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PETITIONER: ASHOK KUMAR SHARMA & OTHERS

       Vs.

RESPONDENT: CHANDER SHEKHAR & ANOTHER

DATE OF JUDGMENT:       10/03/1997

BENCH: B.P. JEEVAN REDDY, S.B. MAJMUDAR, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P. JEEVAN REDDY, J.      These  two   review  applications   are  filed  by  the respondents in  Civil appeal  Nos. 5407-5408 of 1992 decided on February  18, 1993  (reported in  1993  Suppl.(2)  S.C.C. 611).      On  January   9,1982  an  advertisement  was  published inviting applications  for appointment to the post of Junior Engineer in the service of the Jammu and Kashmir State.  The last date for submitting applications was specifically sated as July  15, 1982.   A  pass in B.E. (Civil) examination was the minimum  academic/technical qualification  required  for applying for  the said  post. A  number of  persons  applied pursuant to  the advertisement.  Out of  them, 33  persons ( referred   to hereinafter as the Respondents) had not passed the B.E.  (Civil) Examination  on or  before July  15, 1982. They had  appeared  for the said examination earlier  to the said date  but the results were published only on August 21, 1982.   Interviews were  held on various dates commencing on August 24,1982.   Though these 33 persons (respondents) were not qualified  as on  the  specified  date,  they  were  yet interviewed pursuant  to certain  instructions given  by the government.  They   were  selected   alongwith  some   other candidates.      Certain candidates  who were  fully qualified to  apply for the  said post  according to the aforesaid advertisement and who  were selected  but paced in the selected but placed in the  select List  below the  respondents, filed  a  write petition in the Jammu and kashmir High Court contending that the 33 respondents could not have been allowed to appear for the interview  because they  had not  acquired the requisite academic/technical qualification  by  the  prescribed  date, viz., July  15, 1982.   The  write petition was dismissed on 27.5.83. No  Letters patent Appeal having been filed against the said order, it became final.  (It is, however, not known how many persons have joined as petitioners in the said writ petition - W.P. No 250 of 1983).      Write Petition  483 of  1983, from  which  the  present proceedings arise,  was fled by four candidates, who are the review petitioners  herein, in Jammu and Kashmir High Court,

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questioning the  selection of the said 33 respondents on the very same  ground as was urged in the Write petition No. 250 of 1983. While this write  petition was pending, appointment orders wee issued as per the Select Lists.  (The petitioners in Writ  Petition No.  483 of 1983 were placed in the Select List below  the 33  respondents)   another batch of selected candidates was appointed on 5th September, 1984.  Thereafter on 20th  December 1984,  Write Petition No. 483 of 1983 came up for  final hearing  and was dismissed following the order dated 27.5.83  dismissing writ  Petition No.  250  of  1983. Thereupon, the  petitioners filed  a letters  patent  appeal which was  allowed by  a Division  Bench on  13th  December, 1991. The  Division Bench held that the 33 respondents could not have  been allowed  to appear  in the  interview for the reason  that   they   had   not   acquired   the   requisite academic/technical qualification  by  the  prescribed  date. The Division  Bench, however,  thought it just and proper to direct  that   while  the   appointment  of  the  said    33 respondents be  not set  aside, they  should be  treated  as qualified  by  the  prescribed  date.  In  other  word,  the candidates who  were not  qualified by  the prescribed  date (15th July,  1982) were  treated as  Juniors en  bloc to the candidates who  were fully  qualified by the prescribed date and were  selected.   It may  be mentioned  that all  the 33 respondents were  impleaded  as  respondents  both  in  Writ Petition No.  483 of  1983 as  well as in the Letters Patent Appeal.      The 33  respondents filed  civil Appeal no 5407 of 1992 in this  Court, while  the State  of Jammu and Kashmir filed Civil appeal  no. 5408  of 1982  questioning the decision of the Division  Bench aforesaid.   The  appeals  came  up  for hearing before  a Bench  comprising Dr.  T.K. Thommen,    V. Ramaswami and  R.M. Sahai,  JJ.   There was  a difference of opinion on  one question though all the three learned judges agreed on  the result.   The  Majority (Dr.  Thommen and  V. Ramaswami, JJ)  held that allowing the said 33 candidates to appear for  interview was  not  impermissible.  the  learned Judges were of the opinion that by allowing the said persons to appear  for the  interview "the  recruiting authority was able to get the best talents available.  It was certainly in the public  interest that  the interview  was made as broad- based as  was possible  on the basis of qualification".  The learned Judges  held that  inasmuch as  the  33  respondents (appellants before  them )  were qualified  by the  date  of interview,  though   not  by  the  date  prescribed  in  the advertisement inviting applications, there was no illegality in allowing  them to  appear for  the interview. R.M. Sahai, J., however,  held that  the said   33 candidates should not have been allowed to appear for the interview since they did not possess  the requisite academic/technical qualifications by the  prescribed date.   Even  so the learned Judge agreed with the  majority that  the  seniority  of  the  said    33 Candidates vis-a-vis  the qualified  candidates  (  who  are placed at  lower position  in the  Select List)  need not be disturbed in  the particular  facts and circumstances of the case.   The Result  was that  all the  three learned  Judges allowed the  appeals preferred by the 33 respondents and the State of Jammu and Kashmir and set aside the Judgment of the Division Bench.  The present  review  petitions are filed by the four   original  writ Petition No. 483 of 1983. who were respondents in  the Civil  appeals in  this  court.    After hearing the  counsel for  the review   petitioners,  we  had passed the following order on 1.9.95.           "Heard Mr. Rohinton Nariman      for the   petitioners.

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         Mr. Nariman  has attempted  to      bring to  our  notice  several  new      questions of  fact which  were  not      urged in  the high Court or in this      Court.     Their  letters   patents      appeal too  failed,  except  for  a      certain modification.   This  court      dismissed  their  appeal  restoring      the judgement of the learned Single      judge.   All this  took ten  years.      It  is   only   in   these   Review      Petitions that  certain  new  facts      are sought  to be  brought  to  the      notice of  the Court.    We  cannot      permit  them  to  do  sos  at  this      distance of  time.   We are  of the      opinion that  the petitioners  have      not been  diligent.   We cannot re-      open   the whole  case on the basis      of new  facts.   We are, therefore,      not inclined  to permit them to put      forward new facts  or issues before      us.     The  Review  Petitions  are      admitted confined  to the following      two issues.           (1)  Whether the view taken by      the majority  (Hon’ble Thommen & V.      Ramaswami, JJ)  that it  is  enough      for a  candidate to be qualified by      the date  of interview   even if he      was not qualified by the lasts date      prescribed   for    receiving   the      applications,  is  correct  in  law      and whether the majority  was right      in extending  the principle of Rule      37 of the public Service Commission      Rules  to   the  present   case  by      analogy?           (2)  Whether in  the facts and      circumstances of the case, would it      not  be   just   to   restore   the      direction  of  the  Division  Bench      with  respect   to  the   inter  se      seniority between  the two  sets of      candidates, namely   those who were      qualified as  on the  last date for      receiving  applications  and  those      who were  not  so  qualified.    In      other  words,   the  question    is      whether  the   direction   of   the      Division   Bench   to   treat   the      candidates who  were not  qualified      by the  lasts date  of  receipt  of      applications  as   juniors,  as   a      class, to those who were qualified,      was not a just one ?           Notice   of    theses   Review      Petitions shall  go  to  Respondent      Nos. 1  to 33 in the Writ Petition.      Dasti  service also permitted.        List after service of notice."      The Review   petitions  came up  for final  hearing  on March 3,  1997. We  heard the learned counsel for the review petitioners, for  the State of Jammu and Kashmir and for the 33 respondent  So far  as the first issue referred to in our

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order dated  Ist September, 1995 is concerned, we are of the respectful opinion  that majority judgment (rendered  by the 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 fling the applications, the  eligibility  of the candidates shall have to be  judged with  reference to  that date  and that  dat e 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 would  be   allowed  to  appear  for  the  interview,  other similiarly 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 application  ought  to have been rejected at  the inception  itself.    This  proposition  is indisputable and  in fact was not doubted or disputed in the majority Judgement.   This  is also the proposition affirmed in Rekha  Chaturvedi (Smt.)  v. University  of Rajasthan and others [1993  Suppl. (3)   S.C.C  168].   The  reasoning  in majority opinion  that by  allowing the  33  respondents  to appear for  the interview, the Recruiting Authority was able to get  the bests  talent available and that such course was in furtherence  of public  interest is,  with respect,    an impermissible  Justification    It  is,  in  our  considered opinion, a  clear error  of low 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  allowed to  appear  for interview.      Mr.  Rakesh   Dwivedi,  learned   counsel  for  the  33 candidates, submitted  that these 33 candidates had appeared for the  B.E. Examination  prior to  their applying  for the post and that there was some delay in publishing the results and that  these respondents cannot be punished for the delay on the  part of  the concerned authorities in publishing the results.   In our opinion, the said contention is beside the point.   In these proceedings, we cannot examine the reasons for delay  - assuming that there was delay in publishing the results.   That issues  is outside  the purview of the write petition. Whatever  may be  the reason,  the 33 persons were not qualified  as on  the prescribed  date and,  there fore, could not  have been allowed to appear for the interview. on the  first   issue  (mentioned  in  the  order    dated  1st September, 1995), therefore, we hold in favour of the review petitioners, affirming the opinion of Sahai, J.      The question  then arises  as  to  the  relief  to  the granted in  these review  applications.   Mr.  R.K.  Jain  , Learned counsel  for the  review petitioners,  says that the necessary and  logical consequence  of our  opinion  on  the first issue  would be  to set aside  the appointment  of the 33 respondents,  or at any  rate to restore the order of the Division   Bench of  High Court.   On  the other  hand,  Mr. Rakesh Dwivedi  and the  learned counsel  for the  State  of Jammu and  Kashmir Brought   to  our notice  several reasons for which,  they submitted, we should not interfere with the order under review on this score.  The Facts pointed out are

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: (a)  Writ Petition  No.  250  of  1983  filed  by  certain similarly placed  persons (similar to the review petitioners who are  the writ  petitioners in  Writ Petition  No. 483 of 1983 from  which these  proceedings arises) was dismissed on 27.5.1983. that order has become  final, which means that so far as  those writ  petitioners are concerned, no relief can be granted  to them  in these  proceedings.   (b)  Even  the present Writ Petition No. 483 of 1983 was filed only by four candidates and  not by  all   the candidates affected. these four petitioners  did not  sue in  a representative capacity but in  their   individual capacity.    The  other  affected persons have  not chosen  to implead themselves at any stage of these  proceedings. It cannot be said  that they were not aware of  these proceedings.  (c) Even  though    Sahai,  J. disagreed with  the Majority  on the question of law, he too opined (for reasons stated in Paragraphs 22 and 23) that the seniority   of the 33 respondents vis-a-vis other candidates ought   not to  be disturbed.  In other words, all the three leaned Judges  are unanimous  in holding  that the seniority given to  the 33  candidates (by  the selecting  Authority ) should not  be disturbed.   This  Bench, sitting  in  review jurisdiction, should  not interfere  with the said unanimous opinion of  three learned judges, more so because the matter lies with  in the  realm of  discretion and  is  a  case  of moulding the  relief in exercise of this Court’s power under Article 142  of the  Constitution.   (d) the  33 respondents were appointed  as far  back as  in 1984 and have earned two promotions namely  to the  post of  assistant  Engineer  and thereafter to the post of Assistant Executive Engineer.  The Review petitioners  and other  similarly placed persons have also been  promoted once  i.e., to  the  post  of  Assistant Engineer.  Thirteen Years have passed by since their initial appointment.  upturning   the  inter-se  seniority  at  this distance of time  would not be just and equitable.      Having given  our anxious and earnests consideration to the question  and keeping  in view  the  fact  that  we  are sitting in  review jurisdiction  and  that  this  particular aspect is a matter lying within the discretion of the Court, we do  not  think  it  appropriate  to  interfere  with  the unanimous opinion  of the three learned Judges of this Court on this  aspect.   It is true that the Division Bench of the High Court  had granted  the relief  not only  to  the  four review  petitioners/writ   petitioners  but   to   all   the candidates falling in that category yet we cannot ignore the fact  that  even  Sahai,  J.  who  agreed  with  the  review petitioners   on the first issue, thought it just and proper not to  disturb the  inter-se seniority  between   these two groups of  selected candidates.    The  said  seniority  was determined by  the  selecting  Authority.    Though  certain allegations are  made with  respect to  the fairness  of the process of selection, that issue is not open in these review applications nor  was it  gone into  by this  court   in the civil appeals.      For the  above  reasons,  these  review  petitions  are dismissed subject  to the  clarification on the legal issue, viz., Issue  No. 1 mentioned in our order dated September 1, 1995.  there shall be order as to costs.