Dismissed

Borsha Dutta v. the State of Assam and Anr.

Gauhati HC16 Aug 2022WA/209/2022

Case brief

AI extract

What is this about?

This writ appeal was against the dismissal of a challenge to her rejection from a Radiographer post. The High Court held that the cut-off date for eligibility is the last date of submission of the application, not the date of appointment. The appellant lacked the prescribed qualification on that date.

What did the court decide?

The writ appeal was dismissed with no order as to costs.

Borsha Dutta Vs the State of Assam and Anr. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/12

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GAHC010190862021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WA/209/2022

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BORSHA DUTTA

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D/O- SRI GUNIN DUTTA, R/O- VILL- KATHPAR, P.O. BANMUKH, P.S. SIVASAGAR, DIST- SIVASAGAR, ASSAM, PIN- 785640

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VERSUS

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THE STATE OF ASSAM AND ANR.

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REP. BY THE PRINCIPAL SECY., HEALTH AND FAMILY WELFARE DEPTT., JANATA BHAWAN, DISPUR, GHY-6

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2:THE DIRECTOR OF HEALTH SERVICES ASSAM HENGRABARI GHY-3

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Advocate for the Petitioner : MR N M HAZARIKA

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Advocate for the Respondent : SC, HEALTH

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BEFORE

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HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

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For the Appellant : Mr. A. Dasgupta, Sr. Advocate : Mr. N. M. Hazarika, Advocate For the Respondents : Mr. B. Gogoi, SC, Health Department Date of Hearing : 16.08.2022 Date of Judgment & Order : 16.08.2022

Page No.# 2/12

JUDGMENT & ORDER

(Soumitra Saikia, J)

1. Heard Mr. A. Dasgupta, learned senior counsel assisted by Mr. N. M. Hazarika, learned counsel appearing for the appellant. Also heard Mr. B. Gogoi, learned Standing counsel, Health Department appearing for the respondents.

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2. This Writ Appeal is directed against the order dated 13.09.2021 passed by the learned Single Judge whereby the writ petition preferred by the appellant as the writ petitioner challenging the notice dated 12.11.2018 by which the name of the appellant was rejected on the ground that she did not possess requisite educational qualification on the last date of submission of the application.

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The facts involved in the present case are as under.

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3. By an advertisement dated 14.12.2017, the respondent No. 2 i.e. the Director of Health Services, Assam invited online applications for 5(five) posts including Radiographers to be appointed in 47 nos. of newly created model hospitals in the State of Assam. Subsequently, by an addendum dated 03.03.2018, the period of submission of online applications were extended from 05.03.2018 to the midnight of 16.03.2018. It was also provided therein that the candidates who applied earlier in response to the advertisement dated 14.12.2017 need not apply in response to the said addendum to the advertisement. The appellant had applied for the post of Radiographer as per the advertisement dated 14.12.2017. The prescribed minimum educational qualification for the post of Radiographer is Radiographer Technician Certificate or above from any Government recognized institute of the Government of Assam. The appellant submitted her online application and pursuant thereto she

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Page No.# 3/12

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was issued the admit card to appear in the written examination to be held on 08.07.2018. The said examination held as per schedule and the result of the written examination was declared on 26.07.2018. The appellant thereafter appeared in the skill test on 02.08.2018 and the final result was declared on 17.09.2018. However, by the impugned rejection notice dated 12.11.2018, the candidature of the appellant was rejected on the ground that she had completed her course after the month of May, 2018 which is after the last date for submission of the application. Accordingly, the appellant as the petitioner challenged the said rejection notice dated 12.11.2018.

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4. The learned senior counsel appearing for the appellant submits that employment advertisement did not contain any condition that no documents could be entertained after the last date of submission of the application. It is submitted that there was no bar for persons to apply in response to the said advertisement pending declaration of their result of the qualifying examinations. It is also submitted that the applicant upon submission of the application form was issued admit card, which was done on the basis of the verification of the documents and therefore it is to be deemed that the respondent authorities had accepted the application of the appellant knowing fully well that she had appeared for the Radiographer Technician Certificate’s Course. The respondent did not disqualify her and instead issued her admit card to appear in the said examination. Upon successfully clearing the written examination, the appellant was permitted to appear for the skill test and thereafter the final result was declared. Therefore, on the date the final results were declared, the appellant had already possessed the minimum qualification. Therefore the rejection on the ground that she did not have the prescribed minimum qualification on the date of submission of the form is wholly incorrect and contrary to the records. The

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Page No.# 4/12

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learned Single Judge declined to interfere with the arbitrary action of the respondents. Consequently, the impugned Judgment of the learned Single Judge should be set aside and quashed and the impugned rejection notice dated 12.11.2018 is also required to be set aside and quashed. The learned senior counsel in support of his arguments, pressed into service, the Judgment of the Apex Court in Mohd. Sartaj and Another –Vs- State of U.P. and Others reported in (2006) 2 SCC 315. The learned senior counsel also relied upon the judgment of the Apex Court in Prafulla Kumar Swain –Vs- Prakash Chandra Misra and Others reported in 1993 Supp. (3) SCC 181. It is urged by the learned senior counsel that the recruitment and appointment are not one and the same. The learned senior counsel submitted that the term “recruitment” and “appointment” connotes two different situations and that recruitment is just an initial process which may ultimately lead to an appointment and service. It is submitted that the recruitment is the initiation of the process and appointment is the final culmination of process of recruitment through which a candidate may be appointed.

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5. The learned senior counsel urged that what is to be seen is on the date of appointment whether the candidate possessed the requisite qualification. In the context of the present case, it is submitted that the advertisement was initiation of the process of recruitment and the final order of the appointment was issued on 17.09.2018 and on which date the appellant was duly qualified and was holding the minimum educational qualification prescribed in the advertisement. Under the circumstances, the impugned rejection notice dated 12.11.2018 is contrary to law and should therefore be set aside and quashed. It is submitted that the learned senior counsel failed to appreciate the issues involved and as such, the impugned judgment of the learned Single Judge ought to be suitably

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interfered with and set aside.

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6. Per contra, Mr. B. Gogoi, learned Standing counsel Department of Health disputes the contentions raised by the learned senior counsel.

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7. Mr. Gogoi, learned standing counsel submits that a perusal of the advertisement makes it very clear that on a date of the advertisement the applicant must possess the necessary minimum educational qualifications. It is not in dispute that the certificate of Radiography Technician Certificate course was obtained by the appellant either on 29.03.2018 or any date subsequent thereafter. The date 29.03.2018 reflected in the mark-sheet indicates the date on which the petitioner had passed out the diploma examination held in the month of January, 2018.

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8. The learned standing counsel submits that the advertisement was issued on 14.12.2017 and the last date for submission was till 30.12.2017 and which was subsequently extended by an addendum till 5^th March, 2018. It is not in dispute that the appellant had submitted her application in response to the advertisement dated 14.12.2017 and therefore on the date when she submitted her application she was not in possession of mark-sheet or certificates which would entitle her to the prescribed minimum educational qualification i.e. which is Radiography Technician Certificate Course from any Government recognized institute of the Government of Assam. Under the circumstances, the learned standing counsel submits, upon the error being detected, the appointing authorities kept in abeyance her appointment order initially and subsequently after reviewing the whole matter and after re-verification of the documents by the Selection Committee arrived at an unanimous decision that the selection in respect of those candidates including the appellant are rejected after detection

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of their ineligibility as they had completed their course after the month of May, 2018 which is the last date of submission of application.

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9. The learned standing counsel refers to the Judgment of the Apex Court rendered in the case of Ashok Kumar Sonkar –Vs- Union of India and Others reported in (2007) 4 SCC 54 and the Judgment of the Apex Court in Rakesh Kumar Sharma –Vs- State (NCT of Delhi) and Others reported in (2013) 11 SCC 58. Relying on the said judgments, the learned standing counsel submits that the appellant did not possess the requisite qualification on the last date of submission of the application although she may have acquired her qualification pursuant to the last date fixed for submission of the application. The learned standing counsel submits that the interpretation sought to be given by the appellant to distinguish between “recruitment” and “appointment” is not applicable in the facts of the case as the applicant did not have the prescribed minimum qualification on the last date of submission of the application form.

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10. We have heard the learned counsels appearing for the parties. We have also perused the pleadings on record and the order of the learned Single Judge whereby the writ petition was dismissed. There is no dispute that the advertisement dated 14.12.2017 specifically prescribed the minimum educational qualification required for the post in question i.e. “Radiographer”. Subsequently, addendum dated 03.03.2018 also prescribed the same minimum educational qualifications for the post of Radiographer. In the addendum it was also specifically provided that the last date for receiving the application in response to the said addendum advertisement is 16^th March, 2018 midnight. It is also seen from the pleadings that pursuant to the advertisement dated 14.12.2017 issued by the department, the appellant had submitted her application form for the post of Radiographer. It is also the pleaded case of the

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appellant that she had appeared for the diploma in Medical Radiographic Technology Course from the Institute of Paramedical Sciences, Jorhat Medical College, Jorhat under the Srimanta Sankaradeva University of Health Sciences, Guwahati, Assam and has completed the said diploma course in the year 2018. The mark-sheet of the said examination was issued by the respondent authorities on 29.03.2018. No other averment has been made by the appellant that she was declared to have successfully completed the said diploma course in Radiography Technology on or before 16^th March, 2018 midnight. As such, there is no dispute that although the appellant had submitted her application form and that she had undergone her training and had appeared for the examination required for obtaining the diploma in Radiography technician course, she was not declared to have successfully completed the said course on or before 16^th March, 2018. On the contrary, her mark-sheet was received on 29.03.2018. As such either on the date of submission of her application form pursuant to the advertisement dated 14.12.2017 or before the date shown in the addendum dated 03.03.2018 as the last date for receiving the application form, which is 16.03.2018 midnight, she did not possess the prescribed minimum educational qualification. No reference to any Rules of appointment have been referred to by the appellant either before the Single Judge or before this Court. It is not the pleaded case of the appellant that the advertisement was issued contrary to or in deviation to the Rules of recruitment. The only issue urged before the Single Judge as well as before this Court is that she had appeared in the examination for the prescribed essential educational qualifications, namely Radiographer Diploma Certificate Course on the date when she submitted her application for the said post of Radiographer and she was issued her admit card and was allowed to appear in the written examination. She successfully cleared written

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examination and was again permitted to appear for the skill test also. That apart, the respondent authorities by notice dated 17.09.2018 indicated the Roll numbers of all successful candidates and her Roll Number being Roll No. 18202980 is also reflected in the said notice. The notice further indicated that candidates whose roll number are indicated in the said notice dated 17.09.2018 were required to collect their appointment letters from the Office of the Director of the Health Services, Assam, Hengrabari by 25^th September, 2018. However, in spite of her roll number being reflected in the said notice dated 17.09.2018 she was not provided with the appointment letter in spite of her visiting the office of the respondent authorities several times. Subsequently, thereafter the appellant was rejected by the impugned notice dated 12.11.2018 on the ground that she had completed the course after the last date of submission of application.

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11. The Judgments referred to by the learned senior counsel appearing for the appellant are distinguishable on facts. In Prafulla Kumar Swain (supra) the Apex Court was considering the case of the respondent therein who was directly recruited to the Orissa Forest Service Class-II by the Orissa Public Service Commission in the year 1979. After two years of training he was appointed in the year 1981. Treating him to be recruit of 1979, the Orissa Administrative Tribunal upheld his claim to seniority over the promotees of 1981 and 1982. Allowing the said appeals against the said decisions, the Apex Court held that in the context of Regulation 12C the period of training will not count as service under the Government. Such service will count only from the date of appointment to the service after successful completion of the course of training. Full meaning and effect must be given to this Regulation.

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12. It was in this context, the Apex Court held the recruitment cannot

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tantamount to appointment. It was held that the recruitment is just an initial process that may lead to eventual appointment but that cannot tantamount to an appointment. Such view of the Apex Court was with the reference to the Regulation of 12C which clearly provided that period of training is not to be reckoned as Government service.

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13. In the facts of the present case, there is no challenge made by the appellant that the advertisement was in deviation to the Recruitment Rules. No references to any violation of Recruitments Rules have been made. The Advertisement dated 14.12.2017 clearly prescribes for minimum educational qualification. It is the pleaded case of the appellant that on the date she had submitted her application for the post of Radiographer, she had only appeared for the examination and the results to the Radiographer Technician Certificate Course was not declared. As such, the Judgment of the Apex Court sought to be relied upon by the learned senior counsel will not come to the aid of the appellant.

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14. The Judgments of the Apex Court in Mohd. Sartaj (supra) is also relied upon by the learned counsel for the appellant to distinguish between recruitment and appointment. In the said judgment also, the Apex Court categorically held that the qualification to be seen in which a candidate possessed is on the date of recruitment and not at a later stage unless the Rules in that regard permit. It was further held that in view of lack of requisite qualifications the appellant did not hold any right over the post therefore no hearing was required before cancellation by their services. The said judgment of the Apex Court in the context of the present proceedings, will also not come to the aid of the petitioner.

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15. On the contrary, the consistent view of the Apex Court is that in the

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absence of any cutoff date specified in any advertisement or in the Rules, the last date for submission of the application must be considered as a cutoff date. This was held by the Apex Court in Ashok Kumar Sonkar (supra). In subsequent Judgments also the view of the Apex Court is that the requisite qualification must be possessed by the candidate on the last date of submission of application. Even if a candidate acquires qualification subsequently, the result of the examination does not relate back to the date of the examination. As also in the present case, the declaration of the result subsequently will not relate back to the date of examination which was held in the year 2018 and the mark-sheet of which was issued on 29.03.2018. Relevant paragraphs of the Apex Court judgment extracted below:-

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“11. The question as to what should be the cut-off date in absence of any date specified in this behalf either in the advertisement or in the reference is no longer res integra. It would be last date for filing application as would appear from the discussions made hereinafter.

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20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application”.

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16. Similarly in Rakesh Kumar Sharma –vs- State (NCT of Delhi) and Others reported in (2013) 11 SCC 58, the Apex Court held as under:-

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“ 21. In the instant case, the appellant did not possess the requisite qualification on the last date of submission of the application though he applied representing that he possessed the same. The letter of offer of appointment was issued to him which was provisional and conditional

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subject to the verification of educational qualification i.e. eligibility, character verification, etc. Clause 11 of the letter of offer of appointment dated 23-2-2009 made it clear that in case character is not certified or he did not possess the qualification, the services will be terminated. The legal proposition that emerges from the settled position of law as enumerated above is that the result of the examination does not relate back to the date of examination. A person would possess qualification only on the date of declaration of the result. Thus, in view of the above, no exception can be taken to the judgment of the High Court.

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22. It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement”.

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17. As such, from the law laid down by the Apex Court it is seen that in the absence of any Rules or any reference to any Rules or any cutoff date specified in the Service Rules or in the advertisement, the last date for submission of the application must be considered to be the cutoff date on which the applicant the candidate who intends to apply for any particular post must possess the qualification prescribed in the advertisement. The appellant in the present proceedings, merely appeared for the examination on the date when submitted her application form. It is her pleaded case that her mark-sheet was obtained on 29.03.2018. Consequently, on the date on which the application was submitted as well as on or before the last date of submission of the application form i.e.

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16^th March, 2018 as prescribed in the addendum to the advertisement, the appellant did not possess the prescribed minimum educational qualification.

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Page No.# 12/12

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Under the circumstances, the authorities were well within their rights to review the case of the appellant and any other candidates and thereafter take a decision in the matter. The impugned notice dated 12^th November, 2018 reflects as many as 6(six) candidates, 2(two) in the post of Radiographer and 4(four) in the post of Laboratory Technician, whose candidatures were rejected on the reasons/remarks mentioned in the said notice. There is no allegation of malice or biasness alleged by the appellant/writ petitioner.

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18. The learned Single Judge had considered all these aspects and thereafter had dismissed the writ petition. The learned Single Judge had correctly appreciated the facts and thereafter rendered the order dismissing the writ petition preferred by the appellant. Considering the matter in its entirety and the law laid down by the Apex Court, we find no infirmity in the order of the learned Single Judge dismissing the writ petition.

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19. Accordingly, we do not find merit in the present appeal and the same is therefore, dismissed. No order as to costs.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

Borsha Dutta v. the State of Assam and Anr.

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Borsha Dutta v. the State of Assam and Anr.

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