Rashmi Dhara & Ors. vs Govt. Of Nct Of Delhi & Ors.
2009 Latest Caselaw 2355 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+   WP (C) Nos. 9114/2008, W.P. (C) No. 809/2009, W.P. (C)
No. 9139/2008, W.P. (C) No. 181/2009 and W.P. (C) No.
110/2009.


                                Judgment reserved on:19.05.2009

%                               Judgment delivered on: 30.052009

Rashmi Dhara & Ors.                                  ...... Petitioners
                            Through: Mr. Manoj Ohri, Advocate and
                                     Mr. Sanjay Bansal, Advocate

                       versus


Govt. of NCT of Delhi & Ors.                 ..... Respondents
                      Through: Mr. V.S.R. Krishna, Advocate
                               Mr. Anjum Javed, Advocate
                                Mr. Mohammed Sajid, Advocate
                                Ms. Zubeda Begum, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may                  Yes
       be allowed to see the judgment?

2.     To be referred to Reporter or not?                         Yes

3.     Whether the judgment should be reported                     Yes
       in the Digest?

KAILASH GAMBHIR, J.

*

1. This common order shall dispose of W.P. (C) No. 809/2009, W.P.

(C) No. 9139/2008, W.P. (C) No. 181/2009 and W.P. (C) No. 110/2009.

2. In all these petitions the petitioners are seeking quashing of

result dated 15.12.2008 declared by the Delhi Subordinate Service

Selection Board in short referred as „DSSSB‟ and for restoring the

result declared by DSSSB on 29.7.2008 in which all these petitioners

were declared successful. The petitioners also seek their appointment

based on 29.7.2008 result.

3. In the case at hand, there are two categories of petitioners, viz.

petitioners who received their certificate of qualification from Delhi

Nursing Council and those who received certificate of qualification from

Haryana Nurses Registration Council.

4. To better elucidate, the prayer para of W.P.(C) No. 9114/2008 is

reproduced as under:

i) writ order or direction in nature of certiorari to quash the result

dated 15.12.08 declared by respondent No. 3 on its website/display

board for the post of Staff nurse;

ii) writ order or direction in nature of mandamus directing the

respondents to restore the result declared on 29.7.2008 as valid in

which the petitioner were declared successful for the post of staff

nurse;

iii) issue a writ order or direction in nature of mandamus directing

the respondents to recommend and grant appointment to the

petitioners for the post of staff nurse (post code 170/07) in terms of

result dated 29.7.08;

5. The brief facts of the case relevant for deciding the present

petitions are as under:-

That an advertisement bearing No. 09/07 was carried by

respondent/DSSSB for 1225 vacancies for the post of staff nurses with

post code 170/07. One of the requirements for the above posts was

the certificate of General nursing and midwifery course. The Delhi

Subordinate Services Selection Board or DSSSB invited applications

form eligible candidates for various posts by way of an advertisement

no. 09/2007 dated 7/1/2008. The petitioners herein submitted their

applications for the post of „staff nurse‟ and „auxillary nurse (midwife)‟

in the Department of Health and Family Welfare in Govt. of NCT of

Delhi. The petitioners were allocated roll numbers and they appeared

in the exams also. Later, the respondents had published a list of

selected candidates, who had qualified the written examination by

publishing the result, which was displayed on the notice board on

11.7.2008. The respondents had published another list of selected

candidates only with roll numbers by giving a publication in

the newspaper on 29.7.2008, which contained names of those persons,

who did not even qualify the preliminary examination and the names

of some of the candidates were missing from the said list of 29.7.2008.

Therefore, a writ petition bearing WPC No. 5731/2008 was filed by few

of such candidates and court directed the respondents to come out

with proper list, without any errors, of selected and unselected

candidates. After complying with the said orders the respondents came

out with the proper list of selected and unselected candidates and in

this list the petitioners were found ineligible since they did not possess

the requisite qualification as on the closing date for receipt of

applications. Aggrieved with the same, the present petitions have

preferred by the petitioners.

6. Counsel for the petitioners as far as candidates of Haryana are

concerned in these petitions, submitted that these candidates

appeared in examination and had submitted their respective

applications before the cut off date i.e. 21.1.2008. Counsel further

submitted that as on the cut off date, the result of the examination

was still awaited. Counsel also submitted that all these petitioners

had truthfully disclosed the fact of the said result being awaited in

their respective applications. Counsel further submitted that the

result in the said exam was declared in the month of March, 2008 and

all the petitioners were successful in the said exams and were duly

registered as nurses with the Nursing Council of Haryana in the first

week of April, 2008. Counsel also submitted that all these candidates

were issued admit cards based on their said applications and

pursuant thereto all these candidates appeared in their exams for

appointment on the post of staff nurse held on held on 3 rd, 4th May,

2008. Mr. Bansal further submitted that the result of the written

examination which was held on 3.5.2008 and 4.5.2008 was declared

by the respondent on 29.7.2008. Drawing attention to the result,

counsel submitted that all these petitioners were selected and

recommended for appointment to the said post of nurse. Counsel thus

submitted that roll numbers of all the petitioners are mentioned in the

said result being the successful candidates and were recommended

for appointment on the said post. The contention of the counsel for

the petitioners is that the respondents would have declared the result

of these candidates only after having fully scrutinized the application

forms of the petitioners and on finding them meeting the eligibility

criteria, then only would have declared the results After finding them

fully eligible the respondent now cannot turn round to state that the

applications of these petitioners were not properly scrutinized at that

stage on account of lakhs of people having applied in response to

the advertisement. Counsel further submitted that wherever the

petitioners gave some wrong or incomplete information in their

application forms or the necessary documents were not annexed by

them along with the application, their roll numbers in the result were

suffixed either with P-1 or P-2, as the case may be, and as far as the

present petitioners are concerned, there was no such suffixation of P-

1 and P-2. Counsel further submitted that one Pinki and some other

candidates had earlier approached this court in W. P. (C ) No.

573/2008 to challenge the said selection, list dated 29.7.2008 and in

terms of interim order dated 8.8.2008 the selection list dated

29.7.2008 was directed to be stayed. Counsel further submitted that

vide orders dated 19.11.2008 a consent order was passed by the court

with certain directions to be complied with by the respondents and

the said directions were primarily procedural in nature and could not

have affected the final select list earlier announced by the

respondent/DSSSB. The contention of the counsel for the petitioner is

that infact the respondent had mis-construed the directions of this

court given in the said order dated 19.11.2008 and declared the final

result on 15.12.2008 although in the manner as was directed by the

said court but after upsetting the earlier selected list. Counsel thus

contended, that the respondent had no right to tinker with the final

result as was announced earlier as no such direction was given by the

court in the said order. Counsel further submitted that by its own

conduct of acquiescence the respondent themselves have relaxed the

condition of last cut off date by finally selecting the petitioners after

finding them eligible for the post based on the information submitted

by them in their application forms. Counsel further submitted that

on the date of the examination i.e. 3.5.2008 the petitioners had

completed the said GHM course and became fully eligible to compete

with the other candidates. Counsel further submitted that respondent

had no right to cancel the candidature of the present petitioners after

the selection process was over and duly notified on 29.7.2008

whereby the petitioners were finally selected.

7. Dealing with Haryana candidates, Ms. Zubeda Begum counsel for

the respondent/DSSSB submitted that admittedly, these present

petitioners were not eligible to apply for the post in question as on the

cut-off date they had not completed the GNM course. Counsel thus

stated that once the admitted position is that they had completed the

said course by 18th March, 2008, although they had appeared in the

said examination in November, 2007, therefore, they were totally

ineligible even to apply for the said post, pursuant to the

advertisement, wherein, clearly the cut off date of 21.1.2008 was

spelt out. Counsel for the respondent further stated that DSSSB is a

recruiting agency and has to act as per the mandate of the user

department and the conditions as were advertised by the

respondent/DSSSB were laid by the user department and not by the

DSSSB. The contention of the counsel for the respondent is that in

response to the advertisement large number of candidates running

into lacs made applications and therefore, at the stage of the

submission of the applications or even till the finalization of the result,

it is humanly impossible to scrutinize each and every application to

find out as to whether the requisite enclosures are attached with the

application or the exact details have been given in the application or

not. Counsel thus contended that once any such application is made

by the candidate there is presumption that the candidate fulfills the

criteria laid down in the advertisement. Counsel thus submitted that

after the Preliminary scrutinization of all these applications final

result is declared by the DSSSB but subject to the final satisfaction

of the user department who can again scruitinize the applications of

the selected candidates to find out as to whether the selected

candidates fulfill the eligibility criteria as laid down in the

advertisement or not. Ms. Begum further submitted that even after

the final declaration of the result there is no embargo on the rights

of the DSSSB to scrutinize the applications again to find out as to

whether the applicants fulfill the laid down criteria or not. In

support of her arguments, counsel for the respondent/DSSSB placed

reliance on the judgments of the Supreme Court in State of U.P.Vs.

Vijay Kumar Mishra, AIR 2003, SC 4411, Ashok Kumar Sorkar

Vs. UOI & Ors. (2007) 4 SCC 54, State of Haryana & Ors. Vs.

Anurag JT 1998 (9) SC 190, Bhupinder Pal Singh Vs. State of

Punjab, AIR 2000 SC 2011 and the judgment of learned Single

Judge of this Court in Ravita & Ors. Vs. MCD and Anr., W.P.(C)

No. 6466/2008. Counsel for the respondent also placed reliance on

the conditions laid down by the respondent DSSSB in the

advertisement dealing with the cancellation of the candidates on the

ground that if at any stage of selection process, it is found by the

DSSSB that they do not fulfill the eligibility criteria, their candidature

for the post applied can be cancelled by the Board or appointing

authority. The said term dealing with the cancellation is referred as

under:

"CANCELLATION OF CANDIDATURE

1. The candidates applying for the posts should ensure that they fulfill all the eligibility conditions. Merely because a candidates has been allowed to appear at the examination will not be considered as a valid ground for his/her being eligible for the selection. If on verification at any time before or after the written examination or at any stage of selection process, it is found that they do not fulfill any of the eligibility conditions, his/her candidature for the post applied for, will be cancelled by the Board/Appointing Authority."

2. Candidates are cautioned that they should not furnish any incomplete, false information or submit any document which is defective or fabricated or otherwise commit any act of misconduct in submitting the application forms or during the course of recruitment or fraudulently claim SC/ST/OBC etc. and other benefits. In case any such case is detected, the Board/Appointing Authority reserves its right to withdraw/cancel any selection and take legal action against the candidate concerned. The candidate may be permanently or for a specified period debarred

from taking part in the recruitments conducted by the Board."

8. Ms. Zubeda Begum counsel for the respondent DSSSB

submitted that in the W.P.(C) No. 181/2009 in the application made by

petitioner no.1 Yogesh Rani in column no. 16-B, she herself stated

that she did not possess the requisite qualification as on the date of

the receipt of the application. Similarly, as far as petitioner No. 2

Promila is concerned in the said column no. 16 of the application,

she stated that „result awaiting‟, although in column no. 16-B, she

wrongly tickmarked the box „Yes‟ to show that she possessed the

essential qualification as on the date of receipt of the application.

Counsel further pointed out that even petitioner no.3 Meena has

wrongly tick marked the box against „yes‟ in column no. 16-B,

although she did not possess the essential qualification. She also

wrongly stated 70% marks secured in GNM course although by that

time she did not obtain the diploma in the said course.

9. Counsel also pointed out that so far as the position of the

petitioners in W.P.(C) No. 110/2009, is concerned the same is no

different. Counsel stated that same is the position so far the

petitioner in W.P.(C) No. 9139/2008 is concerned. Ms. Begum stated

that in W.P. 7671/2005, 7679/2005, 7643/2005, incorrect information

was submitted by the petitioners/candidates who did their diploma

from Haryana.

10. Counsel for the respondent does not dispute this position that so

far as the final result declared by the respondent on 15.12.2008 is

concerned, the names of the petitioners are shown as per their

merit of selection but they have been deprived only on the ground

that they were not eligible having not qualified the said course as

on the cut-off date.

11. As far as the candidates who did their GNM course from Delhi,

Mr. Ohri, counsel appearing for the petitioners 1 to 17, 19, 23 to 34,

37 to 43 in W.P. (C ) No. 9114/2008, and Mr. Rana, counsel

representing the petitioners 1 to 6 in W.P.(C) No. 809/2009 submit

that as far as selection process is concerned, the DSSSB being the

recruiting agency is the final agency and not the user department.

The contention of the counsel for the petitioners is that job of the user

department is to verify the authenticity of the documents and not to

find fault with the selection process and on the eligibility of the

candidates. Counsel for the petitioners further submitted that as far

as Delhi candidates are concerned, it is not in dispute that they had

completed three years course before the cut off date of 21.1.2008

as laid down in the advertisement but they were still to complete six

months training. Counsel further submitted that the respondent

no. 5 in the counter affidavit has taken a stand that as far as

candidates for the academic year 2004-05 are concerned, who

completed the said course of GNM in the year 2007, the requirement

of six months training would not apply as by that time various State

Nursing Councils had not implemented the said condition laid down

by the All India Nursing Council. Counsel for the petitioners thus

submitted that already the respondents had selected the candidates

who had completed the said three years nursing course from

Haryana and other states without undergoing the training and if the

appointment to the petitioners is denied on the ground of non

completion of the six months training course, then, it will create

hostile discrimination against the petitioners vis-à-vis other

candidates who had done their course from other States. Counsel for

the petitioner has placed reliance on para 11 of the counter affidavit

filed by respondent no.5. Counsel for the petitioner further stated

that adequate vacancies are still available to accommodate the

present petitioners and even fresh advertisement has been issued by

the respondent to fill up 101 vacancies out of which 57 vacancies

are for general category, 25 vacancies are reserved for OBC and 14

for SC and 5 for ST candidates. Counsel further stated that even 211

vacancies for OBC candidates as per the information given by the

DSSSB are yet to be filled by the respondent. Counsel thus stated

that petitioners can be easily accommodated against the said

vacancies once they have already completed the said course even

after undergoing the training period as on date.

12. Per contra, counsel for the respondents submitted that the

eligibility of the Delhi candidate has to be seen as per the stipulated

cut off date 21.1.2008 mentioned in the advertisement and if all

conditions are satisfied, then only they can be considered for

appointment.

13. I have heard learned counsel for the parties at considerable

length.

14. The Article 226 empowers High Courts to issue directions, orders

or writs in the nature of habeas corpus, mandamus, prohibition, quo

warranto and certiorari. Such directions, orders or writs may be issued

for the enforcement of fundamental rights or for any other purposes.

Under the first component of the above provision a writ may be issued

under the said Article only if it is prima facie clear that the aggrieved

party has a fundamental right and that it has been infringed. Under the

second component it may be issued only after finding that the

aggrieved party has a legal right which entitles him to any of the

aforesaid writs and that such right has been infringed.

15. A party to the lis cannot invoke the powers of judicial review of

this court under Article 226 of the Constitution of India to seek

enforcement of something which is legally not enforceable.

16. India is one of the most populated countries in the world, second

after China. With a workforce of more than 440 million, a huge pool of

English-speaking graduates and a fast-growing economy, the need for

employment opportunities has increased drastically. The Government

has a challenging task to bring about a better matching between the

demand and the supply of work opportunities. Our constitution talks

about equality in public employment. Equality means, equality among

equals and not unequals.

17. The Delhi Subordinate Services Selection Board or DSSSB invited

applications form eligible candidates for various posts by way of an

advertisement no. 09/2007 dated 7/1/2008. The petitioners herein

submitted their applications for the post of „staff nurse‟ and „auxillary

nurse (midwife)‟ in the Department of Health and Family Welfare in

Govt. of NCT of Delhi. The petitioners were allocated roll numbers and

they appeared in the exams also. Later, the respondents had published

a list of selected candidates, who had qualified the written examination

by publishing the result, which were displayed on the notice board on

11.7.2008. The respondents had published another list of selected

candidates only with roll numbers by giving a publication in

the newspaper on 29.7.2008, which contained names of those persons,

who did not even qualify the preliminary examination and the names

of some of the candidates were missing from the said list on

29.7.2008. Therefore, a writ petition bearing WPC No. 5731/2008 was

filed by few of such candidates and court directed the respondents to

come out with proper list, without any errors, of selected and

unselected candidates. After complying with the said orders the

respondents came out with the proper list of selected and unselected

candidates and in this list the petitioners were found ineligible since

they did not possess the requisite qualification as on the closing date

for receipt of applications. Aggrieved with the same, the present

petitions have preferred by the petitioners.

18. Before delving on the contentions raised by the counsel for the

parties, it would be relevant to reproduce relevant portions of the

advertisement, which are as under:

ADVERTISEMENT NUMBER 09/2007

OPENING DATE FOR RECEIPT CLOSING DATE OF APPLICATIONS FOR RECEIPT 07.01.2008 OF APPLICATIONS 21.01.2008

(In case the closing date happens to be a public holiday the next working day will be the last date for receiving of applications)

Applications are hereby invited from eligible candidates for recruitment to various posts of Health and Family Welfare Department of Government of NCT of Delhi. The detailed information regarding the post(s), number of vacancies, educational qualifications (as per recruitment rules provided by the user department), experience required, pay scale, age and mode of selection, procedure of submission of application is mentioned below. However, the applicants are required to go through the detailed advertisement and understand all the information and instructions carefully before applying for the post(s).

GROUP 'C' POSTS: APPLICATION FEE Rs. 50/- PER

APPLICATION

"Staff Nurse

NUMBER OF VACANCIES - 1225 (UR-618, OBC-331, SC- 184, ST-92). Out of the total vacancies shown above, 122 posts are reserved for Ex-Servicemen as per Govt. of India‟s instruction regarding interlocking reservation. Essential qualifications: 1. Matriculation or its equivalent 2. „A‟ Grade certificate in Nursing from a recognized institution. 3. Certificate in Midwifery. 4. Should be able to speak Hindustani fluently. Pay Scale: Rs. 5000-8000/- Period of Probation - Two years. Age Limit : Below 32 years (Relaxation in upper age limit for SC/ST-05 years and OBC-03 years, Departmental Candidates with 03 years (Relaxation in upper age limit for SC/ST-05 years and OBC-03 years, Departmental Candidates with 03 years continuous service who are in the same line or allied cadres-upto 40 years for General Category Employees and upto 45 years for ST & SC employees in accordance with the instructions/orders issued by the Central Govt.). ELIGIBILITY CONDITIONS

1. The candidate must be a citizen of India.

2. The educational qualifications, age, experience etc. as stipulated in SECTION -A shall be determined as on the closing date of receipt of applications i.e. 21.01.2008.

3. In respect of above mentioned posts, the requirement and the category as given above, in the advertisement shall be determined and selections be made. In accordance with the instructions/orders issued from time to time by the Competent/Notified Authorities.

4. A candidate must be in good mental and physical health and free from any physical defect, likely to interfere with the efficient discharge of duties. A candidate after such medical examination as may

be prescribed by the competent authority, if found not to satisfy the requirements for the post(s), will not be appointed. Only such candidates as are likely to be considered for appointment will be medically examined."

CANCELLATION OF CANDIDATURE

1. The candidates applying for the posts should ensure that they fulfill all the eligibility conditions. Merely because a candidates has been allowed to appear at the examination will not be considered as a valid ground for his/her being eligible for the selection. If on verification at any time before or after the written examination or at any stage of selection process, it is found that they do not fulfill any of the eligibility conditions, his/her candidature for the post applied for, will be cancelled by the Board/Appointing Authority."

2. Candidates are cautioned that they should not furnish any incomplete, false information or submit any document which is defective or fabricated or otherwise commit any act of misconduct in submitting the application forms or during the course of recruitment or fraudulently claim SC/ST/OBC etc. and other benefits. In case any such case is detected, the Board/Appointing Authority reserves its right to withdraw/cancel any selection and take legal action against the candidate concerned. The candidate may be permanently or for a specified period debarred from taking part in the recruitments conducted by the Board."

19. In the case of petitioners who received their certificate of

qualification from Delhi Nursing Council, the issue arises that whether

the 6 months period of internship, which was not undergone by the

persons who received certificate of qualification from other states, can

be eligible as on 21/1/2008, the closing date of application, which was

also the cut-off date. The issue in case of petitioners who received

certificate of qualification from Haryana Nurses Registration Council

later than the cut-off date is "whether they can be considered eligible

as on the cut-off date."

20. Article 14 loathes upon hostile discrimination of any person by

State. In this regard this Court has in Thomson - CSF vs National

Airport Authority of India - ILR (1993) 2 Del 203 held as under:-

"20. Article 14 prohibits hostile discrimination of any person by the State. It is well settled that Article 14 ensures that the State metes out just, fair and reasonable treatment within the territory of India to every individual. It inhabits the State from acting arbitrarily since arbitrariness is anti-thesis of equality and comes into play whenever the exercise of power by the State of its instrumentality is contaminated by arbitariness and mala-fides. Absence of arbitrary exercise of power is the first essential rule upon which the foundation of Article 14 rests. Therefore, discretion when conferred on an executive authority must be contained within clearly defined limits, and the decision must not be inspired by humor, whim or caparice but is required to be informed by reason, which must proceed on the principles of equality, justice, fair play and application of known principles and rules and in general such a decision should be predictable. Besides the authority must act in furtherance of national interest, which should be the paramount consideration in matters affecting the country and large sections of the society."

21. Clearly, the decisions and actions of the State cannot be

arbitrary, capricious and unreasonable in any sphere of its activities

and should conform to norms and standards flowing from Article 14.

22. But at the same time it is a settled proposition of law that a

person raising an issue of hostile discrimination has the burden to

prove in the first place that he has equal rights as others in the group

and that he has been discriminated. In this regard this Court in

Ravinder Kumar vs Director, AIIMS ILR (2005) 2 Del 1158

observed as under:-

"35. In State of Haryana & Anr. Vs. Tilak Raj & Ors. AIR 2003 SC 2658 the Supreme Court considered the doctrine of equal pay for equal work in the context of daily wagers of the Haryana Roadways. After taking note of a series of earlier decisions the Supreme Court observed:

"A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged discrimination. No material was placed before the High Court as to the nature of duties" of either categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one."

"Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula."

23. In the instant case, the Delhi candidates have claimed hostile

discrimination against persons who undertook GNM course for the

academic year 2004-2005 from other States.

24. In the case of candidates/petitioners who received their

certificate of qualification from Delhi Nursing Council, respondent no.

5, Indian Nursing Council clarified that since all the states did not

uniformly implement the new syllabus, which included 6 months period

of internship and extended the period of GNM course from 3 years to 3

and a half years for the General Nursing and Midwifery course (GNM)

and only Delhi implemented the said new syllabus, therefore, for the

academic year 2004-2005, the course of study of GNM course would

only be three years. The petitioners belonging to this category

undertook their exams in September/October 2007 and their mark

sheets for final year was published on 21/12/2007, which is much prior

to the cut-off date of 21/1/2008 for the recruitment/selection process

under challenge.

25. Thus, it is manifest that if we ignore the 6 months training period

from the course of GNM in case of Delhi candidates, then they had

completed their course in September/October, 2007 and had received

their marksheets for final year on 21.12.2007. therefore, if there is no

other fallacy in their candidature, then Delhi candidates were eligible

as on the cut off dated of 21.1.2008. To deprive Delhi candidates due

to non completion of six months training when already candidates for

other states were found eligible even in the absence of six months

training will certainly result in causing a hostile discrimination viz-a-

viz Delhi candidates. Therefore, they succeed in their claim made

herein.

26. In case of petitioners who received certificate of qualification

from Haryana Nurses Registration Council their mark sheets for final

year was published in March-April 2008, which is posterior to the cut-

off date of 21/1/2008 for the recruitment/selection process under

challenge.

27. Upon reading of the eligibility conditions mentioned above, it is

manifest that the condition mentioned in clause (2) pertaining to the

eligibility requirements of age, educational qualifications etc. to be

fulfilled as on the date of 21/1/2008 as mentioned therein, is

mandatory. The Supreme Court of India in the case of Ashok Kumar

Sharma Vs. Chander Shekhar 1993 Supp (2) Supreme Court

Case 611, in this context is relevant and the relevant portion is in the

following terms :

"In legal termninolgy, when something is required to be done and the consequences of failure to do so are also provided then it is known as mandatory. Mandatory character of the condition stipulated in the advertisement is further strengthened from the fact that the candidates were prohibited from applying if they did not possess the requisite qualifications. The expression shall to be possessed of such qualification is indicative of both mandatory character of the requirement and its operation in praesenti. Acceptance of the view that the appellants had requisite qualification on the date of interview would have the effect of altering condition of eligibility on the date of applications would not be accepted, will also become meaningless."

28. When the 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 judged with reference to that date and that

date alone, is a well-established proposition. The purpose of a cut-off

date, like 21/1/2008 herein, is explained by the Supreme Court in

Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18, as

under:

6. The review petitions came up for final hearing on 3-3-1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by 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 filing the applications, the eligibility of

the candidates shall have to be judged with reference to that date and that date 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, other similarly 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 applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan2. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law 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 been allowed to appear for the interview.

29. From the above discussion, it is manifest that a cut-off date by

which all the requirements relating to qualifications have to be met,

cannot be ignored in an individual case. There may be other persons

who would have applied had they known that the date of acquiring

qualifications was flexible. They may not have applied because they

did not possess the requisite qualification on the prescribed date.

Relaxing the prescribed requirements in the case of one individual may

therefore, cause injustice to others.

30. From the above discussion, clearly, the petitioners who received

their certificate of qualification from Delhi Nursing Council, succeed in

proving their eligibility as on the cut-off date set by the respondents

and have a legal right to appointment as they had cleared the

examination held for recruitment by the respondents. But the

petitioners who received certificate of qualification from Haryana

Nurses Registration Council failed in proving their eligibility as on the

cut-off date set by the respondents and do not have a legal right to

appointment even after they had cleared the examination held for

recruitment by the respondents.

31. This court is of the opinion that if it was possible that candidates

other than those who were in possession of the prescribed general or

special qualifications as on the date of advertisement could also apply,

it should have been so stated in the advertisement inviting

applications, so that not only the petitioners but others in a similar

position could also have applied.

32. The respondent had invited applications mentioning the required

specializations i.e. a degree in GNM course. Obviously, candidates not

possessing the special qualifications as on the cut off dated were put

on notice that they need not apply. The only fact that some of the

candidates who had been awaiting for their results did apply is no

reason to consider and appoint them in spite of the specific indication

contained in the notification that those without the special

qualifications were not eligible to apply. The respondent was expected

to receive and consider applications only from eligible candidates. If

the eligibility criteria was to be altered, the respondent, in fairness,

would have amended its notification to the effect that even persons

without special qualifications as on the date of closing of applications

were eligible to apply and would be considered. In the absence of such

an amendment to the notification, the respondent would consider only

persons who were eligible in terms of the advertisement.

33. The contention of counsel for the petitioners representing the

candidates who received certificate of qualification from Haryana

Nurses Registration Council, that these petitioners were declared

successful by the respondents in the list of selected/successful

candidate but now the respondent cannot turn turtle and state that

they are not eligible even after qualifying the recruitment exam and

being declared successful, I do not find any merit in the said contention

for the reason firstly, that they did not have the requisite qualification

as on the cut-off date, as discussed above and secondly, the said

advertisement clearly stated in the column „cancellation of

candidature‟ that on being found unfit at any stage, the applicant‟s

candidature may be cancelled. Therefore, clearly, petitioners who

received certificate of qualification from Haryana Nurses Registration

Council, do not have any enforceable legal right for this court to

exercise its power of judicial review under Art. 226 of the Constitution

of India.

34. Be that is it may, a selectee cannot claim appointment as a

matter of right. In this regard, the Hon‟ble Apex Court has in State of

U.P. vs Rajkumar Sharma (2006) 3 SCC 330, observed as under:-

14. Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidate's name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the candidates concerned cannot claim that they have been given a hostile discrimination. (See Shankarsan Dash v. Union of India8; Asha Kaul v. State of J&K9; Union of India v. S.S. Uppal10; Hanuman Prasad v. Union of India11; Bihar Public Service Commission v. State of Bihar12; Syndicate Bank v. Shankar Paul13; Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra14; Punjab SEB v. Seema15; All India SC & ST Employees' Assn. v. A. Arthur Jeen16; Vinodan T. v. University of Calicut17; S. Renuka v. State of A.P.18 and Batiarani Gramiya Bank v. Pallab Kumar19.)"

35. Furthermore, if the State by mistake makes an appointment, that

does not confer any right on the person so appointed and such a

mistake of the State cannot be forced to be perpetuated. In this

regard, the Hon‟ble Apex Court has in State of U.P. vs Raj Kumar

Sharma (2006) 3 SCC 330, observed as under:-

"15. Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P.20; Secy., Jaipur Development Authority v. Daulat Mal Jain21; State of Haryana v. Ram Kumar Mann22; Faridabad C.T. Scan Centre v. D.G., Health Services23; Jalandhar Improvement Trust v. Sampuran Singh24; State of Punjab v. Dr. Rajeev Sarwal25; Yogesh Kumar v. Govt. of NCT, Delhi26; Union of India v. International Trading Co.27 and Kastha Niwarak Grihnirman Sahakari Sanstha Maryadit v. President, Indore Development Authority28.)"

36. Although, this court has sympathies with these petitioners who

received certificate of qualification from Haryana Nurses Registration

Council but compassion cannot overtake justice and law. As for

compassion, it shall not operate at the expense of justice and equity.

The ineligible and unqualified candidates who managed to obtain

selection through questionable methods could not be the recipients, in

equity of undeserved benefits. Allowing them to benefits which they do

not deserve would be a travesty of justice. In State of Tamil Nadu

and Ors. v. St. Josephs Teachers Training Institute,

MANU/SC/0589/1991, the Supreme Court struck down a direction

issued by a Full Bench of the Madras High Court on humanitarian

grounds in the following terms:

"Courts cannot grant relief to a party on humanitarian grounds contrary to law. Since the students of unrecognised institutions were legally not entitled to appear at the examination held by the Education Department of the Government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by the Full Bench are destructive of the rule of law. Since the Division Bench issued the impugned orders following the judgment of the Full Bench, the impugned orders are not sustainable in law."

37. The judgment of this Court in Varun Kumar Shukla vs Bharat

Sanchar Nigam Ltd. & Ors. 2005 II AD (Delhi) 165, relied upon by

the counsel for the petitioners is of no assistance to them as the facts

in the said case were different from the facts of the case at hand as in

the said case the advertisement for recruitment specifically provided

that even candidates appearing in the final year exams of engineering

could apply. Clearly, same is not the case at hand. The case of Delhi

candidates is different from Haryana candidates as the main grievance

of the Delhi candidates was that due to an additional 6 months training

period introduced in the curriculum of GNM course their candidature

was rejected by DSSSB. But in the case of Haryana candidates, they

had not even despite their being no training period for six months

having been introduced in their curriculum did not get their final

marksheet before the cut off date of 21.1.2008. Clearly, Delhi

candidates are at different pedestal from Haryana candidates.

38. In view, of the foregoing discussion, the petitions filed by

petitioners who received certificate of qualification from Delhi Nursing

Council is allowed and the result dated 15/12/2008 declared by

respondent no. 3 is quashed and respondent no. 3 is directed to

restore the result declared on 29/7/2008, so far as petitioners who

received certificate of qualification from Delhi Nursing Council are

concerned. Respondent is further directed to consider these petitioners

for appointment on the post of nurse staff in terms of result dated

29/7/2008 as per their merit.

39. Petition filled by petitioners who received certificate of

qualification from Haryana Nurses Registration Council is devoid of any

merits and is hereby dismissed.

40. In view of the above discussion, the petitions bearing W.P. (C) No.

9114/2008, W.P. (C) No. 809/2009, W.P. (C) No. 9139/2008, W.P. (C)

No. 181/2009 and W.P. (C) No. 110/2009 are disposed of in above

terms.

May 30, 2009                        KAILASH GAMBHIR, J.
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