Delhi High Court
Union Public Service Commission vs Gyan Prakash Srivastava on 16 May, 2011
Author: Dipak Misra,Chief Justice
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : May 3, 2011
Judgment Delivered on: May 16, 2011
+ W.P.(C) No.2889/2011
Union Public Service Commission ..... Petitioner
Through: Mr. Naresh Kaushik and Ms.Aditi Gupta,
Advocates.
Versus
Gyan Prakash Srivastava ..... Respondent
Through: Mr. Rakesh Tiku, Sr. Advocate with Mr.
Vinay Kumar, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? YES
2. To be referred to the Reporter or not? NO
3 Whether the judgment should be reported in the Digest? NO
DIPAK MISRA, CJ
Invoking the jurisdiction of this Court under Articles 226 and 227 of
the Constitution of India, the petitioner - Union Public Service Commission
(UPSC) has called in question the legal propriety of the order dated 11.3.2011
WP(C) 2889/2011 page 1 of 18
passed by the Central Administrative Tribunal, Principal Bench, New Delhi
(for short „the tribunal‟) in O.A. No.2656/2010.
2. The facts which are essential to be stated are that the respondent
applied for the post of Legal Advisor-cum-Standing Counsel in the Land and
Building Department, Govt. of NCT of Delhi but he was not called for
interview scheduled to be held on 23.8.2010. Being dissatisfied with the said
action of the UPSC, he knocked at the doors of the tribunal seeking a
direction to the petitioner to call the respondent for interview. The tribunal
by its order dated 13.8.2010, while issuing notice, passed an interim direction
that the respondent should be interviewed on 23.8.2010 provisionally, subject
to the outcome of the original application.
3. The tribunal subsequently enquired from the UPSC with regard to the
performance of the respondent and found that he had stood first in the
interview and thereafter proceeded to delve into the merits whether the
respondent should have been called for the interview or not.
4. It is noteworthy that the respondent was enrolled as an Advocate with
the Bar Council of Uttar Pradesh in September, 1980 after passing the
Bachelor of Law degree from University of Allahabad for the examination of
WP(C) 2889/2011 page 2 of 18
1979. Thereafter, he practised as an Advocate in the High Court of Allahabad
from September 1986. As is evident from the order, he worked as Assistant
(Legal) in the Ministry of Law & Justice till 26.2.1991. Thereafter, he held
many posts, namely, for which Bachelor of Law degree and experience was
imperative.
5. The UPSC, as the factual matrix uncurtains, advertised and invited
applications for the post of Legal Advisor-cum-Standing Counsel vide
advertisement No.11 in the Employment News dated 13 - 19 September,
2009. The requisite qualification for the said post was degree in law from a
recognized University / institution and experience of 12 years as an
Advocate, or as member of a State Judicial Service or equivalent service in the
legal departments of Central / State Governments/ UTCS. The respondent
submitted his application on 30.6.2009 making a declaration that he was
having the essential educational qualification and requisite experience. He
enclosed a statement in form of Annexure-A giving details of his educational
qualification in a statement format where the year of passing, and name of
the institution/University from where the qualification was acquired were
mentioned. Despite compliance of every aspect, he was not informed and
WP(C) 2889/2011 page 3 of 18
called for interview by the UPSC. He submitted a representation and
eventually approached the tribunal.
6. The stand of the UPSC before the tribunal was that the
applicant/respondent was not short-listed as his application was rejected as
an „incomplete applications‟ for failure to furnish the law degree certificate
along with the application. Before the tribunal, the UPSC relied on the
decisions of this Court in Dr. Vineet Ralhan v. UPSC [WP(C)No.13451/2009]
decided on 13.1.2010 and UPSC & ors. v. Govt. of NCT of Delhi & ors.
[W.P.(C) No.10058/2009] decided on 25.1.2010.
7. The tribunal referred to Column 7 of the advertisement and referred to
the form of the respondent herein and came to hold that when the
respondent had attached the enrollment certificate and had been selected for
various posts from time to time by the UPSC for which essential educational
qualification was a degree of law. The respondent had submitted that his
case would be covered by the decisions rendered in Charles K. Skaria v. Dr.
C. Mathew, AIR 1980 SC 1231 and Dolly Chhanda v. Chairman, JEE and
others, (2005) 9 SCC 779 and accordingly distinguished the decision in Dr.
Vineet Ralhan (supra) on the ground that in the said case the certificates
WP(C) 2889/2011 page 4 of 18
mentioned in the advertisement were not enclosed including the
matriculation certificate, the MBBS degree and the Post Graduation degree.
Be it noted, the tribunal also referred to Notes III and IV appended to
Column 7 and expressed the view that strict adherence so far as the
production of degree in law is concerned was not the requirement. It is
worth noting that the tribunal distinguished the decision rendered in W.P.(C)
No.10058/2009 on facts. While distinguishing the said decision the tribunal
has opined thus:
"The facts of the case aforesaid thus reveal that there were
two stages leading to selection and appointment of
candidates. The first stage was the recruitment test. The
second stage started with filling up of the Detailed
Application Form (DAF) which was meant only for those
who had passed the recruitment test. In the first stage the
requirement as regards attaching of certificates is exactly
the same as in the present case. In that regard, it has been
mentioned, "Degree or Diploma or other certificates
(emphasis supplied) in support of their educational
qualifications". It is absolutely clear that despite the fact
that the concerned candidates had not attached the LLB
degree, but had submitted their Bar Council certificates,
they were allowed to appear in the recruitment test. They
had cleared the written test for being called for interview.
Along with the letter in that regard, a DAF was enclosed,
which was required to be submitted by the respondents to
UPSC within fifteen days. A perusal of the DAF would
make it clear that it had to be sent along with all requisite
certificates and documents, originals of which were
required to be produced at the time of interview. The
WP(C) 2889/2011 page 5 of 18
respondents before the High Court submitted that they
submitted DAF within time but they were not called for
interview and their candidature was cancelled. There
were different reasons with regard to different persons,
but we are concerned with those who had not furnished
LLB degree certificate with the DAF. For not furnishing
the law degree certificate, the common explanation of the
respondents in all the cases was that the same was not
made available by the concerned university and, therefore,
it could not be furnished with the DAF, but it was urged
on their behalf that since they had been enrolled with the
Bar Council, that by itself would be sufficient proof of
their having passed the LLB examination. The enclosures
which the candidates were supposed to send to the
Commission were clearly mentioned in the DAF. Column
12 of the DAF deals with the enclosures to the application
form to be sent to the Commission by the candidates,
clause (ii) whereof reads as follows:
"(ii) An attested/certified copy of the certificate of
educational qualification Registration &
Experience."
The facts, as mentioned above, would thus reveal that
when initially applications were invited, the requirement
was to attach degree or diploma certificate or other
certificates in support of educational qualifications. As
mentioned above, even though they had only attached the
certificates issued by the Bar Council of their having been
enrolled as advocates and not the degree in law, but they
were all called to take the recruitment test. Then came the
second stage when they had cleared the recruitment test.
At that stage, they were sent a detailed application form
requiring them to send or attach all requisite certificates
requiring them to send or attach all requisite certificates
and documents, originals of which could, however, be
produced at the time of interview. Attaching
attested/certified copies of certificates of educational
WP(C) 2889/2011 page 6 of 18
qualifications was a necessary requirement. In the present
case, there was only one stage, as surely, after short-listing
the candidates from whom applications had been
received, only interview was to be held. All those who
answered the eligibility criteria as fixed by short-listing,
were to be called for interview. There is nothing like that
those who were short-listed were required to fill up a DAF
as was required in the case before the Hon‟ble High Court.
We repeat and reiterate that whereas the requirement in
the present case was of attaching degree or diploma
certificate or other certificates in support of educational
qualifications, in the case before the High Court, one had
to attach only attested/certified copy of the certificate of
educational qualification. There was nothing like that
other certificates in support of educational qualifications
could also be submitted."
[Emphasis added]
8. The tribunal further proceeded to distinguish the said decisions
holding that in other cases the Court had emphasized that what was required
to be attached was a valid LLB degree certificate and nothing more or less,
but the facts in the present case are different. In this regard, we may
profitably reproduce the finding recorded by the tribunal which are as
follows:
"In the present case, it is not that the candidates were
required to attach LLB degree certificate, nothing more or
less. As mentioned above, it was permissible for them to
either attach the LLB degree certificate or other certificates
in support of their educational qualifications. We may
again mention that in the case before the Hon‟ble High
WP(C) 2889/2011 page 7 of 18
Court when the requirement was not strictly to only
produce the LLB degree certificate, and the requirement
was similar to the one as in the case in hand, at the first
stage where candidates could either produce the LLB
degree certificate or other certificates in support of their
educational qualifications, they were allowed to appear in
the recruitment test. In the same very judgment, some of
the writ petitions arising from the common judgment were
dismissed, wherein the rejection of the candidature was
only on the ground that the concerned candidates had not
produced a certificate stating that they had three years
experience at the Bar. Inasmuch as, such was not the
requirement in the DAF, it became a conceded position
before the High Court that it was not a valid ground for
rejection of their candidature. Actually, it is this part of
the judgment of the Hon‟ble High Court which would be
akin to the facts of the present case. On the basis of
distinction on material facts, as enumerated above, which
may have entirely different result, there would be no need
to refer to other facts that may be distinguishable.
However, we may mention that in the case before the
High Court, in response to the advertisement 3011
applications were received, which would be roughly 90
applications per post. Out of these applicants, 2765 were
admitted for written examination for which 1885 actually
appeared. The total number of candidates who qualified
for interview was 134. In the facts and circumstances as
mentioned above, it was held, "With such a large number
of DAFs having been received by the UPSC, it is
impracticable to expect the UPSC to give a go by to the
instructions that have categorically and specifically been
mentioned in the advertisements issued by it". Such is not
the position in the present case. As mentioned above,
against one post, 187 applications were received, and after
applying the criteria of short-listing, only 11 were short-
listed. Before we may part with the judgment passed by
the Hon‟ble High Court, we may mention that the
WP(C) 2889/2011 page 8 of 18
applicants had sought to defend the orders passed by the
Tribunal on the basis of judgment of the Hon‟ble Supreme
Court in Charles K. Skaria (supra), but the same was
distinguished on facts by observing that the facts of the
case before the Supreme Court were such where the
controversy was only with respect to three seats and six
candidates, whereas in the case before the High Court the
large number of contenders in the "musical chair
scenario" would run into a couple of thousands. The
judgment of the Apex Court has been distinguished on
facts. However, it would be relevant to mention as to the
law laid down by the Supreme Court on the issue."
[Underlining is ours]
9. After so stating, the tribunal placed reliance on decisions rendered in
Charles K. Skaria (supra) and Dolly Chhanda (supra) and eventually opined
as follows:
"The applicant, in addition to attaching the certificate
issued by the Bar Council of his enrolment as an advocate,
had attached voluminous record which would
unmistakably show even to a man of ordinary prudence
that he must have obtained degree of law. In this
connection, we may only mention that the claim of the
applicant that he has been working on different posts
which all essentially require degree of law, has been
substantially proved by placing necessary documents on
record, mention whereof has been made hereinbefore. We
are of the considered view that a great deal of injustice
would be caused to the applicant if despite his impressive
service credentials and number of posts held by him for
which he was selected by UPSC only, and on the basis of
his essential degree of law and when he has stood first,
that he should be denied the well earned appointed on the
WP(C) 2889/2011 page 9 of 18
post of Legal Advisor-cum-Standing Counsel. The
candidature of the applicant was rejected in the category
of those who had not attached the requisite certificates.
No effort was made thus as to whether he answered the
eligibility as per the criteria adopted for short-listing. It is,
however, not the case of the respondent that the applicant
could not be short-listed as per such criteria. The
impressive array of the facts as given by the applicant, it
appears to us, would bring him within the criteria for
short-listing. However, we express no opinion on this
issue."
[Emphasis supplied]
10. Being of this view, the tribunal directed that the candidature of the
applicant/respondent is valid, and if he answers the criteria for short-listing,
UPSC should consider him for appointment on the post aforesaid.
11. We have heard Mr. Naresh Kaushik, learned counsel appearing for the
petitioner and Mr. Rakesh Tiku, learned senior counsel appearing for the
respondent.
12. It is submitted by Mr. Kaushik that the respondent‟s application was
incomplete and correctly not short listed by the UPSC and the tribunal has
erroneously referred to certain other documents to hold that the candidature
was valid.
WP(C) 2889/2011 page 10 of 18
13. Mr.Tiku, learned senior counsel, per-contra, submitted that the
tribunal has appositely interpreted the terms of the advertisement and
expressed the view that the respondent was eligible for consideration and the
reasons ascribed by the tribunal being cogent and germane withstand close
scrutiny, the order does not warrant any interference.
14. To appreciate the rivalised submissions, we may profitably refer to
Column 7 of the advertisement which reads as follows:
"7. CERTIFICATE TO BE ATTACHED:
Candidates should note that they should attach with their
applications attested/self certified copies of the following
documents:
(i) Matriculation or equivalent certificate in support of
their declaration of age;
(ii) Degree or Diploma certificate or other certificates in
support of their educational qualifications;
(iii) If the qualification possessed by the candidate is
equivalent, then the authority (with number and
date) under which it has been so treated must be
indicated;
(iv) Certificate(s) from the Head(s) of the
Organisation(s)/Department(s) for the entire
experience claimed, clearly mentioning the duration
of employment (date, month & year) indicating the
basic pay and consolidated pay. The certificate(s)
should also mention the nature of duties
performed/experience obtained in the post(s) with
WP(C) 2889/2011 page 11 of 18
duration (s). These certificates should be issued on
Letter Head or duly stamped by the Competent
Authority;
(v) A candidate who claims to belong to one of the
Scheduled Castes or Scheduled Tribes has to
submit, in support of his claim, an attested copy of a
certificate in the prescribed form issued by the
competent authority (original to be produced at the
time of interview)."
[Emphasis added]
15. The notes III and IV appended to Clause 7 are as follows:
"NOTE-III: In regard to Educational Qualifications, the
mark sheet in lieu of Educational Certificates will not be
accepted by the Commission.
NOTE-IV: The provisional claim whatsoever in regard to
eligibility to the post will not be accepted by the
Commission."
[Underlining is by us]
16. As is evincible, the tribunal has referred to the two statements as
regards educational and other professional qualifications. We think it
appropriate to reproduce the same:
"7. ALL EDUCATIONAL/OTHER PROFESSIONAL QUALIFICATIONS:
LEVEL EXAM DIV/ YEAR DURATION BOARD/UN SUBJECT Subject
PASSED GRADE OF OF COURSE IV/INSTITU of
PASSI TION Speciali
NG zation
Xth High IInd 1970 U.P.BOARD Hindi, NIL
WP(C) 2889/2011 page 12 of 18
School English,
Maths,
Science,
Geo., Art
GRADUATE B.A. IInd 1976 Two years Allahabad Pol.Science, NIL
University Anct.
History,
Eco, General
English
LAW LL.B IInd 1979 Three years -do- All NIL
Compulsory
subjects
with labour
law and
taxation as
optional
subject
8. DETAILS OF EMPLOYEMENT IN CHRONOLOGICAL ORDER:
Office/ Post held Part Exact dates to be Total period (in years) Scale Nature of
Instt/ time/contr given (ncluding of pay duties
Firm act day, month &
basis/ad year
Hon'ble
Court/
regular/
temp./
Pmt.
From To Year Month Days
Allahabad Advocate Practiced as 19.9.80 28.9.86 06 0 09 No To appear in
High Court Advocate fixed the cases as
income private
practitioner in
civil side
dealing with
property
matters
M/o Law & Assistant Permanent 29.9.86 26.2.91 04 04 27 6500- To deal with
Justice, (Legal) 10500 Supreme Court
Department (PR) litigation &
. Of Legal provided
Affairs, precedents and
New Delhi assistants to
govt.
advocates in
disposing of
matters of
legal advice/
conduct of
WP(C) 2889/2011 page 13 of 18
litigation
before hon.
Supreme
Court.
Land & Law Officer Permanent 27.2.91 20.9.94 03 06 23 6500- 1.) Monitored
Building 1.10.99 28.6.01 01 08 27 10500 litigation in
Deptt., relation to land
acquisition/co
GNCTD 1.2.03 9.9.03 05 07 08 (PR) mpensation
cases before
the High Court
& Supreme
Court.
2.) Provided
legal advice to
the Deptt. On
legal issues in
acquisition
and revenue
matters.
3.) Appointed
to appear
before Estate
Officer in place
of got.
Counsel.
Director of Asstt. Deputation 21.9.94 30.9.99 05 0 09 6500- 1.) Assigned
Estates, Director of 10500 with the work
Ministry of Estates (PR) of litigation on
Urban Dev., (Litigation) behalf of
New Delhi Directorate of
Estates on all
the law courts
in govt.
properties
cases.
2.) Appointed
as Estate
Officer under
Public
Premises Act.
3.) Nominated
as govt.
counsel by
Min. of Law &
Justice to
appear on
behalf of
Directorate.
Land & Vigilance- Deputation 29.6.01 31.1.03 01 07 02 8000- 1.) The Court
Dev. Office, cum-Legal Group „A‟ 13500 cases of the
M/o Urban Officer (PR) deptt. Before
Dev., New the law courts.
Delhi 2.) Verification
WP(C) 2889/2011 page 14 of 18
of legal
documents in
property
matters.
3.)Tendering
legal advice
4.) Appointed
as Estate
Officer under
Public
Premises Act.
5.) Worked as
Vigilance
Officer of the
Deptt.
Land & Officer on Permanent 10.9.03 Still 05 09 22 15600- 1.) In charge of
Building Special working *On 39100 conduct of
Deptt., closing (Revise litigation
GNCTD Duty date d) GP related to land
(Litigation) 6600 acquisition /
compensation
/ alternative
plots /
administrative
& other cases
of Deptt.
before Hon.
High Court
2). Tendering
legal advice on
the legal issues
pertaining to
land
acquisition/
revenue/ other
matter
3). Briefing to
Sr. advocates/
Solicitor
General/
Additional.
Solicitor
General
appearing for
deptt. In land
acquisition
cases.
4). In-charge
of the
computer cell
& nodal officer
(IT) for
monitoring
court case
WP(C) 2889/2011 page 15 of 18
monitoring
system.
17. In this context, we may refer with profit to Charles K. Skaria (supra),
wherein it has been held thus:
"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 by-passed by the
State Government in the present case by two steps. The
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
WP(C) 2889/2011 page 16 of 18
prospectus is not scripture and commonsense 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."
[Emphasis added]
18. In Dolly Chhanda (supra) the Apex Court has ruled thus:
"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 to 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."
[Underlining is by us]
19. It is also apposite to reproduce the decision rendered in Manoj Kumar
v. Govt. of NCT of Delhi and others, (2010) 11 SCC 702, wherein their
Lordships have held as follows:
WP(C) 2889/2011 page 17 of 18
"8. There is no doubt that if any candidate furnishes
false or incomplete information or withholds or conceals
any material information in his application, he will be
debarred from securing employment. It is also true that
even if such an applicant is already appointed, his services
are liable to be terminated for furnishing false
information."
20. The said observation was made as false information was given. In our
considered opinion, the tribunal has correctly distinguished the decisions of
this Court and regard being had to the tenor and requirement of
advertisement and has rightly relied on Charles K. Skaria (supra) and Dolly
Chhanda (supra) and, hence, we do not find any error in the order passed by
the tribunal.
21. Resultantly, the writ petition, being devoid of merit, stands dismissed
without any order as to costs.
CHIEF JUSTICE
MAY 16, 2011 SANJIV KHANNA, J.
dk
WP(C) 2889/2011 page 18 of 18
