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DR. ASHOK KUMAR SONKAR versus UNION OF INDIA AND ORS.

High Court of Judicature at Allahabad

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Dr. Ashok Kumar Sonkar v. Union Of India And Ors. - WRIT - A No. 48568 of 2000 [2006] RD-AH 10439 (26 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc.Writ Petition No.48568 of 2000

Dr.Ashok Kumar Sonkar  

Vs.

Union of India and others

Hon.R.K.Agrawal,J.

Hon.Sanjay Misra, J.

( Delivered by Hon'ble Sanjay Misra,J.)

The Registrar, Benares Hindu University, Varanasi has by the impugned order dated  18.10.2000 communicated to the petitioner that the President of India in his capacity as Visitor of the University has annulled the appointment of the petitioner as lecturer in Tridosh Vigyan, Institute of Medical Sciences, Benares Hindu University with immediate effect. The petitioner seeks to challenge the aforesaid communication containing the decision of the Visitor by means of this writ petition.

The  facts of the case are that  the University issued an advertisement No.1/94-95 inviting applications for various posts of Professor, Reader and Lecturer in different disciplines including the post of lecturer in Tridosh Vigyan, Department of Basic Principles, Faculty of Ayurvedic, Institute of Medical Sciences. The last date for receipt of the applications  was fixed as 31.5.1995. The advertisement stipulated that those who have applied earlier were to apply again and their cases would be considered according to updated qualifications. The qualification prescribed for the post of lecturer in Tridosa Vigyan was as under:-

"Lecturer in Tridosa Vigyan(one) (Deptt of Basic Principles)

Qualifications

Essential (1)ABMS or equivalent examination from any

Recognized institution.

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(2) M.D. in Sharira Kriya

Desirable: 1. Standard publication in the field of

Neurophysiology, Neurochemistry, related to

Tridosa Vigyan.

2. Knowledge of Modern Medical Science and

Sanskrit."

The petitioner by his application dated 30.5.1995 applied for the above post. A certificate issued by the Professor and Head of the Department of Basic Principles, Institute of Medical Sciences, Benares Hindu University was  also filed  to the effect that the petitioner was a bonafide student of the Department of Basic Principles and he had been admitted to the degree of Doctor of Medicines in Ayurvedic, Basic Principles ( Sharir Kriya )on 1.8.1992 and he would be submitting his thesis  in the month of June, 1995 and the final examination was scheduled to be held  in October, 1995. The petitioner was called to appear in the interview on 19.3.1997 and the Selection Committee recommended the petitioner for being appointed as lecturer in Tridosh Vigyan, consequently an order of appointment dated 23.3.1997 was issued and the petitioner joined on 24.3.1997.

It has been stated that  one Dr.Shyamji Shukla who was also an applicant  for the said post filed a representation before the Visitor of the University against the appointment of the petitioner and the said representation has been decided against the petitioner without issuing notice to him nor giving him any opportunity of  hearing. The petitioner submitted  his thesis in June 1995 and appeared in the examination in October 1995 and having succeeded was conferred with a degree of Doctor in Medicines ( Ayurvedic) on 30.10..1995.

The learned counsel for the petitioner  has submitted that the essential qualification required was a degree of M.D.in Sharir Kriya and prior to the date of interview  the petitioner had been  awarded the said degree and therefore, he possessed the essential qualification on the date when the interview was held. The order of the Visitor is therefore, illegal and is liable to be set aside.

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The fact that the applications were invited and the last date for filing the same was 31.5.1995 is not disputed by the parties. The fact that the petitioner was awarded the Doctor in Medicine( Ayurvedic) degree on 30.10.1995 is also not disputed.  The interview was held on 19.3.1997 is  admitted between the parties. It, therefore, transpires that on the last date for submission of applications the petitioner did not have the  essential qualifications. However, on the date of interview he was in possession of such essential qualifications.

The Hon'ble Supreme Court  in the case of Ashok Kumar Sharma and others Vs. Chander Shekhar and another reported in (1997)4 Supreme Court Cases 18 while considering the review application has framed  the following two questions:-

(1) Whether the view taken by the majority (Hon'ble Dr. Thommen and 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 last 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 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 last date of receipt of applications as juniors, as a class, to those who were qualified, was not a just one ?

While deciding the review application the Hon'ble Supreme Court has held in paragraph 6 as quoted below:-

" The review petitions came up for final hearing on 3.3.1977. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So

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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 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 Vs. University of Rajasthan. 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 opinion, R.M. Sahai,J.( and the Division Bench of the Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview."

In view of the aforesaid decision it is settled that the eligibility of the candidate has to be judged with reference to the date prescribed as the last date for filing the applications and not any other date.

Learned counsel for the petitioner  has contended that  the advertisement issued did not contain a condition that the eligibility of a candidate will be counted as on the last date of submission of the application and therefore, the petitioner having acquired the essential qualifications prior to the date of  interview and after the last date of filing of application was rightly appointed  on the said post. It is also

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stated that there was a practice in the University in the past to consider the qualifications of a candidate as they existed on the date of interview and one such instance of Dr.Indira Sharma has been referred to.

A perusal of the advertisement No.1/94-95 shows that a note has been appended in  the clause fixing the last date for receipt of the applications. The said note reads as under:-

" Those who have applied earlier are required to apply again on the prescribed format for the post, otherwise their candidature will not be considered. They will however be exempted from any payment against the application. Their cases will be considered according to the updated qualification."

A reading of the aforesaid note shows that in the case of candidates who had applied earlier would be required to apply again and their cases would be considered according to updated qualifications. Consequently, it can safely be inferred that those candidates who had applied in pursuance of the earlier advertisement  would apply again with their updated qualifications. Such updated qualifications would be considered, therefore,  the qualifications as on 31.5.1995 was made a condition of the advertisement with respect to such candidates who had already applied earlier. The   same condition regarding qualifications  would be equally applicable to those candidates who had applied  for the first time in pursuance of the advertisement No.1/94-95. Therefore, the argument of the petitioner that in subsequent advertisement of the year 2000-2001 a specific condition has been brought in with respect to the eligibility of candidates on the last date for submission of the applications would not in any way go in his favour  on the ground that such a condition was absent in advertisement No.1/94-95.

In view of the settled position of law as laid down by the  Hon'ble Supreme Court, the impugned order communicating the

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decision of the Vistor does not suffer from any error of fact or law and, therefore, cannot be set aside.

It is the contention of the petitioner that since the date of his appointment (23.3.1997) the petitioner has been continuously working and, therefore, he should not be disturbed is to be considered. The petitioner's appointment was annulled by the Visitor vide communication dated 18.10.2000, therefore, the petitioner had worked by virtue of his appointment  for a period of three years and seven months approximately.  The appointment of the petitioner having been held to be illegal no benefit can be given to the petitioner on the strength of his having worked for three years and seven months till the  passing of impugned order and upto date by virtue of an interim order dated 7.11.2000 passed in this writ petition.

For the reasons stated above, no error can be found in the order passed by the Visitor of the University as communicated by the impugned order  annulling the appointment of the petitioner.

The writ petition has no force and is accordingly dismissed. No order is passed as to costs.

26.5.2006

Gc.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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