Borsha Dutta vs The State Of Assam And Anr
2021 Latest Caselaw 2188 Gua

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GAHC010077632019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/2409/2019

            BORSHA DUTTA
            D/O- SRI GUNIN DUTTA, R/O- VILL- KATHPAR, P.O. BANMUKH, P.S.
            SIVASAGAR, DIST- SIVASAGAR, ASSAM, PIN- 785640


            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE PRINCIPAL SECY., HEALTH AND FAMILY WELFARE DEPTT.,
            JANATA BHAWAN, DISPUR, GHY-6

            2:THE DIRECTOR OF HEALTH SERVICES
            ASSAM
             HENGRABARI
             GHY-3

Advocate for the Petitioner   : MR. B PHUKAN

Advocate for the Respondent : SC, HEALTH


                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 13-09-2021

1. Heard Mr. N.M. Hazarika, learned counsel for the petitioner. Also heard Mr. D Upamanyu, learned Standing counsel, Health Department, appearing for all the respondents.

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2. An advertisement was issued by the Director of Health Services, Assam (respondent No.2) on 14.12.2017 inviting online applications for 5 posts including Radiographer in 47 numbers of newly created Model hospitals in the State which was available in the official website of respondent No.2 from 16.12.2017 to 30.12.2017. Thereafter vide addendum dated 03.03.2018, the period of submission of online applications was extended from 05.03.2018 to midnight of 16.03.2018 and it was provided that the candidates who had already submitted their applications in response to earlier advertisement dated 14.12.2017, need not apply in response to the said addendum advertisement. Accordingly, the petitioner had applied for the post of Radipographer. The prescribed minimum educational qualification was that the candidates should have Radiographer Technician Certificate or above from any Government recognized Institute of Government of Assam. The petitioner had submitted her online application and was accordingly provided the admit card to appear in the written examination to be held on 08.07.2018. The said examination was held on schedule and the result of the written examination was declared on 26.07.2018. The petitioner had thereafter appeared for the skill test on 02.08.2018 and the final result was declared on 17.09.2018. This was followed by a rejection notice dated 12.11.2018 thereby the candidature of the petitioner was rejected on the ground that she had completed her course after the month of May 2018 which is after the last date of submission of application. Accordingly, the aggrieved petitioner Page No.# 3/9

has challenged the rejection notice dated 12.11.2018 by filing this writ petition under Article 226 of the Constitution of India and the petitioner also seeks for a direction upon the respondent authorities to appoint the petitioner in the post of Radiographer.

3. The learned counsel for the petitioner has submitted that the employment advertisement did not contain any condition that no document could be entertained after the last date of submission of the application. It is submitted that in respect of persons who had appeared in the qualifying examination but whose results were awaited, the respondents ought to have inserted a condition that such person would be eligible to apply. It is submitted that no bar was created in the employment advertisements for persons to apply pending declaration of result of the qualifying examination. It is further submitted that even in respect of Combined Civil Service Examination undertaken by the Union Public Service Commission (UPSC), it contains a clause to the effect that a candidate who had appeared at an examination, the passing of which would render them educationally qualified for the Commission's examination but have not been informed of the result as also the candidates who intend to appear at such a qualifying examination will also be eligible for admission to the preliminary examination. Accordingly, it is submitted that the respondents ought not to have disqualified the petitioner for acquiring qualification after the last date of submission of the application. It is further submitted that the respondent Page No.# 4/9

authorities had accepted the application filed by the petitioner and had also issued an admit card and that they have also verified the documents, therefore, it is to be deemed that the respondent authorities had duly accepted the application of the petitioner and the petitioner could not have been disqualified on the ground that she did not possess the requisite educational qualification on the date of applying and it is submitted that such rejection is in contravention to the principles of legitimate expectation.

4. In support of his submission, the learned counsel for the petitioner has placed reliance on the case of Food Corporation of India Vs. Rimjhim, (2019) 5 SCC 793.

5. Per contra, the learned Standing counsel for the Health Department has referred to the terms and condition No.2 of the employment advertisement dated 14.12.2017 and it is submitted that the document mentioned herein would required to be produced at the time of documents verification and photocopies of the certificates were required to be submitted. Accordingly, it is submitted that it was incumbent on the part of the petitioner to submit photocopies of all testimonials with her application and only the verification part was postponed for the date fixed for document verification. It is submitted that as per the Annexure-3 to the writ petition, the mark-sheet dated 29.03.2018 indicated that the petitioner had passed out the diploma examination held in the Month of January 2018 either on 29.03.2018, the date of Page No.# 5/9

the mark-sheet or on any subsequent date when the result was formally announced. The learned Standing counsel has juxtaposed the date on which the petitioner has acquired educational qualification with the last date of applying as per the addendum dated 03.03.2018 which was on 16.03.2018 and it is submitted that the petitioner had acquired the educational qualification after the last date of applying.

6. From the above, it is apparent from Annexure-3 to the writ petition that the mark-sheet appears to be signed on 29.03.2018 which is after the last date of applying for the post of Radiographer, which as per the addendum advertisement dated 03.03.2018 was midnight of 16.03.2018. In the cited case of Food Corporation of India (supra), the case of the respondents therein was that she had applied along with the employer's certificate of having an experience of translation from English to Hindi and vice-versa. It is in the writ petition that the Food Corporation of India had taken a stand that the requisite experience certificate was not submitted and accordingly, the petitioner had produced the certificates dated 14.01.2015 and 18.07.2016. The learned Single Judge of the High Court had dismissed the writ petition by holding that the writ petitioner did not have the requisite experience of one year. However, the Division Bench of the High Court, the intra Court appeal, had allowed the writ petition by holding that as per the certificates dated 14.01.2015 and 18.07.2016, the respondent had the requisite experience. Dissatisfied with the said judgment, the Page No.# 6/9

Food Corporation of India had preferred a Special Leave Petition and the Supreme Court of India had dismissed the same by affirming the order passed by the Division Bench of the High Court. While deciding the matter, the Supreme Court of India had made observation to the effect that there is a distinction between facts and proof i.e., essential requirements and the proof/mode of proof. In this respect, the reference is made to paragraph 13 of the said judgment, which is quoted below:

"13. Now so far as the submission on behalf of the FCI that a candidate must and/or ought to have produced the experience certificate along with the application is concerned, at this stage, a decision of this Court in Charles K. Skaria v. C. Mathew (1980) 2 SCC 752 and the subsequent decision of this Court in Dolly Chhanda v. JEE (2005) 9 SCC 779are required to be referred to. In Charles K. Skaria, this Court had an occasion to consider the distinction between the essential requirements and the proof/mode of proof. In the aforesaid case, this Court had an occasion to consider the distinction between a fact and its proof. In the aforesaid case before this Court, a candidate/student was entitled to extra 10% marks for holders of a diploma and the diploma must be obtained on or before the last date of the application, not later. In the aforesaid case, a candidate secured diploma before the final date of application, but did not produce the evidence of diploma along with the application. Therefore, he was not allowed extra 10% marks and therefore denied the admission. Dealing with such a situation, this Court Page No.# 7/9

observed and held that what was essential requirement was that a candidate must have obtained the diploma on or before the last date of application but not later, and that is the primary requirement and to submit the proof that the diploma is obtained on or before a particular date as per the essential requirement is secondary. This Court specifically observed and held that "What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification." This Court specifically observed and held that "To confuse between a fact and its proof is blurred perspicacity." This Court further observed and held that: (Charles K. Skaria case) "20,............ To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate the merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence."

7. From the above case it is observed that the Supreme Court of India had observed and held in the case of Charles K. Skaria (supra) that "What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification."

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8. The learned counsel for the petitioner had urged that the advertisement does not provide specifically that the candidate was required to produce the certificate of experience along with the application. The said proposition is not acceptable in view of the terms and condition No.2 contained in the employment advertisement dated 14.12.2017 that photocopies of all the certificates etc were to be submitted and all the original documents had to be produced at the time of document verification. The terms and conditions No.2 of the said employment advertisement is quoted below:

"Terms & conditions :-

2. The following documents in original will have to be produced at the time of document verification and photocopies of all certificates etc are to be submitted.

a) 02 (two) copies of recent passport size colour photograph duly self attested.

b) HSLC Admit card or Birth Certificate for age proof.

           c)     All marks sheets and pass certificate
           d)    Caste certificate (where applicable)
           e)    Permanent Residential Certificate.
           f)         Employment    Exchange     Registration   Certificate

Certificate of training experience/Extra Curricular etc.

g) Pharmacy Registration Certificate authenticated by Assam Pharmacy Council."

9. Therefore, as the petitioner had obtained essential qualification on 29.03.2018 whereas, the last date of applying as Page No.# 9/9

per the addendum advertisement dated 03.03.2018 was midnight of 16.03.2018, the rejection of the candidature of the petitioner vide notice dated 12.11.2018 in terms of the writ petition cannot be faulted at. On the said ground the case of the Food Corporation of India (supra) relied upon by the learned counsel for the petitioner would not help the petitioner in any manner because in the present case in hand, the fact is that the requisite qualification was acquired on 29.03.2018 and therefore, it is not a proof which was submitted after the last date of application. Accordingly, this writ petition fails and is dismissed.

10. The parties are left to bear their own cost.

JUDGE

Comparing Assistant