Chanchala Kumari vs State Of Jharkhand & Ors.

“To consider the case of the Petitioner for appointment to the post of Class-II officer under SC category pursuant to Advertisement No.01/2021 (7^th -10^th Jharkhand Combined Civil Services Examination-2021) (Annexure-2) published by Jharkhand Public Service Commission, since Petitioner has obtained marks much above than last selected candidates but her candidature has been rejected as she has mentioned the caste-certificate in the online application form issued on the basis of her husband but later on, at the time of interview, she has submitted the caste-certificate issued on the basis of her father and she was allowed to sit in the interview process without any objection by the Jharkhand Public Service ^Commission.”

Submission on behalf of the petitioner: -

Submissions on behalf of the Respondents: -

Analysis

48.

This Court after having discussed the aforesaid fact and adverting to the order passed by the learned Single Judge, is of the view that the learned Single Judge has primarily taken into consideration the condition stipulated in Condition No. 7(a) and (c) (i) along with the consequence and considering also the admitted fact that the appellant-petitioner had failed to produce the caste certificate in terms of the said clause, rather the caste certificate which was produced for the purpose of consideration of appointment to the posts/admission to the Central Educational Institution (C.E.I.s) under the Government of India.

49.

Hence, this Court is of the view that the view taken by learned Single Judge cannot be said to suffer from an error.

50.

Accordingly, the instant appeal stands dismissed.

2.

Brief facts of the case as per the pleadings made in the writ petition, as has been incorporated in the memo of appeal and the impugned order, read as under:

"The respondent-JSSC published an advertisement being Advertisement no.21 of 2016 for appointment of TGT. The petitioner submitted online application form on 24th March, 2017 for the said post in the subject 'Hindi' under Scheduled Tribes category along with other relevant documents including educational qualification. Pursuant thereto, provisional admit card was issued to her to appear in the said examination. She having qualified in the written test was issued notice by the respondent-JSSC for verification of the certificates. Thereafter, the petitioner appeared for the said verification before the respondent-JSSC on 28th September, 2018 with all relevant documents as mentioned in the advertisement, however, on the said date itself i.e. 28th September, 2018 the respondent-JSSC issued notice to the petitioner vide letter no.4642 informing her to submit caste certificate issued in the name of her father, The petitioner had passed matriculation examination from Government Girls School, Dumka in the year 1994. Thereafter, she passed intermediate examination from S.P. Mahila College, Dumka in the year 1996 and marks-sheet was issued by the Bihar Intermediate Education Council, Patna. The petitioner also passed graduation examination from Siddhu-Kanhu University, Dumka in the year 2000 and subsequently passed B.Ed. examination in the year 2007 from the said University. The petitioner had submitted residential certificate showing her place of residence as village-Godaidhab, Gram Panchayat-Bhatbhanga Santhali, Block-Taljhari, Post Office-Taljhari, P.S.-Taljhari, District-Sahebganj.

Pursuant to the aforesaid notice dated 28th September, 2018, the petitioner submitted another caste certificate issued in the name of her father by the Sub Divisional Officer Banka (Bihar), showing that she/her father belong to Santha community coming under S.T. category. Despite the said fact, the petitioner's candidature under S.T. category was not considered, rather her candidature was considered under unreserved category, as would be evident from important notice no.2522 dated 14th February, 2019 (Annexure-F to the counter affidavit dated 1" December, 2023 filed on behalf of the respondent-JSSC). The said action of the respondent-JSSC is highly arbitrary and illegal, as the petitioner despite being a member of S.T. community and being the resident of the State of Jharkhand, her candidature was not considered under the said category and due to the said reason, the appointment letter was finally not issued to her."

3.

It is evident from the factual aspect that the writ petitioner, in pursuance to advertisement, being Advertisement No.21 of 2016 issued for appointment of Trained Graduate Teacher has submitted online application for the post in the subject "Hindi" under Scheduled Tribes category. The candidature of writ petitioner was accepted. She had participated in the process of selection. But at the time of verification of the documents, her candidature under the Scheduled Tribes category has been refused to be accepted on the ground that the caste certificate furnished by the writ petitioner was issued from the successor State of Bihar on 04.10.2018 issued from the office of the Sub Divisional Office, Banka (Bihar).

20.

Herein also, the candidature of the writ petitioner although has been accepted under the Scheduled Tribes category based upon the caste category furnished by her at the time of submission of online application, but on verification, during the time of verification of document, the caste certificate has not been found to be in consonance with the conditions stipulated in the advertisement therefore if the caste certificate itself is contrary to the condition stipulated in the advertisement, then no right will be said to have accrued in favour of the writ petitioner during the course of recruitment process and if the same has been noticed by the Commission and if in such circumstances, the candidature of the appellant has been rejected then it is not available for the appellant to take the ground that since she has been allowed to participate in the process of selection, rejection of her candidature will be said to be unjustified.

21.

Thus, on the basis of discussion made hereinabove and particularly taking into consideration the dictum of this Court in the case of Pawan Oraon (supra) and Sher Mohammad (supra), we are of the view that the order/judgment passed by the learned Single Judge need no interference by this Court and, accordingly, this appeal is dismissed.

22.

Pending I.As, if any, stands disposed of.

39.

To summarise, from what has been held above, it is clear that : -

(a)

If a cut-off date is fixed for submitting documents by the Rules, the same has to be followed and in absence of any cut-off date in the Rules, the cut-off date mentioned in the advertisement has to be strictly followed and if there is no cut-off date in the advertisement also, then the last date of application should be treated to be the cut-off date. The cut-off date is sacrosanct and the conditions and eligibility criteria mentioned in the advertisement must be read in harmony with the cut-off date. The cut-off date cannot be changed nor any authority can impliedly shift the cut-off date by giving relaxation to fulfill a criteria, which ought to have been fulfilled by the candidate within the said cut-off date.

It is also clear that a person, who acquires prescribed qualification after the cut-off date is not eligible to be considered and they cannot get any preferential treatment. Possessing a valid caste certificate / necessary certificate issued by the competent authorities in a prescribed format on the cut-off date is the prescribed qualification.

52.

The off shoot of the analysis and the judgments is that a candidate must adhere to the conditions and requirements, which have been prescribed in the Rules. There cannot be any deviation. Certificate, which has been prescribed to be furnished in a proper format should be in the format as prescribed. Similarly, if an authority has been prescribed to issue the said certificate, the certificate issued by the said authority only will be accepted. Certificate issued by any other authority, which is not in the format cannot be accepted. Further, Article 335 of the Constitution of India has no application in this matter, inasmuch by prescribing an authority and the format, the Scheduled Caste / Scheduled Tribe / Other Backward Class as a whole is not excluded from getting the benefit of reservation. It is only an individual in that group, who does not qualify or does not possess the requisite qualification /certificate is debarred. Disqualifying an individual within the class cannot be said to be deprivation of entire class.

5.

Having heard learned counsels for the parties and after perusing the averments made in the respective affidavits and the documents annexed therein, we are of the considered opinion that this application requires interference in view of the admitted fact that the Petitioner belongs to Scheduled Caste category and thus is entitled to reservation in terms of Article 16(4) of the Constitution of India, which is a fundamental right and by no stretch of imagination, an inadvertent omission to mark YES' in the column of reservation, can waive of his fundamental right.

The act of the Respondent JPSC in treating the Petitioner, a member of the scheduled caste, as unreserved shall defeat the entire purpose of reservation which is a constitutional mandate. The Respondent JPSC, while considering the Petitioner to be of the unreserved category, have completely lost sight of the settled principle of law that there can be no waiver of a Fundamental Right. In this regard reference may be made to the case of Basheshar Nath v. CIT, reported in (1959) 35 ITR 190 wherein at para-15 the Hon'ble Apex Court has held as under:

"15.

Such being the true intent and effect of Article 14 the question arises, can a breach of the obligation imposed on the State be waived by any person? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so? If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that "true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing it". I do not think the State will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear, on the language of Article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State."

6.

It is also now well settled principle that there is no estoppel against the Constitution. In this regard reference may also be made to the case of Olga Tellis v. Bombay Municipal Corpn. reported in (1985) 3 SCC 545 wherein the Hon'ble Apex Court has held at para-28 as under:

28.

…….There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of lau or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful State could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits…….

7.

As a matter of fact, the issue in the instant writ application is with regard to reservation and it purpose which has been dealt in detail in the case of Indra Sawhney v. Union of India reported in 1992 Supp (3) SCC 217 wherein at paras 146, 147 & 155, the Hon'ble Apex Court has laid down the law as under:

146.

The basic policy of reservation is to off-set the inequality and remove the manifest imbalance, the victims of which for bygone generations lag far behind and demand equality by special preferences and their strategies. Therefore, a comprehensive methodological approach encompassing jurisprudential, comparative, historical and anthropological conditions is necessary. Such considerations raise controversial issues transcending the routine legal exercise because certain social groups who are inherently unequal and who have fallen victims of societal discrimination require compensatory treatment. Needless to emphasis that equality in fact or substantive equality involves the necessity of beneficial treatment in order to attain the result which establishes an equilibrium between two sections placed unequally.

147.

It is more appropriate to recall that "There is equality only among equals and to equate unequals is to perpetuate inequality.

155.

The above illustration and analogies would lead to a conclusion that there is an ocean of difference between a well advanced class and a backward class in a race of open competition in the matters of public employment and they having been placed unequally, cannot be measured by the same yardstick. As repeatedly pointed out, it is only in order to make the unequals equal, this constitutional provision, namely, clause (4) of Article 16 has been designed and purposely introduced providing some preferential treatment to the backward class…...

8.

Having regard to the aforesaid facts and circumstances of this case coupled with the settled proposition of law, the information given by the JPSC through mail dated 31.07.2024 regarding Civil Judge (Junior Division) Regular Advertisement No.22/2023 P.T. result, whereby it has been informed that the Petitioner has since claimed no reservation, so JPSC has considered the same as unreserved, deserves to be, and is, hereby, quashed and set aside.

13.

After hearing both the parties at length and perusing the impugned judgment and order passed by the Division Bench of the High Court, we are of the view that the Division Bench erred in setting aside the judgment and order passed by the learned Single Judge. We record our reasons hereunder.

14.

The Division Bench of the High Court erred in not considering the decision rendered in Pushpa³. In that case, the learned Single Judge of the High Court had rightly held that the petitioners therein were entitled to submit the OBC certificate before the provisional selection list was published to claim the benefit of the reservation of OBC category. The learned Single Judge correctly examined the entire situation not in a pedantic manner but in the backdrop of the object of reservations made to the reserved categories, and keeping in view the law laid down by a Constitution Bench of this Court in Indra Sawhney v. Union of India as well as Valsamma Paul v. Cochin University. The learned Single Judge in Pushpa also considered another judgment of the Delhi High Court, in Tej Pal Singh, wherein the Delhi High Court had already taken the view that the candidature of those candidates who belonged to the SC and ST categories could not be rejected simply on account of the late submission of caste certificate.

15.

The relevant paragraph from the judgment of this Court in Indra Sawhney? has been extracted in Pushpa³ along with the speech delivered by Dr Ambedkar in the Constituent Assembly and reads thus: (Pushpa case³, SCC OnLine Del para 9)

"9…... 251. Referring to the concept of equality of opportunity in public employment, as embodied in Article 10 of the Draft Constitution. which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration. Dr Ambedkar emphatically declared that reservation should be confined to "a minority of seats", lest the very concept of equality should be destroyed. In view of its great importance, the full text of his speech delivered in the Constituent Assembly on the point is appended to this judgment. But I shall now read a few passages from it. Dr Ambedkar stated:

"... firstly, that there shall be equality of opportunity, secondly. that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration……..Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, "must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation.... we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State...." [Constituent Assembly Debates, Vol. 7. pp. 701-02 (1948-1949).]

These words embody the raison d'être of reservation and its limitations. Reservation is one of the measures adopted by the Constitution to remedy the continuing evil effects of prior inequities stemming from discriminatory practices against various classes of people which have resulted in their social, educational and economic backwardness. Reservation is meant to be addressed to the present social, educational and economic backwardness caused by purposeful societal discrimination. To attack the continuing ill effects and perpetuation of such injustice, the Constitution permits and empowers the State to adopt corrective devices even when they have discriminatory and exclusionary effects. Any such measure, insofar as one group is preferred to the exclusion of another, must necessarily be narrowly tailored to the achievement of the fundamental constitutional goal. (Indra Sawhney case, SCC pp. 433-34, para 251)"

16.

In Pushpa, relevant paragraphs from Tej Pal Singh¹ have also been extracted, which read thus: (Pushpa case³, SCC OnLine Del para 11)

"11……. 15. The matter can be looked into from another angle also. As per the advertisement dated 11-6-1999 issued by the Board, vacancies are reserved for various categories including SC category. Thus in order to be considered for the post reserved for SC category, the requirement is that a person should belong to SC category. If a person is SC he is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to SC category and act thereon by giving the benefit to such candidate for his belonging to SC category. It is not that petitioners did not belong to SC category prior to 30-6-1998 or that acquired the status of being SC only on the date of issuance of the certificate. In view of this position, necessitating upon a certificate dated prior to 30-6-1998 would be clearly arbitrary and it has no rationale objective sought to be achieved.

16.

While taking a particular view in such matters one has to keep in mind the objectives behind the post of SC and ST categories as per constitutional mandate prescribed in Articles 15(4) and 16(4) which are enabling provisions authorising the Government to make special provisions for the persons of SC and ST categories. Articles 14(4) and 16(4), therefore, intend to remove social and economic inequality to make equal opportunities available in reality. Socird and economic justice is a right enshrined for protection of society. The fight in social and economic justice envisaged in the Preamble and elongated in the fundamental rights and directive principles of the Constitution, in particular Articles 14, 15, 16, 21, 38, 39 and 46 are to make the quality of the life of the poor, disadvantaged and disabled citizens of the society meaningful. (Tej Pal Singh case, SCC OnLine Del paras 15-16)"

17.

Further, in Pushpa³, relevant portion from the judgment of Valsamma Paul cases has also been extracted, which reads as under: (Pushpa case, SCC OnLine Del para 11)

"11.

17. "21. The Constitution through its Preamble, fundamental rights and directive principles created a secular State based on the principle of equality and non-discrimination, striking a balance between the rights of the individuals and the duty and commitment of the State to establish an egalitarian social order." (Valsamma Paul cases, SCC pp. 560-61, para 21)' (Tej Pal Singh case, SCC OnLine Del para 17)"

18.

In our considered view, the decision rendered in Pushpa³ is in conformity with the position of law laid down by this Court, which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned Single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in Indra Sawhney and Valsamma Pauls wherein this Court after interpretation of Articles 14. 15. 16 and 39-A of the directive principles of State policy held that the object of providing reservation to the SCs/STs and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39-A of the directive principles of State policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the learned Single Judge. Hence, the impugned judgment and order passed by the Division Bench in Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in Indra Sawhney and Valsamma Pauls. Therefore, the impugned judgment and order¹ passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order dated 24-11-2010 passed by the learned Single Judge in Ram Kumar Gijroya v. Govt. (NCT of Delhi) is hereby restored.