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Dr. Satyendra Kumar v. State Of U.P. And Others - WRIT - A No. 30157 of 2003 [2003] RD-AH 215 (17 July 2003)


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Dr. Satyendra Kumar ------ Petitioner


State of U.P. & ors. ------       Respondents


Hon'ble Dr. B.S.Chauhan, J

Hon'ble D.P.Gupta, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

This writ petition has been filed for seeking direction to the respondent no. 2 to consider the candidature of the petitioner in pursuance of the Advertisement No.1/2003-2004, issued by the U.P. Public Service Commission, Allahabad.

Facts and circumstances giving rise to this case are that prescribing the eligibility, Advertisement No. 1/2003-2004 has been issued by the Public Service Commission for appointment for the post of Medical Officer Ayurvedic (Unani). The said Advertisement has been made after expiry of seven years of the earlier Advertisement, and grievance of the petitioner is that he has become over-age during this period. An Advertisement was earlier issued in 1996-97, in which, petitioner being eligible for applying was empanelled in the list of successful candidates. However, the very Advertisement has been quashed by this Court vide judgment and order dated 20th May, 1998.

The advertisement has been made now and the petitioner has become over-age. Thus, the aforesaid Advertisement is liable to be quashed as it does not provide giving relaxation of age to the candidates like petitioner who has become over-age for the fault of the respondents.

Learned counsel for the petitioner has submitted that as there has been irregularities in holding the examination and completing the internship by the authorities concerned, and it was beyond control of the petitioner, he should not suffer for no fault of his. Therefore, this Court should issue direction to the respondent to consider his candidature.

Learned Standing Counsel has opposed this submission vehemently contending that prescribing the eligibility for a particular post is a legislative function and the Court does not have power to issue direction for contravention of the said policy, and thus, the Court cannot grant any relief to the petitioner.

In Y.V. Rangaiah & ors. Vs. J.  Sreenivasa  Rao  & ors., AIR 1983 SC  852;   A.A. Calton Vs.   Director of Education &  Anr.,  AIR 1983 SC 1143;   P.   Gyaneshwar Rao &  ors. Vs.  State of Andhra Pradesh & ors., AIR 1988 SC 2068; and P.  Mahendran & ors.  Vs.  State of Karnataka & ors., AIR  1990  SC  405, the  Hon'ble  Supreme Court has  taken the view that candidates have to be assessed  for selection as per the eligibility criteria existing on the date of advertisement of vacancies  for the reason that selection  process starts with  advertisement and all those  persons who apply  in  response  to the  same,  would  be eligible to be considered.

All the judgments, referred to above, have been given  by  the  two  Hon'ble  Judges'  Bench except P.   Mahendran (supra), which was given by the Bench of three Hon'ble Judges.

The Three Judges Bench of the Hon'ble Supreme Court, in Dr. M.V.  Nair Vs.  Union  of India & ors.,  (1993)  2 SCC 429, without  taking note of P.  Mahendran (supra), 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."

In  U.P.   Public Service Commission  Vs. Alpana, (1994)  2  SCC 723, the  Hon'ble  Supreme 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 though that was  a case where result of a candidate  was declared   subsequent  to  the   last   date   of submission  of  the  applications.   The  Hon'ble Supreme 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   the applications,  a candidate, whose result has  not been declared upto the last date of submission of applications, would not be eligible.

In  State  of M.P.  & ors Vs.   Raghuveer Singh Yadav  &  ors., (1994) 6 SCC 151, the  Apex Court examined  a  case where during  process  of selection,   the   Rules were amended   but subsequently  the Commission/ State abandoned the selection process and advertised vacancies afresh to be filled up in accordance with the amendment.  The Hon'ble Supreme Court upheld the action of the State on the ground that the persons, who had applied earlier, had not acquired any vested right, therefore, the State's    action was justified.

In  Harpal  Kaur  Chahal  Vs.   Director,  Punjab Instructions,  1995 (Suppl) 4 SCC 706, the Hon'ble Supreme 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."

In  State  of Rajasthan Vs.  R.  Dayal  & ors., (1997)  10  SCC  419, the  Hon'ble  Supreme Court, while  considering the case for promotion,  held that  the eligibility for promotion must  be as in the year when the vacancies arose, but that was not a case of direct recruitment.

In   Ashok  Kumar   Sharma  Vs.   Chandra Shekhar &  ors.,  (1997)  4 SCC 18,  the  Hon'ble Supreme Court  held  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   adjudged  with  reference to that date  and  that date alone,  is a well established proposition of law.

In  Dr. Ramulu  & Anr. Vs. Dr. S.  Suryaprakash  Rao  & ors., AIR 1997 SC 1803,  the Hon'ble Apex  Court considered a large number of its earlier  judgments and held that if the Rules have been  amended,  person  has a  right  to  be considered  as  per the amended Rules unless  his existing  rights  prior  to  the  amendment  have specifically  been saved and for the reason  that he cannot claim to have acquired any vested right for being considered in accordance with the Rules existing prior to the amendment.

In   Utkal  University etc. Vs. Dr. Nrusingha Charan Sarangi & ors., AIR 1999 SC 943; and Gopal  Krushna  Rath Vs.  M.A.A.   Baig, AIR 1999 SC 2093,  the  Hon'ble Supreme  Court  again reiterated that the eligibility is to be assessed as per the  Rules  existing on the last  date  of submission of the applications.

In view of the above, as it is settled legal proposition the candidate must possess requisite qualification/eligibility on the last date of submission of the Application Form.

The vacancies had been advertised earlier and the selection process was also concluded, but the earlier Advertisement was quashed by this Court. As has been explained above and no advertisement was issued immediately after delivery of the judgment of this Court, petitioner's contention that he should be given relaxation of age as he was eligible in the earlier selection is not acceptable for the reason that in such a facts situation this Court while delivering the earlier judgment could have issued such a direction. Granting this kind of relief now it would amount reviewing the earlier judgment or sitting in appeal over it, which is not permissible in law.

Petitioner, if aggrieved, could have moved an application for modification of the earlier judgment and order, or filed a review application, but he did not take any step whatsoever. Raising the issue at such a belated stag, i.e., after expiry of several years, he cannot get his problem redressed.

Thus, we find no force in the petition. It is, accordingly, dismissed.




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