Babita vs State (Govt. Of Nct, Delhi) And ...
2011 Latest Caselaw 609 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI

                       WRIT PETITION(C) NO.13227/2009

                                     Date of Decision : 2nd February, 2011

        BABITA                                   ..... Petitioner
                       Through   Mr. Keshav Kaushik & Ms. Kanica, Advs.

                       versus

        STATE (GOVT. OF NCT, DELHI) AND OTHERS .....Respondent
             Through   Ms. Meenakshi Singh, Advocate for R2
                       Ms. Saroj Bidawat, Advocate for MCD.

        CORAM:
        HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1.      Whether Reporters of local papers may be allowed to see the
        judgment? Yes
2.      To be referred to the Reporter or not? Yes
3.      Whether the judgment should be reported in the Digest? Yes

SUDERSHAN KUMAR MISRA, J. (Oral)

1. Despite a direction given to the petitioner on 14 th

September, 2010 to file written submissions in two pages before the

next date of hearing, which was 18.11.2010, written submissions have

still not been filed.

2. It is the case of the respondent that the petitoner had not

acquired the requisite qualification on the closing date. Furthermore,

the petitioner also failed to deposit the requisite examination fee.

Even the form filled in by the petitioner was submitted much after the

last date of receipt of applications.

3. Counsel for the respondent relies on a decision of the

Division Bench in WP(C) No. 13525/2009 decided on 2.12.2009 titled

Poonam Rani Vs. GNCT & Ors., holding that once the closing date

has been prescribed in the concerned advertisement and it is stated

that the educational qualification, experience etc. shall be determined

as on that date, then in case the necessary certificates etc. have not

been produced and the qualifications have not been attained before

that date, the candidature cannot be considered.

4. In terms of the advertisement issued, the petitioner was

obliged to acquire the requisite qualification, being a diploma in

Education, on or before 12.08.2008. Admittedly, the diploma in

question was conferred on her on 25.08.2008. The last date for

receipt of application form was also, admittedly, fixed as 12.08.2008.

However, the petitioner submitted her form only on 6.10.2008.

Furthermore, the requisite examination fee was also not deposited by

her.

5. Indubitably, the application form was submitted by the

petitioner after the closing date of 12.08.2008, inter alia, because the

petitioner herself has stated in paragraph 16(a) that she received the

required diploma on 25.08.2008. This fact could only have been

mentioned after 25.08.2008 and not before.

6. With regard to the late submission of the application form

only on 6.10.2008, i.e. much beyond the specified closing date of

12.08.2008, counsel contends that the petitioner was permitted to do

so by an „addendum of advertisement‟ dated 04.09.2008, issued later

on by the DSSSB, which is annexed as Annexure R/2 with the counter

affidavit filed by respondent No.2. It states as follows:

"Applications are, therefore, invited from all such applicants who thus become eligible (only SC/ST/PH) for the post of Teacher (Primary) in M.C.D. from 23.092008 - 15.10.2008. However, the crucial date for determining the age and attaining the requisite qualification shall remain

12.08.2008, as mentioned in main Advertisement No. 02/2008."

7. As perusal of the said addendum advertisement shows that

by that advertisement, applications were invited only from Scheduled

Castes, Scheduled Tribes and Physically Handicapped candidates, who

became eligible for the post of Teacher (Primary) in the MCD from

23.09.2008 to 15.10.2008. Admittedly, the petitioner does not fall

into this category. She belongs to the OBC category. Therefore, the

question of any application being invited from the petitioner after the

closing date by this advertisement, does not arise at all.

8. Counsel then states that regardless of this, the petitioner

was still entitled to be considered because the General Instructions

and Procedure For Submission of Application Form prescribed by the

respondent, and in particular, clause 10 thereof, which deals with

cancellation of candidature, only permits candidature of a candidate to

be cancelled, if on verification, at any time before or after the written

examination or at any stage of the recruitment process, it is found that

he/she does not fulfil any of the eligibility conditions, therefore, the

petitioner‟s candidature could not have been called for late submission

of the form.

9. In short, the case of counsel for the petitioner is that

submission of the application form beyond the date fixed for doing so

has nothing to do with the eligibility of the candidate to be considered

for appointment. I do not agree. An employer is empowered to

prescribe criteria that must be met before a prospective candidate

becomes eligible for consideration. This can very well include the

condition that his application for being considered must be submitted

on or before a certain date. If thereafter a person chooses not to file

his form on or before the prescribed date, it is open to the respondent

to declare him ineligible for being considered.

10. Although no authority has been cited by counsel for the

petitioner in favour of the proposition, he however contends that some

sort of estoppel has come into operation because the respondent

permitted the petitioner to appear in the examination. Again, I do not

agree. It was clearly stated by the respondent in Paragraph 10 of the

General Instructions & Procedures for submission of Application Forms

that merely because a candidate has been allowed to appear in the

examination it will not be considered as a ground for his/her being

selected. To my mind, this alone is sufficient to negate that

contention, and it is not necessary to examine this proposition further.

11. At this stage, counsel for the petitioner, has referred to the

decision of the Punjab & Haryana High Court in Hardwari Lal v.

G.D.Tapasey & Ors. AIR 1982 PH 439. While no particular paragraph

was referred to even after being requested to do so, he submits that

there the petitioner was initially appointed by the Vice Chancellor of

the University on the promise that his tenure will be renewed on

expiry. Since the same was not renewed as promised, the High Court

held that in view of the promise held out to the petitioner, an estopple

operated against the University, which was bound to renew the tenure

of the petitioner. To my mind, in the instant case, no such promise has

been held out by the respondent either directly or indirectly. On the

contrary, a specific condition has been laid down in paragraph 10,

which clearly states that merely because the petitioner was permitted

to appear in the examination it will not be considered as a ground for

his/her being selected. Therefore, this authority is of no use in the

present case.

12. It bears repetition that not only did the petitioner submit

the application from after the prescribed date, she also did not possess

the required Diploma on that date.

13. It is finally submitted by counsel for the petitioner that

although 270 posts were advertised by the respondent, but,

ultimately, only 216 vacancies were filled up, therefore, as a special

case the petitioner should be given one of those posts. This has no

legal basis. At best, it is just a lay suggestion. It cannot, and does

not warrant the exercise of writ jurisdiction.

13. This writ petition is, therefore, dismissed.

CM No. 14403/2009

14. Since the main petition has been dismissed, this

application does not survive and the same is dismissed as such.

SUDERSHAN KUMAR MISRA, J.

FEBRUARY 02, 2011 rd/dr