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Dr. Satyendra Kumar v. State Of U.P. And Others - WRIT - A No. 30157 of 2003  RD-AH 215 (17 July 2003)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 30157 OF 2003
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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