- (1.) ON 23-8-1996, we dis missed the writ petition bearing no. 842 (SB) of 1996 for the reason that in accord ance with the conditions of the advertise ment, the petitioner on the last date of sub mission of the application i. e. 1-2-1992 for appointment on the post of Medical Officer was not eligible to be interviewed by the UPSC as he had not completed the course of internship.
(2.) IN the writ petition the petitioner had stated the claim that as he had com pleted the course of internship on 27-2-1992, hence he deserves to appear in the interview before the Public Service Com mission. Armed with the precedent of Hon'ble Supreme Court in Ashok Kumar Sharma and another v. Chandersekhar Anr. 1993 (Supp.) (2) SCC 611, the petitioner by names of the present petition has tried to take up the same controversy which has already been adjudicated upon. The authority which has now been cited before us, was not even mentioned when the writ petition was heard and decided. Although it is s. settled position that any question of law or authority not adduced, when the matter was heard on merits cannot be raised in review petition, but we desisted from dismissing this review petition on such a tech nical ground and preferred to decide the same on merits. The principle of stare decisis, in spite of the changing social, economic and political scenerio, is generally accepted by the Courts, failing which, there would be con flicting decision and the authorities who have to act, in accordance with the pronoun cements of the Courts, shall face difficulty as to which decision they should follow, but it cannot be ignored that enunciation of law on any points depends upon the facts of the cases. In Ashok Kumar Sharma's case (supra) Hon'ble Supreme Court (per majority) held that in order to have wider selection, it was in public interest to enter tain applications of the candidates, who did not possess requisite educational qualifica tions on the last date of application but possessed it, on the date of interview, despite express instructions in the adver tisement that such application would not be entertained. Minority view, however, was that deviation from instructions in the ad vertisement is not permissible, but, how ever, unanimously three Hon'ble Judges of Hon'ble Supreme Court agreed that ap pointments made in that case need not be disturbed. Elucidating any further on that point, it is necessary to have a glance over the facts of that case of Ashok Kumar Shar ma and another (supra ).
(3.) THE State Government issued an advertisement on 9-6-82 inviting applica tions for filling up of the posts of Junior Engineers. Last date for submission of the applications was 15-7-1982. Educational Qualifications prescribed for appointment on the post of Junior Engineers was B. E. (Civil ). THE applicants were required to submit attested copies of various certifi cates, including attested copy fp academic/technical qualifications certifi cates. THE advertisement (as in the present case) cautioned that incomplete applica tions and applications not accompanied by requisite certificates shall not be enter tained. Only those candidates will be called for interview who fulfilled prescribed qualifications. The appellants who had appeared in B. E. (Civil) examination, but the result had not yet been Declared applied for the posts. The results were declared on 21-8-82. The interviews were commenced from 24-8-82. The appellants were declared selected. The decision to allow the applicants to be called for interview was taken when they ap proached the Secretary to the State Govern ment although there was no enabling provision to do so. The Government decided to apply Rule 37 of Public Service Commission Business Rules, according to which the Commission could entertain the applications of the candidates who were awaiting results. The candidates who were placed below in comparison to appellants in nris preferred writ petition before the High Court. Their contention was that the Government ought not to have allowed the appellants to appear in the interview, as they were not eligible, till the lasting date of the submission of the applications. The Government pleaded that although there were stringent conditions in the advertise ment but the Government, since the very beginning entertained applications from the candidates awaiting results, though the intention was not made known publicly. The Division Bench of the High Court with a view to adjust the equities allowed the ap pointments of the candidates, but placed them junior to respondents in seniority. Thereafter the appellants filed the Special Leave Petition before the Hon'ble Supreme Court. Hon'ble, Supreme Court after grant ing the leave, heard the appeal on merits. Hon'ble Dr. T. K. Thommen, J. and Hon'ble V Ramaswami, J. considering the facts of the case observed- "the appellants did pass the B. E. (Civil) Examination and were fully qualified for being selected prior to the date of interview. By allowing the appellants to appear in 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 public interest, that the interview was made as broad based as was possible, on the basis of qualification. It was in public interest that better candidates who were fully qualified on the dates of selection wee not rejected, notwithstanding that the results of the examination in which they had appeared had been delayed of no fault of theirs. The appellants were fully qualified on the dates of interview and taking into account the generally followed principle of Rule 17 in the State of Jammu and Kashmir, too much technical view cannot be taken. . . . . . . . . . . . . . . . we are of opinion that the technical view adopted by the learned Judges of the Division Bench was incorrect and the view expressed by the learned Single Judge, was on the facts of this case, the correct view. Accordingly, we set aside the im pugned judgment of the Division Bench and re store, that of the learned Single Judge. In the result, we uphold the results announced by the recruiting authority. The appeal is allowed in the above terms. " Hon'ble Mr. Justice R. M. Sahai, J. in his minority judgment held- "in legal terminology, when something is required to be done and the consequences of failure to do so are also provided, then it is known as mandatory. Mandatory character of the condi tion stipulated in the advertisement is further strengthened from the fact, that the candidates were prohibited from applying, if they did not possess the requisite qualifications. The expres sion 'shall to possessed of such qualifications', is indicative of both mandatory character of the re quirement and its operation in present Accep tance of the view that the appellants had requisite qualification on the date of interview, would have the effect of altering condition of eligibility on the date of application as being extended to the date of interview. The condition that incomplete ap plications would not be accepted, will also become meaningless. " It was further observed- "it is, however, unfair to quash appoint ments after a period of more than ten years. The High Court tried to adjust the equities amongst the parties by placing the appellants junior to the respondents but equity does not know half way. Once the eligibility bar was lifted for whatever reason, the appellants must get the seniority be cause they were subjected to same interview and secured higher merit. The appellants cannot therefore, be placed junior to respondents. ";