Delhi High Court
Preetesh Raman Singh vs Delhi High Court Through ... on 21 March, 2014
Author: Sanjiv Khanna
$~08
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21st March, 2014
+ W.P.(C) 1869/2014
PREETESH RAMAN SINGH ..... Petitioner
Through Mr. Rakesh Tiku, Sr. Advocate
with Mr. Vivek Ojha, Advocate.
versus
DELHI HIGH COURT THROUGH REGISTRAR GENERAL
..... Respondent
Through Ms. Rekha Palli and Ms. Punam
Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SURESH KAIT
SANJIV KHANNA, J.
Rule 14 of Delhi Judicial Service Rules, 1970 reads as
under:-
"14. A candidate shall be eligible to
appear at the examination, if he is:-
a) a citizen of India;
b) a person practicing as an Advocate in
India or a person qualified to be admitted as
an Advocate under the Advocates Act, 1961;
and
c) not more than **32 years of age on the 1st
day of January following the date of
commencement of the examination."
2. Learned counsel for the petitioner submits that the
petitioner, who is pursuing LLB course from the National Law
University, Jodhpur and is presently in the 10th semester (final
year) of the BA LLB (Hons.), should be permitted and allowed
to appear in Delhi Judicial Service Examination, 2014, notified
on 18th February, 2014. He submits that the requirements
stipulated in clause „b‟ of Rule 14 should be read along with the
requirements stipulated in clause „c‟ of Rule 14. Accordingly,
the petitioner should be allowed and permitted to appear in the
said examination as he would have qualified to be admitted as an
Advocate under the Advocates Act, 1961 on or before the first
day of January following the date of commencement of the
examination. It is further submitted that in all probability the
petitioner would be eligible for enrolling and admitted as an
Advocate as on 1st June, 2014, i.e. the date on which the first or
preliminary examination is to be held.
3. Learned counsel for the petitioner has relied upon an
interim order passed by the High Court of Andhra Pradesh in
W.P. 5845/2014 titled Gummalla Bhasker Reddy & Others Vs.
High Court of Andhra Pradesh and Another in which the
respondents therein were directed to receive applications from
candidates without insisting for bachelor‟s degree in law as
prescribed in the notification.
4. We have quoted above Rule 14 of the applicable rules.
The advertisement for Delhi Judicial Examination, 2014 was
published on 18th February, 2014 and the relevant portion
relating to eligibility norms/requirements reads as under:-
"............A candidate shall be eligible to appear in
the examination if he / she is (a) a citizen of India;
(b) a person practising as an Advocate in India or
a person qualified to be admitted as an Advocate
under the Advocates Act, 1961; and (c) not more
than 32 years of age as on 1st January, 2015 i.e.
on the 1st day of January following the date of
commencement of the examination. In the case of
candidates belonging to Scheduled Castes /
Tribes, the upper age limit is relaxable by 5 years.
The upper age limit is also relaxable maximum by
5 years in the case of Ex-Servicemen including
Emergency Commissioned Officers and Short
Service Commissioned Officers who have
rendered at least 5 years military service and have
been released on completion of assignment
(including those whose assignment is due to be
completed within 6 months) otherwise than by
way of dismissal or discharge on account of
misconduct or inefficiency, or on account of
physical disability attributable to military service
or on invalidment."
5. The question raised in the present writ petition is whether
a candidate should meet the eligibility norms/requirements
prescribed in clause „b‟ to Rule 14 at the time of submission of
application or at the time when the first or preliminary
examination is to be held. The second submission is that the
eligibility date for the purpose of clause „b‟ should be the same
as stipulated in clause „c‟ of Rule 14.
6. On the first aspect, we have decision of the Supreme
Court in Rekha Chaturvedi Vs. University of Rajasthan and
Others, 1993 Supp (3) SCC 168, wherein similar contention
with regard to cut off date to determine eligibility criteria, with
reference to the date of selection, date of making of application
etc. was examined and it was held as under:-
"10. The contention that the required qualifications of the
candidates should be examined with reference to the
date of selection and not with reference to the last
date for making applications has only to be stated to
be rejected. The date of selection is invariably
uncertain. In the absence of knowledge of such date
the candidates who apply for the posts would be
unable to state whether they are qualified for the posts
in question or not, if they are yet to acquire the
qualifications. Unless the advertisement mentions a
fixed date with reference to which the qualifications
are to be judged, whether the said date is of selection
or otherwise, it would not be possible for the
candidates who do not possess the requisite
qualifications in praesenti even to make applications
for the posts. The uncertainty of the date may also
lead to a contrary consequence, viz., even those
candidates who do not have the qualifications in
praesenti and are likely to acquire them at an
uncertain future date, may apply for the posts thus
swelling the number of applications. But a still worse
consequence may follow, in that it may leave open a
scope for malpractices. The date of selection may be
so fixed or manipulated as to entertain some
applicants and reject others, arbitrarily. Hence, in the
absence of a fixed date indicated in the
advertisement/notification inviting applications with
reference to which the requisite qualifications should
be judged, the only certain date for the scrutiny of the
qualifications will be the last date for making the
applications. We have, therefore, no hesitation in
holding that when the Selection Committee in the
present case, as argued by Shri Manoj Swarup, took
into consideration the requisite qualifications as on
the date of selection rather than on the last date of
preferring applications, it acted with patent illegality,
and on this ground itself the selections in question are
liable to be quashed. Reference in this connection
may also be made to two recent decisions of this
Court in A.P. Public Service Commission,
Hyderabad v. B. Sarat Chandra [(1990) 2 SCC 669 :
1990 SCC (L&S) 377 : (1990) 4 SLR 235 : (1990) 13
ATC 708] andDistrict Collector & Chairman,
Vizianagaram Social Welfare Residential School
Society, Vizianagaramv. M. Tripura Sundari
Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 :
(1990) 4 SLR 237 : (1990) 14 ATC 766]."
(emphasis supplied)
7. In Rakesh Kumar Sharma Vs. Govt. Of NCT of Delhi & Ors.,
2013 (10) SCALE 42 it has been observed:-
6. There can be no dispute to the settled legal
proposition that the selection process commences on
the date when applications are invited. Any person
eligible on the last date of submission of the
application has a right to be considered against the
said vacancy provided he fulfils the requisite
qualification.
7. In U.P. Public Service Commission, U.P.,
Allahabad and Anr. v. Alpana, (1994) 2 SCC 723, this
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. That too was a case where the result
of a candidate was declared subsequent to the last date
of submission of the applications. This 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
applications, therefore, a candidate, whose result has
not been declared upto the last date of submission of
applications, would not be eligible.
8. A three Judge Bench of this Court, in Dr. M.V.
Nair v. Union of India and Ors., (1993) 2 SCC 429,
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.
(Emphasis added)
9. In Smt. HarpalKaurChahal v. Director, Punjab
Instructions, Punjab and Anr., 1995 (Suppl) 4 SCC
706, this 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
recruitment according to Rules.
(Emphasis added).
10. xxxxxx
11. xxxxxx
12. xxxxxx
13. In Bhupinderpal Singh v. State of Punjab AIR
2000 SC 2011, this Court placing reliance on various
earlier judgments of this Court held:
The High Court has held (i) that the cut-off date by
reference to which the eligibility requirement must be
satisfied by the candidate seeking a public
employment is the date appointed by the relevant
service rules and if there be no cut-off date appointed
by the rules then such date as may be appointed for
the purpose in the advertisement calling for
applications; (ii) that if there be no such date
appointed then the eligibility criteria shall be
applied by reference to the last date appointed by
which the applications have to be received by the
competent authority. The view taken by the High
Court is supported by several decisions of this Court
and is therefore well settled and hence cannot be
found fault with.
(Emphasis added)
14. This Court lately in State of Gujarat v.
Arvind Kumar T. Tiwari AIR 2012 SC 3281 held:
A person who docs not possess the requisite
qualification cannot even apply for recruitment for the
reason that his appointment would be contrary to the
statutory rules, and would therefore, he void in law.
Lacking eligibility for the post cannot be cured at any
stage and appointing such a person would amount to
serious illegality and not mere irregularity. Such a
person cannot approach the court for any relief for the
reason that he does not have a right which can be
enforced through court. (Sec Prit Singh v. S.K.
Mangal 1993 Supp (1) SCC 714 and
Pramod Kumar v. U.P. Secondary Education
Services Commission (2008) 7 SCC 153.)
(Emphasis added)
8. After referring to these judgments, the Supreme Court in Rakesh
Kumar Sharma (supra) expounded:-
"17. It also needs to be noted that like the present
Appellant there could be large number of candidates
who were not eligible as per the requirement of
rules/advertisement since they did not possess the
required eligibility on the last date of submission of
the application forms. Granting any benefit to the
Appellant would be violative of the doctrine of
equality, a backbone of the fundamental rights under
our Constitution. A large number of such candidates
may not have applied considering themselves to be
ineligible adhering to the statutory rules and the terms
of the advertisement. There is no obligation on the
court to protect an illegal appointment. Extraordinary
power of the court should be used only in an
appropriate case to advance the cause of justice and
not to defeat the rights of others or create
arbitrariness. Usurpation of a post by an ineligible
candidate in any circumstance is impermissible. The
process of verification and notice of termination in the
instant case followed within a very short proximity of
the appointment and was not delayed at all so as to
even remotely give rise to an expectancy of
continuance. The appeal is devoid of any merit and
does not present special features warranting any
interference by this Court. The appeal is accordingly
dismissed."
9. In the light of the aforesaid judgments, we are not inclined to
accept the submission made. We are also inclined to give any interim
direction as was given in the case of Gummalla Bhasker Reddy &
Others (supra). At this stage, it would be appropriate here to refer to
the decision dated 15th January, 2013 of Punjab and Haryana High
Court at Chandigarh in Payel Mehta Vs. State of Haryana and Others.
The applicable eligibility norm in the said case was:-
"9. Essential Qualifications:-
No person shall be eligible to be appointed a
Civil Judge (Junior Division) unless he holds
a degree of Bachelor of Laws from a
University established by the law and
approved/recognized by the Bar Council of
India.
The expression "Degree of Bachelor of
Laws" means a degree entitling a candidate to
be enrolled as an Advocate under the
Advocates Act, 1961, and the rules made
thereunder
The candidate should hold a degree of
Bachelor of Laws on the last date of receipt
of application form i.e. 17.01.2013."
10. The Division Bench referred to an earlier decision in CWP
10105 of 2010, Pawandeep Singh Dhaliwal Vs. The State of Punjab
and Others decided on 28th July, 2010, wherein it was held:-
"Having heard the learned counsel for the parties
and perusing the various paper books, we are of the
view that there is no merit in these petitions. The
fixation of cut off date is necessarily a policy matter
which in the present case has been fixed by the Cadre
Controlling Authority under Article 235 of the
Constitution by the Punjab and Haryana High Court.
The fixation of cut off date brings certainty and avoids
any futile exercise - a factor which appears to have
weighed with the Punjab and Haryana High Court as
well as the Commission, who are jointly making
recruitment to PCS (Judicial Branch). The last date of
receipt application has always been considered as the
cut off date of determining the eligibility as has been
held by Hon'ble the Supreme court in the cases of
Rekha Chaturvedi (supra) and Ashok Kumar Sonkar
(supra). In the absence of any cut off date an
atmosphere of uncertainty would prevail and the
employer would be flooded with the applications of
ineligible candidates. Moreover, some breathing time
is given to the High Court and the Commission who
are to process the huge number of applications for
determining the eligibility of such candidates. In the
present case 17.6.2010 is the cut off date and for the
preliminary test is slated for 8.8.2010. The
Commission might have to deal with thousands of
applications and leaving the determination of
eligibility to any later date may not be conducive in
the absence of any policy decision to the contrary. In
that regard, reliance may be placed on para 20 of the
judgment of the Hon'ble Supreme Court in the case of
Ashok Kumar Sonkar (supra), which reads thus:-
"20. 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."
We are further of the view that prescription of
any cut off date would attract similar argument as has
been rightly contended because if a cut off date of
11.10.2010 as suggested on behalf of the petitioners is
kept when the main examination is to commence or the
cut off date of commencement of viva voce of
27.12.2010 is fixed then there might be candidates who
may argue that they have taken re-appear examination
in one/two papers of LL.B. (Final Year) and they would
be eligible either on the date of commencement of the
main examination or on the date of commencement of
viva voce on 11.10.2010 and 27.12.2010 respectively. It
is because of the aforesaid reason that Hon'ble the
Supreme Court in various judgments has held that even
in the absence of any cut off date announced by the
appointing authority or by recruiting agency like the
Commission, the last date of receipt of applications
form would be deemed to be the cut off date for
determining the eligibility of a candidate. It is not
disputed that on 17.6.2010 the petitioners did not have
the professional degree of LL.B. to their credit which
may entitle them to be enrolled as an Advocate under
the Advocates Act, 1961. Therefore, the writ petitions
are liable to be dismissed."
(emphasis supplied)
11. Thus, the first contention of the petitioner has no merit.
After the petitioner becomes eligible, he will have opportunity
and right to appear in the selection examination. Presently, he
does not meet the eligibility criteria, as on the last date for
submission of the application, i.e. 24th March, 2014.
12. The second contention is also devoid of merit. Clause „b‟
of Rule 14 refers to the educational qualification and the
requirement that a candidate should be a person practicing as an
Advocate in India or a person qualified to be admitted as an
Advocate under the Advocates Act, 1961. This, as noticed
above, should be satisfied on the last date of receipt/submission
of the application. If the criteria or eligibility fixed in Rule 14
(b) is fulfilled after the said last date fixed for submission/receipt
of applications, then eligibility requirement of clause „b‟ would
remain unsatisfied. Clause „c‟ to Rule 14 on the other hand
relates to the age. It has altogether a different purpose and
object. While fixing the maximum age of 32 years in clause „c‟
to Rule 14, it has been prescribed that a candidate should not be
more than 32 years of age on the first day of January following
the date of commencement of the examination. The two clauses
operate in their own field. We do not think that norms fixed or
the cut off date fixed in clause „c‟ can be read into and treated as
part and parcel of clause „b‟ of Rule 14.
13. In view of the aforesaid position, we do not find any merit
in the present writ petition. We do not think that the petitioner,
who is not eligible and would not be eligible on the last date of
submission of application, can be permitted and allowed to sit in
the examination.
14. The writ petition is accordingly dismissed. Dasti.
SANJIV KHANNA, J.
SURESH KAIT, J.
MARCH 21, 2014
NA
