Chattisgarh High Court
Mohd. Farid Shams vs State Of Chhattisgarh And Ors on 27 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 11/11/2022
Order Delivered on 27/01/2023
WPS No. 1551 of 2014
Mohd. Farid Shams S/o Mobinuddin Shams, Aged About 31 Years R/o
Near B.P. Pujari School, Raja Talab, Raipur, Civil And Revenue District-
Raipur, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh, Through: The Secretary, Department of Higher
Education, Secretariat, Mahanadi Bhawan, Naya Mantralaya, District-
Raipur, Chhattisgarh.
2. The Director, Directorate of Technical Education, Raipur Civil And Revenue
District- Raipur, Chhattisgarh.
3. Principal Government Polytechnic, Durg, Tahsil Civil And Revenue District -
Durg, Chhattisgarh.
4. Santosh Kumar Dubey S/o G.N. Dubey Aged About 37 Years Skilled
Attendent (R&AC) Government Polytechnic, Durg, Tahsil, Civil And
Revenue District : Durg, Chhattisgarh.
---- Respondents
For Petitioner : Mr. Akash Kumar Kundu, Adv.
For State/respondent No. 1 to 3 : Mr. Kapil Maini, P.L.
For Respondent No. 4 : None, though notice has been served.
Hon'ble Smt. Justice Rajani Dubey
C A V Order
Date : 27/01/2023
1. This petition is filed under Article 226 of the Constitution of India for
quashing/set aside the impugned orders dated 30.08.2013 (Annexure-P/10) and
30.08.2013 (Annexure-P/11) passed by the respondent authorities whereby the
respondent No. 4 was appointed on the post of Skilled Attendant (R&AC) in the
Government Polytechnic Durg.
2. Brief facts of the case are that pursuant to the advertisement dated
07.02.2013 (Annexure-P/1) issued by the Principal, Government Polytechnic,
Durg (C.G.). The petitioner had submitted his application form for the post of
Skilled Attendant (Annexure-P/2) and petitioner with regard to his experience, he
had mentioned in his application that he is working as a Lab Technician in the
Department of Mechanical Engineers at Disha Institute of Management &
Technology, Raipur since 20.08.2008 till the date of submission of application
form, however, he did not have an experience certificate. When the merit list was
released by respondent No. 3 he came to know that he has placed at serial No.
16 in the said list with only 64.45 marks. The respondent authorities have not
allotted marks for the experience certificate of the petitioner. Thereafter, the
petitioner made an objection to the effect that he has not been awarded any
marks for his experience, however, the same has been rejected vide memo dated
26.07.2013 (Annexure-P/5). When the petitioner applied for the said post at
Government Polytechnic, Kanker, his experience of four and a half years was
recognized. On 30.08.2013 the respondent authorities released the select list of
candidates in all categories, wherein respondent No. 4 was subsequently selected
vide impugned selection list dated 30.08.2013 (Annexure-P/10) for the post of
Skilled Attendant (Ref.& AC) under unreserved category. Accordingly, against this
conduct of the respondent authorities, the petitioner filed this petition for the
following reliefs:-
10.1. Call for entire records pertaining to the selection process and
appointment of respondent No. 4:
10.2. Set aside/quash the select list dated 30.08.2013 (Annexure-P/10)
so far as it relates to skilled Attendant (Ref. & AC) unreserved category:
10.3. Set aside/quash the impugned order dated 30.08.2013 (Annexure-
P/11) whereby the respondent No. 4 has been appointed on the post of
Skilled Attendant (R & AC) at Government Polytechnic, Durg;
10.4. To direct the respondent authorities to conduct fresh interview of
the petitioner for the post of Skilled Attendant (R & AC) and thereafter,
issue fresh appointment order on the basis of result;
10.5. Grant any other relief or direction which this Hon'ble Court deems
fit in the facts and circumstances of the case, in the interest of justice.
3. Learned counsel for the petitioner submits that the action of the respondent
authorities is arbitrary and illegal. It is evident from the record that the petitioner
held an experience of more than four years on the date of submission of his
application, therefore, deserves the requisite marks. Accordingly, the petitioner
mentioned aforesaid experience in his application and had enclosed sufficient
certificates to show that he is working as Lab Technician at Disha Institute of
Management & Technology, Raipur. The petitioner had submitted the experience
certificate with his objection showing experience of more than four years and the
rejection of the petitioner's objection is apparently biased and arbitrary. It is further
submitted that Government Polytechnic, Kanker has awarded 4.5 marks for the
experience of the petitioner and the petitioner only applying for the same post
thus adoption of the different criteria by Durg shows the arbitrariness of the
respondent authorities. Another Polytechnic, Kanker has accepted the experience
certificate along with the objection and awarded marks to the candidate. The non-
selection of the petitioner and selection and appointment of respondent No. 4 is
illegal and deserves to be set aside. He has placed reliance on the decision of
Hon'ble the Supreme Court in the matters of Dolly Chhanda Vs. Chairman, JEE
And Others1 , Food Corporation of India Vs. Rimjhim2 and Sanjay Dhar Vs. J
& K Public Service Commission and Another3 and the judgment of this Court in
the matter of Nimisha Mishra Vs. State of Chhattisgarh and Another passed in
WPS No. 1905/2021 vide order dated 12.08.2022.
4. Learned counsel for the State/respondents submits that in pursuance of
the aforesaid advertisement (Annexure-P/1), the petitioner had submitted his
application form for the post of Skilled Attendant on 19.02.2013 along with
relevant documents (Annexure-P/2). The respondent authorities constituted a
selection committee to initiate the recruitment process. The selection committee
have been scrutinized relevant documents submitted by the candidates and it has
been found that the petitioner has not enclosed the experience certificate, but he
mentioned that the experience certificate has been enclosed along with his
application form for the post of Skilled Attendant. Thereafter, a merit list of eligible
candidates for the post of Skilled Attendant (R & AC) has been prepared in
accordance with the provision as laid down in para 03 of the advertisement
(Annexure-P/1), wherein, the petitioner's name appeared at Serial No. 16 (with
total 64.45 marks) (the same has been filed by the petitioner as Annexure-P/3). It
is further submitted that the petitioner has not submitted his experience certificate,
therefore, he has not been allotted marks against experience by the selection
committee. He next submits that the petitioner has filed an objection before
respondent No. 3 on 29.06.2013 (Annexure-P/4) along with relevant documents
and experience certificate, requesting therein to add his name and extend the
benefit of marks against the experience. He next submits that the objection of the
petitioner has been rejected vide order dated 26.07.2013 (Annexure-P/5) on the
1 (2005) 9 SCC 779.
2 (2019) 5 SCC 793.
3 (2000) 8 SCC 182.
ground that as the petitioner had not submitted the experience certificate along
with his application, therefore, he has not given the marks with respect to
experience certificate. Vide order dated 02.08.2013 (Annexure-P/9) issued by
respondent No. 3 the first 10 candidates in the merit list for the respective posts
(including the post of Skilled Attendant (R & AC) were called for interview on
24.08.2014 and thereafter, a select list has been prepared by the Selection
Committee (Annexure-P/10), wherein the respondent No. 4 has been selected for
the post of Skilled Attendant (R & AC) under general category and appointment
order issued on 30.08.2013 (Annexure-P/11) in favour of the respondent No. 4.
The name of the petitioner has rightly been placed at Serial No. 16 in the merit list
of eligible candidates. Since the petitioner has failed to submit the experience
certificate along with his application form within the prescribed time, therefore, the
marks against the experience certificate as claimed by the petitioner have not
been allotted by the selection committee to the petitioner. He lastly submits that
the selection process has been done strictly in accordance with the law and no
illegality or infirmity has been committed by the respondent authorities. Therefore,
the instant petition is vague, baseless and devoid of merits, and deserves to be
dismissed.
5. Heard both the counsel for the parties and perused the material available
on record. None for respondent No. 4, though notice has been served.
6. As per the advertisement dated 07.02.2013 (Annexure-P/1) minimum
qualification and selection process of the impugned post is as under :
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7. As per Annexure-P/2 petitioner's experience was filled as pkj o"kZ N% ekg (4
years and 6 months). Petitioner filed his objection on 29.06.2013 (Annexure-P/4)
as per the petitioner he filed his appointment order with his application which
shows that he was selected by Disha Institute of Management and Technology on
20.08.2008 and his service is confirmed as a Lab Technician in Mechanical Lab
with effect from 20.08.2009. On 19.02.2013 (Annexure-P/2) with his objection, he
filed his experience certificate of more than four years but respondent authorities
have not considered his objection.
8. In the matter of Food Corporation of India (Supra) Hon'ble the Apex
Court in para 13 has held as under:-
13. Now so far as the submission on behalf of the FCI that a
candidate must and/or ought to have produced the experience
certificate along with the application is concerned, at this stage, a
decision of this Court in the case of Charles K. Skaria v. Dr. C.
Mathew (1980) 2 SCC 752 and the subsequent decision of this Court
in the case of Dolly Chhanda v. Chairman, Jee and others (2005) 9
SCC 779 are required to be referred to. In the case of Charles K.
Skaria (supra), this Court had an occasion to consider the distinction
between the essential requirements and the proof/mode of proof. In
the aforesaid case, this Court had an occasion to consider the
distinction between a fact and its proof. In the aforesaid case before
this Court, a candidate/student was entitled to extra 10% marks for
holders of a diploma and the diploma must be obtained on or before
the last date of the application, not later. In the aforesaid case, a
candidate secured diploma before the final date of application, but
did not produce the evidence of diploma along with the application.
Therefore, he was not allowed extra 10% marks and therefore
denied the admission. Dealing with such a situation, this Court
observed and held that what was essential requirement was that a
candidate must have obtained the diploma on or before the last date
of application but not later, and that is the primary requirement and to
submit the proof that the diploma is obtained on or before a particular
date as per the essential requirement is secondary. This Court
specifically observed and held that "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". This Court specifically
observed and held that "to confuse between a fact and its proof is
blurred perspicacity". This Court further observed and held that:
(Charles K. Skaria case4, SCC p. 762, para 20)
"20. ... 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
4 Charles K. Skaria v. C. Mathew, (1980) 2 SCC 752:1980 SCC (L&S) 305
the relevant date, to invalidate the merit factor because proof, though
indubitable, was adduced a few days later but before the selection or
in a manner not mentioned in the prospectus, but still above board, is
to make procedure not the handmaid but the mistress and form not
as subservient to substance but as superior to the essence.
While observing and holding so, in paragraphs 20 & 24, this Court
observed and held as under:
"20. There is nothing unreasonable or arbitrary in adding 10 marks for
holders of a diploma. But to earn these extra 10 marks, the diploma
must be obtained at least on or before the last date for application, not
later. Proof of having obtained a diploma is different from the factum of
having got it. Has the candidate, in fact, secured a diploma before the
final date of application for admission to the degree course? That is the
primary question. It is prudent to produce evidence of the diploma
along with the application, but that is secondary. Relaxation of the date
on the first is illegal, not so on the second. Academic excellence,
through a diploma for which extra mark is granted, cannot be denuded
because proof is produced only later, yet before the date of actual
selection. The emphasis is on the diploma; the proof thereof subserves
the factum of possession of the diploma and is not an independent
factor..... Mode of proof is geared to the goal of the qualification in
question. It is subversive of sound interpretation and realistic decoding
of the prescription to telescope the two and make both mandatory in
point of time. What is essential is the possession of a diploma before
the given date; what is ancillary is the safe mode of proof of the
qualification. To confuse between a fact and its proof is blurred
perspicacity. To make mandatory the date of acquiring the additional
qualification before the last date for application makes sense. But if it is
unshakeably shown that the qualification has been acquired before the
relevant date, as is the case here, to invalidate this merit factor
because proof, though indubitable, was adduced a few days later but
before the selection or in a manner not mentioned in the prospectus,
but still above board, is to make procedure not the handmaid but the
mistress and form not as subservient to substance but as superior to
the essence.
xxx xxx xxx
24. It is notorious that this formalistic, ritualistic, approach is unrealistic
and is unwittingly traumatic, unjust and subversive of the purpose of
the exercise. This way of viewing problems dehumanises the
administrative, judicial and even legislative processes in the wider
perspective of law for man and not man for law. Much of hardship and
harassment in administration flows from over emphasis on the external
rather than the essential. We think the government and the selection
committee rightly treated as directory (not mandatory) the mode of
proving the holding of diplomas and as mandatory the actual
possession of the diploma. In actual life, we know how exasperatingly
dilatory it is to get copies of degrees, decrees and deeds, not to speak
of other authenticated documents like mark lists from universities, why,
even bail orders from courts and Government Orders from public
offices. This frustrating delay was bypassed by the State Government
in the present case by two steps. Government informed the selection
committee that even if they got proof of marks only after the last date
for applications but before the date for selections they could be taken
note of and secondly the Registrars of the Universities informed
officially which of the candidates had passed in the diploma course.
The selection committee did not violate any mandatory rule nor act
arbitrarily by accepting and acting upon these steps. Had there been
anything dubious, shady or unfair about the procedure or any mala fide
move in the official exercises we would never have tolerated
deviations. But a prospectus is not scripture and common sense is not
inimical to interpreting and applying the guidelines therein. Once this
position is plain the addition of special marks was basic justice to
proficiency measured by marks."
9. Also in the matter of Dolly Chhanda (Supra) Hon'ble the Apex Court in
paras 7 and 8 has held as under:-
"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 marksheets. 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".
"8. This principle was explained and applied in Charles K. Skaria &
Ors. v. Dr. C. Mathew & Ors. 1980 (2) SCC 752. The controversy here
related to admission to a post graduate course in medicine. The
relevant rule provided for addition of 10% marks if a candidate
possessed a diploma in the relevant subject or sub-specialty and this
benefit could be given only if the candidate's success in the diploma
course was brought to the knowledge of the Selection Committee
before completion of selection in an authentic or acceptable manner.
The Prospectus provided that the attested copies of statement of
marks and other documents should be attached with every
application. Three such candidates were given admission who had not
attached the certificate of having passed the diploma along with their
applications. Their admission to post graduate course was set aside
by the High Court on the ground that their applications, wherein they
claimed the benefit of diploma, were liable to be rejected as the
requisite certificates had not been attached. This Court speaking
through Krishna Iyer, J. reversed the judgment of the High Court and
held that the admission to the candidates had rightly been given as
they had in fact passed the diploma before the date fixed".
9.1 The relevant parts of paras 20 and 24 of the aforesaid judgment, where this
principle was highlighted have already been quoted in para 8 of this judgment.
10. Reverting to the fact of this case, it is clear from the application form of the
candidate that he attached his appointment letter dated 19.08.2008 and further
his confirmation letter dated 27.08.2009 and he obtained his experience certificate
on 25.06.2013, undoubtedly the petitioner possessed the required experience
certificate and as per rules of selection process he was entitled to experience
certificate marks but the respondent authorities very rigidly rejected his objection
on this ground that he has not filed his experience certificate with his application
form. Applying the law laid down by the Hon'ble Apex Court and the facts of this
case the impugned order and selection is deserves to be set aside.
11. Accordingly, the writ petition is allowed. The impugned order dated
30.08.2013 (Annexure-P/10) and order dated 30.08.2013 (Annexure-P/11) are set
aside. The respondent authorities are directed to re-conduct the interview as per
selection rules and consider the petitioner's case with his all certificates and again
prepare the merit list within the period of three months from the receipt of copy of
this order.
Sd/-
(Rajani Dubey)
JUDGE
H.L. Sahu
