Union Territory Of Dadra And Nagar ... vs Priyanka Unawane
2023 Latest Caselaw 12029 Bom

Bombay High Court

Union Territory Of Dadra And Nagar ... vs Priyanka Unawane on 4 December, 2023

Author: Nitin Jamdar

Bench: Nitin Jamdar

     2023:BHC-AS:35918-DB



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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                                         WRIT PETITION NO. 12392 OF 2023

                    Union Territory Administration of Dadra
                    Nagar Haveli & Anr.                     ...               Petitioners.

                              V/s.

                    Mrs.Priyanka Unawane                             ...      Respondent.

                                                            .......

                    Mr. Hiten Venegaonkar for the Petitioners.
                    Respondent in person.
                                                  .......

                                        CORAM : NITIN JAMDAR, AND
                                                MANJUSHA DESHPANDE, JJ.

                                         DATE :        4 December 2023.

                    P.C. :

Rule. Rule made returnable forthwith. Respondents waive service.

2 The Petitioners herein are the Administration of Union Territory of Dadra and Nagar Haveli, Diu and Daman and its authorities. The Petitioner No.1, alongwith other Petitioners who are JYOTI the authorities of the Union Territory are challenging the orders RAJESH MANE passed by the Central Administrative Tribunal at Mumbai, in Review

Application No.16/2023 and in Original Application No. 916/2022.

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3         It is the case of the Petitioners that the Union Territory had

issued Advertisement No. 12 dated 25 January 2020, for the post of Assistant Teacher, Primary/Upper Primary Schools (Elementary) of the Union Territory with vacancies of 97 posts. The required qualifications were mentioned in the said Advertisement at Entry No.3, according to which one of the required qualification was Graduation and two years Diploma in Elementary Education. The Respondent herein who was an aspiring candidate made an application for the said Post on 19 February 2020 from the SC Category. There were 14 posts for SC Category. The written examination for the said post was conducted on 9 August 2021. The Respondent herein secured 39 marks out of 80. She was shortlisted candidate and her name appeared in the list for verification of documents which was issued on 1 September 2022.

4 Accordingly after verification of documents report was prepared by department of Primary Education for the post of Assistant Teacher on 20 October 2022. The name of the Respondent appeared in the list of ineligible candidates and it was shown against her name that she was not qualified because she had not acquired professional qualification i.e. her degree of B-Ed on or before 24 November 2020. The cut off date was 24 February 2020 i.e. last day of making an application for the said Post. The Respondent herein though applied on 19 February 2020 had acquired the qualification on 24 November 2020.

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5         The department of Education of the Union Territory

appointed 66 candidates and the name of the Respondent did not appear in the list of persons selected to be appointed.

6 Being aggrieved by the same the Respondent herein made a representation to the present Petitioner on 1 November 2022. However, without waiting any further the Respondent herein filed Original Application before the Central Administration Tribunal (CAT), Mumbai on 16 November 2022. When the matter was heard by the CAT, the Tribunal granted interim relief on 21 November 2022, whereby the Commission/Respondents were directed to keep one post of SC category vacant.

7 Present Petitioners who are the Respondents in the original application filed reply to the original application on 12 November 2022. After hearing both the sides the said matter was finally heard on 9 March 2023 and eventually the judgment was pronounced on 24 March 2023. The Central Administrative Tribunal (CAT) has allowed original application of the Respondent herein and has directed the Union Territory to consider the case of appointment of the Applicant by accepting the B-Ed Degree and send a dossier to the user department, who shall then offer her appointment against one vacant post reserved by order dated 22 November 2022, if she is

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otherwise eligible. This exercise was to be carried out within a period of three months from the receipt of copy of the said Order.

8 The Applicant before the CAT, had raised various grounds in the original application some of them are as under:

1) Without giving any prior notice the present Petitioner had rejected the claim of the Respondent.

2) The representation of the present Respondent has not been decided by giving reasoned order and no action has been taken on the basis of that.

9 The Respondent has alleged that she was a meritorious student however, due to pick and choose policy which is in violation of Article 14 and 16 of the Constitution of India and also without adhering to the principles of natural justice, her name was deleted from the list of selected candidates.

The Respondent had further contended that though at the time of making an application she did not possess required degree. However, while the Petitioners were considering her case for documents verification, she had completed her Bachelor course of Education, and was holding necessary qualification.

10 The present Petitioner before the CAT had pointed out that, as per the document verification report, the Respondent herein should have completed her B-Ed. Course on or before 24 February

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2020 i.e. before the last date of making an application for the said post which was 24 February 2020. The Advertisement dated 25 January 2020 mentioned the last date for the submission of application as 24 February 2020. Therefore, though the Applicant had made an application, she was not qualified for making the said application for the said post. The Applicant was disqualified upon document verification by the duly constituted committee. In fact the Respondent herein has submitted incorrect/false information while making her application. Hence, she is not eligible for the said appointment and therefore, it was prayed that interim relief granted should be vacated.

11 The present Petitioners while making their submissions before the CAT had cited two Judgments, one was in respect of persons who can seek equity. In Bank of India Vs. Avinash D.Mandivikar and others 1 it has been held that "a person who seeks equity must come with clean hands. He who comes to the Court with false claims, cannot plead equity nor would the Court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner."

This Judgment was cited to support the contention of the Respondent in the original application that the Applicant therein had submitted incorrect or false information while making her application.

1(2005) 7 SCC 690

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     12         Other Judgment which was relied on by the present Petitioners

was Dolly Chanda Vs. Chairman JEE 2, wherein the Court has observed that "the general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in the application form, as the case may be, unless there is an express provision to the contrary."

13 It was further contended by the Petitioners that the Respondent had knowledge that the candidates were already recommended for the said post however without making them as party Respondent, the Respondent in this Petition was proceeding with the litigation, though they were likely to be affected, if any, adverse order is passed in the original application.

14 The Respondent herein i.e. Applicant in original application filed her rejoinder and submitted that she was fully qualified at the time of her application, since she had already appeared for the final examination of B.Ed and had been declared successful only Certificate/Degree was issued on a later date i.e. in November 2020. It is only on account of Covid Pandemic the written examination/selection test was conducted on 9 August 2021. Therefore, she was fully qualified and was also in possession of B.Ed. Certificate, during document verification.

     2     2005(9)SCC 729


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15      The Respondent herein has come with a case that on the date of

the examination conducted by the petitioners i.e. on 9 August 2021 she had completed her education, therefore, she was qualified for the said post. She has also raised the ground regarding lock-down and the observations made by the Hon'ble Apex Court regarding the suspended/extended period of limitation for filing Appeal/Suit etc. from time to time. It was urged that the Government has taken steps taking into consideration the misery and sufferings of the citizens across India, during Covid Pandemic and has also taken steps for coping with the emergent situation with out of box solutions. Therefore, in her case also same parameters should be applied.

16 The learned Member of the Tribunal seems to be impressed by the said submission of the Respondent herein and therefore, has proceeded to hold that the delay in conducting selection test itself was due to the Covid Pandemic. The learned Member of the Tribunal has observed that considering that the last date of submission of application was 24 February 2020, in normal circumstances the selection would have proceeded and completed within months thereafter. However, the Respondent/present Petitioners could not hold selection test in time and it was conducted on 9 August 2021. Therefore, opportunity ought to have been given to the candidates to update their documents, qualifications, addresses etc., no such exercise was undertaken and selection was conducted . The Applicant was in the merit list in her category i.e. SC and

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vacancy was also available, therefore, there is no reason why a selected candidate cannot be appointed.

17 It was held by the Tribunal that the decision of present Petitioner in not considering the appointment of the Applicant to the post of Assistant Teacher is not in public interest. Therefore, directions were issued to consider the case of the Applicant by accepting B-Ed. Degree of the Applicant, to declare her result and send her dossier to the user department i.e. Petitioner No.1 and 2 who in turn would offer her appointment.

18 After the orders were passed by CAT on 24 March 2023, the present Petitioners filed Review Application No.16 of 2023 on 14 April 2023. In the said Review Application, it was contended by the present Petitioner that while filing the application form, the Respondent herein has given false information. The candidate holding a requisite eligibility qualification on a particular date fixed has to support his eligibility and qualification by producing necessary certificates, degree or mark-sheets. While doing so, the cut-off date mentioned in the advertisement has to be adhered to. In support of the same, the present Petitioners have filed various judgments of the Hon'ble Supreme Court.

19 The other ground which was raised in the Review Application was that the Applicant before the Tribunal had made a representation on 1 November 2022 and immediately filed Original Application on 16 November 2022. According to Section 20 Sub Clause (2) Sub Clause (b)

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of the Administrative Tribunal Act, 1985, a period of six months have to be lapsed before the Tribunal can exercise the powers of judicial review. Therefore, the Application was pre-mature as the same was filed before the period of six month was over. With these and some other grounds, the said Review Application No.16 of 2023 in Original Application No.916 of 2022 was filed. However the Review Application has been dismissed on the ground that there is no error apparent on the face of record and there is no discovery of new material which was not available with the applicant in spite of due diligence. The said Review has been dismissed by order dated 27 April 2023.

20 The issue which arises for consideration before us is that whether the Respondent herein i.e. Original Applicant was eligible to be appointed on the post of Assistant Teacher on the date of her application. The respondent herein has unequivocally admitted that the advertisement was issued on 25 January 2020. She has made an application on 20 February 2020, she acquired her degree on 24 November 2020 and the Written examination was conducted on 9 August 2021. The aforementioned relevant dates would indicate that on the date of making application. The Respondent herein was not holding qualification as mentioned in the advertisement dt. 25 January 2020. The Respondent was not holding the qualification of B-Ed. Degree, in spite of which she has proceeded and filed an application. She could secure 39 marks out of 80, therefore she was shown in the provisional merit list.

21       During the document verification, it transpired that the

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professional qualification was acquired by the Respondent herein on 24 November 2020 and the cut off date was 24 February 2020. There was no stipulation in the advertisement that there can be acquisition of qualification subsequently or those who have already appeared for the examination, but awaiting results should also make an application. In absence of such stipulation, it was obvious that the Respondent herein was not holding the requisite qualification for the concerned post. Merely because she has qualified for the said post by passing the screening test, does not confer any legal right on the candidate. It is pertinent to note that Respondent was not the only candidate who was declared to be ineligible after document verification. There were in all 13 candidates along with the Respondent who were declared to be ineligible because they had acquired the professional qualification after the last date of making the application. The law in this regard is well settled, there are various judgments of the Hon'ble Apex Court as well as High Courts, wherein it has held that, a candidate has to acquire the requisite qualification before the cut-off date, and if such cut-off date is not mentioned in the advertisement then it has to be prior to last date of making an application. The Petitioner has relied on the judgment in the case of Ashok Kumar Sharma and Ors. Vs. Chander Shekhar and Anr. 3 wherein the Hon'ble High Court has held that when there is a particular date prescribed as last date of filing the application than the eligibility of candidates have to be judged with that date and that alone. Similar was the view taken by the Hon'ble Apex Court in Harpal Kaur Chahal (SMT)

3 (1997) 4 SCC 18

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Vs. Director, Punjab Instructions, Punbaj and Anr.4 The advocate for the Petitioner has also relied on order passed by the Hon'ble Apex Court in Civil Appeal No.8828 of 2022, arising out of SLP(C) No.6647 of 2021 in Himachal Pradesh State Electricity Board Ltd. and Anr. Vs. Dharminder Singh, wherein it has been been categorically held that the cut-off date for acquiring qualification advertised is last date of application.

22 The Hon'ble Apex Court in the case of Ashokkumar Sonkar Vs.Union of India and Ors. In Civ.A. No.4761/06 decided on 23/2/2007 WHILE deciding the similar issue after taking into consideration various Judicial pronouncements, has been pleased to hold "that possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this court would be the last date for filing the application."

23 In the said order while referring to the judgment of the Hon'ble Apex Court in Ashok Kumar Sharma and others Vs. Chander-Shekhar and Another5, the issue which fell for consideration of the Court was, "whether it is enough for a candidate to be qualified by the date of

4 1995 Supp (4) SCC 706 5 1997 (4) SCC 18

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interview even if he was not qualified by the last date prescribed for receiving the applications, is correct in law?"

24 While answering the issue, it was held that 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, other similarly placed persons could also have applied.

25 Though the Respondent herein was not holding the requisite qualification, she has given false information while filing in the application form that she possesses qualification of graduation and Bachelors of Education. When in fact she was awaiting the result of the professional examination. While making such declaration in her application form, she has given false information to the Authorities. Had she given her actual status, she would not have been eligible for appearing in the written examination and she would have been declared ineligible at the initial stage itself. Therefore, considering that she has not come before the Court with clean hands, the learned Member of the CAT was not justified in granting relief in her favour.

26 The learned Member of the Tribunal has been aware of the

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situation which was prevailing at the time of conducing the selection test. The learned Member of the Tribunal has got mixed the issue of extending the period of limitation by the Hon'ble Apex Court from time to time with the relaxation that could have been granted by the present Respondent on account of ongoing pandemic. The learned Member has observed that there is an exception to every Rule. Therefore, whenever there are unforeseen situation, administrative decision in public interest have to be taken. It has been observed by the Member that though the selection process has commenced before the onset of Corona Pandemic, however, after the advertisement, the selection test could not be conducted for a long duration, which in normal situation could have been held within few months. The selection test can be conducted only on 9 August 2021. Therefore, according to the learned Member of the Tribunal, the candidates ought to have been given an opportunity to update their documents regarding qualification etc., but no such exercise was undertaken and the selection was conducted. The applicant being one such candidate. Therefore, the directions were issued to the present Petitioner, to consider case of the Respondent for appointment by accepting her Bachelor degree.

27 The said approach of the Member of the CAT is against the settled principles of service jurisprudence, which is supported by various judicial pronouncement of the Hon'ble Apex Court, which are already referred herein-above. The learned Member of the Tribunal though observed that, opportunity to produce the documents should have been given to the Respondent. Assuming that such opportunity was given to the candidate,

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however this opportunity ought to have been with regard to the qualification which the candidates held before making application or before the cut-off date.

28 Therefore, the candidate who acquire the qualification after the cut-off date would always be ineligible and the present Respondent was also ineligible as she did not possess the requisite qualification on the cut- off date. In spite of not holding requisite qualifications, the Respondent herein has mislead the Authorities by mentioning in her application that she holds such qualification. In such circumstances the case of the Respondent does not deserve to be considered even on equities.

29 Therefore, considering the undisputed position of law as reflected from the various judgments of the Hon'ble Apex Court as discussed above the order passed by the Member of the CAT is erroneous and misplaced and therefore requires to be quashed and set aside. The order passed by the Central Administrative Tribunal Mumbai Bench, Mumbai in Original Application No.916 of 2022 dated 24 March 2023 is hereby quashed and set aside. Consequently, the order passed in Review Application No.16 of 2023 dated 27 February 2023 is also quashed and set aside.

30 The Writ Petition is disposed of in above terms. No order as to costs.

(MANJUSHA DESHPANDE, J.)                     (NITIN JAMDAR, J.)

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