Prashant Singh vs State Of U.P. And Another
2021 Latest Caselaw 5162 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Reserved On: 23.11.2020
 
						 Delivered On : 12.05.2021
 
In Residence
 

 
Case :- WRIT - A No. - 6939 of 2020
 

 
Petitioner :- Prashant Singh
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Uma Dutt Shukla,Radha Kant Ojha (Senior Adv)
 
Counsel for Respondent :- C.S.C.,M.N. Singh,Nisheeth Yadav
 

 
Hon'ble Neeraj Tiwari,J.

Heard Sri Radha Kant Ojha, learned Senior Advocate assisted by Sri B.D. Pandey, learned counsel for the petitioner, learned standing counsel for the respondent no.1 and Sri Nisheeth Yadav, learned counsel for the respondent no.2.

Sri Radha Kant Ojha, learned Senior Advocate submitted that Uttar Pradesh Public Service Commission (hereinafter referred to as "Commission") has advertised the vacancies vide advertisement No. A-2/E-1/2018 dated 6.7.2018. Petitioner is physically handicapped candidate and in this regard, a certificate was issued to him from the office of Chief Medical Officer, Sultanpur on 10.9.2015, therefore, he had applied against the said advertisement under physically handicapped category. Accordingly, he deposited examination fee of Rs. 25/-, which was prescribed for physically handicapped candidate. He next submitted that he had appeared in preliminary examination, result of which declared on 30.3.2019 and he was found successful. He was issued marksheet of preliminary examination showing him under general/physically handicapped category. After being successful in preliminary examination, petitioner had filled up main examination form mentioning his category as physically handicapped. Thereafter, admit card was issued to petitioner showing him as physically handicapped candidate. He was also declared successful in the main examination and appeared in interview. At that time, he was required by respondent no.2 to fill up certain forms and he again mentioned his category as physically handicapped candidate. He also submitted an old medical certificate dated 10.9.2015 for treating himself under the category of physically handicapped candidate.

Learned Senior Advocate appearing on behalf of the petitioner further submitted that when the final result was declared, petitioner was not shown successful as he was not treated under the category of physically handicapped candidate. He next submitted that after being inquired from the "Commission", he was orally informed that he has not submitted his physically handicapped certificate at the time of filling of main examination form, which is contrary to the condition mentioned in the advertisement. Therefore, his candidature cannot be treated under the category of physically handicapped candidate and he has not been declared successful. He also submitted that though he could not submit certificate at the time of main examination, but he has submitted the same at the time of interview. Therefore, his candidature should not be treated as general candidate, but it should have been treated as physically handicapped candidate and accordingly, result should also be declared on the basis of minimum cut off marks of physically handicapped candidate.

In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of Dheerender Singh Paliwal Vs. UPSC reported in (2017) 11 SCC 276 decided on 21.04.2016. Replying upon the paragraph nos. 4, 5, 14 & 15 of judgment, he submitted that if the petitioner is fully qualified though he could not submit his application form, his candidature should not be transferred into general category candidate, but it should be treated under the category of physically handicapped candidate.

Paragraph nos. 4, 5, 14 & 15 of the aforesaid judgments relied by learned Senior Advocate are quoted hereinbelow:-

"4. In the instructions and additional information to candidates for recruitment by selection at SI. No.3 under the head "Minimum educational qualifications" it was stipulated that all the applicants must fulfil the essential requirements for the post. It was further mentioned therein that the candidate should mention all the qualifications and experience in the relevant field over and above the minimum qualification and should attach attested/self-certified copies of the certificates in support thereof.

5. In Note III of the said paragraph it is specifically mentioned "in regard to educational qualifications, the marksheet in lieu of educational certificate will not be accepted by the Commission." In the same instructions in SI. No.7 the requirements of certificate to be attached, it is mentioned at Serial (ii) "Degree or diploma certificate or other certificates in support of their educational qualifications to be attached either by way of attested copies or self-certified copies". By way of Note III, it is mentioned that if no copies of above certificates are sent with the application, it is liable to be rejected an no appeal against its rejection would be entertained.

14. Having considered the respective submissions and having noted the dictum of this Court as noted above, we are of the view that in the light of the prescription noted in the advertisement, the particulars furnished by the appellant in response to the said advertisement and the production of the degree certificate for having secured the Bsc degree with Zoology as the subject at a later point of time there was substantial compliance with the requirement to be fulfilled in the matter of the essential qualifications possessed by the appellant. Therefore, applying the principle set down by this Court, the respondent Commission ought to have considered the application and more so when the appellant was already in the services of the Forensic Science Laboratory as Senior Scientific Assistant and his essential qualifications were very much on record in the form of resume and therefore pursuant to the direction of the Tribunal when the respondent Commission interviewed the appellant and found him fit to be selected and appointed for the post of Senior Scientific Officer in all fairness should have appointed the appellant.

15. In the first place, it must be stated that it is not a case of the appellant not possessing the required essential qualification but was of only not enclosing the certificate in proof of the added qualification of Zoology as one of the subjects at Bsc level, from a recognized University. In the application when once the appellant, marked '1' against Column 9 and thereby confirmed that he possesses the essential qualification, namely, the postgraduate qualification as well as the degree level qualification, if at all there was any doubt about any of the qualification, the appellant should have been called upon to produce the required certificate in proof of such essential qualification. In fact in this context, when we refer to the interview proceedings of the appellant as well as two other candidates we find that the appellant produced the original Bsc/MSc degree in Zoology and also submitted the attested photocopy of Bsc Zoology degree. The outcome of the said interview was that the appellant should be cleared of his selection. Insofar as other two candidates, namely, Miss Babyto and Miss Imrana, are concerned, we find that the production of their caste certificate was not in the prescribed pro forma initially, nevertheless those candidates were allowed to produce the original caste certificate issued by the competent authority and after verifying the same by accepting the attested photocopies of such caste certificates, their cases were cleared. Therefore, when such a course was adopted by the respondent Commission in regard to those two candidates there is no reason why the candidature of the appellant alone was kept in suspension, though he also cleared interview process. Even assuming such clearance was not made awaiting the outcome of the order of the Tribunal, when the Tribunal upheld his selection and directed the respondent to issue necessary orders for appointment, in all fairness the respondent Commission should have issued the order of appointment. We are of the view that such an approach of the respondent Commission was unfair having regard to the very trivial issue, namely, a non-production of an added qualification as part of the essential qualification at the degree level which the appellant did possess and for mere asking, the appellant could have readily produced the same through his employer."

He next placed reliance upon the judgment of Division Bench of this Court in the matter of Smt. Rajni Shukla Vs. Union of India and 3 others passed in Writ-A No. 40159 of 2016 decided on 8.3.2017. After relying upon the judgment of Dheerender Singh Paliwal (supra), in that case too, Court was of the same view that in case of non-submission of certificate, candidature cannot be rejected or transferred to any other category.

Relevant paragraph of the aforesaid judgment relied by learned Senior Advocate is being quoted hereinbelow:-

"The facts and circumstances of the case in hand are similar to that of Dheerender Singh Paliwal's case (supra). The petitioner was having required degree of post graduation on the relevant date and she had mentioned in her application form that she was possessing the required degree of post graduation. Petitioner should have been called upon to produce the required certificate in proof of her essential qualification, if there was any doubt about her qualification. It is not in dispute that no other candidate was higher in rank to the petitioner for being considered to be appointed on the post of Statistical Investigator, Grade-III. Considering the facts and circumstances of the case, denial of appointment to the petitioner for the post of Statistical Investigator, Grade-III, merely on the ground that she did not attach the required certificate of master degree alongwith application form, can not be justified in the eyes of law."

Further, he placed reliance upon the judgment of Apex Court in the matter of Ram Kumar Gijoriya vs. Delhi Subordinate Services Selection Board and Another reported in (2016) 4 SCC 754 decided on 24.02.2016. He next submitted that this case is squarely covered with the judgment where OBC candidate could not submit certificate after last date mentioned in the advertisement and ultimately Supreme Court allowed the appeal accepting the certificate after that.

Relevant paragraph nos. 2 & 18 of the aforesaid judgment relied by the learned Senior Advocate are being quoted below:-

"2. The important question of law to be decided in these appeals is whether a candidate who appears in an examination under the OBC category and submits the certificate after the last date mentioned in the advertisement is eligible for selection to the post under the OBC category or not?

18. In our considered view, the decision rendered in Pushpa is in conformity with the position of law laid down by this Court, which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned Single Judge, without noticing the binding precedent on the question laid down by the Constitution Benches of this Court in Indra Sawhney and Valsamma Paul wherein this Court after interpretation of Articles 14, 15, 16 and 39-A of the directive principles of State Policy held that the object of providing reservation to the Scs/STs and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to complete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 15 and 39-A of the directive principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the learned Single Judge. Hence, the impugned judgment and order passed by the Division Bench in Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in Indra Sawhney and Valsamma Paul. Therefore, the impugned judgment and order passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order dated 24.11.2010 passed by the learned Single Judge in Ram Kumar Gijoriya v. Govt (NCT of Delhi) is hereby restored.

The appeals are allowed. No costs."

Lastly, he placed reliance upon the judgment of this Court in the matter of Prashant Kumar Dwivedi and Another vs. State of U.P. And 2 others passed in Writ-A No. 5383 of 2020 decided on 28.8.2020. In that case, in the same examination, "Commission" itself has granted certain considerations to the candidates, who were required to submit experience certificate alongwith signature of Competent Authority. In that case, certificate was submitted without countersign of Competent Authority. "Commission" has given another chance to the candidates to submit their certificates alongwith countersign of Competent Authority. He next submitted that "Commission" has itself accepted this fact before the Court that decision has already been taken to this effect by its orders dated 27.7.2001, 7.6.2011 and 9.8.2019 to grant such relief and it was confined only to those students, who had uploaded the form of experience, but in the certificate of experience, signature of the Joint Director could not be obtained. He further submitted that under such acceptance of fact and also law laid down by the Courts, petitioner is also entitled to be declared successful under category of physically handicapped candidate.

Mr. Nisheeth Yadav, learned counsel for the respondent no.2 has vehemently opposed the submissions made by the learned counsel for the petitioner and submitted that in paragraph 7 of the advertisement, it was clearly mentioned that candidates are required to enclose self-attested copies of all the certificates alongwith the application forms of main examination in support of the claims made by them in their application forms of preliminary examination regarding eligibility and category/sub category, failing which their claims shall not be entertained.

Relevant paragraph no.7 of the advertisement is being quoted hereinbelow:-

"It is mandatory for the candidates to enclose self-attested copies of all the certificates along with the application forms of Main Examination in support of the claims made by them in their application forms of Preliminary Examination regarding eligibility and category sub category, failing which their clams shall not be entertained."

Learned counsel for the respondents further submitted that after completion of written examination, another notification dated 7.5.2019 was issued by the "Commission" and again applicants were informed to submit all certificates alongwith main examination form. Paragraph 3 of the said notification is being quoted hereinbelow:-

"vkuykbu Hkjs x;s QkeZ lsV (vkosnu&i=) dks eqfnzr djds mlds lkFk leLr layXudksa (izR;sd o"kZ dh vad rkfydkvksa] mikf/k;ksa rFkk vU; lHkh nkoksa ls lEcfU/kr izek.k&i=ksa dh Lokizekf.kr izfr;kW) lfgr ,d fyQkQs esa Hkjdj rFkk mDr fyQkQs ij eqfnzr irk iphZ (Address Slip) pLik dj fnukad 29 Mays 2019 dks 5%00 PM rd vFkok mlds iwoZ lfpo] m0iz0 yksd lsok vk;ksx] (ijh{kk vuqHkkx&3)] 10&dLrwjck xka/kh ekxZ] iz;kxjkt] fiu dksM&ua&211018 dks iathd`r Mkd }kjk vFkok O;fDrxr :i ls vk;ksx ds xssV la[;k&3 ij fLFkfr Mkd vuqHkkx ds dkmUVj (iwN&rkN dkmUVj) ij vo'; miyC/k djk nsaA mDr vfUre frfFk ds ckn izkIr gksus okys vkosnu&i= fdlh Hkh n'kk esa Lohdkj ugha fd, tk,axsA"

He next submitted that this fact is undisputed that alongwith main examination form, petitioner could not submit his certificate of physically handicapped candidate.

In support of his contention, he placed reliance upon the judgments of Apex Court as well as this Court. He first placed reliance upon the judgment of Full Bench of this Court in the case of Rajendra Patel Vs. State of U.P. And another passed in Writ-A No.7401 of 2015 decided on 14.8.2015.

Relevant paragraph of the said judgment relied by learned counsel is being quoted hereinbelow:-

"For these reasons, we hold that where the Commission requires the submission of a hard copy of the online application together with all accompanying documents by a prescribed last date and has clearly placed the candidates on notice of the fact that an application which is submitted beyond the last date together with the prescribed documents would result in the invalidation of the candidature, the condition which has been imposed by the Commission would have to be scrupulously observed. It would not be open to the Court to hold that notwithstanding such a clear condition, an application which has not been received by the last date should be entertained. The Commission has given an option to candidates of submitting their applications in the hard copy by either of the two modes, namely by registered post or by personal delivery. A candidate who has opted for one of the two modes, is required to comply with the condition that all the requisite four stages are completed within the time stipulated."

He further submitted that similar issue was again before this Court in the matter of Arvind Kumar Yadav vs. U.P. Recruitment & Promotion Board and 2 others passed in Special Appeal No. 762 of 2016 decided on 5.12.2016, Court has clearly held that in case of non submission of requisite certificate within the cut off date, treating the general category candidates no error has been committed by the learned Single Judge while rejecting the claim set up by the petitioner.

Relevant paragraph of the aforesaid judgment relied by the learned counsel is being quoted hereinbelow:-

"Since the petitioner had failed to satisfy the requirements of the advertisement, as were prescribed by submitting the certificate, we are more than satisfied that the learned Single Judge is right in coming to the conclusion that petitioner is liable to be treated as a General category candidate. No error has been committed by the learned Single Judge while rejecting the claim set up by the petitioner.

He further submitted that similar issue again came before the Division Bench of this Court in the matter of Gaurav Sharma and Court was having conflict of opinion with regard to judgments rendered by two other Division Benches in the matter of Pravesh Kumar v. State of U.P. And two others, Special Appeal Defective No. 136 of 2017, decided on 1.3.2017 and Shubham Gupta v. Indian Overseas Bank Office, Chennai and others, Writ Petition No. 748 (S/B) of 2014 decided on 8.7.2016 and in the matter of Arvind Kumar Yadav (supra). Therefore, Full Bench was constituted in the matter of Gaurav Sharma Vs. State of U.P. And others which has decided the issue and reported as 2017 (5) ADJ 494 (FB). The Full Bench has framed three issues out of which two relevant issues are being quoted hereinbelow:-

"A. Whether the candidature of an OBC candidate is liable to be rejected on the ground of the caste certificate having been submitted after the last date for submission of applications?

"B. Whether the decision in Arvind Kumar Yadav lays down and represents the correct position of law."

He submitted that while considering the first question, the Full Court in the matter of Gaurav Sharma (supra) has observed as follows:-

"Having noticed the statutory position, we then proceed to consider whether such a concession or exemption can be said to flow from Articles 14 or 16 of the Constitution as contended. Upon a thoughtful consideration, we find ourselves unable to accept the broad proposition as canvassed by the learned counsels. We are of the considered view that no such right of exemption can possibly be said to reside in or flow from Article 16 of the Constitution. Insofar as infraction of Article 14 is concerned, we presume that the same has been urged as a corollary to the contention that the prescription is superfluous. We are afraid that we find ourselves unable to sustain this submission either. As noted above the prescription of a cut off date in an advertisement serves more than one salutary purpose. By requiring all applicants to adhere to this date, the State is not practicing any discrimination nor can it be said to be acting unfairly. The absence of such a requirement would quagmire the entire selection process in a state of complete uncertainty. One of the primary purposes which such a stipulation serves is enabling the selecting body to identify the number of candidates constituting the field of eligibility. Judging whether a particular candidate is entitled to the benefits of reservation or has rightly claimed as falling in the said category is an essential exercise liable to be undertaken. For the purposes of undertaking this exercise the selecting body must be in a position to adjudge for itself whether a particular candidate is entitled to the benefits and exemptions as claimed. If this were not read as being an inherent power in the selecting body, the process of selection itself may be completely derailed."

Court replied the same and held that it cannot be said that the requirement of submission of such certificate by a particular date is not attracted to the case of an OBC candidate, meaning thereby it is required to submit the certificate before the last date for submission of application form or time granted for submitting any certificate, documents etc.

He next submitted that while considering the second question, Full Court in the matter of Gaurav Sharma (supra), is of the view that in case of Ram Kumar Gijoriya (supra), no last date of submission of OBC certificate is prescribed in advertisement and OBC certificate was only required after completion of examination whereas in the present case last date was very well mentioned in advertisement dated 6.7.2018 as well as notification dated 7.5.2018.

Relevant paragraph of the aforesaid judgment relied by learned counsel are quoted hereinbelow:-

"We then proceed to address the second question framed for our consideration and which pertains to the correctness or otherwise of the judgment of the Division Bench in Arvind Kumar Yadav. As noted above, the sheet anchor of the case of the appellant and the writ petitioners was the judgment of the Supreme Court in Ram Kumar Gijroya. It becomes relevant to note that in the said case, the Supreme Court was called upon to consider the correctness of a judgment rendered by the Delhi High Court which had overturned a judgment rendered by a learned Single Judge of the said Court who had followed two earlier precedents to hold that the candidature of a Scheduled Castes/Scheduled Tribes candidate could not be turned down only on the ground that the caste certificate was submitted after the last date prescribed in the advertisement. The two prior precedents which the Delhi High Court considered were Pushpa Vs. Govt. (NCT of Delhi)9 and Tej Pal Singh V. Govt. (NCT of Delhi)10 . In the appeal of Ram Kumar Gijroya, the learned Single Judge of the Delhi High Court following the two precedents referred to above had directed the respondents therein to accept the OBC certificate of the appellant. One of the significant and distinguishing features of Ram Kumar Gijroya, which immediately springs to light is that the advertisement did not prescribe a cut off date at all. The requirement of submitting the OBC certificate was introduced only by a notice issued by the Delhi Subordinate Services Selection Board while declaring the final results.

.........................................................................

We are therefore of the considered view that the Division Bench in Arvind Kumar Yadav rightly noted the distinct factual backdrop in which Ram Kumar Gijroya came to be rendered. The aspect of there being no consideration of the impact of a negative stipulation in an advertisement in the said judgment of the Supreme Court clearly escaped the Division Benches which pronounced judgments in Pravesh Kumar and Shubham Gupta."

Court after detail discussion, replied the second question of law and held that law laid down by the Arvind Kumar Yadav (supra) is correct.

He next submitted that Full Bench replied both the questions in favour of respondent "Commission" and taken clear view that every candidate is required to submit their original certificates within the last date fixed and further cannot be exempted from the rigours of a cut off or last date prescribed in an advertisement or recruitment notice. Finally, Full Court has held that law laid down in the matter of Arvind Kumar Yadav (supra) is correct law.

Lastly, he placed reliance upon the judgment of Apex Court in the matter of State of Tamil Nadu and others Vs. G. Hemalatha and another passed in Civil Appeal No. 6669 of 2019 decided on 28.8.2019. Supreme Court has held that instructions issued by the "Commission" are mandatory, having the force of law and they have to be strictly complied with.

Paragraph nos. 7 and 12 of the said judgment relied by the learned counsel are being quoted below:

"7. We have given out anxious consideration to the submissions made by the learned Senior Counsel for the Respondent. The instructions issued by the Commission are mandatory, having the force of law and they have to be strictly complied with. Strict adherence to the terms and conditions of the Instructions is of paramount importance. The High Court in exercise of powers under Article 226 of the Constitution cannot modify/relax the instructions issued by the Commission."

12. After giving a thoughtful consideration, we are afraid that we cannot approve the judgment of the High Court as any order in favour of the candidate who has violated the mandatory instructions would be laying down bad law. The other submission made by Ms. Mohana that an order can be passed by us under Article 142 of the Constitution which shall not be treated as a precedent also does not appeal to us."

He also submitted that so far as judgment of Prashant Kumar Dwivedi (supra) is concerned, for the facts involved in that case, there is no pleadings in the present case, therefore, cannot be replied.

Mr. Radha Kant Ojha, learned Senior Advocate in his rejoinder argument submitted that judgment of State of Tamil Nadu (supra) would not be applicable in the case of petitioner for the reason that in that case there was violation of instruction of the Commission upon answer sheet as well as OMR sheet and not in submission of application form or any other certificate, therefore, this judgment would not help the respondents. Similarly, he also submitted that judgment of Full Court in the case Rajendra Kumar Patel (supra) as in that matter after submission of application form through online, there is requirement of submission of hard copies of application form or relevant certificate and here the case is different. There is no case of submission of application form through online, therefore, this judgment is also not come in the rescue of respondents.

So far as Full Bench of this Court in the matter of Gaurav Sharma (supra) is concerned, Mr. R.K. Ojha, learned Senior Advocate submitted that "Commission" cannot take two different stands against its advertisements as in the matter of Prashant Kumar Dwivedi (supra), Commission is coming with another stand and wherein in the matter of Gaurav Sharma (supra) Commission has taken a different stand.

Learned Standing Counsel appearing for the State has also supported the case of "Commission" and adopted the argument raised by Sri Nisheeth Yadav, learned counsel for the respondent no. 2.

I have considered the rival submissions advanced by the learned counsel for the parties and perused the judgments as well as records.

Undisputed facts of the case are that in paragraph 7 of the advertisement No. A-2/E-1/2018 dated 6.7.2018, it is mentioned that candidates are required to enclose self-attested copies of all certificates in support of claims made by them in their application forms of Preliminary Examination regarding eligibility and category, sub-category along with the application forms of Main Examination. It is also mentioned that in case self-attested copies of all certificates alongwith Main Examination Forms are not enclosed, claims shall not be entertained. It is also not disputed that after completion of written examination, in paragraph 3 of another notification dated 7.5.2019 issued by Commission, same fact of submission of certificates within a cut off date was reiterated. It is also undisputed that against the said advertisement, petitioner had applied under physically handicapped category and also deposited examination fee of Rs. 25/-, which was prescribed for physically handicapped candidate. Result of preliminary examination was declared on 30.3.2019 and in his marksheet, he was shown under general/physically handicapped category. In his main examination, he has filled up his category as physically handicapped and accordingly, admit card was issued to petitioner showing him as physically handicapped candidate. After declaration of result of main examination, while appearing in interview, he again mentioned his category as physically handicapped candidate. This fact is also undisputed that alongwith main examination form, petitioner could not submit his certificate of physically handicapped category as required by the Commission.

Therefore, the issue before this Court is that as to whether physically handicapped certificate of the petitioner could be accepted beyond the cut off date or not.

Two sets of judgment have been cited before this Court. One by learned Senior Counsel for petitioner, which are judgments of Dheerender Singh Paliwal (supra), Smt. Rajni Shukla (supra) and Ram Kumar Gijoriya (supra). In these judgments, more or less Courts are of the view that if candidates are having qualification, mere non production of certificate at relevant point of time cannot be a ground for rejection of candidature or change of category from a particular sub category to general category.

Another sets of judgment were cited by the learned counsel for the respondents, which are judgments of Rajendra Patel (supra) and Arvind Kumar Yadav (supra), Gaurav Sharma (supra) and State of Tamil Nadu (supra). As per these judgments, Courts are of the view that its mandatory requirement to submit all certificates for claiming any benefit within the cut off date fixed by Commission/Selection Body. For completion of selection process within the particular time and for equal opportunity to the candidates of same category having their rankings just below to the petitioner/candidate, it is mandatory to produce all relevant documents mentioned within the cut off date fixed by Commission/Selection Body in the advertisement.

The judgment of Dheerender Singh Paliwal (supra) was based upon two facts. First of all, appellant was already in the services of the same department i.e. Forensic Science Laboratory as Senior Scientific Assistant and certificates for his essential qualifications were very much available on record in the form of resume and he was again appointed in the same department on the post of Senior Scientific Officer. Secondly, for the very same selection, two other candidates, who had not produced their caste certificates at the time of interview have been given time, but petitioner was denied for the same. Therefore, considering all these facts, Apex Court directed the selection body to issue appointment letter after accepting the certificate, whereas in the present case, no such discrimination is available or done by the "Commission", therefore, the facts of the case of Dheerender Singh Paliwal (supra) are different from the present case. Relying upon the very same judgment of Dheerender Singh Paliwal, (supra), this Court has allowed the Writ Petition No. 40159 of 2016 ( Rajni Shukla Vs. Union of India and 3 others). Therefore, the same would also be not helpful for the very same reasons.

Another judgment of Ram Kumar Gijoriya (supra), Apex Court has taken view in the matter of OBC candidate, if caste certificate is not submitted within time, that cannot be a ground for rejecting the candidature. Court is of the view that if a person is OBC by birth and not by acquisition of this category because of any other event happening at a later stage, a certificate issued by competent authority to this effect is only an affirmation of fact, which is already in existence. This judgment was subject matter of Full Bench of this Court in the matter of Gaurav Sharma (supra) and for reasons discussed would not be helpful for petitioner.

So far as second sets of judgment are concerned, Court has taken different view that candidate is required to submit the application form/certificate or any other documents or on before the cut off date fixed by the Commission/ Examination Authority and no relaxation can be granted

The Full Bench of this Court in the matter of Rajendra Patel (supra) with regard to submission of a hard copy of the online application within the cut off, has taken the same view and held that all conditions should have been completed within the stipulated time given by the competent authority.

Again in the matter of Arvind Kumar Yadav (supra) came before this Court for adjudication and after considering the case of Ram Kumar Gijoriya (supra), Court has taken different view and upheld the judgment of learned Single Judge with the observations that since the petitioner had failed to satisfy the requirements of the advertisement and not submitted the certificate within time, he has rightly been treated as general category candidate.

Later on, Full Bench in the matter of Gaurav Sharma (supra) was also constituted and while interpreting the judgment of Ram Kumar Gijoriya (supra), Full Court has framed issues. First issue was as to whether the candidature of an OBC candidate is liable to be rejected on the ground of the caste certificate having been submitted after the last date of submission of applications and answer was in negative. While giving the answer, Court has considered so many judgments and given detailed findings that prescription of a cut off date in an advertisement serves more than one salutary purpose. Absence of any such requirement would be an unending process for completion of selection and further it would deprive to all other candidates, who are below in merit than petitioner/candidate, but otherwise eligible and also submitted their all requisite certificates of a particular category within the cut off date. They would only be benefited after removal of such candidates/petitioner, who had not submitted their requisite certificates within the cut off time prescribed. In fact, Commission/Selection Body must be in position to decide as to whether a particular candidate is entitled to the benefits or any other exemption as claimed by him only by fixing cut off date to enable itself to transfer the said benefits to candidates lower in marks in case of failure of submission of certificates by any other candidate having higher marks in that category. Therefore, in the present case too, "Commission" has not committed any error while transferring the candidature of petitioner into general category in lack of submission of relevant certificate within the cut off date.

In light of discussed hereinabove and further considering this fact that in the case of Ram Kumar Gijoriya (supra), no cut off date was prescribed in an advertisement for submission of OBC certificate as declared in Arvind Kumar Yadav (supra) correctly articulates the law on the issue and overrule Pravesh Kumar and Shubham Gupta.

It is also necessary to point out here that as per settled provisions of law, once a interpretation is made by Full Bench of High Court that would have binding affect over the Court in the similar matter.

The Apex Court in the matter of State vs. Tamil Nadu and others (supra) has taken clear cut view that instructions issued by Commission are mandatory and having force of law, therefore, they have to be strictly complied with. The High Court in exercise of powers under Article 226 of the Constitution cannot modify/relax the instructions issued by the Commission. Not only this, Court refused to pass an order under Article 142 of the Constitution of India.

Mr. R.K. Ojha, learned Senior Counsel relied upon the judgment of Prashant Kumar Dwivedi (supra), but the facts of the case as argued by learned Senior Counsel was not the part of pleading and Commission was not in position to rebut the same. Therefore, without specific pleading any case based upon certain facts can not be taken into consideration. Further that case was having different facts too. In that matter, required certificate was submitted without signature of one of the authority for which additional time was granted by the Commission to remove the deficiency. In the present case, undisputedly, certificate of physically handicapped candidate has not been submitted alongwith main examination form, which was absolutely in violation of terms and conditions of advertisement.

Therefore, considering the facts of the case as well as law laid down by the Courts, I am of the firm view that for successful completion of any competitive examination, which are having candidates of different categories based upon many factors like physically handicapped, vertical or horizontal reservation etc, it is necessarily required to submit all relevant documents well within the cut off date prescribed by the Commission/Selection Body. In case of failure of the same, there is no illegality in rejecting their candidature or transferring them into general category. In fact, if such major is not taken by the Commission/Selection body, the process of selection would be unending and also deprive many other candidates, who are otherwise eligible and also submitted all certificates well within time prescribed by the Commission, but below in merit than the petitioner/candidate.

Further, in light of judgment of State of Tamil Nadu (supra), High Court in exercise of powers under Article 226 of the Constitution of India cannot modify/relax instructions issued by the Commission provided it is in violation of natural justice or any provision of Constitution of India. Therefore, it is necessarily required to complete all formalities and submit certificates well within time prescribed by the Commission/Selection Body. In present case, there is no violation of natural justice or any provision of Constitution of India and undisputedly, petitioner has not submitted certificate of physically handicapped within the prescribed time fixed by the Commission.

Therefore, in light of facts mentioned hereinabove as well as law laid down by the Apex Court and this Court, applicant is not entitled for any relief from this Court, petition lacks merit and is accordingly dismissed.

No order as to costs.

Order Date :- 12.05.2021

Junaid