Judgment:
C.K. Thakker, C.J.
1. This petition is filed by the petitioner for an appropriate writ, order or direction quashing and setting aside a letter dated October 9, 2000 (Annexure P-3) written by the Registrar of Himachal Pradesh University-respondent No. 2 herein and directing the University to permit the petitioner to appear in the Entrance Test conducted for PG Degree/Diploma Course in Indira Gandhi Medical College, Shimla, for the Session 2000-2002/ 2003. A prayer is also made that respondent-University be directed to declare the result of the petitioner on merits of the Entrance Test and he be admitted to PG Degree/Diploma course after counselling.
2. The case of the petitioner is that he is an ex-serviceman. He passed his MBBS Examination in 1991 from Indira Gandhi Medical College. Shimla. After completing house job, he joined Army as Medical Officer. He served Army from July 1, 1992 to June 30. 1997. After he was released from Army in 1997, he joined the State of Himachal Pradesh as Medical Officer (GDO-II) under the quota reserved for ex-servicemen. On October 3, 1998, he was selected on regular basis by Himachal Pradesh Public Service Commission against reserved vacancy for ex-servicemen. It is his case that under the provisions of the Ex-servicemen (Reservation of Vacancies in the Himachal Pradesh Technical Services) Rules, 1985, (hereinafter referred to as 'the Rules'), his services in Army are to be counted with the State, Since the petitioner was selected against the reserved vacancy meant for ex-servicemen and was posted as Medical Officer (GDO-II) on C.H.C., Chirgaon in District Shimla, his past services were to be taken Into account.
3. On October 20, 1999, an advertisement (Annexure P-1) was issued for the post of Demonstrator/Registrar in the Department of Anatomy in Indira Gandhi Medical College, Shimla. The petitioner applied for the said post as in-service candidate. As per the advertisement, minimum service required for in-service candidate was five years on the last day of the receipt of the application, out of which three years ought to be in rural area. Since past services of the petitioner in Army were to be counted, he was eligible. He accordingly, applied for the postof Demonstrator. He was considered eligible for the post, was interviewed, selected and appointed as Demonstrator on March 16, 2000.
4. In July/August, 2000, the respondent No. 3-University Issued a Prospectus for admission to Post Graduate Degree (MD/ MS) in different subjects/disciplines in Indira Gandhi Medical College, Shimla, Clause 3.6 of the prospectus laid down conditions for in-service candidates. The said Clause read as under:
'3.6 To qualify for Degree or Diploma Courses such regular HPHS-1 candidate will be eligible--
(i) Candidate should be regularly appointed in HPHS. However, ad hoc and contract service will both be counted as qualifying service for the purpose of admission.
(ii) Candidate should have completed 2 years in Tribal/Difficult area. Difficult Areas are defined by Department of Personnel, Government of Himachal Pradesh from time to time.
(iii) Candidates should have completed 3 years in rural areas which may or may not include Tribal/Difficult area.'
5. The petitioner submitted his application through proper channel to Post-Graduate Degree/Diploma Course well in time. Entrance Test was fixed on October 22, 2000. To the surprise of the petitioner, however, he received an Intimation on October 9, 2000, that his application had not been found in order by the respondent-University as he had not completed three years service in rural area on September 30, 2000 as required by Clause 3.6(111). Immediately, the petitioner made a representation to the respondent-University and pointed out that he was an ex-servicemen and he had served as Medical Officer from February 20, 1993 to June 19, 1995 at Village Sumdo in District Lahaul and Spiti of the State of Himachal Pradesh. Moreover, he had served for two years, seven months and twenty five days at Chirgaon, which was also a rural area and thus he had completed the requisite services in terms of Clause 3.6(111) of the Prospectus. He was, therefore, eligible. He also stated that his services in Army have been considered even in past when he applied for the post of Demonstrator. He was treated as eligible and was also appointed as Demonstrator. He, therefore, stated thathe should be considered eligible. Since, there was no reply to the representation by the respondents, he was constrained to approach this Court by filing the present petition.
6. On October 17, 2000, notice was issued by this Court and it was made returnable on October 19, 2000, Mr. Sanjay Karol. Learned Advocate General, instructed by Mr. M. L. Chauhan, learned Deputy Advocate General; appeared and waived service of notice on behalf of respondents 1 and 3 and Mr. S. S. Mittal, learned counsel, appeared and waives service of notice on behalf of respondent No. 2-University. It was also ordered that it was expected of the State Government to decide the representation made by the petitioner (Annexure P-6 dated October 12, 2000) in the meantime. On October 19,2000, interim order was passed by us and direction was issued to the respondents to give Admit Card/Roll Number to the applicant and permit him to appear in MD/ MS (Allopathy) Entrance Test, scheduled to be held on October 22. 2000 or any other date, subject to further orders. The result was however, ordered to be kept in a seated cover. Since the petitioner was selected, the matter was required to be heard on merits. On January 1, 2001, we heard the learned counsel for the parties.
7. Mr. Shrawan Dogra, learned counsel for the petitioner raised several contentions. He submitted that in accordance with the provisions of the Rules, past services of the petitioner in Army were required to be considered and the petitioner ought to be treated as eligible and qualified for getting admission to MD/MS Course. He also submitted that even in past, the petitioner's services in Army were considered when an advertisement was issued for the post of Demonstrator in Indira Gandhi Medical College, Shimla. The petitioner applied for the said post he was treated eligible interviewed, selected and appointed. Once his past services were taken into account by the respondents. It is not open now to ignore them and the action of the respondents is liable to be interfered with.
8. Mr. Dogra, also submitted that the respondents are estopped under the doctrine of promissory estoppel from Ignoring his past services in Army. Had the petitioner been told at the time when he applied for Demonstrator that his Army service will not betreated as requisite service, he would not have appeared for the interview and got himself selected. Hence, the respondent-authorities cannot take a different stand. The learned counsel also urged that when the Rules provide that the services rendered by an employee in Army will be considered for seniority and pay fixation, it must be construed and interpreted as if an employee has remained in the services of the State Government for all purposes and all consequences would ensue. In other words, it is a sort of deeming provision. Once the petitioner had completed requisite services In rural area when he was in Army, he must be deemed to have served in such area as required by Clause 3.6(111) of the advertisement in question and he cannot be treated Ineligible for admission to MD/MS course. He also submitted that Rule 6 of the Rules gives overriding effect and should, therefore, prevail over Clause 3.6 of the Prospectus.
9. An affidavit-in-reply is filed on behalf of respondents Nos. 1 and 3. It has been stated in the said reply that so far as the post of Demonstrator/Registrar In Indira Gandhi Medical College, Shimla, was concerned, the requirement was of five years service with minimum three years in rural area for in-service candidates. It is true that the petitioner applied for the said post and he was treated eligible and accordingly, Interviewed, selected and appointed to the said post. According to the respondents, however, the petitioner did not fulfill the requisite condition of five years service including three years rural service, but that fact escaped the notice of respondent No. 1 and inadvertently his application was forwarded to Indira Gandhi Medical College, Shimla for consideration for the post of Demonstrator and he was selected and appointed. The said fact came to the notice of the respondents when the application of the petitioner for consideration for Post-Graduate Entrance Test was screened. His application was accordingly rejected on the basis of criteria laid down In Clause 3.6 of the Prospectus. It was also stated that in accordance with the Rules, services of the petitioner could be considered for the purposes laid down in the Rules, i.e. for seniority and pay fixation and not for any other purpose. Since, the petitioner was not eligible as per the relevant Clause of Prospectus, by not treating him eligible, no illegality has been committed by the respondents and the petition deserves to be dismissed.
10. Mr. Sanjay Karol, learned Advocate General, instructed by Mr. M. L. Chauhan, learned Deputy Advocate General, relying on counter-affidavit, submitted that the petitioner cannot make grievance against the action taken by the respondents. Even at the time of considering his case as Demonstrator, he ought not to have been treated eligible. Due to mistake and Inadvertence, his case was considered and he was appointed. The mistake came to be noticed when he made an application for consideration for MD/MS course and the impugned action has been taken. The learned Advocate General also submitted that the doctrine of promissory estoppel has no application. If the petitioner is not eligible, his case cannot be considered. Eligibility goes to the root of the matter and once the authorities were satisfied that the petitioner was not eligible, the action had been taken, which is in consonance with law. It was submitted that the provisions of the Rules are amply clear and they provide that Army services can be considered for seniority and pay fixation. There is no 'deeming' Clause as submitted by the petitioner and no benefits can be claimed by the petitioner on the basis of so called deeming provision. The petition, hence, is liable to be dismissed.
11. The question for our consideration, therefore, is whether by not treating the petitioner eligible for Post-Graduate Degree/ Diploma Course, any Illegality has been committed by the respondents. The argument of Mr. Dogra is that in accordance with the provisions of statutory Rules of 1985, services of ex-servicemen should be counted for all purposes. In his submission, the provision is more or less in the nature of deeming Clause and hence, the petitioner was entitled to the benefit of his past services.
12. Before we deal with the case law cited by the learned counsel for the parties, we may state that the Rules have been framed under the proviso to Article 309 of the Constitution. Rules 5 and 6 are relevant and material to the controversy raised in the petition and may be quoted in extenso:
'Seniority and pay:
5. (1) Only the period of approved Military service rendered after attaining the minimum age prescribed for appointment tothe service concerned by the candidates appointed against reserved vacancies under the relevant rules, shall count towards fixation of pay and seniority in that service at the time of first civil appointment against reserved vacancy. This benefit shall not be admissible in subsequent appointment of Ex-servicemen who are already employed under the State/Central Government against reserved posts.
(2) Inter-se seniority of candidates who are appointed against the vacancies reserved under Rule 3 and allotted to a particular year, shall be determined on the basis of their dates of birth; the candidates older In age to be placed senior to the one younger in age:
Provided that In the case of candidates having the same date of birth, seniority shall be determined according to the merit list prepared by the recruiting authority on the basis of result of the test or examination.
(3) All candidates appointed against the reserved vacancies under Rule 3 shall rank below the candidates appointed by direct recruitment in the year to which the former candidates are allotted.
Overriding effect of these rules.
6. The provisions of these rules shall have effect notwithstanding anything to the contrary contained in any other rules.' In East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1951) 2 All ER 587, Asquith, J., dealing with a deeming fiction, stated:
'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. ........ Thestatute says that you must imagine a certain state of affairs: it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'
13. Mr. Dogra also relied on a decision of learned single Judge of High Court of Delhi in O. N. Tandon v. Food Corporation of India, 1984 (1) SLR 319 (Delhi). In that case, benefit of Military Services was extended to the officers who were appointedin the Food Corporation of India after their release from Armed Forces. The petitioner, who were such officers, claimed benefit of Military Services. For the purpose of fixation of seniority their services were considered but promotion was denied to the next higher grade on the ground that they had not acquitted necessary experience of three years as required. The said action was challenged. It was contended on behalf of the petitioners that their services ought to have been considered for all purposes. The learned single Judge considered the relevant provisions of the Circular and upheld the claim. The relevant Clause 7, of the Circular read as under :
'In other words, they (the Emergency Commissioned Officers) are deemed to have been appointed from the date which is determined after giving them full credit for the approved military service as Emergency Commissioned Officer Including the period of training, if any and are to be allowed seniority and pay accordingly.'
It was also stated:
'As regards seniority of such officers, it has been decided that their seniority in the post to which they are appointed in the Corporation should be fixed on the assumption that the officer concerned had been appointed on the date arrived at after giving him the credit for the approved military service including the period of training and he would be deemed to have been allowed the corresponding year for the purpose of seniority.'
14. Considering the above Clauses, it was held that the circular employed fiction and assumption for the purpose of giving benefit to the Emergency Commissioned Officers who fought the Indo-China War in 1962. Such fiction, therefore, ought to apply fully. Since it was a legal assumption and was invented for beneficial purposes, full and complete effect ought to be given to such fiction clause and the petitioners could not be denied benefit of promotion to which they were entitled. It was also observed that where a statute or a circular declares that a person or thing shall be deemed to be or shall be treated as something which in reality it is not, it shall have to be treated as such for all purposes consistent with the object of the statute or circular.
15. We fall to appreciate how the ratiolaid down in O. N. Tandon would apply to the case of the petitioner. In that case, there was a deeming fiction and as rightly observed by the learned single Judge, once a deeming fiction has been created, full and complete effect should be given to such deeming clause. It is not permissible for the authorities thereafter to boggle the imagination when it comes to corollaries of such state of affairs. In the Instant case, however, there is no deeming provision. The statutory rule (Rule 5) does not provide that the services rendered by a person In Army shall be 'deemed' to be services rendered by him with the State. On the contrary, the statutory provision is amply clear and is limited to the purposes specified, viz. for (i) seniority, and, (ii) pay fixation. In view of clear and specific provision, neither the petitioner can claim nor the authorities extend more benefits by rewriting the statutory provision. The action of the respondent-authorities of not giving the benefit of past services for admission to PG Degree/Diploma course cannot, therefore, be said to be illegal or unlawful.
16. The learned Advocate General also referred to some of the decisions of the Supreme Court on the point. In the leading case of Bengal Immunity Co. Ltd, v. State of Bihar, AIR 1955 SC 661, speaking for the majority Dass, Acting C. J. (as his Lordship then was) held that a legal fiction must be limited to the purpose for which it was created and should not be extended beyond the legitimate field. Concurring with the majority, Bhagwati, J. also observed that due regard must be had in this behalf to the purpose for which legal fiction has been created. If it is for a particular purpose, it would not be legitimate to travel beyond the scope of that purpose and read into the provision any other purpose howsoever attractive it may be.
17. In Commissioner of Income-tax, Bombay City-1, Bombay v. Amarchand N. Shroff by his heirs and legal representatives, AIR 1963 SC 1448, the Supreme Court considered the ambit and scope of Section 24-B of Income-tax Act, 1922, and observed that under the said provision, by fiction of law, legal representatives of the deceased became assessee as stated in the said section, but the fiction could not be extended beyond the object for which it was enacted. Similar view has been taken in several cases See Commissioner of Sales Tax, State of Gujarat v.M/s. Union Medical Agency, (1981) 1 SCC 51 : (AIR 1981 SC 1) State of Maharashtra v. Laljlt Rajshi Shah, (2000) 2 SCC 699 : (AIR 2000 SC 937).
18. In Maganlal v. Jaiswal Industries, Neemach, (1989) 4 SCC 344 : (AIR 1989 SC 2113) an order for sale passed under the State Financial Corporations Act, 1981, was treated to be decree under subsection (8) of Section 32 of the State Financial Corporation Act. 1981. It was contended that the provisions of Order 14. Rule 5 of the Code of Civil Procedure. 1908, would apply to such decrees. The contention was, however, negatived and it was observed that fiction was limited and Financial Corporation was decree-holder and debtor was the Judgment-debtor. It was not a decree for the purpose of Order 34 of the Code. The fiction also could not be extended for treating an application under Section 31(1) as plaint for payment of Court-fee.
19. It may be profitable to refer to a decision in State Bank of India v. D. Hanumantha Rao, (1998) 6 SCC 183 : (AIR 1999 SC 1472). The question before the Supreme Court related to interpretation of the Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971. Certain benefits were granted to the Officers on their reappointment to public sector organisations for limited purpose of seniority, pay and pension. Those officers, however, claimed benefit of extended retirement age. The question before the Court was whether they could claim benefit of extension in the retirement age. The plea of the petitioners was that they should be deemed to have appointed in the Bank with effect from their original entry in the service and, hence, were entitled to all benefits. The contention was, however, negatived by the Supreme Court observing that the benefit of earlier army service was extended for limited purpose of seniority, pay and pension under the relevant Rules. The Court stated; 'We are of the view that the said benefit of earlier army service cannot be extended In respect of other service conditions including extension of service.' It was also indicated that 'it is settled law that a legal fiction has to be confined to the purpose for which it is created'. Accordingly, the benefit was denied to the officers.
20. From the above cases, to us, the lawappears to be well settled. Once a legal fiction has been created, it has to be given effect. It cannot be gainsaid that all the consequences which ensue from such legal fiction will follow and benefits arising therefrom must be extended in favour of the person concerned. But it is equally well settled that if such legal fiction is created for a particular purpose, the benefit must be limited to the purpose for which it has been created and it cannot go further.
21. In the instant case, under the statutory Rules of 1985 (framed under proviso to Article, 309 of the Constitution), services of ex-servicemen are to be considered for seniority and pay fixation. In our considered opinion, therefore, legal fiction must be applied to the limited extent. It is not open to the petitioner to claim more benefits than the one granted to him by Rule 5. It is not even the case of the petitioner that he was denied benefit of seniority or pay fixation. He, however, wants benefit of getting admission in PG Degree/Diploma courses, which is not contemplated by the rule. In our considered opinion, admission to PG Degree/ Diploma course is not a consequence of seniority or pay fixation. Accordingly, the claim of the petitioner cannot be upheld and the action taken by the authorities cannot be described as illegal, unlawful or otherwise unreasonable. The contention, therefore, must be rejected.
22. Regarding applicability of the doctrine of equitable estoppel, it was urged by Mr. Dogra that after Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh, (1979) 2 SCC 409 : (AIR 1979 SC 621) it is not necessary for the petitioner to show that he had acted to his detriment and it would be enough if he shows that acting on the promise of opposite party, he altered his position. According to Mr. Dogra, in 1999, when an advertisement was issued by the respondents for appointment to the post of Demonstrator, the petitioner made an application stating therein that he was eligible as his past services in army could be considered. His application was duly forwarded. He was interviewed, selected and appointed. The respondent-authorities now cannot contend that for admission to PG Degree/Diploma courses, his past services could not be considered and the doctrine ofpromissory estoppel would apply.
23. We are unable to uphold contention of Mr. Dogra. As stated in affidavit-in-reply, even at the time when the case of the petitioner was considered for appointment to the post of Demonstrator, he was not eligible. It was due to mistake and inadvertence that his application was forwarded, he was treated eligible and qualified, was interviewed, selected and appointed. When he made an application for admission to PG Degree/Diploma course, earlier mistake/ inadvertence came to the notice of the authorities and it was rejected treating him ineligible.
24. We are of the view that the stand taken by the respondent-authorities cannot be regarded unlawful. It is well settled that a mistake cannot be allowed to be perpetuated. If a mistake has been committed once, a person, who has obtained some benefits, cannot insist that even further benefits must be extended. That apart, in the instant case, there are statutory Rules framed under the proviso to Article 309 of the Constitution. If those Rules provide for consideration of past services of ex-servicemen for certain purposes, no more benefits than those specified in the Rules can be given to such officers. The petitioner prays for a writ of mandamus. In our considered opinion. In exercise of powers under Article 226 of the Constitution, this Court cannot direct the authorities to act contrary to law. That is not be sweep of Article 226. This, in our considered opinion, cannot be allowed. The doctrine of promissory estoppel, hence, cannot apply.
25. For the foregoing reasons, in our considered opinion, no case has been made out by the petitioner to interfere with the action taken by the respondent-authorities. The petition, therefore, deserves to be dismissed and is, accordingly, dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs.
CMPs Nos. 1349 and 1588 of 2000
26. In view of the dismissal of the writpetition, the present applications are alsodismissed and the interim order is vacated.