- (1.) Mr. Sahidul Islam .. ..For the State This writ petition was heard earlier. The facts and submissions made on behalf of the petitioner and the private respondent as recorded in order dated 22nd March, 2016 are reproduced below :- "The petitioner being aggrieved by the order dated 23rd September, 2009 of the District Magistrate in not accepting the prayer of the petitioner for canceling engagement of the private respondent no. 7, to engage the petitioner instead, has challenged the same by this writ petition. The reasoning in the order turning down the claim of the petitioner to be appointed purports to be that grace period was given to all concerned candidates applying for the post. The said grace period related to submission of documents of proof regarding the candidates belonging to other backward classes from which the engagement or appointment was to be made for Auxiliary Nurse and Midwife.
(2.) Mr. Dhar, learned senior advocate appears on behalf of the petitioner and submits, the facts of the case as cannot be disputed are that the private respondent applied for her OBC certificate one day prior to the cut off date. The advertisement did not carry any indication of grace period being allowed. On the contrary it was made clear that any document of proof not submitted would render the application cancelled as not to be considered. The cut off date was 22nd July, 2009 and the private respondent obtained her certificate on 30th July, 2009. According to Mr. Dhar, as on the cut off date, being the date of consideration of eligibility of candidates, the private respondent was not eligible. He relied on a judgment of the Supreme Court in the case of Rakesh Kumar Sharma vs. State (NCT of Delhi) & Ors. reported in (2013) 11 SCC 58 in particular paragraphs 12 to 20, of which paragraphs 12 and 13 are set out below :- "12. In U.P. Public Service Commission v. Alpana, this Court, after considering a larger number of its earlier judgments, held that eligibility conditions should be examined as on the last date for receipt of applications by the Commission. That too was a case where the result of a candidate was declared subsequent to the last date of submission of the applications. This Court held that as the result does not relate back to the date of examination and eligibility of the candidate is to be considered on the last date of submission of applications, therefore, a candidate, whose result has not been declared up to the last date of submission of applications, would not be eligible. 13. A three-Judge Bench of this Court in M.V. Nair v. Union of India held as under : "9......It is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date." He also relies on a judgment rendered by a Division Bench of the High Court of Delhi in the case of DSSS Board and Anr. vs. Ram Kumar Gijroya and Ors. reported in 2012 (128) DRJ 124 (DB). Paragraph 19 therein is set out below :- "19. Else, what has been observed by us qua qualification, equally applies to submission of OBC Certificate also. It is well- nigh possible that a number of other OBC candidates, though otherwise eligible but not in possession of the OBC Certificate by the cut off date, did not apply under the belief that being required to enclose the OBC Certificate along with the application and being not in possession thereof, their applications would be deficient and not entertainable. It is yet further possible that, had such others applied and competed, the respondents in appeal and/or the petitioner in the writ petition may not have been eligible. The respondents in appeal and the petitioner in the writ petition were clearly in the know that their applications were incomplete and took a chance. This Court cannot lay down a law which would encourage such practices. The terms and conditions mentioned in the advertisement were intended, to guide/instruct the prospective applicants and there is no reason to dilute the same. Even otherwise, this Court would be loathe to issue mandamus/directive contrary to the terms of selection/appointment (see Karnataka State Road Transport Corporation v. Ashrafulla (2002) 2 SCC 560, FCI v. Ram Kesh Yadav (2007) 9 SCC 531, Maharishi Dayanand University v. Surjeet Kaur JT 2010 (7) SC 179 and State of West Bengal v. Subhas Kumar Chatterjee (2010) 11 SCC 694)." He thus submits, the impugned order should be set aside and quashed. Mr. Das, learned advocate appears on behalf of the private respondent and submits there remains nothing to be decided in the writ petition since the petitioner had obtained interim order dated 11th May, 2010 restraining appointment being issued in favour of his client after which the said interim order stood vacated on 15th January, 2014. He submits thereafter his client was duly appointed and has since been working as engaged. She has thus acquired a right to continue working upon successfully completing her training."
(3.) Mr. Dhar relies on the written objection filed by the private respondent, to pages 33 and 36 therein to demonstrate that the concerned Authority had by letter dated 21st January, 2016 required a declaration to be given by the said respondent that she would abide by the decision in this writ petition and she may be allowed to join only after obtaining such declaration. Page 36 of the said affidavit is the declaration dated 1st February, 2016 in which, inter alia, the following had been said :- "I declare that I will abide by the decision of the Hon'ble High Court in the manner of W.P. no. 18369 (W) of 2009 filed by Smt. Namita Mondal." ;