*THE HON’BLE SRI JUSTICE NOUSHAD ALI
+Writ Petition No.3969 of 2013
%Date: 14.02.2013
#Between:
K. Suresh Kumar Reddy
… Petitioners
And
Andhra Jateeya Kalasala Campus,
Rajupeta, Machilipatnam,
Krishna District, rep.by its Registrar.
… Respondent
! Counsel for Petitioners : : Sri K. Rathangapani Reddy
^Counsel for Respondents : Dr. P.B. Vijaya Kumar
S.C. respondent
<GIST:
> HEAD NOTE:
? Cases referred
1. 1993 Supp (2) SCC 611
2. (1997) 4 SCC 18
3. (2011) 9 SCC 438
4. (1990) 2 SCC 669
THE HON’BLE SRI JUSTICE NOUSHAD ALI
WRIT PETITION No.3969 OF 2013
ORDER:
The question that arises for consideration in this writ petition is whether or not the petitioner, who was not qualified with a Ph.D. Degree as on the date of Notification/last date for submission of applications, but who acquired the qualification later, can be considered as qualified for consideration and appointment as Assistant Professor.
2. On 23.04.2011 the respondent-University issued Recruitment Notification inviting applications for appointment of Professors, Associate Professors and Assistant Professors in various departments of the University. The last date for submission of applications was 10.06.2011. The petitioner was an applicant to one of the three posts of Assistant Professor in Computer Science allocated under open category.
3. The following qualifications were prescribed as per the minimum qualifications laid down by the UGC, approved by the Government in G.O.Ms.No.14, Higher Education (UE.II) Department dated 20.02.2010 and UGC Regulations dated 20.06.2010 –
ASSISTANT PROFESSOR
i. Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master’s Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign university.
ii. Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET.
iii. Notwithstanding anything contained in sub-clauses (i) and (ii) above, candidates, who are, or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in universities / Colleges / Institutions.
iv. NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted.
4. In addition to the above general qualifications, the following special qualifications and requirements were prescribed.
COMPUTER SCIENCE
Assistant Professor
First/High second class with at least 55% of marks in the Master’s degree level in Computer Application / Computer Science / Computer Technology / Computer Engineering / Information Technology, Ph.D. Degree in any relevant area of Computer Science/Information Technology.
Candidates for the post of Assistant Professor should possess NET/SLET or Ph.D. in the relevant discipline as specified above.
Teaching experience and evidence of research work are desirable.
5. Thus a candidate should hold Masters Degree securing at least 55% marks and Ph.D. Degree in any relevant area of Computer Science / Information Technology as the minimum qualification for the post of Assistant Professor. The petitioner did not possess Ph.D. Degree as on the date of notification, i.e., 23.04.2011 or the last date 10.6.2011 prescribed for submission of applications. The petitioner states that by the said date, he had submitted thesis and that the degree was awarded to him on 29.11.2011.
6. Fortuitously, selections pursuant to the notification were not finalized for over one and half years. Taking advantage of the same, the petitioner approached the University to treat him as qualified and eligible for the post as he had acquired the qualification before the interviews were held. The University is reportedly not considering his application on the ground that he did not hold Ph.D. Degree as on the date of notification. The petitioner has therefore filed this writ petition seeking Mandamus to direct the University to interview him treating him as qualified for the post of Assistant Professor.
7. Sri K. Rathangapani Reddy, learned counsel appearing for the petitioner would strenuously argue that the petitioner cannot be treated as unqualified for the post. According to him there is no stipulation in the Recruitment Notification that a candidate should hold Ph.D. Degree as on the date of notification and unless a cut off date is mentioned, qualification acquired subsequent to the notification, but before the selection, should be taken into consideration. Therefore, the petitioner should be treated as qualified for the post.
8. The aforesaid contention is without substance. It is true that no cut-off date for eligibility is mentioned in the notification. But, it is always not necessary that a cut-off date should be mentioned in the notification. It is entirely a matter of discretion of the employer to fix or not to fix a date for acquiring the eligibility requirements. If the employer feels that it would be in the interest of the Organisation to prescribe a date other than the date of notification, he can do so, and in that event the relevant date will be the date so fixed. If no cut off date is mentioned, by inference it is reasonable to treat the last date appointed for submission of applications as the relevant date.
9. In the prospectus, it was stipulated that a candidate to be eligible for the post should have Ph.D. Degree besides a minimum of 55% marks in the Masters Degree as the minimum qualifications required for the post. The said requirement is indicative of mandatory character and its operation in praesenti. The notification does not / is not capable of being construed as giving leverage to relax the in praesenti requirement and permit satisfaction of the requirements later in point of time. Any other construction will lead to absurd results. Firstly it would result in the filing of applications by unqualified persons and keep the applications alive until they acquire the required qualifications. It would confer unfair advantage on such applicants at the cost of others who are prevented from applying due to unawareness and thus deprive them of their right for seeking appointment. Such a situation can neither be contemplated nor countenanced in matters of employment.
10. It is true that the Apex Court in Ashok Kumar Sharma and Anr. V. Chander Shekhar and Anr.,[1] justified appointments of the candidates, who were qualified by the date of interview though not by the date prescribed in the advertisement, on the proposition that the Recruiting Authority would be able to get the best talents available. The said view was reversed in the review sought for by the aggrieved parties inReview Petition (C) Nos.600-601 of 1993[2]. One of the issues in the review was –
(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 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 Rule to the present case by analogy?
The Court held as follows.
So far as the first issue referred to in our order dated 1st September, 1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr. T.K. Thommen and V. Ramaswami, JJ.) in 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 prescribed date cannot be considered at all. An advertisement of notification issued/published calling for application 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 person 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 (Smt.) v.University of Rajasthan and Ors. MANU/SC/0838/1993 : (1993)ILLJ617SC . 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 considered opinion, a clear error of law 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 been allowed to appear for the interview.
11. The question whether a candidate must have the prescribed qualifications as on a particular date specified in the rule or the advertisement was again considered in
Alka Ojha v. Rajasthan Public Service Commission[3],
wherein the Apex Court after referring to various judgments held as follows:
“The question
whether the candidate must have the prescribed educational and other qualifications as on the particular date specified in the Rule or the advertisement is no longer res integra.
In Bhupinderpal Singh v. State of Punjab – (2000) 5 SCC 262 this Court referred to the earlier judgments in A.P. Public Service Commission v. B. Sarat Chandra – (1990) 2 SCC 669; Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi – (1990) 3 SCC 655, M.V. Nair v. Union of India – (1993) 2 SCC 429, Rekha Chaturvedi v. University of Rajasthan – 1993 Supp (3) SCC 168, U.P. Public Service Commission v. Alpana – (1994) 2 SCC 723 and Ashok Kumar Sharma v. Chander Shekhar – (1997) 4 SCC 18 and approved the following proposition laid down by the Punjab and Haryana High Court: (Bhupinderpal Singh case, SCC p.268 para 13)
“13. …..(i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority.”
The same view was reiterated in M.A. Murthy v. State of Karnataka – (2003) 7 SCC 517 and Ashok Kumar Sonkar v. Union of India – (2007) 4 SCC 54. Therefore, the Full Bench of the High Court rightly held that a candidate who does not possess a driving licence on the last date fixed for submission of the application is not eligible to be considered for selection.”
12. From the aforesaid it is abundantly clear that the qualifications acquired subsequent to the prescribed date is of no avail.
13. The learned counsel would seek to contend that the petitioner was called upon by the University vide Memorandum dated 13.10.2012 to send copies of Ph.D. Degree certificate and the petitioner complied the same. From this he would submit that it was not the intention of the University to restrict the qualifications only up to the date of notification or the last date prescribed therein but extend the same until the selections.
14. He would further contend that, having called upon the petitioner to submit the testimonials including the Ph.D. Degree certificates and the Notification issued by the University declaring his result, the University cannot go back and place the petitioner’s position as existed on the date of Notification. The University is estopped from the promise which it has conferred on the petitioner by virtue of the said Memo. The learned counsel would place reliance on A.P. Public Service Commission v. B. Saratchandra[4].
15. The aforesaid contention is without any merit. It is not possible to construe the Memo as a promise. The Memo reflects that only the task of scrutiny of applications has been taken up by the Scrutiny Committee and that the petitioner was directed to submit attested copy of his Ph.D. Degree Certificate/Copy of the Notification issued by the University declaring his result as per the findings of the Scrutiny Committee dataed 13.10.2012.
16. It is to be noted that the petitioner did not hold Ph.D. Degree certificate before the last date prescribed for receipt of applications and apparently he did not enclose a copy of the said Degree. It appears that it is for this reason he was called upon to submit the copies. From this it cannot be inferred that it was intended to treat the petitioner as eligible for consideration. The Scrutiny Committee is not at all a competent authority to accord any relaxation with respect to the conditions of the Recruitment Notification.
17. The decision in B. Saratchandra’s case (4 supra) relied upon by the petitioner does not support the contention of the petitioner. In that case, minimum and maximum age was prescribed as “the first date of July of the year in which the selection is made under the Rule” and it was held that the age should be reckoned with reference to the said date.
18. The instant case is the one in which no specific date has been mentioned as cut-off date with regard to the eligibility requirement. Therefore, the last date appointed for submission of applications shall be treated as the cut-off date. Clearly, therefore, the petitioner is not qualified and not entitled for consideration.
19. For the foregoing reasons, there are no merits in the writ petition and it is accordingly dismissed. No order as to costs.
20. In view of the disposal of the writ petition, W.P.M.P.No.4954 of 2013 is dismissed as unnecessary.
_____________________
JUSTICE NOUSHAD ALI
14.02.2013.
Js/Msr
NOTE: L.R. Copy be marked.
(B/O)
Msr
