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Judgment
Sudhir Narain, J.—These special appeals arise out of the order/judgment of the learned single Judge, dated 7.2.1995, allowing the writ petition of the Petitioner-Respondents and issuing direction to the Appellants to consider their case for the purpose of recruitment to the Post of Assistant, a class IIIrd post in the Life Insurance Corporation (in short the L. I. C).
The facts in brief are that on 7lh December, 1992 an advertisement was published by the North Central Zone of the Life Insurance Corporation, Kanpur inviting applications for the Post of Assistant in various Divisions of Life Insurance Corporation in Uttar Pradesh. In the advertisement published in ''Dainik Jagaran'' dated 7.12.1992, the last date for submission of the application form was mentioned as 28.12.1992 which was later on extended to 11.1.1993. Clause 12 of the advertisement provided that along with the application attested copies relating to age, educational qualification, etc. should be attached. As regards ex-serviceman in Army, the service discharge certificate was to be attached.
The Petitioner-Respondents applied for appointment to the post of Assistant in pursuance of the advertisement notice dated 7.12.1992 against the quota reserved for ex-servicemen. They also annexed with the application a no-objection certificate given by their officers, mentioning therein the date on which they were to be discharged/ released from Air Force Combat Service. Those dales were admittedly after the last date fixed for submitting the application, i.e., 11.1.1993. The Respondents were asked to appear in written test and later on called for interview. A list of successful candidates was published and the Respondents were shown as successful candidates in the said list. On 17.11.1993, letters were issued by the Life Insurance Corporation of India, North Central Zone, asking the Respondents to report for medical examination on 4.12.1993. It was mentioned that in case the candidate is medically found fit for appointment, he will be required to undergo the critical training at Divisional Office, Meerut for a period of two weeks and practical training at any branch office. Subsequently, the Respondents were given letters dated 3.12.1993 on 4.12.1993 informing them that their candidature for appointment as Assistant in the Corporation cannot be considered as they were not actually discharged on or before 3.11.1992. The Petitioner Respondents aggrieved against such letters filed separate writ petition. The learned single Judge decided all those writ petitions by a common judgment and gave a direction to the Appellants to consider their candidature on the finding that they were eligible for appointment to the post of Assistant as ex-servicemen. It was held that as no cut-off date was mentioned in the advertisement for discharge/release of the Respondents from service, they shall be deemed to be qualified and eligible for appointment as they were discharged/released from service by the date the interview for their appointment to the post of Assistant was taken.
We have heard Sri R.P. Goel, learned Counsel for the Appellants and Sri S.C. Budhwar and Arun Tandon, learned Counsel for the Respondents.
From the respective submissions of learned Counsel for the parties, three main points arise in these appeals. The first point raised on behalf of the Appellants is that the eligibility of a candidate is to be determined on the date mentioned in the advertisement and if no cut-off date is mentioned in the advertisement, the last date of submission of the application as given in the advertisement should be taken as cut-off date for determining the eligibility of the candidate. In support of his submission, he has placed reliance upon various decisions.
In Smt. Rekha Chaturvedi v. University of Rajasthan and Ors. 1993 (Suppl.) 3 SCC 168 it was held that in absence of fixed date indicated in the advertisement/notification inviting applications with reference to which requisite qualifications should be Judged, the last date of making the application should be taken as fixed date. The reason for it was given as under:
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 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.
The above view was reiterated in Dr. M.V. Nair Vs. Union of India (UOI) and Others,
Learned Counsel for the Respondent placed reliance upon the decision of the Supreme Court in Ashok Kumar Sharma and Anr. v. Chander Shekhar and Anr. 1993 (1) SLR 379, wherein the candidates had applied for appointment to the Post of Junior Engineer. Their results of B. E. Examination had not been declared on the date of submission of application but was declared before the interview took place. It was held that on account of delay in declaration of the result, the candidates should not suffer. The majority opinion was based on the applicability of Rule 37 of Public Service Commission Business Rules (Jammu and Kashmir) which provided that the applications of candidates who had appeared in the examination, the passing of which may make them eligible to appear in an interview for recruitment to a post to be made otherwise then by a competitive examination, but results whereof have not been declared up to the date of making of the applications, may be entertained provisionally but no such candidate shall be permitted to take the interview if he is declared to have failed in the examination or if the results are not available on the date the viva voce is held, Hon''ble R. M. Sahai, J. did not agree with the majority opinion on the grounds that Rule 37 cannot be applied by analogy as that Rule was applicable only to Public Service Commission candidates but on equitable considerations agreed with the majority that the result of the candidate should be declared.
The case of Ashok Kumar Sharma (supra) was distinguished in another decision of the Hon''ble Supreme Court in U.P. Public Service Commission U.P., Allahabad and Another Vs. Alpana, . In this case, the last date for receipt of the applications was 20.8.1988. In the advertisement it was mentioned that the candidates must possess L L.B. Degree on the last date of receipt of the applications and the attested copy of the degree must also be attached with the application. The candidate submitted application stating that she had appeared in law degree examination and was awaiting the result. She was allowed to appear in the written examination and she successfully passed. She was, however, not called for interview on the ground that she did not satisfy the eligibility condition of educational qualification on the last date fixed for receipt of application. The candidate relied upon the decision of Ashok Kumar Sharma (supra). The Court distinguished this case holding that it was decided applying Rule 37 by analogy. Secondly, in that case the appropriate authority had taken the decision to follow Rule 37. The court reiterated the view that the eligibility of a candidate has to be considered with reference to the last date of receiving the application unless the advertisement inviting the applications itself specifies such a date.
The legal principle is now well-settled that cut-off date for considering the eligibility of a candidate is the last date of receiving the applications as mentioned in the advertisement. In view of this, if the advertisement notice does not make a mention of the cut-off date of the discharge or release of the ex-servicemen, the last date of submission of the application should be taken as iked date for it.
Further the Petitioner cannot agitate that in the absence of non-mention of cut off date in the advertisement, notice in regard to the date of discharge from service, they could not be deprived of being considered for appointment to the post of Assistant as Clause 12 of advertisement notice provides that an applicant should attach attested copy of the certificates regarding the age, educational qualification and in respect of ex-servicemen discharge/release certificate. In other words, the ex-servicemen to be considered for appointment against reserved quota for ex-servicemen should have been actually discharged or released from the active service of the defence on the date of submission of the application.
Learned Counsel for the Respondents contended that this instruction indicates that an ex-servicemen can be considered for appointment on the date the interview takes place or when the appointment letter is to be given to him as the instructions take notice of fact that ex-servicemen cannot join the service unless they are discharged. This contention cannot be accepted. The Chairman issued this letter by way of clarification. The emphasis was that only such ex-servicemen can be considered for selection/appointment who have been discharged from service. The date of application is relevant date when the eligibility has to be considered. It cannot be an uncertain date. Sometimes the process of selection takes long time when final selection list is prepared and a candidate is given appointment letter. The uncertainty is always to be avoided vide Rekha Chaturvedi''s case (supra). The-cut-off date for considering the eligibility of the candidate shall be the last date of submission of the application to the post applied for.
The last submission of learned Counsel for the Respondent is that the Respondents having been permitted to appear in the written test and the interview and the final selection list having been prepared declaring them successful, they were entitled to be appointed to the post of Assistant, they had applied for. He has placed reliance upon the decision Shankar Charan Tripathi and Anr. v. Public Service Commission, U.P., Allahabad and Anr. 1992(1) UPLBEC 709, wherein it was held that if a candidate in pursuance of the advertisement submitted his application form, that was scrutinised by the Commission and found to be in order, the candidate was permitted to appear in the written examination and he qualified and was further called for interview but later on restrained from appearing before the interview, the action of the Public Service Commission will not be Justified on the principle of promissory or equitable estoppel. In view of subsequent decision of the Hon''ble Supreme Court, the view taken by the learned single Judge cannot be supported if a candidate who was not eligible for appointment to a post, if permitted by an authority to appear in the written test, it cannot be estopped from scrutinising his eligibility conditions at a subsequent stage, particularly before an appointment letter is issued to him.
In Alpana''s case (supra) where the candidate had submitted the application form stating that she had appeared in law degree examination and the result was awaited, she was allowed to appear in the written examination which she successfully passed. She was, however, not called for interview on the ground that she did not satisfy the eligibility condition of educational qualification on the last date fixed for receipt of the applications. The Supreme Court held that the Respondents were not estopped from refusing the candidate to give appointment on the ground that they had accepted her application knowingly that Respondents alleged that they had submitted no-objection certificate from the authority where they were employed stating that those candidates shall be discharged on a specified date in future which was admittedly the date after submission of the application. They having not been discharged/released till the last date fixed for submission of applications, cannot be treated as eligible for selection appointment as ex-servicemen to the post of Assistant as advertised by the Appellant in the advertisement notice dated 7.12.1992.
Another submission raised on behalf of learned Counsel for the Respondent is that the Respondents were Airmen in the Indian Air Force. They were entitled to make application for appointment one year prior to their discharge/release from service. Rule 2 of Ex-servicemen (Re-employment in Central Civil Services) Rules, 1979 defines ex-servicemen. Explanation added to this clause reads as follows:
Persons serving in the Armed Forces of the Union, who on retirement from service, would come under category of ex-servicemen, may be permitted to apply for re-employment one year before the completion of specified term of engagement and avail themselves of all concessions available to ex-servicemen but shall not be permitted to leave the uniform until they complete the specified term of engagement in the Armed Forces of the Union.
This Rule is applicable in relation to the employment of Civil Service under the Central Government. The appointment to any post in the Life Insurance Corporation is governed by Life Insurance Corporation of India Act, 1956. Section 49 of the Act empowers the Life Insurance Corporation to make Regulations. In exercise of those powers, the Corporation framed Regulations known as L. I. C. of India (Staff) Regulations, 1960. Regulation 4 authorises the Chairman to issue instructions or directions as may be necessary to give effect to and carry out the provisions of the Regulation in order to secure effective control over the staff employed in the Corporation. The Chairman issued "L. I. C. of India Recruitment Class IIIrd and Class IVth Staff Instructions, 1979" providing for the detailed procedure of recruitment of Class IIIrd and Class IVth employees of eligibility. Clause 25 provides for relaxation, concession and reservation in favour of ex-servicemen. On October 21, 1991 the Chairman issued circular removing certain doubts in the practical working to relaxation given to ex-servicemen and this circular specifically provided that the eligibility of the ex-servicemen can be considered only when they are discharged from service. The relevant part of the instructions may be quoted here:
We often receive queries if such personnel awaiting release from the Armed Forces should be considered for appointment against ex-servicemen quota in the Corporation as, in effect, this could mean keeping vacancies unfilled to the extent of one year or so till their release/retirement from Army. Such a situation would obviously lead to considerable difficulties in our offices.
We, as such, referred the matter to the Government. The Corporation has since been permitted not to consider the candidature of such personnel in the Armed Forces who are still in the service and thus might not be in a position to join along with others according to our Scheduled recruitment exercise.
In other words, as ex-servicemen to be considered for appointment against reserved quota of ex-servicemen should he actually released or discharged from the active service of the Armed Forces
(emphasis supplied).
She was not eligible on the date of submission of the application. If such a practice is permitted, the large number of candidates may apply for admission and if for any reason they are permitted to appear in the examination but later on it is found that they are not entitled to be considered for appointment, such ineligible candidates will succeed in getting appointment to the post applied for.
In Smt. Ravinder Sharma and Another Vs. State of Punjab and Others, , it was held that even if appointment is made but the candidate is not eligible, his appointment can be set aside. In District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi, , where the minimum qualification for appointment to the post of teacher prescribed in the advertisement was second class Post Graduate Degree but the candidate having third class Post Graduate Degree was selected and given appointment and later on obtained Post Graduate Degree in second class in another subject, it was held that the appointment was invalid.
Before the doctrine of promissory estoppel can be Invoked, it must be proved that (1) there was representation or promise in regard to be done something in future; (2) the representation or promise was intended to affect the legal relation of the parties and to be acted upon accordingly; and (3) it is one on which the other side has in fact, acted to its prejudice.
The doctrine was explained by the Supreme Court in Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, , that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect legal relationship to arise in future knowing or intending that it would be acted upon by the other party to whom the promise is made and it is, in fact, so acted upon by the other party, the promise would be binding on the other party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which had taken place between the parties, and this would be so, irrespective of whether there is any pre existing relationship between the parties or not.
In the instant case, the allegation of the Plaintiff-Respondents was that they had filed no objection certificate along with the application in pursuance of the advertisement. Admittedly, they had not submitted the discharge certificate which was required to be submitted by them. The Petitioners were permitted to appear in the written examination and later on they were asked to get medically examined on 4th December, 1993 but before the said date they were informed by letter dated 3rd December, 1993 that the Manager received the clarification from the Zonal Office, Kanpur regarding their eligibility on the date of submission of application by them. It was clarified that as the Petitioners-Respondents had not been discharged on or before 30.11.1992, they could not be treated as ex servicemen entitled to submit applications for selection to the post of Assistant. In these circumstances, there is nothing to show that the Respondents on any promise, made by the Appellants, suffered any prejudice. They have no right to claim any appointment merely because they were successful in the written test and interview. A candidate who is selected in the interview or written test, if otherwise is not entitled to be appointed, cannot claim a right to be appointed to the post on which he has been selected vide Parvin Zindal and Ors. v. State of Haryana and Ors. (1993)(Suppl.) 4 SCC 70.
In the end, learned Counsel for the Respondent submitted that two ex-servicemen namely, R. C. Singh and V. P. Gupta, who were similarly situated and had not submitted discharge certificates, were appointed as Assistants in Aligarh Division. In paragraph 23 of the counter-affidavit, it has been slated that those persons wrongfully succeeded in procuring the appointment by concealing material facts and proceedings against them are contemplated in accordance with law. The Petitioners-Respondents, as a matter of right, cannot seek mandamus from this Court directing the Respondents to appoint them to the post of Assistant merely because two candidates had secured wrong appointment by concealment of facts.
In view of the discussions made above the special appeals are allowed. The writ petitions filed by the Petitioners-Respondents are hereby dismissed.