High Court of Punjab and HaryanaCWP/14762/2015allowed

Mange Ram v. State Of Haryana & ORS

2023-07-17Mr. Justice Sandeep Moudgil23 pages

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- 16 - +:

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1 +)C-

At this stage, it would be appropriate to make reference to the judgment of a Division Bench of this Court in the case of Mukta Bansal v. State of Punjab, 1997 (4) R.S.J. 796 where the Court held as under :-- "It is also equally a settled principle of law that the eligibility of the candidate has to be considered at the time and date meant for submission of application forms. It is also not disputed that the application of the petitioner was not complete by 25-6-1997, the last date for admission of firms. This is also not disputed that in absence of such a certificate the petitioner would not be eligible for claiming a seat in the sports category. The very foundation of the claim is based upon gradation certificate which admittedly was not submitted on the aforesaid date. The respondents obviously could not have considered the petitioner as eligible, if his application was not complete in all respects and was not accompanied with the gradation certificate as on 25-6-1997". +)9-

A Full Bench of this Court in Amardeep Singh Sahota v. State of Punjab, (1993) 4 Serv LR 673 had to consider the scope and binding force of the provisions contained in the prospectus. The Bench took the view that the prospectus issued for admission to a course, has the force of law and it was not open to alteration.

- 17 - +):-

In Raj Singh v. Maharshi Dayanand University, 1994 (4) RSJ 289 another Full Bench of this Court took the view that a candidate will have to be taken to be bound by the information supplied in the admission form and cannot be allowed to take a stand that suits him at a given time. The Full Bench approved the view expressed in earlier Full Bench that eligibility for admission to a Course has to be seen according to the prospectus issued before the Entrance Examination and that the admission has to be made on the basis of instructions given in the prospectus, having the force of law. +);-

Again, a Full Bench of this Court in Sachin Gaur v. Punjabi University, AIR 1996 Punj & Har 109 took the view that there has to be a cut off date provided for admission and the same cannot be changed afterwards. It is settled law that the provisions contained in the information brochure for the Common Entrance Test 1997 have the force of law and have to be strictly complied with. No modification can be made by the Court in exercise of powers under Article 226 of the Constitution of India. Applications filed in violation of the terms of the brochure have only to be rejected. +)4-

It has been held by the Rajasthan High Court in Dr. Sri Kant Rao v. State of Rajasthan, (1975) 2 Serv LR 94 that "equality of opportunity will be determined for the purpose of Article 16 of the Constitution by the terms of advertisement calling for applications for filling up a post. Where in the advertisement, it was not suggested that the qualifications prescribed were relaxable or the applications would be entertained thereafter (on the expiry of the prescribed date), it will not be open to the competent authority to relax the terms of the advertisement.

(Emphasis applied)

- 18 - +*3-

In the present case, firstly, as per list (Annexure P6), it was only the petitioner Mange Ram who was present in the interview, out of total 3 candidates, which was held on 19.10.2012. The application form of respondent No.4 stood rejected on 24.09.2012 on the ground of non-submission of 3 years experience certificate, however, 15 days time was granted to respondent No.4 to represent with documentary proof. Rejection of application form of respondent No.4 and simultaneous grant of 15 days time to represent in itself runs contrary to the very terms and conditions of the advertisement which, in no uncertain terms, stipulates that " ' '' >

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Secondly, even after 15 days' period granted to respondent No.4 which started from 24.09.2012 and in pursuance thereto, the respondent No.4 submitted his representation on 23.10.2012 i.e. after 29 days. Meaning thereby

- 19 - that the respondent No.4 filed his representation much after the prescribed period of 15 days within which the respondent No.4 was required to represent. Another aspect which frowns this Court is that even the experience certificate submitted by respondent No.4 is of dated 20.10.2012 i.e. after the cut-off date prescribed by the Commission to be 09.07.2012 which is not in sync with the Instruction No.19 which provides that " "

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Thirdly, the date of interview of respondent No.4, in the SC category, was fixed as 08.11.2012. In the said interview, as per list (Annexure R3), only the sole candidate i.e. respondent No.4 was called for the interview. Moreover, there is nothing on record to suggest that since various representations are being received from rejected candidates, as such interviews will be held on various dates so as to give a fair chance to other candidates. Had it been so, the Commission ought not to have rejected the candidature of applicants with incomplete application forms rather, they should have sent notice calling upon the applicants to make up the deficiency within a stipulated

- 20 - period and thereafter, should have fixed the date of interview. Such whimsical act on the part of the respondent No.3-Commission only smacks of mala fide, ulterior motive, favouritism and nepotism giving space for tainted selection of their favourite candidate.

+*)-

It is well settled and requires no reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure as prescribed in the advertisement which has the force of law. Consequently, when a particular schedule is mentioned in an advertisement; the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules.

Even if power of relaxation is provided in the rules, it must be mentioned in the advertisement. But in the present case, as per the information furnished by the Commission, there is no such power in the Rules which provide for rejuvenating the candidature of a rejected candidate. Moreover, the power of relaxation, if exercised has to be given due publicity which has apparently been given a gobye. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India. Nothing has been placed on record to show that any public notice/notification/circular was issued or pasted that interviews for the post of Deputy General Manager shall be held on different dates.

- 21 - +**-

Fourthly, it is astonishing that the respondent No.3-Commission being a Government establishment, is not maintaining official record inasmuch as the information furnished under the RTI Act to the petitioner suggests that the copy of interview letter issued to respondent No.4 is not available on the official record of the respondent No.3-Commission since "only one copy of interview letter is prepared". Furthermore, after having rejected the candidature of respondent No.4 vide Annexure P8, it was solely on the basis of representation submitted by respondent No.4 that he was called for interview by the Commission.

It is heartbreaking to learn that the Commission, with its high stature of making selection for the whole State, is not being run by rule of law but on the influence of 'representations' made by a rejected candidate by permitting him another chance of appearing in the interview. All discretionary powers of executive authorities have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.

The exercise of powers by an authority cannot be unguided or unbridled as the Constitution prescribes the limitations for each and every authority and therefore, no one, howsoever high he may be, has a right to exercise the power beyond the purpose for which the same has been conferred on him. Thus, the powers have to be exercised within the framework of the Constitution and legislative provisions, otherwise, it would be an exercise of power in violation of the basic features of the Constitution i.e. Part III dealing with the fundamental rights which also prescribes the limitations.

- 22 - is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose.

+*C-

I, therefore, have no hesitation in holding that when the respondent No.3-Commission, in the present case, took into consideration the requisite experience certificate issued after the cut-off date, it acted with patent illegality, irrationality, arbitrariness and against the mandate enshrined in Articles 14 & 16 of the Constitution of India and on this ground itself, the selection of respondent No.4 is liable to be quashed.

+*9-

Accordingly, this writ petition is allowed and the recommendation dated 22.01.2013 issued by respondent-Commission vide which respondent No.4 has been recommended for appointment, is quashed. The respondent No.3-Commission is directed to recommend the name of the petitioner for appointment to the post of Deputy General Manager (Plants) (Class-I). +*:-

This Court is, nevertheless, fully conscious of the legal position that appointment of a candidate who has erroneously secured public employment without fulfillment of minimum qualifications can always be annulled upon discovery of mistake. An appointment which is erroneous or illegal from the very inception does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decisions. However, this Court cannot be oblivious of the fact that the writ petition was filed way back in 2015 and by the time, this Court was called upon to decide the matter, the selected and appointed candidate viz. respondent No.4 has completed approximately ten years of service. It is well-settled that no man should suffer because of procedural delay. Broom has stated the maxim actus

- 23 - curiae neminem gravabit - an act of court shall prejudice no man. Therefore, in the peculiar circumstances of the case, respondent No.2 - HAFED is directed to consider the desirability of adjusting respondent No.4 on a vacant post (if he is still in service), since the lapse, if at all, was on the part of respondent No.3Commission and not on the part of the respondent No.4. +*;-

Ordered accordingly. ,:

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+$ ,- .1

1. Whether speaking/reasoned?

Yes/No

2. Whether reportable?

Yes/No