Madhya Pradesh High Court
Ajit Kumar Tiwari vs Shyam Shah Autonomous Medical College ... on 10 February, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:6521
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 10th OF FEBRUARY, 2025
WRIT PETITION No. 28052 of 2021
AJIT KUMAR TIWARI
Versus
SHYAM SHAH AUTONOMOUS MEDICAL COLLEGE REWA AND
OTHERS
Appearance:
Shri R.P. Pandey - Advocate for petitioner.
Shri Deepak Tiwari - Panel Lawyer for respondents/State.
ORDER
This petition has been filed assailing the scrutiny report dated
04.12.2021 and final list prepared by respondent No.1 dated 06.12.2021
(Annexure P/10) whereby, the petitioner has been declared ineligible for the
post of Pharmacist (Grade-II) as the Economically Weaker Section
Certificate (hereinafter referred as 'EWS Certificate') produced by the
petitioner has expired.
2. It is the case of the petitioner that the petitioner has passed the B-
Pharmacy from Rajeev Gandhi Prodhyogiki Vishwa Vidyalaya, Bhopal and
is also a registered Pharmacist by the from Rajeev Gandhi Prodhyogiki
Vishwa Vidyalaya, Bhopal. An advertisement was issued by the Shyam Shah
Autonomous Medical College on 07.07.2021 inviting applications in the
Paramedical Cadre including that of the Pharmacist. The petitioner duly
applied for the post of Pharmacist (Grade-II). He is fulfilling all the required
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qualification for the post in question. The petitioner applied under the
category of economically weaker section for which 10% posts are reserved.
He was issued the admit card. He appeared in the written examination which
was held on 09.09.2021 and scored 51 marks out of 100. His name finds
place at serial No.21 in the list of successful candidates. Out of total 18
vacancies for the post of Pharmacist (Grade-II) 15 vacancies were advertised
for direct recruitment. Thereafter the shortlisted candidates were called for
document verification on 30.11.2021. It was subsequently extended by the
authorities.
3. The petitioner appeared before the authorities on 30.11.2021 and there
he was informed that EWS Certificate of the petitioner has expired. The same
was issued for financial year 2021 which stood expired on 31.03.2021. He
was asked to submit a renewed certificate. The petitioner applied to the
authorities for renewal of said certificate which was issued to him on
01.12.2021 by 3 P.M. In terms of the time granted by the authorities, the
petitioner was supposed to submit the renewed certificate upto 01.12.2021.
After obtaining the said certificate, petitioner sent the said certificate through
Whatsapp to Dean, Shyam Shah Medical College. He physically approached
the authorities to submit the document on 02.12.2021 and submitted the said
document. The short listed candidate list was issued on 04.12.2021, wherein
is was mentioned that the petitioner was not eligible as his EWS Certificate
has expired. The authorities have not considered the subsequent certificate
which has been issued to the petitioner and which was duly submitted before
the authorities. Therefore, the present petition has been filed.
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4. It is argued by the petitioner's counsel that once the EWS Certificate
was no more in existence, then the candidature of the petitioner should have
been considered by the authorities under the General category candidate. If
the case of the petitioner is considered under the General category candidate,
then his name should be placed in the list of selected candidates. He has
placed reliance upon the judgments passed by the Hon'ble Supreme Court in
the case of Divya v. Union of India : Writ Petition (C) No.724/2023 decided
on 09.10.2023 with reference to paragraph 25 and 28 of the judgment. He
has further placed reliance upon the Office Memorandum issued by the
Government of India dated 31.01.2019 with respect to Clause 7 which deals
with Adjustment Against Unreserved Vacancies.
5. Per contra, counsel appearing for the respondents by filing a detailed
reply has denied the petition averments.
6. It is contended that the petitioner has applied under the Economically
Weaker Section category and once scrutinizing the documents of the
petitioner it was found that the petitioner's EWS Certificate has already
expired. The petitioner was granted a short time to produce the renewed
certificate before the authorities. However, the said certificate was not
produced before the authorities. Therefore, the petitioner's case could not be
considered. Once the original certificate was not before the authorities, no
relief could be extended to the petitioner.
7. By way of additional reply it is pointed out that it was mandatory to
submit a valid EWS Certificate issued by the competent authority for
reservation in the said category. In absence of any valid certificate, no relief
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can be extended to him. The case of the petitioner has to be considered only
in the category in which he has applied. Switching off from category of EWS
to another category is not permissible. Even otherwise, two posts for EWS
appointments were advertised and both the posts are filled up and no post is
lying vacant. It is not a case of the petitioner that proper reservation roster is
not followed.
8. Counsel appearing for the petitioner has brought on record a
subsequent advertisement issued in the year 2024 along with an application
for taking additional documents on record being I.A. No.248/2025 pointing
out that sill posts are lying vacant in the department for which an
advertisement has been issued. Therefore it is incorrect to say that posts are
not lying vacant in the department. He has drawn attention of this Court to
Clause 5 which deals with Shyam Shah Medical College, Rewa, in which at
serial No.47 the posts for Pharmacist (Grade-II) has been advertised. There
are 3 posts under the unreserved category and 1 post under the reserved
category.
9. It is argued that in view of the judgment passed by the Hon'ble
Supreme Court his case should be considered by the authorities at the
relevant time when the advertisement was issued. He has prayed for setting
aside of the entire list and for direction to consider his case.
10. Heard the counsel for the parties and perused the record.
11. From the perusal of the record it is not disputed that petitioner belongs
to an economically weaker section of the society. The petitioner applied for
the post of Pharmacist (Grade-II) under the EWS category. He appeared in
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the written examination and was declared as qualified obtaining 51 marks out
of 100. Otherwise he is having the required qualifications for the post of
Pharmacist (Grade-II). At the time of document verification that is on
30.11.2021, the petitioner appeared before the authorities and he was
informed that his EWS Certificate has been expired. He was advised to
submit a renewed certificate by 01.12.2021. as reflected from paragraph 5.6
of the petition. He immediately applied for a renewed certificate which was
handed over to him on 01.12.2021 by 3 P.M. issued by Tahsildar, Adhartal,
Jabalpur which was sent to the Dean of Shyam Shah Autonomous Medical
College by whatsapp by 01.12.2021 itself and was submitted physically
02.12.2021. Thereafter, the final list of shortlisted candidates was prepared
on 04.12.2021 showing the name of the petitioner at serial No.21 pointing
out that he was not eligible as his EWS Certificate has expired.
12. Counsel appearing for the petitioner has drawn attention of this Court
to document Annexure P/10 which is an acknowledgment of submission of
the renewed EWS Certificate to the Dean of Shyam Shah Medical College,
Rewa. The respondents have not denied the submission of said document to
the authorities. However, only stand taken by the respondent before this
Court is that before the Scrutiny Committee the said document was not
available.
13. The petitioner duly applied for Police Services and she was allotted
Manipur Cadre. She again applied for Indian Administrative Services and
applied for CSE, 2022 under the category of economically weaker section.
The Government of India issued an Office Memorandum dated 19.01.2019
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Ministry of Personnel, Public Grievances & Pensions Department of
Personnel & Training (DoPT) The prescribed the criteria to be eligible to
apply under the EWS category is that the person should not be covered under
the existing scheme of reservations for the SC/ST and the Socially and
Economically Backward Classes and their family gross annual income must
be below Rs.8 lakhs. Another Memorandum was issued by the Government
of India dated 31.01.2019 providing that the benefit of reservation under
EWS category can be availed upon production of income and asset
certificate issued by the competent authority under the prescribed format.
14. The competent authority to issue such certificate were (i) District
Magistrate/Additional District Magistrate/ Collector/ Deputy
Commissioner/Additional Deputy Commissioner/ 1st Class
Stipendary Magistrate/ Sub-Divisional Magistrate/ Taluka Magistrate/
Executive Magistrate/ Extra Assistant Commissioner. (ii) Chief Presidency
Magistrate/Additional Chief Presidency Magistrate/ Presidency Magistrate
(iii) Revenue Officer not below the rank of Tehsildar and (iv) Sub-Divisional
Officer or the area where the candidate and/or his family normally resides.
15. In paragraph 7 of the judgment of Divya (supra) it was considered that
a careful perusal of the Rules would disclose that, under Rule 28, candidates
seeking reservation under EWS for the purpose of CSE-2022 must ensure
that they are entitled to such reservation as per the eligibility prescribed in
the Rules. The eligibility prescribed for EWS under Rule 27(3) is that the
candidate should meet the criteria issued by the Central Government and
should be in possession of requisite Income & Asset Certificate (I&AC)
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based on the income for Financial Year 2020-2021. Secondly, the candidates
should be in possession of all the requisite certificates in the prescribed
format by the closing date of the application for Civil Services (Preliminary)
Examination - 2022.
16. In the aforesaid case it was a case of the petitioner that despite making
serious efforts to apply for EWS Certificate for financial year 2020-21 she
could not get the same before 22.02.2022 due to COVID - 19 Pandemic and
lockdown in Haryana till 06.09.2021. As no regular Tahsildar was working
since 2020. The reason assigned that she was unable to obtain the certificate
for financial year 2020-21 before 22.02.2022 was considered by the Court.
However, the Hon'ble Supreme Court considered the aforesaid aspect of the
matter and directed to consider her case under the EWS category. And by
disposing off the writ petition has held as under:-
"25. It is averred that the petitioner was not the only candidate whose category
was changed to General, due to non- submission of I&AC based on the income of
F.Y. 2020-2021 issued beyond the closing date i.e. 22.02.2022. It is averred that, as
many as 36 candidates, who had applied under the EWS, were not treated as EWS as
they failed to upload the valid I&AC with their DAF-I. According to the UPSC, out
of the 36 candidates, the category of 22 candidates was changed from EWS to
General as they had qualified the CSE-2022 on G
eneral Standards and with regard to
14 candidates, who failed to qualify, their candidature was cancelled.
28. It is averred that out of 13,090 candidates, 13,051 candidates finally submitted
their DAF-I. As per the result of the CSE (Main) Examination, 2022 which was
declared on 06.12.2022, 2,529 candidates (2.5 times of 1022 vacancies), as per the
Rules of the examination, were declared qualified for the interview. That the
documents of 2,529 candidates were scrutinized and the candidates were notified of
their deficiency in the certificates; that 298 candidates qualified the interview
belonging to the EWS Category and the I&ACs of the 298 candidates were
scrutinized; that 28 candidates were failed either due to their not possessing I&AC
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by 22.02.2022 or for failure to upload I&ACs issued on the basis of income for the
F.Y. 2020-2021; that 14 candidates who fulfilled the General Standard were
adjusted against the General quota and their category was changed from EWS to
General."
17. If the judgment passed by the Hon'ble Supreme Court is applied to the
facts and circumstances of the present case, it is seen that it is not a case
where the petitioner does not belong to EWS category. The petitioner was
already in possession of a certificate of EWS category. However, the said
certificate lost its validity on 31.03.2021. The applied for the new certificate
which was granted to her on 01.12.2021 and immediately thereafter the said
certificate was submitted before the Dean of Medical College on 02.12.2021.
And it is only thereafter the final select list was issued. This goes to show
that the petitioner belongs to an EWS category.
18. The Hon'ble Supreme Court in catena of judgments has considered the
aspect of beneficial policies issued by the government from time to time. The
policies issued by the Government regarding benefit of reservation being
extended to the candidates is not to preclude them from taking advantage of
the reservation quota only on ground of technicalities i.e. non-submission of
the relevant document at the proper time or prior to the cut-off date or
otherwise. If they are in possession of the documents or belong to a
particular category in which they have applied their case ought to have
considered in the category.
19. The Hon'ble Supreme Court in the case of Bedanga Talukdar v.
Saifudaullah Khan, (2011) 12 SCC 85 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,
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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 equality contained in
Articles 14 and 16 of the Constitution of India."
20. Even in the case of Divya (supra) the Hon'ble Supreme Court has
gone to the extent that out of 36 candidates, the category of 22 candidates
was changed from EWS to General as they had qualified the CSE-2022 on
General Standards and the candidature of 14 candidates was declared
unqualified. The Hon'ble Supreme Court found that the certificates of 298
candidates who belong to EWS Category and the I&ACs were scrutinized;
and it was found that 28 candidates were failed either due to their not
possessing I&AC by the cut-off date or for failure to upload the said
documents. And it was observed that 14 candidates who fulfilled the general
standards were adjusted against the general quota and the category was
changed from EWS to General category.
21. If the aforesaid analogy is applied to the case in hand it is apparently
clear that the case of the petitioner should also be considered by the
authorities as a General Category candidate. That has not been done in the
present case. The posts lying vacant is also not disputed as the fresh
advertisement has been issued by the authorities pointing out the fact that
three vacancies under the General Category for the post of Pharmacist
(Grade-II) was available.
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22. Under these circumstances, the case of the petitioner ought to have
considered by the authorities on the available vacancies. Therefore, the
petition is allowed. The respondents are directed to re-consider the case of
the petitioner either under the EWS category as the petitioner has already
submitted the certificate by 02.12.2021 to the Dean of the respondent-
College and the final list was prepared on 04.12.2021, pointing out that the
petitioner has not qualified owing to the fact that the EWS Certificate has
expired or the case of the petitioner be considered for appointment on the
post in question under the General category in terms of the judgment passed
by the Hon'ble Supreme Court. The entire exercise be completed within a
period of 90 days from the date of receipt of certified copy of this order.
23. With these observations, petition stands allowed and disposed off.
(VISHAL MISHRA)
JUDGE
L.Raj
