Veena Chironji. Vs. the State of Madhya Pradesh, and ors. - Court Judgment

Excerpt:
ection 11 (2): [b.n. agrawal, g.s. singhvi & aftab alam, jj] contribution due from employer payment priority given by section 11(2) held, the priority given to the dues of provident fund etc., in section 11 is not hedged with any limitation or condition. rather, a bare reading of the section makes it clear that the amount due is required to be paid in priority to all other debts. any doubt on the width and scope of section 11 qua other debts is removed by the use of expression all other debts in both the sub-sections. this would mean that the priority clause enshrined in section 11 will operate against statutory as well as non-statutory and secured as well as unsecured debts including a mortgage or pledge. sub-section (2) was designedly inserted in the act for ensuring that the provident fund dues of the workers are not defeated by prior claims of secured or unsecured creditors. this is the reasons why the legislature took care to declare that irrespective of time when a debt is created in respect of the assets of the establishment, the dues payable under the act would always remain first charge and shall be paid first out of the assets of the establishment notwithstanding anything contained in any other law for the time being in force. it is, therefore, reasonable to take the view that the statutory first charge created on the assets of the establishment by sub-section (2) of section 11 and priority given to the payment of any amount due from an employer will operate against all types of debts.in the instant case the sugar mill had pledged sugar bags with bank as security for repayment of loan. the attachment and sale of these sugar bags for realisation of p.f dues was challenged by the bank on ground that by virtue of the deeds of pledge executed by the sugar mills, the bank had become owner of the sugar bags and the same could not have been attached and sold for realisation of the amount due under the act.held, in the contract of pawn or pledges the pawnee/pledge has only a special property in the pledge but the general property remains with the pawner/pledgor and wholly reverts to him on discharge of debts. the right to property vests in the pledge only so far as necessary to secure his debt. therefore, the deeds of pledge executed by the management of the sugar mills as security for repayment of loan etc., did not have the effect of transferring of the ownership of the sugar bags to the bank and the recovery officer did not commit any illegality by attaching the same and the high courts was fully justified in directing payment of a portion of the sale price to the assistant commissioner for being appropriated towards the provident fund dues of the workers. section 11(2), 7-q & 14-b: provident fund dues priority in payment over all other debts held, sub-section (2) was inserted in section 11 by amendment act no.40 of 1973 with a view to ensure that payment of provident fund dues of the workers are not defeated by the prior claims of the secured and/or of the unsecured creditors. while enacting sub-section (2), the legislature was conscious of the fact that in terms of existing section 11 priority has been given to the amount due from an employer in relation to an establishment to which any scheme or fund is applicable including damages recoverable under section 14-b and accumulations required to be transferred under section 15 (2). the legislature was also aware that in case of delay the employer is statutorily responsible to pay interest in terms of section 17, therefore, there is no plausible reasons to give a restricted meaning to the expression any amount due form the employer and confine it to the amount determined under section 7-a or the contribution payable under section 8. if interest payable by the employer under section 7-q and damages leviable under section 14 are excluded from the ambit of expression any amount due from an employer, every employer will conveniently refrain from paying contribution to the fund and other dues and resist the efforts of the concerned authorities to recover the dues as arrears of land revenue by contending that the movable or immovable property of the establishment is subject to other debts. any such interpretation would frustrate the object of introducing the deeming provision and non obstante clause in section 11 (2). it cannot be said that the amount of interest payable under section 7-q and damages leviable under section 14-b do not form part of the amount due from an employer for the purpose of section 11(2) of the act, and cannot, therefore, be treated as first charge on the assets of the establishment payable in priority to all other debts within the meaning of section 11 (2). 1. learned counsel for petitioners at the outset submitted that this petition has been rendered infructuous and he may be permitted to withdraw it.2. prayer made by the petitioners is opposed by shri shroti, learned counsel for respondent no.2, who submitted that because of ad-interim writ all the petitioners have appeared in the preliminary examination and thereafter they were permitted to appear in the main examination for the selection of civil judge. that on the date of examination they were not eligible to appear in the preliminary examination, so their application deserves to be rejected. he has placed reliance to a judgment of apex court in ashok kumar sharma and others v. chander shekhar and another [(1997) 4 scc 18] and another judgment of apex court in m.a.murthy v. state of karnataka and others [(2003) 7 scc 517]. he has further referred to rule 7 of the madhya pradesh lower judicial service (recruitment and conditions of service) rules 1994 in support of his contention.3. in reply to this learned counsel for petitioners submitted that rule 7 of the aforesaid rules provide that no person shall be eligible for appointment by direct recruitment for the post in category 3 of rule 1 unless he possesses the degree of law of any recognized university. the petitioners were the students at the time of their appearance in the preliminary examination, but subsequently they have earned a degree in law from a recognized university. apart from this, the petitioner no.2 ritu chouhan who was permitted by this court to appear in the preliminary examination cleared the preliminary examination and thereafter appeared in the final examination and now she has been selected as civil judge class-ii (entry level).4. to appreciate rival contentions of the parties, it will be appropriate if the legal position in the case is seen. rule 7 of the aforesaid rules is as under :-"7. eligibility - no person shall be eligible for appointment by direct recruitment to posts in category (i) of rule 3(1) unless :-(a) he is a citizen of india;(b) he has attained the age of 25 years and not completed the age of 35 years on the first day of january of the year in which applications for appointment are invited: provided that the upper age limit shall be relaxable upto a maximum of five years if a candidate belongs to scheduled castes, scheduled tribes or other backward classes :provided further that the upper age limit of a candidate who is a government servant (whether permanent or temporary) shall be relaxable upto 38 years;(c) he possess a degree in law of any recognized university;(d) he has practiced as an advocate for not less than 3 years on the first day of january of the year in which applications for appointment are invited; and(e) he has good character and is of sound health and free from any bodily defect which renders him unfit for such appointment."5. the aforesaid rule specifically provides that no person shall be eligible for appointment by direct recruitment to the post of civil judge class-ii (entry level) unless he possesses a degree of law from any recognized university. the aforesaid provision is very clear that until and unless a person is possessing a degree of law from a recognized university, he shall not be eligible for appointment as civil judge class-ii. what should be the criteria to a candidate to apply for the post has been considered by the apex court in ashok kumar sharma (supra) wherein the apex court considering the legal position held thus :-"6. the review petitions came up for final hearing on 3-3-1997. we heard the learned counsel for the review petitioners, for the state of jammu & kashmir and for the 33 respondents. so far as the first issue referred to in our order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by dr t.k.thommen and v.ramaswami, jj.) is unsustainable in law. the proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. a person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. an advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. it cannot act contrary to it. one reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. their applications ought to have been rejected at the inception itself. this proposition is indisputable and in fact was not doubted or disputed in the majority judgment. this is also the proposition affirmed in rekha chaturvedi v. university of rajasthan [(1993) supp (3) scc 168]. the reasoning in the majority opinion that by allowing 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."6. in m.a.murthy (supra) the apex court reiterated the law laid down in ashok kumar sharma.7. in view of aforesaid it is apparent that the eligibility criteria should be on the cut off date as may be fixed by the authority issuing an advertisement for applying for the post. it may be cut off date for application or as on the date of examination or otherwise. if a person is not possessing a degree as on the cut off date he shall not be entitled to apply for the same post. in the present case, as petitioner no.2 ritu chouhan has already been appointed as civil judge class-ii, (entry level), we do not find it proper to disturb her appointment as she has appeared in the preliminary examination, because of the order passed by this court dated 22.7.2009, which was passed in the light of earlier order passed by the division bench of this court in w.p.no.3428/2007 (bhasker pandey and another v. state of m.p. & others) dated 7.3.2007. the respondents shall not cancel her appointment because of this order. with the aforesaid clarification, we dismiss this petition as rendered infructuous. no order as to costs.

Judgment:
1. Learned counsel for petitioners at the outset submitted that this petition has been rendered infructuous and he may be permitted to withdraw it.

2. Prayer made by the petitioners is opposed by Shri Shroti, learned counsel for respondent no.2, who submitted that because of ad-interim writ all the petitioners have appeared in the preliminary examination and thereafter they were permitted to appear in the main examination for the selection of Civil Judge. That on the date of examination they were not eligible to appear in the preliminary examination, so their application deserves to be rejected. He has placed reliance to a judgment of Apex Court in Ashok Kumar Sharma and others v. Chander Shekhar and another [(1997) 4 SCC 18] and another judgment of Apex Court in M.A.Murthy v. State of Karnataka and others [(2003) 7 SCC 517]. He has further referred to Rule 7 of the Madhya Pradesh Lower Judicial Service (Recruitment and Conditions of Service) Rules 1994 in support of his contention.

3. In reply to this learned counsel for petitioners submitted that Rule 7 of the aforesaid Rules provide that no person shall be eligible for appointment by direct recruitment for the post in category 3 of Rule 1 unless he possesses the Degree of Law of any recognized University. The petitioners were the students at the time of their appearance in the preliminary examination, but subsequently they have earned a Degree in Law from a recognized University. Apart from this, the petitioner no.2 Ritu Chouhan who was permitted by this Court to appear in the preliminary examination cleared the preliminary examination and thereafter appeared in the final examination and now she has been selected as Civil Judge Class-II (Entry Level).

4. To appreciate rival contentions of the parties, it will be appropriate if the legal position in the case is seen. Rule 7 of the aforesaid Rules is as under :-

"7. Eligibility - No person shall be eligible for appointment by direct recruitment to posts in category (i) of Rule 3(1) unless :-

(a) he is a citizen of India;

(b) he has attained the age of 25 years and not completed the age of 35 years on the first day of January of the year in which applications for appointment are invited: Provided that the upper age limit shall be relaxable upto a maximum of five years if a candidate belongs to Scheduled castes, Scheduled Tribes or other Backward Classes :

Provided further that the upper age limit of a candidate who is a Government servant (whether permanent or temporary) shall be relaxable upto 38 years;

(c) he possess a degree in law of any recognized University;

(d) he has practiced as an Advocate for not less than 3 years on the first day of January of the year in which applications for appointment are invited; and

(e) he has good character and is of sound health and free from any bodily defect which renders him unfit for such appointment."

5. The aforesaid Rule specifically provides that no person shall be eligible for appointment by direct recruitment to the post of Civil Judge Class-II (Entry Level) unless he possesses a Degree of Law from any recognized University. The aforesaid provision is very clear that until and unless a person is possessing a Degree of Law from a recognized University, he shall not be eligible for appointment as Civil Judge Class-II. What should be the criteria to a candidate to apply for the post has been considered by the Apex Court in Ashok Kumar Sharma (supra) wherein the Apex Court considering the legal position held thus :-

"6. The review petitions came up for final hearing on 3-3-1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr T.K.Thommen and V.Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan [(1993) Supp (3) SCC 168]. The reasoning in the majority opinion that by allowing 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."

6. In M.A.Murthy (supra) the Apex Court reiterated the law laid down in Ashok Kumar Sharma.

7. In view of aforesaid it is apparent that the eligibility criteria should be on the cut off date as may be fixed by the authority issuing an advertisement for applying for the post. It may be cut off date for application or as on the date of examination or otherwise. If a person is not possessing a Degree as on the cut off date he shall not be entitled to apply for the same post. In the present case, as petitioner no.2 Ritu Chouhan has already been appointed as Civil Judge Class-II, (Entry Level), we do not find it proper to disturb her appointment as she has appeared in the preliminary examination, because of the order passed by this Court dated 22.7.2009, which was passed in the light of earlier order passed by the Division Bench of this Court in W.P.No.3428/2007 (Bhasker Pandey and another v. State of M.P. & others) dated 7.3.2007. The respondents shall not cancel her appointment because of this order. With the aforesaid clarification, we dismiss this petition as rendered infructuous. No order as to costs.