Union Public Service Commission vs Saumya Pandey & Ors.

The petition has been listed before this Bench by the Registry in view of the urgency expressed therein. The same has been heard by way of video conferencing.

Learned counsel for the petitioner states that the connected matters are listed for hearing before the Division Bench-IV on 29th July, 2020.

Accordingly, list the present writ petition along with W.P.(C) No.701/2020 and W.P.(C) No.1158/2020, before the Division Bench-IV on 29th July, 2020, subject to orders of Hon'ble the Chief Justice.

The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail.

The present matter has been taken up for hearing by way of Video Conferencing on account of COVID-19 pandemic.

Exemptions granted subject to all just exceptions.

The applications are disposed of accordingly.

The present application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of the applicant/petitioner seeking exemption from filing duly attested affidavits in support of the accompanying petition, as well as, applications and to pay the requisite court fees.

For the reasons stated in the application and in view of the present prevailing situation, the same is allowed. The applicant/petitioner is permitted to file the duly attested affidavits within a period of one week from the date of resumption of regular functioning of the Court. Further, the applicant/petitioner is permitted to file the requisite court fee within a period of 72 hours from the date of resumption of regular functioning of the Court.

With the above directions, the present application is disposed of.

The present writ petition has been received on transfer and is stated to be connected with W.P.(C) 701/2020 titled 'Satabdi Mazumder and Ors vs. Union Of India and Anr.', and the other connected matters listed today as Item Nos.4 to 7.

Renotify along with W.P.(C) 701/2020 and other connected matters on 04.08.2020.

The present matters have been taken up for hearing by way of Video Conferencing on account of COVID-19 pandemic.

At joint request of learned counsel appearing on behalf of the parties, the hearing of the writ petitions is adjourned.

Renotify on 11.08.2020.

The present matters have been taken up for hearing by way of Video Conferencing on account of COVID-19 pandemic.

The present applications under Section 151 of the Code of Civil Procedure, 1908 have been filed on behalf of the applicants/petitioners seeking permission to file the documents without proper margin and uncertified copies, the duly affidavits without attestation in support of the accompanying applications and to pay requisite court fees.

For the reasons stated in the applications and in view of the prevailing situation, the same are allowed. The applicants/petitioners are permitted to file the duly signed and attested affidavits within a period of one week from the date of resumption of regular functioning of the Court. The applicants/petitioners are also permitted to file the requisite court fee within a period of one week from the date of resumption of regular functioning of the Court. Further, the applicants/petitioners are permitted to file the documents without proper margin and uncertified copies, subject to all just exceptions.

With the above directions, the present applications are disposed of.

W.P.(C) 701/2020, CM APPL. 16064/2020, CM APPL.18643/2020, CM APPL.17669/2020 W.P.(C) 1158/2020 & CM APPL. 3855/2020 W.P.(C) 1195/2020 W.P.(C) 1365/2020 W.P.(C) 4623/2020 & CM APPL. 16719/2020

Re-notify for further hearing on 20.08.2020.

The present matter has been taken up for hearing by way of Video Conferencing on account of COVID-19 pandemic.

For further arguments, list on 26.08.2020.

Talwant Singh, J.

In all these writ petitions, the petitioners have challenged the order of learned Central Administrative Tribunal (CAT) dated 13^th January, 2020 in a batch of Original Applications (OAs) filed by candidates belonging to the Economically Weaker Sections (EWS) of society attempting the Civil Services Examination-2019 (CSE-2019). The UPSC and Union of India, who are the petitioners in W.P.(C) No.1158/2020 and W.P.(C) No.4623/2020 respectively, were the respondents before the CAT; and the respondents in these two writ petitions as well as the petitioners in the other writ petitions bearing W.P.(C) Nos.701/2020, 1195/2020 and 1356/2020 were the original applicants before the CAT.

Broadly speaking, the present matters relate to theCSE-2019 and the applicants before CAT were the candidates for the said examination belonging to EWS category. It is to be noticed here that for the first time in the history of India, reservation for the EWS category was provided in the CSE examination, on the basis of the Constitution (103^rd) Amendment. The provision for reservation was notified vide OM dated 31^st January, 2019 and the notification for holding CSE-2019 was issued on 19^th February, 2019, on the basis of the Rules framed by Department of Personnel & Training (DoP&T) which were published on the same day, i.e., 19^th February, 2019. The detailed Rules provide for the scheme of examination, the qualification which the candidates should possess and the important dates in relation to the preliminary examination, main examination and interview etc. as well as the different stages at which the essential documents and their eligibility were to be submitted by the candidates. As per the Rules notified by DoP&T and the notification issued by UPSC, all the candidates were required to possess the necessary documents to claim the exemptions/relaxations/educational qualification etc., on the last date of applying for preliminary examination, i.e., 18^th March, 2019. However, in the case of candidates who had already appeared or were appearing in their final academic examination, the result should have been in the candidate's possession before filling the Detailed Application Form-1 (DAF-1). Moreover, for candidates claiming EWS status, the UPSC noticed that the reservation was notified through Office Memorandum issued on 31^st January, 2019; hence it was provided that the said candidates may obtain the necessary certificate in the prescribed format from the concerned authorities before 1^st August, 2019 and the same was to be uploaded along with DAF-1. Broadly, all the applicants had approached the CAT with the grievance that, since the concerned authorities were not aware about the procedure to be followed for issuing the requisite EWS certificates, there were administrative difficulties, and resultantly they were unable to obtain the said EWS certificates, before the prescribed date i.e. 1^st August, 2019.

After hearing both the sides and on the basis of detailed arguments addressed by learned counsel appearing for the contestants, CAT was pleased to partially allow the OAs thereby extending the stipulated date till by which the candidates/applicants could have obtained the EWS certificate to the 16^th August, 2019, being the last date to upload DAF-1. There was a class of candidates/applicants who could not obtain the said certificates even by 16^th August, 2019 and, therefore, their prayer for extension of the last date for submission of EWS certificates, till the time of final scrutiny after the mains examination, was rejected by CAT. The operative paragraph of the impugned order dated 13^th January, 2020 of the CAT is reproduced hereunder:

Feeling aggrieved, not only the affected candidates, who were the original applicants before the CAT, but also the UPSC and Union of India have filed these writ petitions. The prayer of UPSC and Union of India is that the order of CAT dated 13^th January, 2020 extending the date for obtaining the EWS certificates from 1^st August, 2019 to 16^th August, 2019 is contrary to law and the same is liable to be set aside.

On the other hand, the candidates/applicants who did not benefit from this extension of approximately 15 days given by the impugned order, for obtaining the EWS certificates have approached this Court mainly praying for allowing their original applications, and seeking modification of the said order dated 13^th January, 2020 passed by CAT, to treat their EWS certificates obtained even after 16^th August, 2019 as valid.

Notices were issued in the writ petitions and after completion of pleadings, the matters were heard at length. There were also certain intervention applications, filed in the meantime, in the lead writ bearing W.P.(C) No.1158/2020; the said applications were allowed and amended memos of parties were filed. The memo of parties available as on date on record have been reproduced in the title of the present order. After much discussion, broadly the following three categories of candidates have emerged:

Category No.1: The candidates who had obtained correct EWS certificates on or after 1^st August, 2019 upto 16^th August, 2019 and they had uploaded the said certificates along with their DAF-1 forms.

Category No.2: The candidates who could not obtain EWS certificates before 16^th August, 2019 but they had obtained the necessary certificates before the final scrutiny after the mains examination.

Category No.3: The candidates who had not obtained the EWS certificates in the prescribed format before 1^st August, 2019 (and as such these certificates were faulty) but who had obtained the certificates in the prescribed format thereafter and submitted the said certificates in correct format to UPSC later on.

As far as the third category is concerned, two candidates mainly Satabdi Mazumder and Sridhar Limbikai fall in that category and UPSC had graciously agreed to consider their correct certificates submitted after 16^th August, 2019 as they had earlier submitted the EWS certificates obtained before 1^st August, 2019 although not in the prescribed format. The claim of these two candidates stands satisfied on the basis of concession given by UPSC, leaving behind the candidates broadly in the first two categories, i.e. the candidates who had obtained the certificates in prescribed format after 31^st July, 2019 but before 16^th August, 2019 and the candidates who have obtained the EWS certificates in prescribed format after 16^th August, 2019. The candidates who had obtained the EWS certificates in correct format before 16^th August, 2019 are the beneficiaries of the impugned order dated 13^th January, 2020 passed by the CAT and the said candidates are Navneet Kaur, Ravneet Kaur, Shreya Singhal and Khajan Tiwari.

The main line of argument of all the candidates/applicants is that the reservation for EWS category was introduced for the first time in January, 2019; the certificate issuing authorities were not aware about the formalities to be completed for issuing the said certificates, which required them to not only assess the income of the candidate and his family members but also the assets held by them. This was a very cumbersome procedure which required a long time to complete. It was not possible to complete all the formalities by the concerned authorities to issue the certificate before 1^st August, 2019 and as such they ought to have been given time till final scrutiny to submit the said EWS certificates, because for all other concessions and reservations, the final scrutiny is required to be done only after mains examination stage.

On the other hand, the consistent stand of UPSC and Union of India is that they themselves had realized that the reservation for EWS category was provided for the first time in January, 2019, so instead of ensuring that the candidates ought to have been in possession of the said certificate on 18^th March, 2019 itself, they had extended the time for submission of the same till 1^st August, 2019. Moreover, the Central Government had informed all the State Governments to notify the concerned authorities about the format in which the EWS certificate was to be issued, the formalities to be completed and the conditions to be fulfilled for obtaining the said certificate immediately after 31^st January, 2019. Hence, there was no occasion for the CAT to extend the date for obtaining the said certificates from 1^st August, 2019 to 16^th August, 2019. Moreover, the other candidates, who had not obtained the said certificates till 16^th August, 2019, have no legal or cogent ground in their favour to claim that they can obtain and submit these certificates till the stage of the final scrutiny. It has also clarified on behalf of UPSC and Union of India that although the final scrutiny takes place after the final examination but it has been specifically mentioned in the notification that the applicants should possess the qualifications and the certifications on the date when they file the form for preliminary examination of CSE-2019 and the said date was 18^th March, 2019. It was extended only as a one-time measure for EWS candidates to 1^st August, 2019. It has also been argued that the cut-off dates and different milestone in conducting the civil services examination cannot be tinkered with by the courts or tribunals as the said dates are based upon the Rules framed by DoP&T and duly publicised vide examination notification issued by UPSC and if those dates are not taken as sacrosanct, the entire process of civil services examination will go haywire and UPSC will not be in a position to fulfill its obligation of conducting the examination and the interviews on time for the filling of the posts of the civil services of the Government.

On behalf of the candidates, the major thrust has been on the argument that the EWS category being introduced for the first time and a candidate and his family belonging to this category being required to be assessed for a particular period – in this case for the financial year 2017-18 – it does not matter as to whether the said certificate was issued before 1^st August, 2019 or thereafter because the date of the said certificate will not alter the economic status of the candidate and his family for the financial year 2017-18. Since the concerned authorities not only had to assess the income during the said financial year, i.e., 2017-18 but they also have to take into account all the assets held by the candidate and his family members during the said financial year and the verification process itself is very tedious, so naturally it would take more time and in some cases it has been mentioned that the concerned authorities were not available due to strikes etc. and that has resulted in delay in issuing the EWS certificates to the candidates.

The CAT has considered all these grounds in detail and have gone into the basis as to why the goalpost to have EWS certificate was changed from 18^th March, 2019 to 1^st August, 2019 and the rationale behind the change of the last date to obtain the EWS certificate and why the EWS certificate could not have been obtained before submitting the same along with DAF-1 form on 16^th August, 2019. The conclusion arrived by CAT is that UPSC and Union of India have not been able to substantiate the reason for fixing the cut-off date to obtain the EWS certificate before 1^st August, 2019 whereas the said certificate was to be submitted only with DAF-1 form by the 16^th August, 2019. The CAT has given reference to the cut-off date of 18^th March, 2019 being the date on which all the candidates should have obtained the certificates as required for claiming the reservations/relaxations. The second stage in this regard or second goalpost established by UPSC is only on 16^th August, 2019, that is the date on which the candidates who have qualified in the preliminary examination have to submit their DAF-1 form, so creating an artificial goalpost in-between, i.e., on 1^st August, 2019 has no rational basis. The CAT has also kept in view that it is not interfering or changing the dates on which the forms have to be submitted or the examinations have to be held or scrutiny of documents has to take place.

To discuss the various aspects of the matter, it is necessary to have a glimpse of the circumstances under which the controversy arose. A brief history of the dispute in hand is detailed in the following paragraphs.

On 8^th January, 2019, to comply with the mandate of Article 46 of the Constitution of India to give a fair chance to economically weaker sections of society to participate in gaining higher education and employment, the State Bill no.3 of 2019 or the Constitution (103^rd) Amendment Bill, 2019 was introduced in Parliament by Union Government for providing reservation for economically weaker sections of society in educational institutions as well as in initial appointments in services under the Government.

The Constitution (103^rd) Amendment Act, 2019 was enacted by the Parliament, which provided for insertion of Clause (6) in Article 15 and Clause (6) in Article 16 of the Constitution of India to enable the State to make provision for reservation in admission to educational institutions and in public employment for persons belonging to economically weaker sections of society. The notification of the said Amendment is reproduced hereinbelow:

In pursuance thereto, the Department of Social Justice and Empowerment, Ministry of Social Justice and Empowerment, Government of India issued Memorandum no.F.20013/01/2018-BC-II dated 17^th January, 2019 in order to enable persons from economically weaker sections of society to receive the benefits of reservation in admissions in educational institutes as well as in appointments to civil posts and services under the Government of India. The reservation for EWS was capped at 10%, provided the said persons are not covered under the existing scheme of reservation for the Scheduled Castes. The said OM dated 17^th January, 2019 is reproduced herein:

Since the concerned Department to look after the recruitment is Department of Personnel and Training, Ministry of Personnel, Public Grievances, Pensions, Government of India, so this Department issued OM No.36039/1/2019-Estt.(Res.) dated 19^th January, 2019, providing 10% reservation for EWS in Central Government posts and services in direct recruitment w.e.f. 1^st February, 2019.

A detailed notification in this regard was issued by DoP&T dated 31^st January, 2019 in which the contents of the earlier notification dated 19^th January, 2019 were reiterated and details were given as to how the status of an economically weaker person shall be determined on the basis of income in a particular year and the assets owned by the said person and his family; the authorities were prescribed for issuing the said certificate and format of the said Income & Assets Certificate was also enclosed with this OM. It was also provided that the said certificate issued for the previous financial year would be valid for a period of one year and the unfilled seats reserved for EWS will not be carried forward to the next year. The relevant portions of OM dated 31^st January, 2019 along with the performa of the Income & Assets Certificate are reproduced hereunder:

DoP&T issued notification no.F.13018/07/2018-ASI (I) dated 19^th February, 2019 framing Rules for Civil Services Examination-2019. For the present discussion, Rule 2 of this notification is relevant which is reproduced hereunder:

On the basis of Rules framed by DoP&T, UPSC issued examination notice no.04-2019-CSP dated 19^th February, 2019 intimating the general public regarding holding the examination for Civil Services and providing for the detailed guidelines for the examination. The relevant portions of these guidelines are reproduced hereunder:

On the basis of the advertisement issued by UPSC, the aspirants were called upon to fill the forms for preliminary examination till 18^th March, 2019 and the preliminary examination was accordingly held throughout the country on 2^nd June, 2019; the result of the preliminary examination was declared by UPSC and the same was duly published on its website on 12^th July, 2019.

It was provided in the notification dated 19^th February, 2019 that the EWS candidates, who were successful in preliminary examination should have an Income and Asset Certificate (EWS certificate) issued prior to 1^st August, 2019. The relevant rules being Rule nos.24 and 25 are quoted hereunder:

It is pertinent to note here that all the candidates ought to have the educational qualifications and certification of their castes etc. to claim reservation as on the last date of filling the preliminary examination forms, i.e., on 18^th March, 2019 but keeping in view the fact that the EWS reservation was provided for the first time, an exception was carved out and the candidates belonging to this category were given time till 31^st July, 2019 to obtain the Income and Assets Certificate and file the same along with Detailed Application Form (DAF-1). One point to be noted here is that as per the said rules dealing with educational qualifications, if a candidate had appeared or was going to appear in the examination, but his result was not declared before the last date of filling the application form i.e. on 18^th March, 2019, the said candidate was given the option to obtain the necessary certificate of educational qualification till the closing date of DAF-1, i.e., 16^th August, 2019.

The UPSC, therefore, opened a window from 01.08.2019 to 16.08.2019 for the successful candidates in the preliminary examination to fill up the DAF-1 form online and to upload the requisite certificates in support of their claims made in the online preliminary application.

On 5^th August, 2019, one of the applicants (who later on approached CAT) filled the DAF-1 form stating that although he had EWS certificate but the same was issued after 31^st July, 2019. On 9^th August, 2019, some of the applicants filed representations before DoP&T to allow them to appear in the main examination as they had obtained the EWS certificates after 31^st July, 2019. On 12^th August, 2019, the applicants submitted a representation to UPSC not to reject their candidature on this ground. On 23^rd August, 2019, UPSC issued show cause notices to all the applicants who claimed in their DAF-1 form to be in possession of Income and Assets Certificate dated 31^st July, 2019 or earlier but they indicated the date of their Income and Assets Certificate was 1^st August, 2019 or later. They were asked to explain as to why action be not taken against them as per Rule 14 of the Rules for Civil Services Examination.

The UPSC rejected the candidature of applicants vide e-mail dated 30^th August, 2019 on the basis that applicants did not possess the Income and Assets Certificate issued on or before 31^st July, 2019, hence their candidature for Civil Services (Mains) Examination 2019, was cancelled. The affected applicants again gave representations to DoP&T on 2^nd September, 2019 to allow them to appear in the examination as they had obtained the Income and Assets Certificates after 31^st July, 2019.

The writ petition bearing no.9751 of 2019 was filed by the applicants before this Court challenging the cancellation of their candidature by UPSC on the ground that the Income and Assets Certificates filed by them were dated after 31^st July, 2019. This writ petition was dismissed; however, liberty was given to the affected persons to approach CAT for appropriate relief and accordingly the applicants had filed their respective OAs before CAT on 12^th September, 2019.

Vide interim order dated 18^th September, 2019, the CAT directed UPSC that applicants be permitted to appear in the mains examination if the only dis-qualification is that their EWS certificates were issued beyond 1^st August, 2019. UPSC contested the said OA by filing counter reply on 13^th November, 2019, to which rejoinder was filed on 28^th November, 2019. Vide order dated 09^th December, 2019, CAT directed that the results of the mains examination of the applications be declared subject to outcome of the OAs. Detailed arguments were heard by CAT on 6^th January, 2020 and vide impugned order dated 13^th January, 2020, the CAT directed UPSC to treat the EWS certificates issued upto the last date of submission of DAF-1 form, i.e., 16^th August, 2019 as valid. The relevant portion of the impugned order dated 13^th January, 2020 is reproduced hereunder:

The UPSC and the Union of India have challenged the impugned order on the grounds that the Tribunal did not refer to the plea of estoppel raised by UPSC and Union of India specifically relying on the decision of the Hon’ble Supreme Court in the matter of Madras Institute of Development Studies & Anr. vs. Dr. K. Sivasubramaniyan & Ors., (2016) 1 SCC 454 and the OAs were not maintainable because all the candidates had applied under CSE Rules, 2019 and later on they cannot turn around and challenge the said Rules itself. It has been further submitted that the Tribunal erred in not adverting to the settled principle of law that rules of game notified at the time of initiation of examination/selection process cannot be changed midway. The Tribunal also did not consider the plea of infringement of Article 14 and 16 of the Constitution as privileged treatment was given only to those candidates who had approached CAT causing gross injustice to other candidates, who have been discriminated against by the order of the Tribunal. The Tribunal also did not adhere to the principle laid down by Hon’ble Supreme Court in respect of maintaining the sanctity of the cut-off date, which is a policy matter under the domain of the employer. The Tribunal also did not consider that rules and instructions have to be applied uniformly without any deviation therefrom as held by Hon’ble Supreme Court from time to time and individual hardships cannot be considered to be relevant ground to carve out an exception as the same would result in nullification of entire process and derailment of larger public interest of conducting time bound examination/selection process. It is further submitted that the Tribunal did not consider that cut-off date fixed to obtain qualification was same for all the candidates, i.e., the last date of submission of online application and it was only by way of one time relaxation that extra period of about four and a half months was allowed to EWS category candidates to obtain Income and Assets Certificates, which was quite reasonable and sufficient. It has also been submitted that the learned CAT has wrongly relied upon the decision of Hon’ble Supreme Court in the matter of Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board & others (2016) 4 SCC 754 as the same was not applicable to the facts of this case as in the said case the recruitment was for Group ‘C’ employees, which is not held annually and the cut-off date was declared while declaring the results and in the absence of cut-off dates it was not considered that the examination/selection process cannot be completed in time bound manner. Moreover, the Hon’ble Supreme Court had not adverted to the principles laid down in Ashok Kumar Sharma vs. Chandra Shekhar 1997(4) SCC 18 and Ashok Kumar Sonkar vs. Union of India (2007) 4 SCC 54 wherein it was specifically laid down that the ‘certain’ cut-off date is sine qua non for completing any examination/selection process. Moreover, the said decision in Ram Kumar Gijroya’s case has already been referred to a larger bench by the Hon’ble Supreme Court vide its order dated 24^th January, 2020. It has been further submitted on behalf of UPSC that the Tribunal did not consider that the larger public interest and larger public equity have to prevail over individual interest/individual equity and any interference caused midway in examination process would cause substantial harm to the larger public interest.

On behalf of Union of India, it has been submitted that the limited challenge to the Rules and the notice of examination based on the CSE Rules had not been supported by any valid ground. Further, participating in the recruitment process on the basis of Rules 25, the candidates are estopped from challenging the already settled norms mainly because they did not qualify the required standards with reference to the possession of valid EWS certificate by the cut-off date. Sympathy itself cannot be the ground to be entertained by the court of law and compliance of rules is to be enforced including the instructions detailed in the advertisement issued by UPSC. The sanctity of the cut-off date is to be maintained, which is a matter of policy and any interference by the Tribunal midcourse in the examination process concerns larger public interest as against individual interest of the applicants. Moreover, the candidates had participated in examination knowing well the rules which cannot be challenged midway as the plea of estoppel comes in their way. No reason has been assigned by CAT for interfering with the rules in question and any such interference is not conducive in maintaining the integrity, transparency, predictability and fairness of the examination process.

The candidates, who are petitioners in their respective petitions and are respondents in the writ petitions filed by UPSC and Union of India, have supported the impugned order dated 13^th January, 2020 to the extent it extended the date for obtaining the EWS certificates till 16^th August, 2019, but have assailed the rejection by the impugned order of their claim to extend the same benefit to the candidates who obtained their EWS certificates after 16^th August, 2019; and submitted that the Tribunal failed to appreciate that the EWS scheme is a new policy which was launched only in January 2019, and there was lack of awareness about the procedural formalities to be completed on the part of State authorities empowered to issue EWS certificates. Moreover, moral code of conduct was imposed by the Election Commission of India due to general elections held in 2019 and the concerned officials were pre-occupied in election duties, which caused delay in issuance of the said certificates. Since there were no clear instructions, so the concerned State authorities refused to take any action for issuing EWS certificates. On the other hand, UPSC itself had acknowledged that there would be delay in issuance of such certificates and had granted extension of time as provided in proviso to Rule 24 but UPSC failed to consider that there was no delay being caused by the candidates and the entire delay was attributed to the administrative difficulties on the part of the State authorities who were given the task to issue said certificates. It has been further submitted by the candidates that guidelines were issued by different States at different times as to how the EWS certificates were to be issued. In Tamil Nadu, the notification was issued only on 4^th May, 2019; in Delhi, the notification was issued on 4^th June, 2019 and in Punjab, the amended notification was issued as late as on 15^th July, 2019. The Tribunal has granted the relief only to the candidates, who had obtained certificates till 16^th August, 2019, but it failed to consider that around 327 candidates, i.e., 33% of the total candidates, could not obtain the EWS certificates although they had applied and had made sincere efforts within time to obtain the said certificates. There was systematic failure on the part of the competent authorities who were assigned the task of issuing the said certificates. It is further submitted that even extending this benefit of belonging to EWS category to the candidates who had obtained their certificates later on will not affect the results as the cap of 10% of the seats is already fixed for the EWS category candidates in the examination but the Tribunal did not acknowledge this fact in its impugned order. The candidates have reiterated that law regarding issue of recognition of status by means of a certificate has been clearly laid down by Hon'ble Supreme Court in the matter of Ram Kumar Gijroya (supra), which referred to the judgment of this Court in Ms.Pushpa vs. Government of NCT of Delhi and others 2009, SCC OnLine Del 281. As per them, an EWS certificate merely recognise the existing financial status of the applicant, which is valid for a single financial year and this certificate is in essence cognitive in nature, although the general principle of reservation is broadly constitutive in nature. The certificate does not bestow any status to the holder. It is further submitted that the Tribunal has wrongly drawn a distinction between the social status and economic status of the candidate. The finding of the learned Tribunal that social status is static is untenable as a particular caste can be delisted from the reserved category at any point of time. Since the EWS certificate is valid for one year from the last date of the financial year for which it was issued then in that case the date of the certificate is not relevant and there is no rationale in fixing a date before which the said certificate is to be obtained. It has also been submitted that the reservation for EWS category is a beneficial policy and administrative and technical difficulties should not come in its way. The judgments cited by UPSC are not applicable as the examination schedule fixed by the authorities was not departed from.

The submissions made by the interveners are also on the same lines. It has been reiterated that the EWS certificate was to be uploaded along with DAF-1, which is similar to the education qualification certificate of the graduates whose result was awaited and they were to file the educational qualification certificates obtained upto the date of DAF-1, i.e., 16^th August, 2019. Hence, fixing the date of 1^st August, 2019 for obtaining the EWS certificate is arbitrary and the time period of four and half months is grossly inadequate as totally a new policy of reservation was formulated for issuing the said certificates by authorities at District and Tehsil levels. The EWS certificates are issued for a particular financial year and there is no ground to fix a date by which the said certificate should be issued keeping in view the technical problems being faced while issuing the said certificates. Since the difficulties to be faced while getting the EWS certificates were not known at the time of filling of CSE- 2019 form, so the UPSC cannot take the stand that the candidates are estopped from challenging the cut-off date mentioned in the examination notice issued by UPSC. Moreover, UPSC cannot take the ground that the relief confined only to the candidates who had approached the CAT will prejudice other equally placed candidates as thesettled law of the land is that no relief needs to be given to the persons who failed to approach the court in time and seek parity only after similarly placed persons have been granted relief by the Court.

It has also been argued on behalf of the candidates that UPSC is giving time to other candidates to rectify the mistakes in their certificates at scrutiny stage after the final results and before holding the interviews, hence the same facility should be extended to the candidates who had approached CAT and their EWS certificates were issued upto the date when result of the final examination was declared and the said certificates be accepted as proof of them belonging to EWS category. The response of UPSC in this regard, when two instances were brought to its notice, was formulated and submitted to the Court in the form of a letter dated 27^th July, 2020 addressed to ShriNareshKaushik, learned counsel for the UPSC. The said letter is reproduced hereunder:

On the basis of this letter, the UPSC, while relying upon clause 2 (b), extended the benefit provided thereby only to two candidates namely Satabadi Mazumdar and Sridhar Limbikai in these petitions as they had sought parity with other candidates who were given option of submitting EWS certificate in correct form because they had submitted the EWS certificates in wrong form at the time of submitting DAF-1. Since these two candidates were similarly placed, i.e., they had also submitted certificates in wrong format obtained before 1^st August, 2019 and later on they had submitted the EWS certificates in correct format, hence they were extended the benefit of EWS category.

At this stage, questions to be decided by this Court can be divided in two parts as under:

Question no.1: Whether learned CAT was right in extending the date for obtaining EWS certificates from 1^st August, 2019 to 16^th August, 2019?

Question no.2: Whether learned CAT was wrong in not extending the period for obtaining and submitting the EWS certificate from 16^th August, 2019 till the date when result of the final examination was announced and the scrutiny of the documents submitted by the successful candidates started?

Let us discuss these two questions separately.

As far as question no.1 is concerned, in our view the CAT has given detailed reasons for extending the date for obtaining the EWS certificates from 1^st August, 2019 to 16^th August, 2019. It is to be noted here that apart from reasons given in the impugned order as detailed above, there is an additional ground for extending the said date from 1^st August, 2019 to 16^th August, 2019:

(a). It is an admitted fact that the Central Government had notified the rules for grant of EWS certificates in late January, 2019 and detailed instructions in this regard were issued only in February, 2019. The last date for submission of the form for preliminary examination for CSE-2019 was 18^th March, 2019 and all the candidates should have the certificates regarding education qualification and being belonging to a reserved class (if applicable) with them as on that date. The exceptions were carved out only for two categories, i.e., the candidates claiming EWS reservation and the candidates who have appeared or likely to appear in final examinations and their results were not declared. Thereafter, between these two categories, the UPSC intentionally or unintentionally created a distinction as it fixed the date of 1^st August, 2019 as the cut-off date for obtaining the EWS certificate, in view of the difficulties being faced by the candidates to obtain the same, as one-time measure but on the other hand the candidates who had appeared or were going to appear in their final examinations in 2019, they were given time till 16^th August, 2019 for obtaining the final certificates certifying their educational qualifications. It is pertinent again to note here that the last date for submission of the EWS certificates as well as the educational qualification certificates is the same, i.e., 16^th August, 2019.

In both the cases, i.e. submission of the educational qualifications as well as submission of EWS certificates, the last date for uploading these certificates along with DAF-1 form was 16^th August, 2019, hence the certificates issued between 1^st August, 2019 to 16^th August, 2019 certifying the financial status, i.e., income and assets of the candidates and his family for the financial year 2017-18 are proper and legal and judicial intervention by CAT was warranted and as such the order of the CAT in this regard is upheld. It is to be reiterated here that neither the dates for submission of any form, i.e., the application form for preliminary examination, DAF-1 or DAF-2 have been interfered with by CAT nor the dates of preliminary examination or the final examination or the subsequent interviews have been postponed. These dates are sacrosanct as per various pronouncements of Hon’ble Supreme Court and the different High Courts and CAT while passing the impugned order has followed the said mandate. Neither the process of holding the examinations nor the process of conducting the interviews has been interfered with and the said examinations and interviews have taken place as per the schedule fixed by the Rules propagated by DoP&T as well as the notification issued by UPSC. Hence, we do not find any infirmity or illegality in the order of learned CAT to that extent.

As far as the second question is concerned, the learned CAT has specifically observed as under:

It is nobody’s case that all the dates can be left open and candidates can submit the EWS certificates or other certificates as and when they wish. Throughout the case, stand of UPSC and Union of India is that, all the dates fixed stipulated in the subject notification, including that of 1^st August, 2019 are sacrosanct, so the EWS certificates ought to have been obtained before this date. On the other hand, the petitioners who are not covered in the CAT’s order of extending the date of 16^th August, 2019 for submission of EWS certificates, have pleaded their case through Mr. Salman Khurshid, learned Senior Advocate and other learned counsel to the effect that since the scrutiny of all the certificates and documents has to take place after declaration of final results of the written examinations, therefore, the candidates should be given opportunity to submit their EWS (Income and Assets) Certificate till that time. It has been also vehemently argued on behalf of this group of candidates that even at the scrutiny stage, the UPSC is permitting successful candidates to rectify the mistakes in their certificates by submitting fresh certificates; and therefore, no prejudice would be caused if the candidates who had failed to upload their certificates alongwith DAF-1 form, are given a further opportunity to submit their certificates till that stage. Learned counsel appearing for UPSC has submitted that at the final stage after declaration of results of the final written examination, the candidates are given opportunity to rectify the mistakes in their documents, which are found to be non-compliant in terms of format during scrutiny, but the stage of filing of the documents cannot be extended to the said date as it will cause disarray and disturb the entire schedule of the conduct of CSE Examination, 2019. It has been specifically pleaded that none of the candidates has been given the concession of submitting their EWS certificate for the first time at the scrutiny stage and only the opportunity has been given to candidates to formally correct mistakes in their certificates already submitted, and in terms of the said concession, the same opportunity has been extended to the two candidates as mentioned hereinabove since the UPSC has taken a sympathetic view of the situation where certificates in the wrong format were submitted at DAF-1 stage but certificates in correct format were submitted after 16^th August, 2019. Mr. Salman Khurshid, learned Senior Advocate has argued that the financial status of a person in a financial year will remain same and any change in the date of issuing of the said certificates and late submission of the said certificates will not change the financial status of the candidate. The delay in their submission, was caused due to the administrative difficulties faced by the certificate issuing authorities and the said certificates could not be issued in time, so the opportunity to submit the same as one-time option may be granted to all the candidates. This plea has been again strongly opposed by the learned ASG and the counsel appearing for UPSC.

In our view, the dates fixed for the stages at which the documents can be submitted, the dates on which examinations have to be held as well as the prescribed qualifications enabling the candidates to sit in a particular examination, may be for admission in an educational institution or for appointment in civil posts under the State, are sacrosanct and the said dates cannot be interfered with by the learned CAT or by this court in judicial review. It is clarified that by extending the date from 1^st August, 2019 to 16^th August, 2019 for obtaining the Income and Assets Certificate(EWS Certificate), the CAT has not extended the date for submission of the said certificate, which is sacrosanct as fixed by UPSC for submission of DAF-1 form, being 16^th August, 2019 and the certificates were to be uploaded along with DAF-1 form. The remaining petitioners are now praying to this court for shifting of the goalpost and to interfere in the conduct of civil services examination by tinkering with the schedule or dates for submission of documents, which in our considered view is not permissible and this court refrains itself from doing so. The candidates have also challenged the distinction pointed out by learned CAT between the social status of a candidate and economic status of a candidate, who claim reservations based upon castes and reservations based upon the economic criteria. We are in agreement with CAT that the caste or the social criteria for reservation remains same as a person cannot be overnight changed of his or her caste or the social criteria. But as far as the economic status is concerned, it may change from year to year and that is the reason that the Income and Assets Certificate is to be obtained year-wise and once a certificate is issued, it remains valid only for the period one year from the end of the financial year to which it relates. The arguments on behalf of the candidates that even reservation for a particular caste may be withdrawn and thus the social status of a person may change which may disentitle a candidate to claim reservation based upon the social status is a far-fetched argument without any logical basis and the same cannot be accepted. The statutory rules have provided for validity of the income certificate for one year and it recognises that the said certificate has a fixed validity because there are chances of change in the economic status of a person. For example, if any of the candidates belonging to the EWS category is selected in civil services examination and is appointed to one of the cadres, his social status will change immediately and stating that even after change in the economic status one can claim the benefit of belonging to EWS category for a period of one year is neither logical nor correct nor ethical. This beneficial legislation by way of the Constitutional amendment was axiomatically brought about with a view to help the downtrodden and economically weaker sections of society, for which no reservation was provided earlier and accordingly this benefit is to be enjoyed only by the candidates who actually belong to the economically weaker sections and as soon as they come out of this economic condition, there is no justification for them to claim benefit of reservation based upon their historical deprivation of income or lack of assets, which was prevalent at the time when the said certificate was issued.

Mr. Salman Khurshid, Senior Advocate for the candidates urged this Court to differentiate between cognitive and constitutive recognition and referred to para no.24 of the impugned order where the CAT has observed that while the law that provides for reservation in favour of a particular category, is ‘constitutive’ in its nature; the certificate issued to a candidate enabling him to claim reservation is ‘cognitive’ in its purport. He relied upon a judgment of this Court in W.P.(C) 5492/2019 titled Amrit Singh vs. Union of India&Anr. decided on 23^rd August, 2019 in this behalf. The relevant paragraphs are 13 and 17 of this judgment which are reproduced hereunder:

In our view, the ratio of this judgment is not applicable to the facts of this case as the said judgment is in relation to a candidate who was belonging to other backward class (OBC), which envisages a static state of affairs throughout, as caste of a person will not change with the passage of time, whereas the present writ petitions in hand deal with the financial status of the candidates and their families, which is dynamic in nature and it may change from year to year and as such the candidates cannot take any benefit of the said judgment.

Mr. Salman Khurshid, Senior Advocate reiterated that the judgment in the case of Ram Kumar Gijroya (supra) is relevant to decide the present dispute in hand and the CAT has rightly relied upon the said judgement. The relevant extract of the said judgment is as under:

Countering the submission made on behalf of the candidates, Mr. Naresh Kaushik, Advocate appearing on behalf of UPSC has submitted that the decision in Ram Kumar Gijroya (supra) has been referred to a larger bench, hence the candidates cannot take any benefit of the same. Even reference to a larger bench does not take away the guiding precedent of a judgment, unless and until the larger bench has either stayed the operation of the said judgment or it has set aside or varied the decision of the case, which was referred to it. None of such conditions have been brought to our notice. Hence, we reiterate that the learned CAT has rightly relied upon the judgment in the case of Ram Kumar Gijroya (supra).

Mr. Naresh Kaushik, learned counsel appearing for UPSC has submitted a long list of judgments, specifically 14 in number, but he has particularly referred to the judgment in the case of Hirandra Kumar vs. High Court of Judicature at Allahbad&Anr. [(2019) (2) SCALE 752] wherein it was held as under:

We have gone through this judgment. In our view, the observations made in the above judgment are not relevant to the dispute in hand as the said matter pertains to the Higher Judicial Service in the State of Uttar Pradesh and the specific question to be decided was in respect of a number of attempts a candidate could get as per the rules in the Higher Judicial Service and the said number of attempts were to be determined on the basis of the respective age of the candidates and the category to which they belong. The present dispute is in respect of submission of EWS certificates, which were obtained after the cut-off date notified by UPSC. Hence the ratio of the above judgment is not applicable to the facts of the present case.

Mr. Naresh Kaushik, Advocate has also relied upon the judgment of the Hon’ble Supreme Court in Rakesh Bakshi&Ors. vs. State of Jammu & Kashmir (2019) 3 SCC 511 and specifically referred to para 13. which is reproduced hereunder:

Again, the matter before the Hon’ble Supreme Court was in respect of eligibility of the candidates regarding qualifications on a cut-off date. It is not in doubt that in the present case the eligibility of the candidates belonging to EWS category is to be seen for the year 2017-18, which ended on 31^st March, 2018 and the said date remains as it is and the relevant question to be decided in the instant case, is the date on which the certificate from the concerned authorities certifying the financial status of the candidate was required to be obtained.

In the above cited case, the candidates obtained the necessary qualifications for examination/interview after the cut-off date. That is not the case here because EWS status was to be verified for the period which was more than one year old and the cut-off date is relevant only because the certificates were issued after the cut-off date.

Similarly, Mr. Kaushik has relied upon the judgment in the matter of Ashok Kumar Sonkar vs. Union of India(2007) 4 SCC 54; this case again discusses the matter regarding essential educational qualification but the present case relates to EWS certificates to be obtained from the relevant authorities. The matter of Zonal Manager, Bank of India, Zonal Office, Kochi &Ors. vs. Aarya K. Babu&Ors., (2019) 8 SCC 587 also deals with the minimum qualification for applying for the post, whereas in the present case EWS certificate cannot be equated with essential educational qualification required for qualifying for the said post. The certificate stating an educational qualification is constitutive in nature and it certifies the date when a particular candidate has acquired the minimum education qualification required to sit for an exam but on the other hand, EWS certificate is only cognitive in nature which certifies financial status of a person within a given financial year. In Madras Institute of Development Studies &Anr. vs. Dr.K. Sivasubramaniyan&Ors.(2016) 1 SCC 454 the Court dealt with the selection process whereas the present writ petitions are with respect to dates of procuring EWS certificates. Hence, this judgment again is not applicable to the facts of this case. The judgment in Municipal Corporation of Delhi vs. Surender Singh &Ors., (2019) 8 SCC 67, deals with the merits of the candidates and not with the issuance of valid EWS certificates after the cut-off date. Union of India vs. AnuKumari&Anr. Civil Appeal No.3877/2019 dated 11.04.2019, dealt with the non-uploading of cadre preference by the candidate online before certain date, which is nowhere related to the submission of EWS certificate which was obtained after the cut-off date. Again, in Praveen Sharma vs. the Secretary, UPSC, W.P.(C) No.4569/2008 dated 16.12.2008, issue in hand was the eligibility of a candidate based on age or number of attempts; whereas in the present case dispute is regarding EWS status, which is not related to the age or number of attempts. The case of Satish Kumar vs. UPSC &Anr. W.P.(C) 8319/2014 dated 28.11.2014 did not deal with the sanctity of cut-off dates in respect of obtaining the EWS certificate. In the matter of The Secretary, M/o Personnel, Public Grievances and Pensions vs. TanuKashyap&Ors. W.P.(C) 16191/2006 dated 05.10.2007 the Court dealt with the creamy layer of OBC and the relevant cut-off date for determining the same, whereas the present matter deals with the date of obtaining the EWS certificate; hence this judgment has no relevance. In the matter of Dr.Shamim vs. Union Public Service Commission &Ors. OA No.1301/2019 dated 21.10.2019, issue was regarding possession of requisite educational qualification and the last date in the matter for submission of applications but here in this case the issue is regarding date of obtaining the EWS certificate for the period 2017-18. In Jyoti Hankey vs. Union Public Service Commission &Ors. W.P.(C) No.2342/2012 dated 17.07.2013, the candidate was dismissed on the basis that the Scheduled Tribe certificate was not in the prescribed format. However, the surviving issue in the present case is not the faulty format of the EWS certificate, as UPSC has already given concession to two such candidates, who earlier had submitted faulty certificates and later on submitted the certificates in proper format, hence the said issue does not survive. Mr. Kaushik has also referred to Union of India & Ors. vs. Unicorn Industries, (2019) 10 SCC 575, wherein the court observed that the public interest is superior equity, which can overwrite an individual equity. By extending date of obtaining EWS form 1^st August, 2019 to 16^th August, 2019, the superiority of the public interest has not been undermined as the selection process or the dates of submission of forms or the dates of holding the exams or the interviews has not been interfered with. The superior public interest demands that the exams should be held on time and the forms, duly filled along with documents, should have been submitted on the dates prescribed by UPSC so that no delay is caused in holding the said exams. This Court as well as the learned CAT has not interfered in the dates mentioned for submission of DAF-1 and DAF-2 as well as the examination calendar and the schedule of interview to be held in CSE-2019 in the true sense of the acceptance of superior equity in public interest as held in Union of India & Ors. vs. Unicorn Industries (supra).

The Hon’ble Supreme Court has time and again reiterated that the process of examination or selection, once set in motion, is not to be interfered with and accordingly we are not inclined to do so by allowing the petitioners, who did not claim EWS status by submitting their certificates of Income and Assets along with DAF-1 form, to submit their certificates till the scrutiny stage after the final examination. It is true that there may be difficulties at individual level in obtaining the EWS certificates but the common public interest demands that the dates fixed for any important examination like CSE-2019 should not change and the same should be respected, otherwise it will open flood gates for candidates to approach the learned CAT or higher courts at the drop of a hat at every stage of civil services examination to interfere with or to postpone the dates of submission of forms or examinations and to claim other related reliefs and no finality can be attached to the said examination process or the dates prescribed for the same till the last moment, which will jeopardise careers of hundreds of young men and women, who aspire to join this service and work hard to attain their life-cherished goal. Moreover, the allocation of cadres and training of the selected candidates has to start and it cannot be kept in limbo, hence the dates for submission of forms, certificates and the dates fixed for scheduling the examinations/ interviews are not to be interfered on any pretext, which does not serve the larger public interest.

In view of the above, we agree with the findings arrived at by the learned CAT and we are not inclined to extend the date of submission of the requisite Income and Assets Certificates (EWS certificates) beyond 16^th August, 2019.

Keeping in view the above discussion, we do not find any perversity, illegality or irregularity in the impugned order dated 13^th January, 2020 of the learned CAT so as to warrant interference in the present writ petitions and the said order is accordingly upheld. As a result, all the writ petitions filed by the candidates as well as UPSC and Union of India are hereby dismissed.

It is to be noted that the benefit given to two candidates i.e. Satabadi Mazumdar and Sridhar Limbikai in terms of para 2 (b) of letter of UPSC dated 27^th July, 2020 shall remain as it is and their candidature hereby is directed to be considered for all intent and purposes as if they had submitted their EWS certificates in time.

The pending applications are also disposed of.

The present matter has been taken up for hearing by way of Video Conferencing on account of COVID-19 pandemic.

The present application under Section 151 of the Code of Civil Procedure, 1908 has been instituted on behalf of the applicant/respondent No.1 praying as follows:-

Mr. Salman Khurshid, learned Senior Advocate appearing on behalf of the applicant/respondent No.1, on instructions, seeks leave to withdraw this application with liberty to institute appropriate proceedings, as may be advised, in accordance with law, in relation to our judgment dated 11.09.2020 in W.P.(C) 1158/2020, titled as 'Union Public Service Commission vs. Saumya Pandey & Ors.' and other connected petitions.

Leave and liberty granted.

The application is dismissed as withdrawn and disposed of accordingly.