TMI Blog2007 (2) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered. They will, however, be exempted from any payment against the application. Their cases will be considered according to the up-dated qualification. Essential qualifications prescribed for the said post are : 70. Lecturer in Tridosa Vigyan (One) [Department of Basic Principles] Qualifications: Essential 1. ABMS or equivalent examination from any recognized institution. 2. M.D. in Sharir-Kriya Desirable 1. Standard publication in the filed of Neurophysiology, 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 ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ridosh Vigyan IMS, Banaras Hindu University with immediate effect. This issue on the basis of communication received from President's secretariat vide their No. 28(2)(xiii) 98- CA (II), dated 21.03.2000. The University may take further necessary action immediately after intimation to this Department. A writ petition was filed by the appellant before the Allahabad High Court. By reason of the impugned judgment dated 26.05.2006, the said writ petition has been dismissed. Mr. V. Shekhar, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... didates and due notice of provisional entertainment of their application, subject to their passing examination before the date of interview, is a requirement peculiar to Rule 37 and is not applicable to the present case. 14. If the principle of Rule 37 is by analogy applicable, the fact that notice of provisional entertainment of applications, subject to passing of the examination before the date of interview, is a requirement in the interests of candidates who fell within that category. The appellants are by analogy 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the appellant that the relevant date for purposes of eligibility was the date of interview and not the date of application or July 15, 1982 the last date for submission of forms is not made out from the language of the notification. Acceptance of such construction would result in altering the first part of the advertisement prescribing eligibility on the date of applying for the post as being extended to the date of interview. If it is read in the manner suggested then the requirement that incomplete applications 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 pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview. The said decision is, therefore, 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 Asho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions 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, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a power in the Visitor without prejudice to the provision contained in sub-sections (2) to (6) of Section 5 of the Act. An express power, thus, has been conferred upon the Visitor to annul any proceeding of the University. The only condition attached thereto is that the same should found to be not in conformity with the statutes or ordinances. The selection process carried out by the Selection Committee would indisputably be a proceeding under the Act. Section 17 provides for a statute making power, including clause (l), which reads as under : (l) the classification 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case. In Karnataka State Road Transport Corporation and Another v. S.G. Kotturappa and Another [(2005) 3 SCC 409], this Court held : The question as to what extent, principles of natural justice are required to be complied with 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi vs. Chairman, J. K. Bank Ltd. Ots. (2005) 5 SCC 337 and State of U.P. vs. Neeraj Awasthi Ors. JT 2006 (1) SC 19. See also Mohd. Sartaj vs. State of U.P. (2006) 1 SCALE 265.] The principles of equity in a case of this nature, in our opinion, will have no role to play. Sympathy, as is well-known, should not be misplaced. In Maruti Udyog Ltd. v. Ram Lal Others. [(2005) 2 SCC 638], a Division Bench of this Court, wherein one of us was a member, noticing 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 sympat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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