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Judgment
Deepak Roshan, J
The instant writ application has been preferred by the petitioner for quashing the final result dated 27.06.2018 (Annexure-12) so far as petitioner is concerned, in view of the fact that even though he qualified Prelims Exam, Mains Exam as well as Physical and Medical Examination, he has not been considered for appointment on the post of Sub-Inspector in pursuance of Advertisement No. 05 of 2017.
The brief facts of the case as stated in the writ application is that the petitioner applied for appointment on the post of Sub-Inspector against Advertisement No. 05 of 017 published on 15.07.2017. He was declared successful in Prelims and Mains Examination conducted on 29.08.2017 and 19.11.2017 respectively. After passing the physical test the petitioner was called for the medical test which was held between 10.04.2018 to 18.04.2018 in which he was declared successful and on 19.05.2018 the petitioner was called for document verification to which he submitted self- attested online grade card status of his graduation issued on 03.08.2017.
A show-cause letter was issued to the petitioner on 19.05.2018 to which he submitted his reply on 26.05.2018. The candidature of the petitioner was rejected stating that he failed to prove the desired educational qualification.
Learned counsel for the petitioner submits that though the petitioner has submitted the provisional marksheet/Grade Card certifying that he is a graduate as till that time original degree was not received by him. He has not been selected for the post in spite of passing of the Prelims, Mains as well as Physical and Medical Examination.
Learned counsel draws attention of this Court to Annexure-9 which is the Grade Card dated 03.08.2017 carrying details of subject of graduation provided by the Indira Gandhi National Open University (in short, IGNOU) and submits that this Grade Card was submitted by the petitioner well within time. He further refers to paragraph no. 28 of the counter affidavit and submits that this document has not been disputed; rather admitted by the respondents.
Learned counsel further draws attention of this Court towards the advertisement wherein at Clause 9 it has been stated that educational qualification certificate and reservation certificate claiming reservation must be possessed by the candidates at the time of submission of application form.
Relying upon Clause 9 of the advertisement, learned counsel submits that by going through the Grade Card it is evidently clear that the petitioner has completed his graduation and he was having the certificate certifying that he is eligible for the concerned examination; however, by not considering this certificate he has not been selected for the job.
Learned counsel for the petitioner further draws attention of this Court to Annexure-D which is the show-cause issued to the petitioner to the effect that why he should be considered when he is not having educational certificate at the time of filing of the application form. He further draws attention of this Court to the impugned order and submits that at paragraph no.2 of the impugned order, it has been categorically stated that since the petitioner and others whose roll numbers are indicated were not having educational qualification till the last date of submission of application form i.e. 13.08.2017, as such they could not qualify.
For brevity paragraph no. 2 of the impugned order is extracted hereinbelow:
Learned counsel contends that there is no dispute as to whether the petitioner was qualified or not but it is only fact that since the Grade Card was not considered as degree and the degree was submitted by the petitioner subsequently when he received the same, necessary order may be passed so that the petitioner may be appointed.
From order dated 19.07.2023 passed by this Court in the instant case indicates that the respondents were directed to come with an affidavit as to whether vacancy till that date was available or not and pursuant thereto, an affidavit has been filed by the respondent-State and at paragraph no. 11 the respondent-State has admitted that the vacancy is still available.
Accordingly, Ld. Counsel prays that the Respondents may be directed to issue appointment letter to the petitioner. In support of his contention, Ld. Counsel relies upon the following judgments:
(i) “Charles K. Skaria & Ors. v. Dr. C. Mathew & Ors.” (1980) 2 SCC 752
(ii) “Vikas Kumar Mahto v. The State of Jharkhand & Ors.” 2013 SCC OnLine Jhar 120
(iii) “Deepak Yadav & Ors. v. Union Public Service Commission & Anr.” 2021 SCC OnLine SC 709
(iv) “Sweety Kumari v. The State of Bihar & Ors.” Civil Appeal No. 6072 of 2023
Learned counsel for the respondents submits that the advertisement was very clear that at the time of filling up the application form, a candidate must be having requisite qualification and since the petitioner did not have the certificate/marks therefore a show-cause was issued to him before passing of the impugned order rejecting his claim.
Learned counsel further submits that the petitioner is relying on Grade Card which itself indicates that the said Grade Card cannot be the substitute for final Grade Card and therefore relying on this document the contention of the petitioner is misplaced. The law in this regard is now no more res-integra that application has to be considered strictly on the basis of Clause and no modification is allowed. He further submits that admittedly the petitioner submitted only Grade Card which is also not clear in view of the note itself that “the status is indicative only and cannot be used as substitute for the final Grade Card which is sent by SED at the end of a semester”. Accordingly, no error has been committed by the respondents in passing the impugned order. In support of his submission, learned counsel for the respondents refers to a recent judgment passed in “Divya v. Union of India & Ors.” (2024) 1 SCC 448 wherein at paragraph nos. 48 and 58 it has been stated as follows:
“48. The meaning of the word “eligible” as defined in P. Ramanatha Aiyar's Advanced Law Lexicon is set out hereunder:
“Applied to the selection of persons, the word has two meanings i.e.“legally qualified”, or “fit to be chosen”.”
Applied to our context, a person can be found eligible as an economically weaker section candidate and he can be considered as a fit person to be chosen under that category only if the requirement of the OM of 31-1-2019 and Rule 27(3) read with Rule 28 are fulfilled.
In this case, rules clearly exist in the form of CSE-2022. It has also been settled that determination of eligibility cannot be left uncertain till the final stages of selection, since that would lead to uncertainty. [See A.P. Public Service Commission v. B. Sarat Chandra [A.P. Public Service Commission v. B. Sarat Chandra, (1990) 2 SCC 669 : 1990 SCC (L&S) 377] , para 7] Further, it is well settled that if rules prescribe the last date on which eligibility should be possessed, any relaxation would prejudice non-applicants who for want of possession of eligibility would not have applied. Relaxation would then be selective, leading to discrimination. (See Yogesh Kumar [Yogesh Kumar v. State (NCT of Delhi), (2003) 3 SCC 548 : 2003 SCC (L&S) 346])”
Learned counsel further refers to the judgment in “Dr. Nutan Indwar @ Nutan Indwar v. The State of Jharkhand” L.P.A No. 64 of 2020 and analogous cases passed by the Full Bench of this Court wherein it has been stated that candidates must fulfill the criteria and must possess the certificate at the time of last date of filling up the application.
Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavit and the advertisement/impugned order, first of all it is clarified that there is no quarrel with the judgments relied upon by the respondents that candidate must possess the required eligibility criteria till the last date of filling up application. There is also no quarrel with regard to the concept mentioned in paragraph no. 48 of the judgment passed in“Divya”(supra) however both these judgments are not applicable in the peculiar facts and circumstances of the case as quoted hereinabove as the criteria was to have educational qualification and certificates.
For brevity Clause 9 of the advertisement is extracted hereinbelow:
After going through the Clause indicated in the advertisement it is evident that the requirement was of possessing educational qualification and valid documents at the time of filling up application form /till the last date of applying application. From the aforesaid, it transpires that there is no indication that the petitioner must be having degree at the time of filling of the application form/before the last date of submission of application. This clause only indicates that the petitioner must have educational qualification. Furthermore, the Grade Card has not been disputed by the respondents. This Court is of the considered opinion that the Grade Card clearly indicates that the petitioner was a graduate and passed all subjects and was having that certificate before the last date of submission of application form.
As a matter of fact, similar issue fell for consideration before the Division Bench of this Court in“Vikas Kumar Mahto”(supra) wherein at paragraph no.4 it has been stated as under:
“4. We have considered the submission of learned counsel for the parties and perused the materials which have been even placed by the J.A.C. along with the counter. It is not in dispute that the J.A.C. received the relevant document on 6th March, 2012 i.e., much prior to last date on 15th March, 2012, which proved from the documents placed on record by J.A.C. itself as Annexure-C. It shows that the petitioner has successfully completed all the courses of B.Ed programme, therefore, it cannot be read to mean that petitioner only completed the period by attending the classes but it says that the petitioner successfully completed all the courses. In addition to above, there is a tentative mark-sheet, which has been issued by the same University and that matter may be subject to final confirmation but it cannot be presumed that it contains wrong information. Whatever material the petitioner produced before the JAC, is in time. Authenticity of these documents could have been verified from final certificate at later stage as per the procedure. Therefore, any eligible candidate who successfully passed the examination before the cut off date and also submitted the relevant document, which may be provisional, in that situation his candidature should have been considered subject to issuance of final certificate issued the university.”
Further in “Charles K. Skaria” (supra) the Hon’ble Apex Court has held at paragraph no. 20 as under:
“20. There is nothing unreasonable or arbitrary in adding 10 marks for holders of a diploma. But to earn these extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor. The prospectus does say:
“(4)(b) 10% to diploma holders in the selection of candidates to M.S., and M.D., courses in the respective subjects or sub-specialities.
Certificates to be produced: In all cases true copies of the following documents have to be produced:
(k) Any other certificates required along with the application.”
This composite statement cannot be read formalistic fashion. Mode of proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above- board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence.”
Emphasis Supplied
At this stage, it is also relevant to refer the judgment passed in “Sweety Kumari” (supra) wherein at paragraph nos. 18 and 19 the Hon’ble Apex Court has held as under:
“18. The view taken by this Court is fortified by the analogy drawn in the case of Charles K. Skaria and Others v. Dr. C. Mathew and Others (1980) 2 SCC 752 whereby Justice Krishna Iyer speaking for the Court held that the factum of eligibility is different from factum of proof thereof. This Court held that if a person possesses eligibility before the date of actual selection, he cannot be denied benefit because its proof is produced later.
In the present case, the proof is available and true photocopies were on record. The appellants’ candidature could not have been rejected merely because the original was not produced before the Commission at the time of interview in particular when such requirement was not mandatory, in view of the manner in which the Rules are couched.”
Emphasis Supplied
Looking to the overall facts and circumstances of the case and the clause for which the candidature of the petitioner was rejected that at the time of filling up of the application form he was not having required qualification, though admittedly, the petitioner was having a Grade Card; this Court holds that the action of the Respondents is illegal and has no legs to stand in the eye of law.
Further, this Court in this proceeding itself after going through the judgment passed in “Vikas Kumar Mahto” (supra) has categorically asked the respondent-State to see as to whether vacancy is still available or not and pursuant thereto; a positive reply has been filed by the State mentioning therein that vacancy is still there.
At the cost of repetition, the clause in question with regard to educational qualification it is clear that the petitioner was qualified being completed all subjects in graduation which was indicated in the Grade Card and simply the note that this was not the original Grade Card and the degree would be issued subsequently is basically a caution that if in future there is any discrepancy then the candidate cannot use the Grade Card; however, in the instant case as stated hereinabove there is no dispute with regard to being graduate of the petitioner and there is still vacancy.
Accordingly, the impugned order dated 27.06.2018, so far as petitioner is concerned, is quashed and set aside. The respondents are directed to issue necessary appointment letter, inasmuch as, the JSSC is directed to recommend the name of the petitioner for appointment subject to fulfilling up other eligibility criteria, save and except, the question which has already been decided hereinabove.
Pursuant thereto, the respondent-State is directed to issue necessary appointment letter to the petitioner. The entire exercise shall be completed within a period of six weeks from the date of receipt/production of copy of this order.
The instant writ application stands allowed.
Pending I.As, if any, also stand disposed of.