Madras High Court
K.Lakshmi vs The Registrar General on 2 August, 2022
W.P.No.841 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.08.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.841 of 2022
K.Lakshmi .. Petitioner
vs
1. The Registrar General,
High Court, Madras 600 104.
2. The Registrar Recruitment,
High Court, Madras 600 104. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Mandamus directing the respondents to appoint
the petitioner as sweeper in the notified unfilled vacancy in the Judicial
District of Cuddalore, considering her representation dated
14.12.2021.
For the Petitioner : Mr.R.Ezhilarasan
For the Respondents : Mr.B.Vijay
*****
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ORDER
(Order of the Court was made by
the Hon'ble Chief Justice)
The writ petition is filed to seek a direction on the respondents to
appoint the petitioner on the post of Sweeper in the Judicial District of
Cuddalore, after consideration of her representation dated 14.12.2021.
2. The facts require for consideration of this petition are as
under:
In reference to the recruitment, Notification No.65/2021 for the
post of Office Assistant and Notification No.66/2021 for the posts of
Sanitary Worker, Watchman, Night Watchman-cum-Masalchi, Masalchi
and Sweeper, in the Judicial Department of Cuddalore District, were
issued. In pursuance to the notifications aforesaid, on 23.05.2021, the
petitioner made on-line application No.46082 for the posts of Night
Watchman-cum-Masalchi, Masalchi, Office Assistant and Watchman.
The petitioner also made another on-line application bearing No.46089
for the posts of Sweeper and Sanitary Worker. While applying, the
petitioner claimed reservation under the category of MBC (Destitute
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Widow). In the application form, she had given the number of the
certificate for Destitute Widow as 7G37H2B and obtained fee
exemption. But, she did not submit the Destitute Widow certificate in
the prescribed format as contemplated under the notification.
3. The petitioner was permitted to undertake the selection, which
was divided into three parts, namely, written test, practical test and
interview. The respondents declared the result of different categories
after written and practical tests after fixing the minimum required
marks. The petitioner could not find place for any of the posts other
than for the post of Watchman. The results were declared 10 times
the number of vacancies. The petitioner was shortlisted for oral test
only for the post of watchman under the category of MBC(V)(W). It
was for the reason that during the process, a notification was issued
by the Government to provide reservation for the category of MBC
(Vanniar). The petitioner could not qualify for other posts. Taking into
consideration the marks obtained by her, she was placed in the waiting
list and ultimately, finding her to be low in the merit position, the
petitioner could not get appointment even for the post of watchman.
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4. The learned counsel for the petitioner submits that the
petitioner had rightly disclosed her category to be MBC (Destitute
Widow) as application to obtain the said certificate was made much
earlier, it was issued only on 09.09.2021. The certificate number was
given, as furnished for the category of MBC (W) and therefore, the
petitioner has made true disclosure while submitting on-line
application. Accordingly, she was called for the selection and even
remained successful in the written examination so as to be short-listed
at least for the post of Watchman, though the petitioner was entitled
to be considered for the post of Sweeper. A reference to the cut-off
marks has been given to indicate that for the post of Sweeper, no cut-
off marks were specified for the category of MBC (DW) and therefore,
it cannot lie in the mouth of the respondents to say that the petitioner
or any other candidate failed to secure the minimum marks to qualify
for the next stage of selection. A reference of a document has also
been given where the petitioner was placed in the waiting list showing
her category to be MBC (W) and MBC (DW) and thereby even the
respondents themselves have considered the petitioner under the
category of MBC (DW) and thus, there was no reason to not to declare
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minimum qualifying marks for the post of Sweeper, taking her
category to be of MBC (DW). The action of the respondents is thus
challenged on the aforesaid ground with a direction to give her
appointment for the post of Sweeper, taking her to be under the
category of MBC (DW).
5. To support the arguments, learned counsel for the petitioner
has given reference to the judgment of a Division Bench of this Court
in the case of Subabalasundari vs Tamil Nadu Public Service
Commission rendered in W.P. (MD) No.481 of 2015 decided on
23.03.2015. According to the petitioner, the judgment aforesaid
applies squarely to the facts of this case and as such, the petitioner
should have been considered against the post of Sweeper in the
category of MBC (DW). The next judgment relied upon by the learned
counsel for the petitioner is in the case of State of Tamil Nadu and
Others vs. Kanimozhi, rendered in W.A.No.411 of 2021 decided
on 08.07.2021. In the said case also, the Division Bench refused to
go into the hyper-technicalities of the category once it was found that
the candidate was having required qualification, thus, should have
been adjusted against one or other category to which he or she
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belongs. In view of the above, taking into consideration that the
petitioner had produced the certificate of MBC (DW), though belatedly
on 09.09.2021, she should have been considered for the post of
Sweeper, taking her candidature in the category of MBC (DW). The
respondents, thus, committed illegality to consider the petitioner on
the post of Watchman and placing her in the waiting list while she was
entitled for appointment to the post of Sweeper. Accordingly, the
prayer is to allow the writ petition.
6. The writ petition has been seriously contested by the learned
counsel for the respondents. It is submitted that the conduct of the
petitioner was such that, which in fact, should result in rejection of her
candidature and for that, reference of certain clauses of the
notification/advertisement has been given. Referring to it, the learned
counsel for the respondents would submit that any application
containing false declaration for fee concession, reservation and age
relaxation will be rejected at any stage of selection. The petitioner,
while submitting the on-line application, disclosed herself to be in the
category of MBC (DW), though she was not in possession of any
certificate to support her candidature in that category, thus,
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declaration of the category to seek reservation was falsely made. The
conduct of the petitioner would further reveal from the perusal of the
application form where she had even given the number of the
certificate for the category of MBC (DW) while submitting the on-line
application on 23.05.2021, though certificate was issued or obtained
on 09.09.2021. The conduct of the writ petition is writ large and was
only to take the benefit of reservation and fee relaxation. On the
aforesaid ground itself, the writ petition should fail and be dismissed.
7. The further ground taken by the learned counsel for the
respondents is that the candidature of the petitioner was considered in
the category of MBC (Women) in which she remained successful only
for the post of Watchman having secured the required qualifying
marks. The learned counsel has made elaborate submission about the
procedure adopted in the selection process. The reference of two
notifications/advertisements for different posts has been given with the
clarification that for each post, separate qualifying marks were
declared which were not more than ten times of the posts advertised
and in the said procedure, the petitioner could not secure the required
qualifying marks for any of the posts other than the post of Watchman
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taking her to be in the category of MBC(V)(W). Her candidature was
accordingly considered and she was placed in the waiting list for the
post of Watchman. She was not entitled for consideration in the
category of MBC (DW) in the absence of submission of certificate
mandated in the notification/advertisement. In the absence of the
certificate, the candidature of the petitioner should not have been
considered for any category, but taking a liberal view, her candidature
was considered in the category of MBC (Women). In the light of the
facts given above, the prayer is to dismiss the writ petition not only
taking into consideration the conduct of the petitioner, but even on the
facts of this case.
8. Learned counsel would further submit that a candidate cannot
seek consideration of her candidature by changing of the category. It
is from the category of MBC (Women) to MBC (Destitute Widow).
Such change is not permissible and otherwise, in the case on hand, the
petitioner was not even in possession of the required certificate as on
the last date for submission of the application form rather the
certificate was obtained much subsequently. It is now settled law that
the certificate available as on the date of submission of application or
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as on the last date of submission of the application form would alone
be relevant and not the certificate obtained and produced subsequent
would not be permissible. In view of the above, the petitioner's claim
for consideration of her candidature for the post of Sweeper taking her
to be in the category of MBC (DW) is not tenable.
9. Learned counsel for the respondents, referring to the
judgments of the Division Bench cited by the learned counsel for the
petitioner, has elaborately clarified that the judgments are not
applicable on the facts of the case and otherwise, he has made a
reference to the judgment of the Apex Court holding that any
qualification or certificate obtained after the submission of the
application cannot be considered and it cannot be for a certificate
obtained after the last date of submission of the application, otherwise
the candidature of a candidate cannot be adjusted while drawing the
merit. Things cannot be kept in lurch for that reason and therefore, the
decision to allow change of category has been taken.
10. The learned counsel for the respondents took us to one of
the Division Bench judgments of this Court cited by the petitioner,
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where a reference of the judgment of the Supreme Court in the case of
Bedanga Talukdar vs. Saifudullah Khan, (2011) 12 SCC 85 has
been made. In the case supra, it was held that selection process has
to be conducted strictly in accordance with the stipulated selection
procedure. When a particular schedule is mentioned in the
advertisement, the same has to be maintained. There cannot be any
relaxation on the terms and conditions of the advertisement unless
such a power is specifically reserved and such power could be reserved
in the relevant Statutory Rules. Therefore, the terms of the
notification/advertisement for the post has to be followed meticulously
and without relaxation. It is apart from the fact that what would be
the relevant date for consideration of the candidature for qualification
or category of the candidate has also been decided by the Apex Court.
It was held that the relevant date for consideration of the qualification,
category, etc., is as given in the Statutory Rules. If the Rules are
silent, then what is given in the advertisement/notification to advertise
the post. If the Rules as well as the notification to advertise the post
are silent, then it would be the last date for submission of the
application form. That being the position, the petitioner could not ask
for change of category based on the certificate obtained on
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09.09.2021, which was much later in point of time. The prayer is,
accordingly, to dismiss the writ petition.
11. We have considered the rival submission of the parties and
perused the records.
12. The facts which are not in dispute are that pursuant to the
notification issued to advertise for the post of Office Assistant and
another notification for the post of Sanitary Worker, Watchman, Night
Watchman cum Masalchi, Masalchi and Sweeper, the petitioner made
an application with certain disclosures. So far as the priority category
given in the application form, the petitioner had shown herself to be in
the category of MBC (Destitute Widow) and the certificate number as
7G37H2B. The on-line application was not supported by the said
category certificate, despite requirement and otherwise, the petitioner
was not having the certificate of the category referred by her in the
application form on the date of submission of the application, yet she
had given certificate number. The application form was submitted on
23.05.2021, while the certificate for it was obtained on 09.09.2021.
Therefore, wrong disclosure was made to seek benefit of reservation
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as well as relaxation in fee. This shows the conduct of the petitioner,
as otherwise if we go strictly by the terms of advertisement, she
should have been rendered ineligible for giving incorrect information in
the application form. The relevant para of the condition given in the
notification is quoted hereunder for ready reference:
" Note: (1) ...
(2) The application of the candidate who makes false claim
for fee concession, reservation and age relaxation will be
rejected at any stage of selection..."
13. This apart, the application form was required to be supported
by the document without a false information. The petitioner was, in
fact, falling in the category of MBC (Women), in absence of any
document to show her to be Destitute Widow and accordingly, her
candidature was considered in the said category, where she failed to
obtain the required qualifying marks for the post of Sweeper or any
other posts other than the post of Watchman. She could find place in
the waiting list for the post of Watchman.
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14. The issue for our consideration would be if the certificate of
particular category is obtained subsequent to the submission of the
application form, whether it is required to be considered by the
respondents or not. The answer for the aforesaid would be against the
petitioner and in favour of the respondents. It is a settled proposition
of law that the certificate produced subsequently cannot be taken into
consideration and if the aforesaid practice is allowed, then the
selection cannot be finalised at any point of time because candidates
may keep on giving information about the category or about the
qualification if obtained during the intervening period which should
have been given at the time of submission of the application form and
therefore, the Apex Court has not endorsed consideration and
acceptance of any document after submission of the application form
unless so permitted in the notification to advertise the post or it is so
permitted under the Rules. At this juncture, a reference of the
following decisions would be gainful:
(i) Paragraphs 15 and 16 of the Apex Court judgment in the case of
State of Bihar and others v. Madhu Kant Ranjan and another,
2021 SCC OnLine SC 1262:
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“15. At the cost of repetition, it is to be observed that
in the earlier round of litigation, the learned Single
Judge specifically observed that there is no pleading in
the writ petition that the petitioner had annexed his
NCC ‘B’ certificate alongwith the original application.
Once, it is found that the respondent No. 1- original
writ petitioner did not submit the photocopy of the NCC
‘B’ certificate alongwith the original application which
was the requirement as per the advertisement and the
cut-off date as per the advertisement was 22.02.2004
and he produced the same after the physical test on
15.01.2007, the appointing authority rightly held that
he shall not be entitled to additional five marks of NCC
‘B’ certificate. Though in the select list dated
08.09.2007, he was awarded 17 marks, which included
five additional marks of NCC ‘B’ certificate, the
appointing authority disagreed with the same on the
ground that as photocopy of the NCC ‘B’ certificate was
not produced alongwith his application form, which was
the requirement as per the advertisement, he shall not
be entitled to five additional marks of NCC ‘B’
certificate. Therefore, when a decision was taken on
the representation made by the respondent No. 1 -
original writ petitioner which was pursuant to the
earlier order passed by the learned Single Judge in writ
petition being CWJC No. 5431 of 2008, the authority
rightly refused to allot/award five additional marks of
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NCC ‘B’ certificate.
16. 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.”
(ii) Paragraphs 29 to 32 of the Apex Court judgment in the case of
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Bedanga Talukdar, supra it was held:
“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
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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.
30. A perusal of the advertisement in this case will
clearly show that there was no power of relaxation. In
our opinion, the High Court committed an error in
directing that the condition with regard to the
submission of the disability certificate either along with
the application form or before appearing in the
preliminary examination could be relaxed in the case of
Respondent 1. Such a course would not be permissible
as it would violate the mandate of Articles 14 and 16 of
the Constitution of India.
31. In our opinion, the High Court was in error in
concluding that Respondent 3 had not treated the
condition with regard to the submission of the
certificate along with the application or before
appearing in the preliminary examination, as
mandatory. The aforesaid finding, in our opinion, is
contrary to the record. In its resolution dated 21-5-
2010, the Commission has recorded the following
conclusions:
“Though Shri S. Khan had mentioned in his
letter dated 10-12-2009 that he was
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resubmitting the identity card with regard to
locomotor disability he, in fact, had submitted
the documentary proof of his locomotor
disability for the first time to the office of the
APSC through his above letter dated 10-12-
2009. However, after receiving the identity
card the matter was placed before the full
Commission to decide whether the Commission
can act on an essential document not
submitted earlier as per terms of
advertisement but submitted after completion
of entire process of selection.
The Commission while examining the matter in
details observed that Shri S. Khan was treated
as general candidate all along in the
examination process and was not treated as
physically handicapped with locomotor
disability. Prior to taking decision on Shri S.
Khan it was also looked into by the
Commission, whether any other candidate's
any essential document relating to
right/benefits, etc. not furnished with the
application or at the time of interview but
submitted after interview was accepted or not.
From the record, it was found that prior to Shri
S. Khan's case, one Smt Anima Baishya had
submitted an application before the
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Chairperson on 26-2-2009 claiming herself to
be an SC candidate for the first time. But her
claim for treating herself as an SC candidate
was not entertained on the grounds that she
applied as a general candidate and the caste
certificate in support of her claim as SC
candidate was furnished long after completion
of examination process.”
32. In the face of such conclusions, we have little
hesitation in concluding that the conclusion recorded by
the High Court is contrary to the facts and materials on
the record. It is settled law that there can be no
relaxation in the terms and conditions contained
in the advertisement unless the power of
relaxation is duly reserved in the relevant rules
and/or in the advertisement. Even if there is a
power of relaxation in the rules, the same would
still have to be specifically indicated in the
advertisement. In the present case, no such rule has
been brought to our notice. In such circumstances, the
High Court could not have issued the impugned
direction to consider the claim of Respondent 1 on the
basis of identity card submitted after the selection
process was over, with the publication of the select
list.”
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(iii) Paragraphs 11 to 15, 17, 19 and 22 of the Apex Court judgment in
the case of Rakesh Kumar Sharma v. State (NCT of Delhi) and
others, (2013) 11 SCC 58 are also relevant:
“11. There can be no dispute to the settled legal
proposition that the selection process
commences on the date when applications are
invited. Any person eligible on the last date of
submission of the application has a right to be
considered against the said vacancy provided he
fulfils the requisite qualification.
12. In U. P. Public Service Commission
v. Alpana [(1994) 2 SCC 723 : 1994 SCC (L&S) 742 :
(1994) 27 ATC 101], this Court, after considering a
large number of its earlier judgments, held that
eligibility conditions should be examined as on
the last date for receipt of applications by the
Commission. That too was a case where the
result of a candidate was declared subsequent to
the last date of submission of the applications.
This Court held that as the result does not relate
back to the date of examination and eligibility of
the candidate is to be considered on the last date
of submission of applications, therefore, a
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candidate, whose result has not been declared up
to the last date of submission of applications,
would not be eligible.
13. A three-Judge Bench of this Court in M.V.
Nair v. Union of India [(1993) 2 SCC 429 : 1993 SCC
(L&S) 512 : (1993) 24 ATC 236] held as under: (SCC
p. 434, para 9)
“9. … It is well settled that suitability and
eligibility have to be considered with
reference to the last date for receiving the
applications, unless, of course, the
notification calling for applications itself
specifies such a date.”
14. In Harpal Kaur Chahal v. Director, Punjab
Instructions [1995 Supp (4) SCC 706 : 1996 SCC
(L&S) 226 : (1996) 32 ATC 172] this Court held: (SCC
p. 707, para 2)
“2. … It is to be seen that when the
recruitment is sought to be made, the last
date has been fixed for receipt of the
applications. Such of those
candidates, who possessed of all the
qualifications as on that date, alone are
eligible to apply for and to be considered
for recruitment according to the rules.”
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15. This Court in Rekha Chaturvedi v. University of
Rajasthan [1993 Supp (3) SCC 168 : 1993 SCC (L&S)
951 : (1993) 25 ATC 234] held: (SCC p. 175, para 10)
“10. The contention that the required
qualifications of the candidates should be
examined with reference to the date of
selection and not with reference to the last
date for making applications has only to be
stated to be rejected. The date of selection is
invariably uncertain. In the absence of
knowledge of such date the candidates who
apply for the posts would be unable to state
whether they are qualified for the posts in
question or not, if they are yet to acquire the
qualifications. Unless the advertisement
mentions a fixed date with reference to which
the qualifications are to be judged, whether
the said date is of selection or otherwise, it
would not be possible for the candidates who
do not possess the requisite qualifications in
praesenti even to make applications for the
posts. The uncertainty of the date may also
lead to a contrary consequence viz. even those
candidates who do not have the qualifications
in praesenti and are likely to acquire them at
an uncertain future date, may apply for the
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posts thus swelling the number of applications.
But a still worse consequence may follow, in
that it may leave open a scope for
malpractices. The date of selection may be so
fixed or manipulated as to entertain some
applicants and reject others, arbitrarily.
Hence, in the absence of a fixed date
indicated in the
advertisement/notification inviting
applications with reference to which the
requisite qualifications should be
judged, the only certain date for the
scrutiny of the qualifications will be the
last date for making the applications. …
Reference in this connection may also be made
to two recent decisions of this Court in A.P.
Public Service Commission v. B. Sarat
Chandra [(1990) 2 SCC 669 : 1990 SCC (L&S)
377 : (1990) 13 ATC 708] and Vizianagaram
Social Welfare Residential School Society v. M.
Tripura Sundari Devi [(1990) 3 SCC 655 :
1990 SCC (L&S) 520 : (1990) 14 ATC 766].”
...
17. A three-Judge Bench of this Court in Ashok Kumar
Sharma v. Chander Shekhar [(1997) 4 SCC 18 : 1997
SCC (L&S) 913] reconsidered and explained the
judgment of Ashok Kumar Sharma (1993) [1993 Supp
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(2) SCC 611 : 1993 SCC (L&S) 857 : (1993) 24 ATC
798] observing: (Chander Shekhar case [(1997) 4 SCC
18 : 1997 SCC (L&S) 913] , SCC pp. 21-22, para 6)
“6. The proposition that where
applications are called for prescribing a
particular date as the last date for filing
the applications, the eligibility of the
candidates shall have to be judged with
reference to that date and that date
alone, is a well-established one. A person
who acquires the prescribed qualification
subsequent to such prescribed date
cannot be considered at all. An
advertisement or notification
issued/published calling for applications
constitutes a representation to the public
and the authority issuing it is bound by
such representation. It cannot act
contrary to it. One reason behind this
proposition is that if it were known that
persons who obtained the qualifications
after the prescribed date but before the
date of interview would be allowed to
appear for the interview, other similarly
placed persons could also have applied.
Just because some of the persons had
applied notwithstanding that they had not
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acquired the prescribed qualifications by
the prescribed date, they could not have
been treated on a preferential basis. Their
applications ought to have been rejected
at the inception itself. This proposition is
indisputable and in fact was not doubted
or disputed in the majority judgment.”
The Court in Ashok Kumar Sharma [(1997) 4 SCC 18 :
1997 SCC (L&S) 913] further explained that the
majority view in Ashok Kumar Sharma (1993) [1993
Supp (2) SCC 611 : 1993 SCC (L&S) 857 : (1993) 24
ATC 798] was not correct, rather the dissenting view
by R.M. Sahai, J. was correct as the Court held as
under: (SCC p. 22, para 6)
“6. … The reasoning in the majority opinion
that by allowing the 33 respondents to appear
for the interview, the recruiting authority was
able to get the best talent available and that
such course was in furtherance of public
interest is, with respect, an impermissible
justification. It is, in our considered opinion, a
clear error of law and an error apparent on the
face of the record. In our opinion, R.M. Sahai,
J. (and the Division Bench of the High Court)
was right in holding that the 33 respondents
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could not have been allowed to appear for the
interview.”
19. In Bhupinderpal Singh v. State of Punjab [(2000) 5
SCC 262 : 2000 SCC (L&S) 639 : AIR 2000 SC 2011]
this Court placing reliance on various earlier judgments
of this Court held: (SCC p. 268, para 13)
“13. … The High Court has held (i) that the
cut-off date by reference to which the eligibility
requirement must be satisfied by the candidate
seeking a public employment is the date
appointed by the relevant service rules and if
there be no cut-off date appointed by the rules
then such date as may be appointed for the
purpose in the advertisement calling for
applications; (ii) that if there be no such date
appointed then the eligibility criteria shall be
applied by reference to the last date appointed
by which the applications have to be received
by the competent authority. The view taken by
the High Court is supported by several
decisions of this Court and is therefore well
settled and hence cannot be found fault with.”
22. It also needs to be noted that like the present
appellant there could be large number of candidates
who were not eligible as per the requirement of
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rules/advertisement since they did not possess the
required eligibility on the last date of submission of the
application forms. Granting any benefit to the appellant
would be violative of the doctrine of equality, a
backbone of the fundamental rights under our
Constitution. A large number of such candidates may
not have applied considering themselves to be
ineligible adhering to the statutory rules and the terms
of the advertisement.”
(iv) Paragraph 16 of the Full Bench judgment of the Allahabad High
Court in the case of Gaurav Sharma v. State of U.P.. AIR 2017 All
116 is also quoted hereunder:
“16. Not too a long ago, a Full Bench of this Court
in Rajendra Patel v. State of U.P., AIR 2015 All 161
(FB) called upon to consider the validity of the
requirement placed by the Public Service Commission
upon candidates to submit hard copies of documents
and testimonials by a particular date even though the
same had already been uploaded along with an online
application form. Underlining the importance to adhere
to such requirements as placed in an advertisement,
the Full Bench noted as follows:
“Having regard to the clear stipulations which
are contained in the advertisement which was
issued by the Commission and the instructions
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to candidates in the brochure, all candidates
were placed on an unambiguous notice in
regard to the process of compliance and the
consequences of a breach. Compliance was not
made optional but was mandatory for all the
candidates. When the Commission holds public
examinations on such a large scale, candidates
must be clearly aware of the fact that it is not
open to a candidate to decide as to when an
application should be submitted and
compliance with the time schedule which has
been indicated is mandatory. If this is not read
to be mandatory, the entire process of holding
an examination would stand dislocated. If no
last date for the receipt of the hard copy of the
application with the documents were to be
provided for, the issue which would arise
would be until when would the Commission be
required to consider the application submitted.
Should this be until the examination is held or
should this continue until the date fixed for the
holding of the interview? These aspects cannot
be left in uncertainty more so at the individual
discretion of candidates. The submission of the
hard copy of the application together with the
documents is not a mere ministerial act nor
does it constitute a mere confirmation of the
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application which has been submitted online.
Candidates who submit applications online are
still required to submit full documentary
evidence which evinces eligibility and
satisfaction of the required conditions. For
instance, a candidate who applies for a
particular post may be required to hold a
qualification with a specialisation in a particular
subject. It is only on scrutinising the
application and the documents that the
Commission can determine whether the
candidate does fulfil the required conditions.
This process cannot be left in a perpetual state
of indecision or uncertainty. Hence, we are of
the view that as a matter of first principle, the
time schedule which was prescribed by the
Commission for submission of the print out
copy of the application submitted online with
the documents was of a mandatory nature.
Non-compliance with the schedule would invite
the consequence which was clearly specified,
namely the rejection of the candidature of the
applicant.
Even on merits, we are not inclined to accept
the correctness of the principle which has been
laid down in Nirbhay Kumar (supra) that the
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submission of a hard copy of the application
together with the accompanying documents is
merely an act of confirmation of the
application. The view which has found
acceptance in Nirbhay Kumar (supra) would, in
our view, dislocate the examination process
and would render the process which is
conducted by the Commission in a perpetual
state of uncertainty. We are, with respect, in
agreement with the view which was expressed
by the Division Bench in Raj Narayan
Singh (supra) decided on 18 February 2015.
Reliance was also sought to be placed on a
judgment of the Supreme Court in Dolly
Chhanda v. Chairman, JEE 6. In Dolly
Chhanda (supra), the Supreme Court has
observed that the general rule is that while
applying for any course of study or post, a
person must possess the eligibility qualification
on the last date fixed for such purpose either
in the admission brochure or in the application
form, as the case may be, unless there is an
express provision to the contrary. The
Supreme Court held that there could be no
relaxation in the matter of holding the
requisite eligibility qualification by the date
fixed. However, depending upon the facts of
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the case, there can be some relaxation in the
matter of submitting proof and it may not be
proper to apply a rigid principle which may
pertain to the domain of procedure. Hence,
every infraction of the rule relating to
submission of proof need not necessarily result
in the rejection of the candidature. These
principles which have been laid down are not in
dispute and they cannot be. However, the
issue in the present case is whether the
submission of a hard copy by the specified
date together with all the documents was
merely a matter of procedure. To accept the
submission of the petitioner would, as we have
held earlier, result in a situation where a
candidate would be entitled to assert that
despite the stipulated last date and a
prescribed consequence of invalidation which
has been drawn to the notice of the
candidates, the Commission would be bound to
scrutinise applications which are received
together with the hard copies beyond the
prescribed date. This, in our view, would not
be permissible. We may also note that in a
judgment in Secretary, UP Public Service
Commission v. S Krishna Chaitanya, the
Supreme Court has held that the Commission
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cannot be directed to declare the final results
when the application form of a candidate had
not been received within the prescribed
period.”
15. The notification pursuant to which the petitioner submitted
the application does not postulate or provide that a candidate can
submit a document even subsequent to the submission of the
application or on the last date for it. In the absence of it, we do not
find the action of the respondents to be illegal. They have not
considered the candidature of the petitioner in the category of MBC
(DW), but in the category of MBC (Women). Since the petitioner failed
to secure the required qualifying marks for any post other than the
post of Watchman, her candidature was considered and placed in the
waiting list as per the merit position. The claim for appointment to the
post of Sweeper has been made mainly on the ground that the
petitioner is falling in the category of MBC (DW), for which no
qualifying marks were given by the respondents while declaring the
result to qualify the candidate for the next stage of selection. The
aforesaid has been clarified by the learned counsel for the respondents
giving out that for the post of Sweeper, no candidate has applied in the
category of MBC (DW) and therefore, there was no question of giving
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the qualifying marks of that category for the post of Sweeper. In view
of the above, the main attack of the petitioner on the procedure
applied by the respondents cannot be accepted. In the absence of any
candidate of a particular category, there was no reason for the
respondents to give or provide qualifying marks to allow the candidate
to appear for the next stage of selection. For the post of Sweeper, the
qualifying marks of the candidates falling under the category of MBC
(DW) was not given by the respondents in absence of application from
any candidate in that category.
16. The petitioner has made a reference of the wait list issued by
the respondents for the post of Watchman when she has been shown
in the category of MBC(V)(W) and MBC (DW). The aforesaid has also
been clarified by the respondents. It is submitted that at the midst of
the selection, a notification was issued by the State of Tamil Nadu to
provide reservation to MBC (Vanniar) and therefore, the petitioner
falling in that category was considered accordingly and extended the
benefit. She was shown to be in that category and if erroneously her
name was shown indicating the category of MBC (DW), it will not
create a right in favour of the petitioner going contrary to the settled
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law. In fact, a candidate cannot be adjusted and considered against
two different categories, but has to be against one category alone.
The petitioner cannot take the benefit of the mistake committed by the
respondents in doing so. In view of the discussion made above, we do
not find a case in favour of the petitioner.
17. At this stage, we would be referring to the judgments of the
Division Bench of this Court cited by the petitioner in the case of
S.Subabalasundari vs. TNPSC (supra) and State of Tamil Nadu
and Ors. vs. Kanimozhi (supra). The judgment in those cases were
given not only in reference to the facts, but in terms of the condition of
the notification to advertise the post. In the instant case, we have also
referred to the condition of the notification which does not permit
submission of certificate subsequent to the last date for submission of
the application form or for the change of category, rather the
notification mandated for the correct disclosure of information by the
candidate. In view of the above, the judgments of the Division Bench
would not provide any assistance rather the judgment of the Apex
Court in the case of Bedanga Talukdar vs. Saifudullah Khan,
(supra) would rule.
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W.P.No.841 of 2022
In view of the discussions made above, we find no merit in the
writ petition. Accordingly, the writ petition is dismissed. No costs.
(M.N.B., CJ.) (N.M., J.)
02.08.2022
Index : Yes/No
sra
To:
1. The Registrar General,
High Court, Madras 600 104.
2. The Registrar Recruitment,
High Court, Madras 600 104.
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W.P.No.841 of 2022
M.N.Bhandari, CJ.
and
N.Mala, J.
(sra)
W.P.No.841 of 2022
02.08.2022
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