Vikas Saklani Vs Prabodh Saxena and Another

For the Appellant/ Petitioner:	Mr. Vikrant Thakur, Advocate, for the appellant in LPA No. 4 of 2022.
	Mr. Neel Kamal Sharma, Advocate, for the petitioner in COPC No. 10 of 2021.
For the Respondents:	Mr. Neel Kamal Sharma, Advocate, for respondent No. 1 in LPA No. 4 of 2022.
	Mr. Anup Rattan, A.G. with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Addl. A.Gs. and Ms. Priyanka Chauhan, Dy. A.G., for respondents- State.

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Mr. Surender Sharma, Advocate, for respondents No. 3 and 4 in LPA No. 4 of 2022.

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Mr. Vikrant Thakur, Advocate, for respondent No. 2 in COPC No. 10 of 2021.

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Tarlok Singh Chauhan, ACJ

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LPA No. 4 of 2022

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Respondent No. 1 initially approached the learned erstwhile Tribunal by filing OA No. 29 of 2015 for the grant of following reliefs:-

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“a) That the respondent No. 2 may kindly be directed to conduct the interview of the petitioner for HPAS Combined Competitive Examination, 2013 on extra ordinary facts of the present case and consequently direct to declare the result in accordance with law and procedure.

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b) That this Hon’ble Court may issue appropriate order or direction to both the 1^st and 2^nd respondent to consider the case of the petitioner by firstly directing the 2^nd respondent to hold and carry out the interview of the petitioner and secondly directing the first respondent to keep the one post vacant for the ex servicemen category and in case the same cannot be done in alternative the petitioner’s prays that the 1^st respondent be directed to create or supernumerary post to consider the case of the petitioner on the recommendation of the 2^nd respondent.

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c) That it is further prayed that the case of the petitioner be in the other alternative be considered to posts not advertised and lying vacant or which may occur in future in view of the extra ordinary facts of the present case.

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d) That the petitioner be granted extraordinary damages and compensation on account of negligence and mistake of the respondent No. 2 and his officers and allied staff for which the respondent No. 2 vicariously liable to the tune of Rs. 50,00,000/- (fifty lacs) in facts of the present case.

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After abolition of the learned Tribunal, the petition came to be transferred to this Court and was registered as CWPOA No. 219 of 2019 and came to be allowed by the learned Writ Court vide its order dated 07.01.2020 and aggrieved thereby the Himachal Pradesh Public Service Commission has filed the instant appeal.

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The parties shall be referred to as they were before the learned Writ Court.

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Certain undisputed facts need to be noticed.

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Respondent No. 2 i.e. Himachal Pradesh Public Service Commission – appellant herein, vide Advt. No. 4/2023, dated 01.01.2014 issued advertisement for filling up the post under H.P. Administrative Service. The petitioner appeared under ex serviceman category and cleared the preliminary and the main examination. The petitioner vide letter dated 08.12.2014 was called for interview on 05.01.2015. The petitioner was again called for interview on 06.02.2015 vide letter dated 19.12.2014, but according to him, he was not allowed to appear as they gave a noting that the petitioner

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though was present before the Commission but was not found eligible for the interview as per instructions.

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The petitioner represented, but to no avail, constraining him to approach the learned erstwhile Tribunal for the reliefs as set out above.

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The respondents contested the petition by filing reply contending therein that the petitioner could be considered for the vacancy reserved for ex servicemen in pursuance to the advertisement only if he satisfied that he fell in the definition of ex servicemen on the cut off date set out in the advertisement i.e. upto 30.01.2014, but since the petitioner was not an ex servicemen on the said date and came to be discharged/released from the forces only on 28.02.2015, therefore, his candidature was rightly rejected by respondent No. 2.

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Learned counsel for the petitioner has vehemently argued that the candidature of the petitioner could not have been rejected in view of the Notification dated 18.09.2007 issued by the Government, more particularly, the ‘ Explanation ’ appended thereto which reads as under:-

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“Explanation: The persons serving in the Armed Forces of the Union, who on retirement from service, would come under the category of “Ex-servicemen” may be permitted to apply for re-employment one year before the completion of the specified terms of engagement” and avail themselves of all concessions available to ex-

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servicemen but shall not be permitted to leave “the uniform until they complete the specified terms of engagement in the Armed Forces of the Union.”

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However, we find no merit in this submission as the Notification dated 18.09.2007 (Annexure P-5) does not pertain to the post in question but has been issued to amend the Ex-servicemen (Reservation of Vacancies in Himachal Pradesh Technical Services) Rules, 1985 and not under the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in Himachal Pradesh Administrative Services) Rules, 1974, where no amendment akin to Annexure P-5 has been carried out. Meaning thereby the eligibility of the petitioner has to be seen from the cut off date i.e. 30.01.2014.

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In taking this view, we are duly supported by the decision of the Hon’ble Supreme Court in Sudhir Singh & Ors. vs. State of U.P. 2023 SCC Online SC 1394 , wherein it has been held that the eligibility has to be determined based on the cut off date/point of time mentioned in the date of the notification unless extended by the authorities itself.

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It shall be apt to reproduce the facts as contained in paras 4 and 5 of the judgment and then the analysis, reasoning and conclusion as set out in paras 14 to 17, which read as under:-

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The appellants were serving in the Armed Forces in various capacities, at the relevant time,

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when an advertisement was issued by the Uttar Pradesh Subordinate Service Selection Commission (hereinafter referred to as the “Commission”) for recruitment to the post of Village Development Officer. The registration for applications commenced on 18.01.2016 and the last date of submission of the application forms was 10.02.2016. The appellants applied in the category of Ex-Servicemen after obtaining NoObjection Certificate(s) (hereinafter referred to as “NOC”) from the employer(s). Initially, their result was withheld for various reasons but ultimately, they were issued appointment letters on 29.05.2019 (appellants no.1 & 2) & on 27.05.2019 (appellant no.3) respectively, on temporary basis. Worthwhile to note is that this was after the appellants were asked to appear before the Commission on 26.12.2018 with necessary documents pertaining to their qualification and more so with regard having equivalence to the Course of Computer Concept (hereinafter referred to as the “C.C.C. Certificate”). However, ShowCause Notice was issued by the respondent no.3/District Development Officer, Badaun to the appellants no.1 and 2 on 19.02.2020 and to appellant no.3 on 12.02.2020, as to why, their appointment be not held to be a nullity as on the last date of submission of application form, they were employed with the Armed Forces and could not be treated as Ex-Servicemen and further that they did not possess the C.C.C. Certificate issued by the DOEACC1, now NIELIT2.

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Subsequently, on 05.05.2020 (appellants no.1

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& 2) and 28.04.2020 (appellant no.3) respectively,

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orders declaring the appellants’ appointments to be null and void were issued for the aforementioned reasons, as indicated in the ShowCause Notice.

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Having bestowed anxious thought and consideration to the rival submissions at the Bar combined with a careful perusal of the record, we are unable to find any error in the Impugned Judgment passed by the High Court, much less any illegality, warranting our interference. It is well-settled that the basic question on eligibility has to be determined on the basis of the cut-off date/point of time which stands crystalized by the date of the advertisement itself, being the last date of submission of application forms, unless extended by the authority concerned. In the present scenario, none of the appellants can be said to have been Ex- Servicemen at the time of the advertisement in question, as, undisputedly, they were still in service. This Court has also examined the relevant rules and even the clarification(s) to the advertisement. We are afraid that they do not indicate that the appellants can be deemed Ex- Servicemen from a prospective date, despite being in actual service on the relevant date. As such, in the case at hand at least, there is no concept of serving personnel being deemed Ex-Servicemen. It would not be proper for this Court to hold or interpret otherwise. Arguendo, if we were to venture down such a path, it would be unjust to a large number of others similarly placed as the appellants, who were not Ex-Servicemen as on the date of advertisement but came under the category later,

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but did not apply at the relevant time. This concern has not emanated for the first time. In Rakesh Kumar Sharma v State (NCT of Delhi), (2013) 11 SCC 58, this Court observed:

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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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(emphasis supplied)

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This Court would pause to state that the position discussed in the preceding paragraph is logical on the simple premise that even if a certification is given to a person indicating a prospective date till when he would be in employment, circumstances could intercede between the date of such certificate and the prospective date of retirement/ resignation /relieving indicated therein. Illustratively, if for any reason there is a proceeding/charge pending against the person(s) concerned and/or there are circumstances for which the person cannot be relieved from his post till conclusion of such proceedings or otherwise, such date indicated in the certificate cannot be taken as the date of being finally and actually relieved from service. However, in the instant situation, such date is also prospective and much later to the date on which

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the applications were invited and even till the last date of submission of the application forms. Thus, on this count alone, the appellants’ claim of a right to consideration under the Ex-Servicemen category fails.

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In Rakesh Kumar Sharma (supra), this Court, after noticing, inter alia, Dr M V Nair v Union of India, (1993) 2 SCC 429; Uttar Pradesh Public Service Commission v Alpana, (1994) 2 SCC 723; Bhupinderpal Singh v State of Punjab, (2000) 5 SCC 262, and; State of Gujarat v Arvindkumar T Tiwari, (2012) 9 SCC 545 reiterated that basic qualification is to be adjudged as on the last date of submission of application forms, subject to any extension of such date by the concerned authority. In Rekha Chaturvedi (Smt.) v University of Rajasthan, 1993 Supp (3) SCC 1683, the proposition was enunciated as under:

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‘10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at

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an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/ notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. …’

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(emphasis supplied)

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The Court, vide its judgment in State of Bihar v Madhu Kant Ranjan, 2021 SCC OnLine SC 1262, also took the view that ' As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority.

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Since, the writ petitioner was not eligible on the date of the advertisement having been not discharged from the armed forces, his candidature has rightly been rejected by the Himachal Pradesh Public Service Commission being not eligible.

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Thus, we find merit in this appeal and the same is accordingly allowed and the judgment passed by the learned Writ Court is ordered to be set aside and the writ petition filed by the petitioner is ordered to be dismissed. Pending applications, if any, also stand disposed of.

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COPC No. 10 of 2021

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