facts of the case dealt with by us there.
4. Here we find that the learned Single Judge did not depart from the ratio as countenanced by the pronouncements which we have recapitulated as above, for frowning upon the selection of the third respondent; but the learned Single Judge chose to maintain the selection and the appointment of the third respondent, though coming within the mischief of the above ratio on grounds of equity. Here we are concerned with a public appointment. An appointee to a public post must satisfy the eligibility criteria prescribed therefor on the relevant date. If there was an omission to satisfy the eligibility criteria on the relevant date, there could not be an appointment of such a person to the public post. On the only ground that the person who brings this vital flaw with regard to the selection and appointment to the public post would not by himself be eligible to the post on the relevant date, this Court cannot shut its eyes and perpetuate an irregular appointment, even if we do not characterise it as an illegal appointment. In District Collector & Chairman v. M.T. Sundari Devi, 1990 (4) S.L.R. 237 the Andhra Pradesh Administrative Tribunal countenanced the case of a candidate who lacked the requisite qualification. The Apex Court held that it would amount to a fraud on public to appoint a person with inferior qualifications and further opined that an appointment in disregard of the qualification criterion is a matter not only between the appointing authority and the appointee, but the aggrieved are all those who are similarly or better qualified than the appointee. The apex Court opined that the Court should not be a party to the perpetuation of the fradulent practice. The relevant observations run as follows:-
“………..It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint person with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact…….”
In Ashok Kumar Sharma v. Chander Shekher, 1992 (3) SCALE 528 the apex Court cautioned that it is the duty of this Court under the Constitution once it is apprised of true facts to make the Government act fairly.
5. May be, the petitioner is equally not qualified and he did not satisfy the eligibility criteria in toto on the relevant date. As we observed earlier that it is not of much significance and once this Court is apprised of the position of an irregular if not an illegal, appointment taking place to a public post, this Court must act and direct the authorities concerned to act fairly and in accordance with the requirements of law. If this Court does not do so, as observed by the apex Court, that would amount to this Court being a party to the perpetuation of fradulent practice. This must be set right and the authority or authorities must be directed to act properly, fairly and legally. This Court cannot shirk the solemn obligations cast by the Constitution on it and which should not be lost sight of by it as cautioned by the pronouncements of the Apex Court referred to above. Hence, we are not able to subscribe our support to the view of the learned single Judge that the appointment of the third respondent must survive in view of the fact that the petitioner did not satisfy the eligibility criteria on the relevant date. However, we propose to chalk out a workable solution which may not cause prejudice to the third respondent continuing in the post on an ad hoc basis until the regular selection and appointment takes place in accordance with law.
6. Accordingly, we give the following directions in this Writ Appeal:-
(1) The order of the learned single Judge in Writ Petition No. 5770 of 1988 will stand set aside.
(2) The selection and appointment of the third respondent to the post on regular basis shall stand quashed.
(3) The third respondent shall continue to be in the post from the date of his appointment on ad hoc basis until a regular selection and appointment afresh takes place as per our directions infra.
(4) The first respondent will make the due advertisement for the post and prosecute the process of selection and complete it, making the selection to the post and making the appointment of the selectee all within a period of six months from today.
(5) Until the processes as set forth in Clause (4 supra) are completed, the third respondent shall continue to function in the post on ad hoc basis.
(6) Per chance the third respondent should have the fortune of getting selected once again, it is for the first respondent to consider the question annexing the tenure of his service hitherto rendered by him and regularising it.
and
(7) We direct that while making the selection and giving the appointment the factum that the third respondent has been continued in the post on ad hoc basis shall not have any weightage.
7. This writ appeal is disposed of in the above terms. We make no order as to costs.