Himachal Pradesh High Court
Govind Singh vs Saifudaullah Khan And on 1 July, 2022
Bench: Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 1ST DAY OF JULY, 2022
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION No. 1952 OF 2019
Between:-
GOVIND SINGH S/O SH. HARI RAM,
R/O VILLAGE BEHRAN, P.O.
BHATER, TEHSIL BHARWAIN,
DISTRICT UNA, H.P.
...PETITIONER
(BY SH. ONKAR JAIRATH, ADVOCATE)
AND
1. HIMACHAL PRADESH STAFF SELECTION
COMMISSION, HAMIRPUR, THROUGH
ITS SECRETARY.
2. STATE OF HIMACHAL PRADESH,
THROUGH ITS SECRETARY
(EDUCATION) TO THE GOVERNMENT
OF HIMACHAL PRADESH,
SHIMLA- 171 002, H.P.
3. THE DIRECTOR OF ELEMENTARY
EDUCATION, GOVERNMENT OF
HIMACHAL PRADESH, LALPANI,
SHIMLA - 171 001.
4. SH. SUKH DEV SINGH S/O NOT KNOWN
TO THE PETITIONER, THROUGH
RESPONDENT NO.1, HIMACHAL
PRADESH STAFF SELECTION COMMISSION,
::: Downloaded on - 02/07/2022 20:03:06 :::CIS
2
HAMIRPUR.
.... RESPONDENTS.
(SH. SANJEEV KUMAR MOTTA, ADVOCATE,
FOR R-1.
.
SH. P.K.BHATTI, ADDL. ADVOCATE GENERAL,
WITH MR. KUNAL THAKUR, DY. ADVOCATE
GENERAL, FOR R-2 AND R-3
SH. TARA SINGH CHAUHAN, ADVOCATE,
FOR R-4)
RESERVED ON: 24.06.2022.
DECIDED ON: 01.07.2022.
______________________________________________________________
This petition coming on for orders this day, the Court
passed the following:
ORDER
Aggrieved against his non-selection for the post of
TGT (Arts), petitioner has approached this Court for grant of
following substantive reliefs:
(I) That a writ in the nature of mandamus of
any other appropriate writ, order or
directions, may kindly be issued directing
the respondents to award 1 mark to the
petitioner for unemployed family, for which
he is otherwise legally entitled to, and the
respondent No.1 may be further directed to
redraw the merit list for SC (UR) Category
and the petitioner may be declared as
selected for the appointment to the post of
TGT (Arts).
(II) That the writ in the nature of certiorari, or
any other appropriate writ, order or
.
directions may kindly be issued quashing
the selection and appointment of
respondent No.4 as TGT (Arts).
(III) That the respondents may kindly be
directed to appoint the petitioner to the post
of TGT (Arts) w.e.f. the date other
applicants have been appointed."
2. Respondent No.1
issued advertisement
2/2018 dated 19.12.2018 (for short, "Advertisement") for
r No.34-
filling up 495 posts of TGT (Arts) besides other posts. 92 posts
were reserved for SC(UR) category.
3. The advertisement prescribed essential
qualifications for the post of TGT(Arts). The mode of selection
was also prescribed. As per Part-I of mode of selection a
written objective type screening test of two hours consisting of
multiple choice questions having 85 marks was prescribed.
Part-II of mode of selection provided for evaluation process
involving 15 marks. The break-up of 15 marks was separately
provided. For the purpose of the controversy involved in the
case, it will be suffice to notice that 1 (one) mark out of 15
marks allocated for evaluation process was to be allotted on
production of non-employment certificate to the effect that
none of the family members of the applicant was in
.
Govt./Semi-Govt. service. The certificate was required to be
issued by the concerned SDO (C)/Tehsildar/Naib Tehsildar or
concerned Panchayat Secretary/Sahayak and countersigned
by concerned Gram Panchayat Pradhan/Up Pradhan.
4. Only those candidates were eligible to participate in
evaluation process, who were short-listed after qualifying
written objective screening test.
5. Petitioner held essential qualifications for the post of
TGT(Arts). Petitioner submitted his Online Recruitment
Application (ORA), in response to the advertisement, within
stipulated time. Petitioner belonged to SC (UR) category. He
qualified the written objective screening test and was called
for evaluation on 19.07.2019 vide letter dated 01.07.2019
(Annexure P-7).
6. Petitioner appeared before the evaluation committee
on given date i.e. 19.07.2019. In order to claim one mark for
member of family of unemployed, petitioner submitted
unemployed certificate dated 04.06.2019 (Annexure P-5)
issued by the Naib Tehsildar, Bharwain, District Una. The
certificate so produced by petitioner read as under:
.
"UN-EMPLOYED CERTIFICATE
As per report of Pardhan, G.P. BHATER/
Patwari Halqua, it is certified that GOVIND SINGH
S/o Shri HARI RAM, resident of Village BEHRAN,
Sub Tehsil Bharwain, Distt. Una (H.P.) is not
employee in any Govt./its agencies, Public Sector
undertaking bodies/boards/Corporation etc.
Sd/-
r Naib Tehsildar,
Bharwain, Distt. Una, H.P."
7. Evaluation Committee did not accept the
unemployed certificate (Annexure P-5) submitted by the
petitioner on the ground that firstly it was not in the
prescribed format and, secondly, it was not in accordance with
the requirements of advertisement, which required the
certificate to ensure that none of the family members of the
petitioner was in the service of Government/Semi-
Government organization.
8. The final result of selection process for the post of
TGT (Arts) was declared on 02.08.2019 and petitioner
remained unsuccessful. Petitioner again procured a non-
employment certificate dated 13.8.2019 (Annexure P-10) in
the requisite format and compliant with the requirements of
advertisement. Respondent No.1 did not accept the said
.
certificate at belated stage.
9. The precise grievance of the petitioner is that he in
fact belonged to a family in which none of the member was
holding service in Government or Semi-Government Sector.
He had duly applied to the competent authority for grant of
unemployed certificate and it was not his fault that the
certificate dated 04.06.2019 (Annexure P-5) was neither in the
prescribed format nor contained the necessary information.
Contention of the petitioner is that he cannot be penalized for
the fault of others. It is further case of the petitioner that
unemployed certificate was not part of the essential
qualification required for the post of TGT (Arts). Such
certificate was required only to claim 1 (one) mark in
evaluation process. Petitioner had obtained the unemployed
certificate (Annexure P-5) well in time, hence its non-
acceptance by respondent No.1 during evaluation process was
wrong, illegal and arbitrary. Non-employment certificate
(Annexure P-10) dated 13.8.2019 proved that none of the
members of petitioner's family including the petitioner was in
Government/Semi-Government services. The last selected
candidate in SC (UR) category had obtained 47.12 marks,
.
whereas the petitioner was awarded 46.72 marks. Had
petitioner been awarded 1 (one) mark, being a candidate from
a family having no person employed in Government/ Semi-
Government Sector, he would have scored 47.72 marks and
would have qualified for selection.
10. In reply, respondent No.1 has submitted that the
information regarding requirements of non-employment
certificate was clearly available in the advertisement and also
in the call letter for evaluation process issued to petitioner. It
is submitted that the unemployed certificate dated 04.06.2019
(Annexure P-5) submitted by the petitioner at the time of
evaluation process was rightly rejected as the same was not
as per the prescription. Petitioner cannot feign ignorance. He
was a candidate for the post of TGT (Arts). The requirement of
non-employment certificate, its format, contents and issuing
authority etc. were clearly spelled time and again. Petitioner
himself remained negligent and remiss in his conduct and
cannot be allowed any benefit at belated stage, when entire
selection process is complete. It is further submitted that the
certificate (Annexure P-10) was evidently issued in favour of
petitioner on 13.8.2019 i.e. after declaration of final result,
.
which stood declared on 02.08.2019. In such circumstances,
the certificate (Annexure P-10) could not be considered. In this
manner, the rejection of petitioner has been justified.
11. Respondent No.4 has also filed separate reply and
has contested the claim of petitioner almost on similar
grounds as raised by respondent No.1.
12. I have heard learned counsel for the parties and have
also gone through the records of the case carefully.
13. There is no dispute regarding the fact that petitioner
held all minimum necessary qualifications prescribed for the
post of TGT (Arts). It is also not in dispute that petitioner had
applied in time in response to the advertisement and had also
uploaded all the documents required at the stage of
submission of Online Recruitment Application (ORA).
14. The only dispute in the instant case is with respect
to the submission of non-employment certificate. Whereas,
petitioner maintains that he submitted the required certificate
on 19.7.2019 at the time of evaluation, respondents No. 1 to
4 have contested the claim of petitioner by asserting that the
certificate so submitted by petitioner at the time of evaluation
.
did not fulfill the requirements of advertisement as well as call
letter dated 01.07.2019 (Annexure P-7).
15. To be entitled for 1 (one) mark in the evaluation of 15
marks, the petitioner was to submit non-employment
certificate to the effect that none of the family members was
in Government/Semi-Government services. It was specifically
provided in the opening part of advertisement that the
downloaded copy of the online application format alongwith
necessary original certificates and self-attested photocopies
must be brought at the time of documentation/evaluation for
15 marks. Clause 16 of the advertisement provided for a
check-list for verification by candidates before submitting the
online recruitment application or documents/certificates.
Sub-clause (vii) of this checklist provided as under:
"All other certificates, if any required for determining
eligibility and carrying evaluation as mentioned in mode
of selection criteria (Part I & II) whichsoever applicable to
the applicants."
16. Respondent No.1 has made a specific mention of the
fact in its reply that the format for non-employment certificate
was available on the website of respondent No.1.
.
17. In the circumstances evaluated above, it cannot be
said that there was any ambiguity or confusion regarding the
nature and format of non-employment certificate to be
submitted by the candidates, who intended to claim the
benefit of 1 (one) mark on the basis of their claim under said
category. Undisputably, the certificate termed as "Non-
employment Certificate" dated 4.6.2019 (Annexure P-5)
submitted by the petitioner at the time of evaluation, was
neither in the prescribed format nor fulfilled the condition of
certifying that none of the family members of the candidate
was in the Government/Semi-Government services.
18. Petitioner had obtained the certificate (Annexure
P-5) on 04.06.2019. The call letter was issued to him on
01.07.2019 requiring him to appear for evaluation on
19.7.2019. Clause 11 (iv) of the call letter again reiterated the
requirement to submit non-employment certificate to the
effect that none of the family members of the petitioner was in
Government/Semi-Government. In such circumstances,
petitioner was fully aware as to the exact requirement of non-
employment certificate to be furnished by him at the time of
evaluation. The contents of certificate (Annexure P-5) on the
.
face of it suggested that they lacked in material particulars
and were not compliant with the requirements of
advertisement as well as call letter dated 01.07.2019. Despite
having sufficient time for rectifying the certificate, petitioner
did not choose to avail such opportunity and rather presented
the non-compliant certificate at the time of evaluation.
19.
Not only that petitioner remained negligent and
remiss till the date the evaluation process was conducted, he
did not take any steps to rectify the mistake immediately
thereafter. Once the certificate (Annexure P-5) submitted by
petitioner was not accepted during evaluation process, the
petitioner would have been prompt in making efforts to get the
mistake rectified. The petitioner could not have waited for
indefinite period. Evidently, the declaration of final result by
respondent No.1 on 02.08.2019 made the petitioner wiser and
thereafter he procured the certificate (Annexure P-10), which
in the considered opinion of this Court, will not serve the
cause of petitioner.
20. Thus, it is clear that petitioner had not submitted the
non-employment certificate in accordance with the
advertisement and also the call letter dated 01.07.2019
.
(Annexure P-7). It is not a case where the petitioner was
helpless or had no opportunity to comply with the
requirements of advertisement and call letter. In such
circumstances, this Court in exercise of jurisdiction under
Article 226 of the Constitution of India will be loath to direct
respondent No.1 to consider the certificate (Annexure P-10),
procured by the petitioner even after declaration of final result
especially when there is nothing to show that respondent No.1
has power to relax the rules set by it for recruitment.
21. In Bedanga Talukdar vs. Saifudaullah Khan and
others (2011) 12 SCC 85, the Hon'ble Supreme Court has
held as under:
"29. We have considered the entire matter in detail. In our
opinion, it is too well settled to need any further reiteration
that all appointments to public office have to be made in
conformity with Article 14 of the Constitution of India. In
other words, there must be no arbitrariness resulting from
any undue favour being shown to any candidate.
Therefore, the selection process has to be conducted
strictly in accordance with the stipulated selection
procedure. 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 quality contained in Articles
14 and 16 of the Constitution of India."
22. In State of Bihar and others vs. Madhu Kant
Ranjan and another JT 2021 (12) SC 262, the Hon'ble
Supreme Court has held as under:
"9. As per the settled proposition of law, a
candidate/applicant has to comply with all the
conditions/eligibility criteria as per the advertisement
before the cut-off date mentioned therein unless extended
by the recruiting authority. Also, only those documents,
which are submitted alongwith the application form,
which are required to be submitted as per the
advertisement have to be considered. Therefore, when the
respondent No.1 - original writ petitioner did not produce
the photocopy of the NCC 'B' certificate alongwith the
original application as per the advertisement and the
same was submitted after a period of three years from the
.
cut-off date and that too after the physical test, he was
not entitled to the additional five marks of the NCC 'B'
certificate. In these circumstances, the Division Bench of
the High Court has erred in directing the appellants to
appoint the respondent No.1 - original writ petitioner on
the post of Constable considering the select list dated
08.09.2007 and allotting five additional marks of NCC 'B'
certificate."
23. Learned counsel for the petitioner has tried to
distinguish his case by placing reliance upon the judgment
passed by the Hon'ble Supreme Court in Dolly Chhanda vs.
Chairman, JEE and others (2005) 9 SCC 779, in which it
was held in paras 7 and 9 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.
9. The appellant undoubtedly belonged to reserved MI
category. She comes from a very humble background, her
father was only a Naik in the armed forces. He may not
have noticed the mistake which had been committed by
the Zilla Sainik Board while issuing the first certificate
dated 29.6.2003. But it does not mean that the appellant
should be denied her due when she produced a correct
certificate at the stage of second counselling. Those who
secured rank lower than the appellant have already been
admitted. The view taken by the authorities in denying
admission to the appellant is wholly unjust and illegal."
24. No doubt, the certificate of non-employment to be
produced by the petitioner was in the nature of proof of
holding entitlement to benefit of 1 (one) mark in evaluation
process, but the petitioner, in the given facts of the instant
case, cannot derive any benefit from the above noticed
judgment for the reason that in the said case the petitioner
therein had rectified the mistake at the stage of second
counselling i.e. before closure of admission process. The
petitioner, as noticed above, despite opportunities had failed
to rectify the mistake till declaration of final result.
.
25. Reliance has also been placed on behalf of the
petitioner on judgment passed by the Hon'ble Supreme Court
in SLP (C) No.16834/2021, titled Sandeep Kumar vs. State
of Himachal Pradesh and others, decided on 10.5.2022.
This judgment again will not help the cause of petitioner as in
that case, also the petitioner had produced the required
certificate with promptitude on the date of evaluation after
receiving the call letter.
26. In these circumstances, the relief sought by
petitioner cannot be granted. Additionally, it can be seen that
the private respondent No.4 has been appointed on the basis
of his own merit. There is no fault as far as selection of private
respondent No.4 is concerned. Vested rights have accrued in
favour of private respondent, which cannot be taken away
without there being exhibition of palpable illegality or
perversity in the selection process.
27. In the light of above discussion, there is no merit in
the instant petition and the same is accordingly dismissed, so
also the pending miscellaneous application(s) if any.
.
1st July, 2022 (Satyen Vaidya)
(GR) Judge
r to
