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Judgment
HON’BLE MR. MANISH GARG, MEMBER (J):
In the instant OA, the applicant seeks the following reliefs:-
“8.1To quash and set-aside the result cum document verification dated 16.12.2023 to an extent whereby the applicant is not being called for document verification despite scoring more marks in Computer Based Exam to the post of Staff Nurse Grade-1 (Nursing Sisters) in present selection process.
8.2To quash and set-aside the result dated 27.12.2023 to an extent whereby the name of applicant is not included in the final selected candidates list to the post of Staff Nurse Grade-1 (Nursing Sisters) in present selection process for recruitment to 'various Group 'A', B' and 'C' Non-faculty Posts on Direct Recruitment Basis at AIIMS, Rajkot initiated vide Advertisement dated 7.10.2023.
8.3To quash and set-aside condition No. 7 of Advertisement dated 7.10.2023 (read with corrigendum dated 19.10.2023) to an extent which direct the participants who already in Govt. service (including AIIMS Employees) to upload 'No Objection Certificate' from their present employer at the time of online application (last date of filling of application form is 6.11.2023) in the present selection process as the same is unjust, arbitrary against principle of natural justice, defeats the object to select meritorious candidate in selection process, violative of Art. 14,19 & 21 of Constitution of India.
8.4To quash and set-aside the mail dated 24.1.2024 whereby the candidature of applicant to the post of 'Staff Nurse Grade 1 (Nursing Sisters)' in present selection process has been disqualified on the count 'no document (Experience Certificate/NOC) in support of age relaxation were uploaded' and to further direct that applicant be given age relaxation in the light of NOC dated 7.11.2023 and further given appointment to the post of Staff Nursing Sister Gd.-I (Staff Nurse) under UR category (as per merit obtained in present selection process) with all consequential benefits including seniority & promotion and pay & allowances.
Or Any other relief which this Hon'ble court deems fit and proper may also be awarded to the applicants.”
Learned counsel for the applicant submitted that the applicant had duly acted within the prescribed time and had made a request dated 17.10.2023 for issuance of the requisite No Objection Certificate (NOC) for applying to the post of Staff Nurse Grade-I (Nursing Sister) in AIIMS, Rajkot, pursuant to the advertisement dated 07.10.2023, the last date for submission of the application being 06.11.2023. It is submitted that, despite the applicant having taken timely steps for obtaining the NOC, the same was not issued till 07.11.2023, and consequently, the applicant could not upload the NOC along with the application. However, the applicant had uploaded all other requisite educational and experience certificates and had submitted the application on 04.11.2023 itself vide Registration No. AIIMSRAJ2023003714, i.e. well within the prescribed time. Learned counsel further submits that the subsequent issuance of the NOC on 07.11.2023 was occasioned by procedural/administrative delay, which was neither attributable to nor within the control of the applicant. It is, therefore, contended that the applicant ought not to be prejudiced for a delay arising from an administrative process despite having acted diligently and within the prescribed period, particularly when the application itself had been submitted before the cut-off date.
Learned counsel for the applicant has further drew our attention to paragraph 4.6 of the OA, which reads as under:
“4.6The condition No. 7 of advertisement is also reproduced herein below:-
7.No Objection Certificate (NOC): The applicants, already in Government service (including AIIMS Employees) shall have to upload "No Objection Certificate" from their present employer at the time of Online Application. Further, it is mandatory to produce the same NOC at the time of Document Verification and relieving certificate at the time of Joining.
The above condition (clause 7) further shows that NOC from the present employer needs to be uploaded at the time of online application (last date of filling of application form is 6.11.2023); the same condition is directory in nature. However, it was mandatory to produce NOC at the time of document verification and relieving certificate. The clause 7 of advertisement is contradictory to each other if read the way the respondents have read the same.”
It was further submitted by learned counsel for the applicant that the aforesaid stipulation, though forming part of the terms and conditions of the advertisement, ought to be construed as directory in nature and not as a mandatory condition, particularly when the advertisement itself requires production of the NOC at the stage of document verification.
Learned counsel for the applicant further submitted that Clause 7 of the advertisement has to be construed harmoniously, keeping in view both parts of the condition. According to him, while the requirement of uploading the NOC at the stage of online application may be treated as directory, the requirement of producing the NOC at the stage of document verification is mandatory. It was submitted that the applicant was already working with AIIMS, Delhi at the relevant point of time and had applied for the NOC within time. However, the NOC was issued by AIIMS, Delhi only on 7.11.2023, i.e. after the cut-off date, and the same was available with the applicant at the time of document verification.
Learned counsel for the applicant further submitted that the applicant belongs to the UR category and had secured 61.75 marks in the Computer Based Examination, whereas the cut-off marks were 58.5 marks. Thus, according to him, the applicant had secured marks above the prescribed cut-off and was otherwise meritorious for consideration for the post in question. He further submitted that, insofar as the requisite experience is concerned, the applicant fulfills the prescribed eligibility conditions as stipulated in the relevant Recruitment Rules.
Per contra, learned counsel appearing for the respondents opposed the relief sought by the applicant. At the outset, he submitted that the selected candidates have not been impleaded as parties in the present OA, although the relief sought by the applicant would directly affect their selection.
It was also submitted that approximately 23 candidates have been selected for the post in question, none of whom has been impleaded in the present proceedings.
Learned counsel for the respondents further submitted that the requirement contained in Clause 7 of the advertisement is couched in mandatory terms and the applicant was specifically required to upload the NOC at the time of submitting the online application. According to him, the said condition cannot be treated as directory merely because the NOC was subsequently produced at the stage of document verification.
It is further submitted on behalf of the respondents that there is neither any arbitrariness nor any mala fide in prescribing the aforesaid condition. The same condition was uniformly applicable to all candidates who were already in Government service, including employees of AIIMS.
Learned counsel further submitted that no candidate who failed to submit the NOC within the prescribed time has been granted any relaxation and, therefore, there is no question of discriminatory treatment being meted out to the applicant.
We have heard learned counsel for the parties and perused the pleadings and material placed on record.
5. ANALYSIS :
The short point of inquiry is whether the applicant's candidacy may be dismissed due to the absence of a No Objection Certificate from the respondent authorities, particularly when the lack of such documentation is not due to his own actions or negligence?
In Swapan Kumar Mallik VS UOI - Hon’ble Gauhati High Court in WA No.324/2015, held as under:
“17.True, once a Government servant voluntarily joins a government service which is also an occupation, he is bound by the terms and conditions and cannot question reasonable restrictions imposed on his freedom under Article 19(1)(g) of the Constitution. However, it is also the fundamental right of every government servant to advance his career and a government servant must be given ample opportunity to upgrade his career prospects. The action of the respondent authorities in refusing to issue the NOC for outside employment when he is entitled to technical resignation or when such resignation is a mere technicality would, therefore, be violative of Articles 14 and 19(1)(g) of the Constitution unless the respondent authorities can point out that such restriction is authorised by law. It is also contended by the learned senior counsel for the appellant that the BRO authorities acted arbitrarily in declining to accept the resignation of the appellant without any rhyme or reason and that the reason cited in their affidavit-i n-opposition for the first time that there was ban on outside employment, was nowhere mentioned in the letter dated 22-3-2013, is an after-thought, cannot be saved by Article 19(6) of the Constitution and cannot be pressed into service by the respondent authorities to justify the impugned decision. Citing Mohinder Singh Gill v. OEC/India, (1978) 1 SCC 405, he reminds this Court that the legality or otherwise of an order passed by a statutory authority must be judged on its face thereof as the reasons contained therein cannot be supplemented by an affidavit. He also submits that though the respondent authorities take the stand that there was a ban on outside employment, no such notification or rule to that effect could be produced by them till now, which goes to show that the NOC was refused on non-existent ground.
We may here draw attention to the observations of Bose, J. in Commissioner Of Police, Bombay vs Gordhandas Bhanji on 23 November, 19511952 SCR 135, AIR 1952 SUPREME COURT 16 Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do.
Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.”
In Civil Appeal No. 9040 OF 2022 (@ SLP(C) NO. 14252 OF 2022) -Kumari Laxmi Saroj & Ors. VS State of U.P. & Ors decided on 15.12.2022, the Apex Court held as under :
“From the aforesaid, it can be seen that as such, there was no fault on the part of the appellants in not producing the U.P. Council registration either at the time of submitting the applications forms or even at the time of verification of the documents. As such, all the appellants except one had applied for U.P. Council registration before the date of advertisement i.e., 15.12.2021. Therefore, for no fault(s) of theirs, the appellants could not have been made to suffer. The issue involved is directly covered by the decision of this Court in the case of Narender Singh Vs. State of Haryana and Ors.; (2022) 3 SCC 286. In the said decision, it is observed and held by this Court that once it was found that there was no lapse/delay on the part of the applicant and/or there was no fault of the appellant/applicant in not producing the NOC at the relevant time, he cannot be punished for the same. When the aforesaid decision was pressed into service before the High Court on behalf of the appellants, the High Court has not followed the same by observing that the directions issued by this Court in the case Narender Singh (supra), were in exercise of powers under Article 142 of the Constitution of India. The aforesaid is a misreading and/or misinterpreting of the judgment of this Court. This Court has specifically laid down the law that if it is found that there is no lapse/delay on the part of the applicant, he cannot be punished for no fault attributable to him. However, as in that case, another candidate/employee was already appointed, this Court had protected his service also while exercising the powers under Article 142 of the Constitution of India. Therefore, exercise of the powers under Article 142 of the Constitution of India was for protecting the service of another employee – respondent No. 4 in that case. The High Court has as such, misread the judgment of this Court. In view of the above and for the reasons stated above and applying the law laid down by this Court in the case of Narender Singh (supra), the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. The respondent(s) are directed to appoint the appellants herein to the post of Health Worker (Female) within a period of six weeks from today, if otherwise, they are found meritorious and fulfilling the other eligibility criteria. However, it is made clear that the appellants shall be entitled to all the benefits from the date of their actual appointments. Present appeal is accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs.”
In The General Manager, Southern Railway v. Ranga Chari, 1962 (2) SCR 586, the Hon’ble Supreme Court, while considering the scope and ambit of the fundamental right to equality of opportunity guaranteed under Article 16 of the Constitution, held that a technical or pedantic approach ought to be avoided. The Court emphasised that, while construing the constitutional guarantee, due regard must be had to the nature of the fundamental right and the intention of the Constitution, and that where the language employed is wide in its import, it must receive a broad and liberal construction. Reference may also profitably be made to the judgment of the Hon’ble Supreme Court in State of Nagaland v. Lipok AO, (2005) 3 SCC 752, wherein the Court held that where substantial justice and a technical approach are pitted against each other, a pragmatic approach ought to be adopted, with substantial justice being accorded primacy. More recently, in Bhola Nath v. State of Jharkhand & Others, 2026 INSC 99, the Hon’ble Supreme Court reiterated that the State, being a model employer, bears a heightened constitutional obligation in the discharge of its functions and is required to act with probity, fairness and candour. The Court further observed that the State cannot seek to cloud disputes involving its employees by relying upon narrow technicalities divorced from their broader constitutional context. A model employer is expected to uphold the dignity of its employees, particularly those placed at the lowest rung of the hierarchy, and to refrain from exploiting their vulnerability or precarious position. Such obligation flows directly from the Constitution and is not discretionary. The Hon’ble Court further held that repeatedly giving undertakings before a constitutional court and thereafter resiling therefrom does not comport with the standards expected of a model employer, observing that an undertaking recorded by a Court is not a casual statement but a solemn representation on the basis of which judicial orders are passed, and that the State cannot be permitted to approbate and reprobate.
In the facts and circumstances of the present case, Clause 7 of the advertisement requires a harmonious construction, keeping in view both limbs of the said condition. While the first part stipulates uploading of the NOC at the stage of submission of the online application, the second part specifically requires production of the NOC at the stage of document verification. The applicant was admittedly serving with AIIMS, New Delhi at the relevant point of time and had applied for issuance of the NOC within the prescribed period. However, the NOC was issued by AIIMS, New Delhi only on 07.11.2023, i.e. after the last date for submission of the online application, which was 06.11.2023. The delay in issuance of the NOC was attributable to the administrative process at the end of the concerned authorities and was beyond the control of the applicant, who had admittedly taken timely steps for obtaining the same. Significantly, the authority with which the applicant was serving and the authority conducting the recruitment were both AIIMS authorities, and the applicant cannot be faulted for the time taken by the competent authority in processing and issuing the NOC. In such circumstances, the subsequent issuance of the NOC on 07.11.2023, though beyond the cut-off date, cannot by itself be treated as a lapse attributable to the applicant, particularly when the NOC was available for production at the stage of document verification. The communication dated 24.01.2024, whereby the applicant's candidature for the post of Staff Nurse Grade-I (Nursing Sister) was disqualified on the ground that no document, namely, Experience Certificate/NOC, in support of age relaxation had been uploaded, therefore, requires consideration in the backdrop of the aforesaid facts and the settled principles referred to hereinabove. The said requirement ought not to be applied in a manner so as to defeat consideration of an otherwise eligible and meritorious candidate for a circumstance arising solely from administrative delay and not attributable to him. Accordingly, the NOC dated 07.11.2023 deserves to be taken into consideration for determining the applicant's entitlement to age relaxation, subject, however, to his otherwise fulfilling the prescribed eligibility conditions and being found entitled to appointment in accordance with the applicable rules and his merit position.
In Seema Kumari Sharma v. State of H.P., (1998) 9 SCC 128, the Hon’ble Supreme Court considered the issue arising from the failure of a candidate to furnish, along with the application form, a certificate evidencing her entitlement to reservation/weightage. The Hon’ble Court held that mere failure to submit such certificate at the time of making the application would not, by itself, disentitle the candidate from claiming consideration on the basis of such certificate, particularly when the genuineness or validity of the certificate was not disputed by the authorities and the only objection related to the stage at which it was produced. In the said case, the appellant had already appeared in the examination, though her result had not been declared. Upon her representation claiming the benefit of the prescribed weightage on the basis of the requisite certificate, the Hon’ble Supreme Court directed that her result be declared and that her candidature be considered for admission to the Junior Basic Teachers’ Training Course and, upon successful completion thereof, for appointment in accordance with the applicable Rules. The ratio of the said decision is that where a candidate otherwise possesses the requisite qualification or entitlement, a certificate produced at a subsequent stage, particularly when its validity is not in dispute, may be taken into consideration and the candidate ought not to be denied the consequential benefit merely on the ground that the certificate was not produced along with the original application. The aforesaid principle also finds support from the decision of the Hon’ble Supreme Court in Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board, (2016) 4 SCC 754, wherein the Court similarly considered the subsequent production of the requisite certificate for extending the benefit to an otherwise eligible candidate.
The applicant has strictly adhered to the stipulated terms and conditions, having submitted his application within the required timeframe while awaiting the NOC. The responsibility for issuing this clearance rested entirely with the respondent authorities. Consequently, administrative delays in providing the NOC should not serve as an obstacle to the age relaxation for which he is eligible, a right that remains undisputed.
6. CONCLUSION :
In view of the foregoing discussion, the action of the respondents in rejecting the candidature of the applicant and in not calling him for document verification vide result-cum-document verification dated 16.12.2023, despite the applicant having secured marks above the prescribed cut-off in the Computer Based Examination for the post of Staff Nurse Grade-I (Nursing Sister) in the present selection process, cannot be sustained and is accordingly quashed and set aside. The respondents are directed to consider the candidature of the applicant and, if he is otherwise found to fulfil all the requisite eligibility conditions and terms of appointment, to issue an offer of appointment to him within a period of two months from the date of receipt of a certified copy of this order, either by creating a supernumerary post or by adjusting him against an available/future vacancy, as may be permissible under the applicable rules. The applicant shall be entitled to seniority and other consequential benefits on a notional basis, reckoned from the date on which his similarly situated batch-mates were appointed, subject to adjustment in accordance with his merit position and category.
The Original Application is allowed in the aforesaid terms. Pending Miscellaneous Applications, if any, shall stand disposed of. No costs.