Himachal Pradesh High Court
Hans Raj vs "14. It Remains Undisputed As ... on 19 April, 2022
Bench: Mohammad Rafiq, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 19th DAY OF APRIL, 2022
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No.2340 of 2022
Between:-
HANS RAJ
S/O SH. PRATAP SINGH,
R/O VILLAGE BHATWARI, PO KALOTI,
TEHSIL CHIRGAON, DISTRICT SHIMLA,
H.P.-171207
......PETITIONER
(BY MR. ABHIMANYU RATHOR, ADVOCATE)
AND
1. STATE OF H.P.
THROUGH DIRECTOR, DIRECTORATE
TECHNICAL EDUCATION VOCATIONAL AND
INDUSTRIAL TRAINING, SUNDERNAGAR, H.P.
2. DEPARTMENTAL SELECTION COMMITTEE,
THROUGH ITS CHAIRMAN,
DIRECTORATE TECHNICAL EDUCATION
VOCATIONAL AND INDUSTRIAL TRAINING,
SUNDERNAGAR, H.P.
3. HIMANSHU THAKUR
S/O SH. R.C. THAKUR,
HOUSE NO.194/5, MOHALLA AMARPUR,
TEHSIL NAHAN, DISTRICT SIRMOUR,
H.P.-173001
......RESPONDENTS
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(MS. RITTA GOSWAMI, ADDITIONAL
ADVOCATE GENERAL, FOR R-1 & R-2)
This petition coming on for admission this day,
Hon'ble Ms. Justice Jyotsna Rewal Dua, passed the following:
.
ORDER
It's a case where the petitioner did not submit the
certificate belonging to Economic Weaker Section (EWS) by the
cut-off date prescribed in the advertisement. Therefore, 2.5 marks
admissible to the candidates belonging to EWS category were not
awarded to the petitioner. Aggrieved, he has filed the instant writ
petition.
2. The petitioner applied for the post of Mali under EWS
category. One post out of total eight posts was reserved for EWS
category. The advertisement clearly stated that the last date for
receipt of applications was 10.01.2021. The eligibility of the
candidates was to be determined as on the closing date for
submission of the applications. Criteria of evaluation for award of
100 marks was also laid down in the advertisement, wherein 2.5
marks were to be allotted to the candidates belonging to BPL/EWS
families. The concerned Block Development Officer was the
competent authority to issue such certificate. The certificate was to
be issued on the basis of authenticated entries in the Parivar
Register. The application format was also provided alongwith the
advertisement, clearly stipulating in Column No.13 thereof that the
certificate of revenue authority in respect of the applicant belonging
.
to BPL family was required to be attached with the application.
3. Learned counsel for the petitioner fairly submitted that
the petitioner did not attach the certificate of belonging to EWS
category while applying for the post in question. Learned counsel
further submitted that the petitioner appeared in the personal
interview on 20.08.2021. He was then called upon to submit the
certificate belonging to BPL/EWS category. Subsequently, the
petitioner submitted the BPL certificate attested by the concerned
Block Development Officer on 23.08.2021.
4. We have heard learned counsel for the petitioner and
gone through the relevant record.
5. The petitioner has been awarded 80.86 marks in all in
the selection process for the post in question. He has not been
awarded 2.5 marks, which are admissible to the candidates
belonging to BPL/EWS category. Admittedly, the advertisement
clearly provided that the eligibility of candidates was to be
determined as on the last date for receipt of the applications, which
in the instant case, was 10.01.2021. The application format clearly
provided that the candidate had to attach certificate of his belonging
to BPL family issued by the competent authority alongwith the
application. It is the petitioner's own pleaded case before us that he
had not attached the requisite certificate in this regard alongwith the
.
application form. The petitioner had submitted this certificate only on
23.08.2021, i.e. after appearing in the personal interview on
20.08.2021.
In Bedanga Talukdar Vs. Saifudaullah Khan and
others, (2011) 12 SCC 85, it was held by the Hon'ble Apex Court
that selection process has to be conducted strictly in accordance
with the stipulated selection process. Consequently, when a
particular schedule is mentioned in an advertisement, the same has
to be scrupulously maintained. There cannot be any relaxation in the
terms and conditions of the advertisement unless such a power is
specifically reserved. Such a power could be reserved in the
relevant Statutory Rules. Even if power of relaxation is provided in
the rules, it must still be mentioned in the advertisement. In the
absence of such power in the Rules, it could still be provided in the
advertisement. However, the power of relaxation, if exercised has to
be given due publicity. This would be necessary to ensure that those
candidates who become eligible due to the relaxation, are afforded
an equal opportunity to apply and compete. Relaxation of any
condition in advertisement without due publication would be contrary
to the mandate of equality contained in Articles 14 and 16 of the
Constitution of India.
It will also be beneficial to refer to 2020 (3) SCC 108,
.
Karnataka State Seeds Development Corporation Ltd. and
another Vs. H.L. Kaveri and others, wherein Hon'ble Apex Court
upheld the decision of the Corporation in rejecting the application of
a candidate for want of necessary experience certificate, which was
to be enclosed alongwith the application form as required in the
advertisement. The relevant paras of the judgment read as under:-
"14. It remains undisputed as recorded by the learned Single Judge
of the High Court in the order after perusal of the original
records of which reference has been made that the first
respondent had not enclosed her experience certificate along
with the application and her statement on oath was found to be
factually incorrect and the rejection of her application was
indeed in terms of the advertisement dated 11.11.2013 for
which the Corporation was not required to assign any reasons
which although was disclosed before the Court and noticed by
the learned Single Judge in its judgment.
15. In the given circumstances, we do not find any error being
committed by the Corporation in its decision making process
while rejecting the application of the 1st respondent for
nonfulfilment of the necessary experience certificate which
was to be enclosed along with the application as required in
terms of the advertisement dated 11.11.2013.
16. That apart, the post of Senior Assistant which remained
vacant, as informed to this Court, even if it is considered that
there is a reasonable justification for which the certificate could
not have been enclosed by the first respondent along with the
application, there are several other candidates who have
obtained higher percentage in qualifying examination
compared to the 1st respondent whose applications have been
rejected in view of not enclosing of self-attested documents
and there are 7 women candidates listed as valid applicants
for the post of Senior Assistant against the single post of
women(SC) category, at least no indefensible right in the
present circumstances, could have been claimed by the 1st
respondent for her inclusion in the select list for appointment to
the post of Senior Assistant. At the same time, for the post of
Junior Assistant, 106 applications of the applicants were
rejected by the Corporation for non-enclosing self-attested
.
copies including that of the experience certificate and this fact
has come on record that out of 10 vacancies advertised, only
one post for physically handicapped remain vacant as the
suitable candidate was not available, which indeed could not
be converted to open/other reserved categories.
18. We would further like to observe that merely because the first
respondent had approached the High Court by filing of a writ
petition, that would not be sufficient to exercise jurisdiction
under Article 226 of the Constitution in overreaching the rights
of the candidates who were otherwise eligible for
appointment."
In view of the above, no fault can be found with the
action of the respondents in not awarding any marks to the petitioner
for belonging to EWS category. Accordingly, we find no merit in the
instant petition and the same is accordingly dismissed alongwith
pending miscellaneous application(s), if any.
( Mohammad Rafiq )
Chief Justice
( Jyotsna Rewal Dua )
April 19, 2022 Judge
Mukesh
