Andhra Pradesh High Court - Amravati

K.B.Mallikarjuna vs The State Of Andhra Pradesh on 28 January, 2021

Bench: M.Satyanarayana Murthy

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                       WRIT PETITION NO.670 OF 2021
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:-

"....to issue a Writ Order or Direction more particularly one in the nature of

Writ of Mandamus, declaring the action of the 3rd respondent in rejecting the

petitioner's representation dated 18.01.2020 vide Endorsement

R.C.No.A/S.R.D/02/2018, dated 09.09.2020, as illegal, arbitrary and contrary

to the directions of this Court in W.P.No.15480/2019, dated 10.12.2019 and set

aside the same and further direct the 3rd respondent to take into account the

Paramedical Certificate submitted by the petitioner along with the

representation dated 18.01.2020 and appoint him to the post of Multi Purpose

Health Assistant (Male) pursuant to the backlog Notification No.A/SRD/2/2018

as informed under Proceedings No.B/Spandana/KUR201907084342, dated

14.07.2019 and pass such other order."

2. The case of the petitioner in brief is that pursuant to the

Notification issued by the 2nd respondent, the petitioner uploaded

application through online and submitted a copy of the application

along with enclosures required under the Notification. The office of

the 3rd respondent issued the order intimating rejection of the

application submitted by the petitioner vide order dated 10.07.2019

stating that the petitioner has not enclosed the certificate issued by

the Andhra Pradesh Paramedical Board.

3. The petitioner filed W.P.No.15480 of 2019 before this Court,

this Court was pleased to dispose of the writ petition vide orders

dated 10.12.2019 permitting the petitioner to make fresh

representation by enclosing the certificate issued by the Paramedical

Board and further directed the 3rd respondent to dispose of the

representation submitted by the petitioner. Obviously, this Court

was pleased to direct the 3rd respondent to take into consideration

the Paramedical Certificate enclosed to the representation of the

petitioner. In spite of the same, the 3rd respondent has rejected the

petitioner's representation dated 18.01.2020 received by them on

20.01.2020 vide impugned endorsement dated 09.09.2020 on a mere

technical ground that the certificate was not submitted at the time of

submitting the application.

4. Therefore, the petitioner sought to declare the action of the

3rd respondent in rejecting the petitioner's representation, dated

18.01.2020 vide endorsement in R.C.No.A/S.R.D/02/2018, dated

09.09.2020, as illegal, arbitrary and consequently direct the

3rd respondent to receive the representation submitted by the

petitioner.

5. During the course of hearing, Smt.V.Sesha Kumari, learned

counsel for the petitioner mainly contended that failure to submit

certificate of qualification and acquiring qualification are two

different aspects, merely because the certificate was not submitted

along with the application, the candidature of the petitioner cannot

be rejected and requested to issue a direction to the 3rd respondent

to receive the certificate and consider the candidature of the

petitioner for selection of MPHA (Male) by placing reliance on the

judgment of the Apex Court in Dolly Chhanda Vs. Chairman, JEE

and Ors1.

6. Whereas, learned Government Pleader for Services-III opposed

the petition stating that when there is a prescription for submission

of certificate along with the application, failure to submit certificate

2004(7) Supreme 297

disentitles the petitioner for being appointed as MPHA (Male) and the

petitioner failed to comply the requirements as notified in the

Notification and the rejection of the candidature of the petitioner is

legal and he supported the endorsement.

7. Admittedly, in pursuance of the Notification, the petitioner

made an application through online process, but failed to annex a

copy of the certificate of qualification issued by the Paramedical

Board and thereby the application of the petitioner was rejected.

The same was challenged before this Court in the earlier

W.P.No.15480 of 2019, wherein this Court was pleased to direct the

petitioner to submit a representation annexing a copy of the

certificate issued by the Paramedical Board for consideration of the

petitioner's candidature for being appointed as MPHA(Male).

Accordingly, the petitioner submitted a representation, dated

18.01.2020, same was received by the 3rd respondent on 20.01.2020

and he issued an endorsement, dated 09.09.2020 i.e., almost after

eight (08) months from the date of receipt of the certificate along with

the representation.

8. Though it is a basic requirement to annex a copy of certificate,

the petitioner negligently did not annex the copy of the certificate to

the application, which is the qualification or eligibility for

consideration of the application. But, the law laid down by the Apex

Court is otherwise, though there is a prescription for submission of

application in the Notification itself, it is only a procedural surge and

the same cannot be taken into consideration as it has deprived the

petitioner from the selection.

9. In another judgment in Charles K.Skaria & Ors. Vs.

Dr.C.Mathew & Ors2 wherein the Apex Court held in para 20 of the

judgment as follows:-

"20. There is nothing unreasonable or arbitrary in

adding 10 marks for holders of a diploma. But to earn these

extra 10 marks, the diploma must be obtained at least on or

before the last date for application, not later. Proof of having

obtained a diploma is different from the factum of having got it.

Has the candidate, in fact, secured a diploma before the final

date of application for admission to the degree course? That is

the primary question. It is prudent to produce evidence of the

diploma along with the application, but that is secondary.

Relaxation of the date on the first is illegal, not so on the second.

Academic excellence, through a diploma for which extra mark is

granted, cannot be denuded because proof is produced only

later, yet before the date of actual selection. The emphasis is on

the diploma; the proof thereof sub serves the factum of

possession of diploma and is not an independent factor.

.................. Mode of proof is geared to the goal of the

qualification in question. It is subversive of sound interpretation

and realistic decoding of the prescription to telescope the two

and make both mandatory in point of time. What is essential is

the possession of a diploma before the given date; what is

ancillary is the safe mode of proof of the qualification. To

confuse between a fact and its proof is blurred perspicacity. To

make mandatory the date of acquiring the additional

qualification before the last date for application makes sense.

But if it is unshakeably shown that the qualification has been

acquired before the relevant date, as is the case here, to

invalidate this merit factor because proof, though indubitable,

was adduced a few days later but before the selection or in a

manner not mentioned in the prospectus, but still above-board,

1980(2) SCC 752

is to make procedure not the handmaid but the mistress and

form not as subservient to substance but as superior to the

essence."

10. With the approval of the above judgment, the Apex Court in

Dolly Chhanda's case (referred (1) supra) held in Para 7 of the

judgment as follows:-

"7. The general rule is that while applying for any course of

study or a post, a person must possess the eligibility

qualification on the last date fixed for such purpose either in the

admission brochure or in application form, as the case may be,

unless there is an express provision to the contrary. There can

be no relaxation in this regard i.e., in the matter of holding the

requisite eligibility qualification by the date fixed. This has to be

established by producing the necessary certificates, degrees or

mark sheets. Similarly, in order to avail of the benefit of

reservation or weightage etc., necessary certificates have to be

produced. These are documents in the nature of proof of holding

of particular qualification or percentage of marks secured or

entitlement for benefit of reservation. Depending upon the facts

of a case, there can be some relaxation in the matter of

submission of proof and it will not be proper to apply any rigid

principle as it pertains in the domain of procedure. Every

infraction of the rule relating to submission of proof need not

necessarily result in rejection of candidature.