TaxTMI 
TaxTMI 
TaxTMI 
2007 (2) TMI 644
X X X X Extracts X X X X
X X X X Extracts X X X X
....ysiology, Neurochemistry, related to Tridosa Vigyan. 2. Knowledge of Modern Medical Science and Sanskrit." Appellant applied for the said post on 30.05.1995. As on that day, he had not completed his M.D. in Sharir Kriya, with his application he enclosed a certificate issued by Professor and Head of the Department of Basic Principles, Institute of Medical Sciences, Banaras Hindu University, which reads as under: "This is to certify that Dr. Ashok Kumar Sonkar son of Dr. K.P. Sonkar, is a bona fide student of the Department of Basic Principles. He was admitted for the Degree of M.D. (Ay.) Basic Principles (Sharir-Kriya) on 1st August, 1992 and his final examination will be held in October, 1995. His thesis entitled "Clinical evaluation of therapeutic potential of certain indigenous drugs in seizure disorders" will be submitted in the month of June, 1995. He is sincere, hard working young man, zealous and outwitted scholar and sound character of this department. He is fit to be entrusted for clinical, research, teaching and administrative responsibilities. I wish him all success in future life." He passed the said examination only on 30.10.1995. He was allowed to appear before t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hekhar, the learned counsel appearing on behalf of the appellant, in support of this appeal, would submit: 1) In absence of any cut-off date having been specified in the advertisement and in view of the fact that the statute or statutory rules in this behalf are also silent in regard to the question as to whether the Selection Committee could allow the appellant to take part in the selection process as he had completed his M.D. before he was considered therefor, the High Court committed a manifest error in arriving at the finding. 2) In view of the fact that the appellant was confirmed in the post of lecturer, it was obligatory on the part of the Visitor to give an opportunity of hearing to the appellant. 3) The University having taken a definite stand before the High Court in the earlier writ petition that the appellant was selected in terms of the prevailing practice, the impugned judgment is unsustainable. 4) The jurisdiction of the Visitor being limited under sub-section (2) of Section 5 of the Act, new appointment could not have formed subject- matter of his decision. 5) Respondent No. 4 being himself ineligible, he did not have any locus standi to maintain the writ petit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ogy persons of that category, but they have no complaint on any such ground. 15. The fact is that the appellants did pass the examination and were fully qualified for being selected prior to the date of interview. By allowing the appellants to sit for the interview and by their selection on the basis of their comparative merits, the recruiting authority was able to get the best talents available. It was certainly in the public interest that the interview was made as broad based as was possible on the basis of qualification. The reasoning of the learned Single Judge was thus based on sound principle with reference to comparatively superior merits. It was in the public interest that better candidates who were fully qualified on the dates of selection were not rejected, notwithstanding that the results of the examination in which they had appeared had been delayed for no fault of theirs. The appellants were fully qualified on the dates of the interview and taking into account the generally followed principle of Rule 37 in the State of Jammu & Kashmir, we are of opinion that the technical view adopted by the learned Judges of the Division Bench was incorrect and the view expressed by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s and those not accompanied by the requisite certificates shall not be entertained, shall become meaningless. Purpose of filing certificate along with application was to prove that the conditions required were satisfied. Non-filing of any of the certificates could have resulted in not entertaining the application as the requirements as specified would have been presumed to be non-existent. Fulfilment of conditions was mandatory and its proof could be directory. The former could not be waived or deferred whereas the defect in latter could be cured even subsequently. That is proof could be furnished till date of interview but not the eligibility to apply for the post. Any other construction would further be contrary to the last part of the notification." A review application was filed which was admitted. The matter was again placed before a 3-Judge Bench of this Court in Ashok Kumar Sharma and Others v. Chander Shekhar and Another [(1997) 4 SCC 18]. One of the issues which fell for consideration of the Bench being Issue No. 1 reads as under: "(1) Whether the view taken by the majority (Honble Dr Thommen and V. Ramaswami, JJ.) that it is enough for a candidate to be qualified by the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efore, an authority for the proposition that in absence of any cut-off date specified in the advertisement or in the rules, the last date for filing of an application shall be considered as such. Indisputably, the appellant herein did not hold the requisite qualification as on the said cut-off date. He was, therefore, not eligible therefor. In Bhupinderpal Singh & Others v. State of Punjab & Others [(2000) 5 SCC 262], this Court moreover disapproved the prevailing practice in the State of Punjab to determine the eligibility with reference to the date of interview, inter alia, stating : "13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, A.P. Public Service Commission v. B. Sarat Chandra, District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, Rekha Chaturvedi v. University of Rajasthan, M.V. Nair (Dr) v. Union of India and U.P. Public Service Commission U.P., Allahabad v. Alpana the High Court has held (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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma case No. II. All the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside." 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. Recently, this Court in Kendriya Vidya....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion and the manner of appointment of teachers in the University and the colleges;" Submission of Mr. Shekhar that the Visitor committed an error in passing the impugned judgment as 'any irregularity in the procedure by any authority shall not render the same invalid, unless the same affects the merits of the case' is stated to be rejected. Appointment of a teacher must conform to the constitutional scheme as adumbrated under Articles 14 and 16 of the Constitution of India and the terms of the Act or the statute or ordinances governing the field. Any violation of the provisions thereof would entitle the Visitor to exercise his jurisdiction under sub-section (7) of Section 6. It is also beyond any cavil that in exercising the said power, the statutory provisions interpreted by this Court must be followed. This bring us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillar of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given" In Punjab National Bank and Others v. Manjeet Singh and Another [(2006) 8 SCC 647], this Court opined : "The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application woul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ticing some decisions, observed : "44. While construing a statute, sympathy has no role to play. This Court cannot interpret the provisions of the said Act ignoring the binding decisions of the Constitution Bench of this Court only by way of sympathy to the workmen concerned. 45. In A. Umarani v. Registrar, Coop. Societies this Court rejected a similar contention upon noticing the following judgments: (SCC pp. 131-32, paras 68-70) 68. In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy. 69. In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh it is stated: (SCC p. 144, paras 36-37) 36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision. 37. As early as in 1911, Farewell, L.J. in Latham v. Richard Johnson & Nephew Ltd. observ....