Punjab-Haryana High Court
Sawan Kumar vs State Of Haryana And Another on 16 April, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:053021
CWP-6700-2022 -1-
2024:PHHC:053021
246
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-6700-2022
Date of decision: 16.04.2024
SAWAN KUMAR
...Petitioner
VERSUS
STATE OF HARYANA AND ANOTHER
...Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. P. K. Ganga, Advocate
for the petitioner.
Mr. Jagbir Malik, Advocate
for respondent No.1-HSIIDC.
Mr. Ashish Yadav, Addl. A.G., Haryana
for respondent No.2-HSSC.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present writ petition has been filed under Articles 226/227 of
the Constitution of India seeking issuance of a writ in the nature of certiorari
for quashing the act and conduct of respondent No.2-Haryana Staff Selection
Commission, which has intentionally rejected the candidature of the petitioner
and held him not eligible on the ground that the degree of M.Com is issued after
the cut off date i.e. 17.02.2020, but the petitioner has received the degree of
M.Com on 19.11.2019 and the same has been mentioned in the application form
and was further clarified by the petitioner at the time of verification of the
documents held on 28.01.2022 and further to issue a writ in the nature of
mandamus directing the respondents to select the petitioner for appointment to
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the post of Senior Account Clerk, Advt. No.14/2019, category No.12 under SC
Category as he was fully eligible and was having the requisite qualification
before the cut off date.
2. The brief facts of the present case are that the petitioner applied for
the post of Senior Account Clerk in pursuance of the advertisement issued by
the Haryana Staff Selection Commission vide Annexure P-1, which was
published on 26.08.2019 and the closing date for submission of online
application form was 22.09.2019. However, vide Annexure P-2, the last date
was extended to 17.02.2020. The petitioner applied under the SC Category for
the aforesaid post. As per the advertisement, the essential qualification
prescribed for the post of Senior Account Clerk in category No.12 is reproduced
as under:-
Essential Qualification:-
1. B.Com at least 2nd Division with minimum 2 yrs.
relevant experience in handling of Accounts in a
Public Limited Company or Industrial
Undertaking/Bank in the Accounts Stream.
OR
M.Com with at least 2nd Division.
2. Hindi/Sanskrit as one of the subject in Matriculation
or Higher.
3. The petitioner while filling up the application form vide Annexure
P-3 has specifically stated that he is M.Com and the date of mark-sheet and
declaration of result has been mentioned as 20.11.2019 and the percentage
marks obtained has been stated to be 57.27 percentage, which is undoubtedly
2nd Division. Thereafter, written examination was conducted and the petitioner
cleared the same and he was called for scrutiny of documents on 28.01.2022.
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However, during the scrutiny of documents, the petitioner could not produce the
degree of aforesaid M.Com qualification and because of this reason, his
candidature was rejected by the Haryana Staff Selection Commission. The
petitioner is aggrieved by the action of the respondent-Haryana Staff Selection
Commission on the ground that he cleared his M.Com in the year 2019 but due
to non-declaration of the result and non-availability of the degree, he could not
produce the degree of M.Com at the time of scrutiny of documents and non-
declaration of result and non-production of degree was beyond the control of
the petitioner.
4. This Court while issuing notice of motion on 31.03.2022 had also
directed that one post of Senior Account Clerk in the SC Category would be
kept vacant. Today, Mr. Jagbir Malik, learned counsel for respondent No.1-
HSIIDC submitted that in pursuance of the aforesaid interim order passed by
this Court, one post of Senior Account Clerk in the SC Category has been kept
vacant and the same remains unfilled as of today.
5. Learned counsel for the petitioner submitted that it is a case where
at the time when the petitioner filled up the application form well in time, he
already had cleared M.Com with 2nd Division regarding which even the result
was uploaded on the website of Guru Jambheshwar University of Science and
Technology, Hisar vide Annexure P-12, whereby it shows RL (Result Later). He
further submitted that the petitioner cleared the M.Com examination in
November, 2019, which was much before the cut off date for filling up the
application form i.e. 17.02.2020 and that is the reason as to why he had rather
filled up the details in the application form but he could not get the degree of
M.Com because his result was not declared and it was rather described as RL
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(Result Later) by the Guru Jambheshwar University of Science and Technology,
Hisar, which is a statutory University incorporated under State Legislature Act
17 of 1995. He further submitted that thereafter, a certificate has been issued by
the aforesaid University vide Annexure P-11, in which it has been so
specifically stated that the petitioner had appeared in Master of Commerce 2nd
Year through Distance Education examination held in June, 2019 and his result
was declared as RL-Fee on 19.11.2019 due to non-receiving of post matric
scholarship. Thereafter, after receiving the letter of post matric scholarship from
DDE on 18.01.2022, the remarks of RL-Fee was removed and result was
declared on 20.01.2022. The aforesaid Annexure P-11 is reproduced as under:-
GURU JAMBHESHWAR UNIVERSITY OF SCIENCE AND TECHNOLOGY
HISAR - 125001 (HARYANA)
(Established by state Legislature Act 17 of 1995)
A Grade NAAC Accredited
Ref No.4362
Dated 24.07.2022
TO WHOM IT MAY CONCERN
It is certified that Mr.SAWAN KUMAR S/o
Sh.DHARSHAN LAL enrolment No.17074101034 had
appeared in MASTER OF COMMERCE 2nd YEAR through
Distance Education, examination held in JUNE, 2019 and
his result was declared as 859/1500/RL-Fee on 19.11.2019
due to not receiving the Post Matric Scholarship. Lateron
after receiving the letter of post matric scholarship from
DDE on 18.01.2022 the remarks of RL-Fee was removed
and result declared as 859/1500 on dated 20.01.2022.
Deputy Registrar (Results)
Asstt./Dy.Registrar (Result-II)
Place: GJU&T, Hisar Guru Jambheshwar University of
Dated: 24.03.2022 Science and Technology, Hisar
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6. While referring to aforesaid Annexure P-11, learned counsel for the
petitioner submitted that it is not in dispute that the petitioner was not having
M.Com degree before the cut off date for filling up the application form i.e.
17.02.2020 but it is a case where the petitioner could not provide the certificate
at the time of scrutiny of documents on 28.01.2022. While referring to the
aforesaid certificate issued by the Guru Jambheshwar University of Science and
Technology, Hisar, he further submitted that the aforesaid reason for non-
declaration of result was that the University did not receive the Post Matric
Scholarship from the Government and due to this reason, the petitioner could
not get the final degree and ultimately his result was declared on 20.01.2022
even as per the aforesaid certificate and in this way, prior to the scrutiny of
documents, his result already stood declared on 20.01.2022 but because of short
span of time, he could not produce the same before the Scrutiny Committee and
in this way, he was declared as ineligible. He also submitted that it is not a case
that the petitioner did not have the qualification prior to the cut off date but it
was because of the action of the aforesaid University, which was an unfair
action on the part of the University itself, which has not declared the result of
the petitioner only because of non-receiving of Post Matric Scholarship from
the Government, which has jeopardized his rights and therefore, the petitioner
cannot be non-suited only on this ground. He further referred to the M.Com
degree (Annexure P-13), which is dated 20.01.2022, which is prior to the
scrutiny of documents and submitted that in this way, prior to the scrutiny of
documents, the aforesaid degree was issued to the petitioner but he was not
possessing the same and therefore, he could not produce the same before the
Scrutiny Committee. He further submitted that now once a seat in the SC
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Category for the post of Senior Account Clerk has been kept vacant in
pursuance of the directions issued by this Court, the case of the petitioner may
be further processed in accordance with law by the Haryana Staff Selection
Commission for making recommendations.
7. On the other hand, learned State counsel appearing on behalf of
respondent No.2-Haryana Staff Selection Board submitted that in the aforesaid
advertisement itself, there was a specific provision in Clause 2.4 that
qualifications and other terms and conditions of eligibility will be determined
with regard to the last date fixed for receipt of online applications also termed
as closing date and vide Clause 2.5(3.1), it has also been provided that scanned
copy of Essential Academic Qualifications and Matriculation Certificate
showing Date of Birth and other relevant details are the documents which are
mandatory documents to be uploaded with the application form and vide 3.2 it
has also been provided that for the scrutiny of documents, only those documents
which are uploaded by the candidates shall be considered and if there is any
variation in the document uploaded and produced at the time of scrutiny, the
candidature shall be liable to be cancelled. He further submitted that in view of
the aforesaid specific provisions in the advertisement, the Scrutiny Committee
has rightly rejected the candidature of the petitioner since he did not produce
the degree of M.Com at the time of scrutiny of documents, he could not be held
eligible and that was the reason as to why he was declared as ineligible
candidate and therefore, the present writ petition is liable to be dismissed. He
referred to two judgments of the Hon'ble Supreme Court in The State of Bihar
and others versus Madhu Kant Ranjan and another, 2022 AIR (Supreme
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Court) 1310 and another judgment of this Court in Amit Kumar versus State of
Haryana and others, CWP-2683-2019 in this regard.
8. I have heard the learned counsel for the parties.
9. The present is a case where the petitioner had applied for the post
of Senior Account Clerk and at the time of filling of the application form,
although he had filled up the form vide Annexure P-3, wherein he has
specifically stated that he has cleared M.Com in the month of November, 2019
but the degree of the same was not uploaded because the same was not in the
possession of the petitioner. It is also the case of the petitioner that the same
could not be done because the result was not declared by the University because
of non-receipt of some Post Matric Scholarship from the Government and
thereafter, on 20.01.2022 (Annexure P-13), M.Com degree has been issued to
him which was prior to the scrutiny of documents. The issue involved in the
present case would be thus that when a person who has applied for a particular
post is otherwise qualified for being considered for the post but could not
upload the document of educational qualification, which was beyond his control
because of the fault of some other organization including some University, then
as to whether he can be non-suited only because of this reason or not. Another
important issue involved in the present case is as to whether the conditions
contained in the aforesaid advertisement would become an absolute embargo on
the petitioner in this regard or not.
10. So far as the second issue is concerned, this Court is of the view
that the conditions contained in the advertisement are certainly required to be
enforced because in case the conditions are not enforced then in that situation, a
lot of confusion can be created and those persons who are not eligible would be
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claiming their rights. However, the aforesaid conditions cannot be termed as
absolute conditions and cannot be put in a straightjacket formula but subject to
exceptions. This Court while exercising jurisdiction under Article 226 of the
Constitution of India has to see the facts and circumstances of each and every
case and also it is the duty of the Court to see as to whether in order to advance
the cause of substantial justice the aforesaid conditions can be relaxed in a
particular case or not considering the facts and circumstances of each and every
case.
11. The facts and circumstances of the present case would make it
clear that at the time when the petitioner had applied for the aforesaid post, he
had already appeared for M.Com examination and his result was not declared at
that point of time in the year 2019 only because the University i.e. Guru
Jambheshwar University of Science and Technology, Hisar withheld the result
of the petitioner on the ground that Post Matric Scholarship from the
Government was not received. This Court is of the considered view that such an
action of the University was absolutely unfair because it affected the rights of
students and it directly interfered with the right of seeking livelihood and
therefore, infracted Article 21 of the Constitution of India. It is a settled law that
Right to Livelihood is a part of Right to Life under Article 21 of the
Constitution of India. Reference in this regard may be made to a judgment of
the Hon'ble Supreme Court in Olga Tellis and others versus Bombay
Municipal Corporation, 1985 (3) SCC 545. Although the aforesaid University
is not a party in the present case but the action of the University in not declaring
the result of their own students only because of non-receipt of some money
from the Government is an unfair practice.
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12. When the scrutiny of documents had taken place on 28.01.2022,
the aforesaid University had already declared the result and rather issued a
degree of M.Com to the petitioner on 20.01.2022 vide Annexure P-13, which
was prior to the scrutiny of documents but the petitioner could not present the
same before the Scrutiny Committee and was declared ineligible. Therefore, it
is very clear that it was beyond the control of the petitioner to have produced
the certificate at the time of scrutiny of documents, although he already had a
degree.
13. The law in this regard has been dealt with in number of judgments.
In a judgment of Delhi High Court in Ms.Pushpa versus Government, NCT of
Delhi and others, C.M. No.17504/2008 in W.P.(C) No.9112/2008, the
petitioner in that case applied for the post of Staff Nurse under the OBC
category and the last date for submission of application form in the
advertisement was fixed for 21.01.2018 and the certificate was not accepted as
no proof was furnished by the petitioner therein to satisfy the authorities that
she belongs to the said category since she did not attach the certificate because
although she had applied for the certificate to the SDM for grant of OBC
certificate but it was issued after the cut-off date and therefore, the aforesaid
petition of aforesaid Ms. Pushpa was allowed by the Delhi High Court on the
ground that the petitioner therein was not at fault.
14. In Dolly Chhanda versus Chairman JEE, 2005 (9) SCC 779, the
Hon'ble Supreme Court had an occasion to discuss a case of a girl, who was a
daughter of Ex-Serviceman and was discharged from Armed Forces on the
ground of disability and the Hon'ble Supreme Court also discussed the
aforesaid issue as to what is the effect of filing the certificate after the cut-off
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date. In that case, during the course of scrutiny of papers, it was revealed that
the certificate pertained to "Disabled/killed in war/hostilities" and therefore,
was not found to be eligible, whereas it ought to have been under the ground of
"Permanently Disabled" and thereafter, a fresh certificate was obtained by the
aforesaid petitioner of that case and relief was granted to her. The Hon'ble
Supreme Court while dealing with the principle of law observed that it is a
general rule that when a person applies for any post, a person must possess the
eligibility qualification on the last date fixed for such purpose, but at the same
time depending upon the facts of each and every case, there can also be
relaxation in the manner of submission of proof and it will not be proper to
apply any rigid principle as it pertains to the domain of procedure and any
infraction of any rule relating to the submission of the proof need not
necessarily result in rejection of the candidature. In other words, it would mean
that there can be no straightjacket formula for rejecting a candidature only on
the aforesaid reason. Paras No.7 and 9 of the aforesaid judgment is reproduced
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 mark-sheets. 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
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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.
xxx-xxx-xxx-xxx
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.
15. In Haryana Staff Selection Commission versus Subhash Chand
and others, LPA No.1199 of 2019, the matter came up for hearing before a
Division Bench of this Court in LPA, wherein the candidature was also rejected
on the ground that the condition that the certificate should have been issued
prior to the last date of submission of online application form was not fulfilled.
The matter was pertaining to getting reservation in EBPGC category and the
certificate was to be issued by the Welfare of Scheduled Castes and Backward
Classes Department, which was issued after the cut-off date. It was held by the
Division Bench of this Court that it is important to see that while eligibility i.e.
possessing education qualification should be possessed by the cut-off date for
claiming benefit of reservation, proof of eligibility to claim such reservation
need not to be submitted by the cut-off date. Even if proof of claim of eligibility
for reservation is produced beyond the cut-off date, the candidate can be
considered for the grant of the said benefit and cannot be denied relief. The
Division Bench of this Court in this regard also referred to judgments of
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Supreme Court in Ram Kumar Gijroya versus Delhi Subordinate Services
Selection Board and another, 2016 (4) SCC 754 and Charles K. Skaria and
others versus Dr. C. Mathew and others, 1980 (2) SCC 752 and also referred to
the aforesaid judgment of Hon'ble Supreme Court in Dolly Chhanda's case
(supra). The relevant portion is produced as under:-
xxx-xxx-xxx-xxx
Thus the important thing to be seen is that while
eligibility i.e possessing education qualification should be
possessed by the cut off date, for claiming benefit of
reservation, proof of eligibility to claim such reservation
need not be submitted by cut off date. Even if proof of claim
of eligibility for reservation is produced beyond cut off date,
the candidate can be considered for grant of the said benefit
and cannot be denied relief.
In Ram Kumar Gijroya case (4 Supra), the appellant
had sought appointment to the post of Staff Nurse under the
OBC category, but the said certificate was not submitted
with the application and submitted after the last date
mentioned in the advertisement. The appellant was therefore
not selected on that ground, but the Supreme Court held that
the candidature of those candidates, who belonged to
reserved categories, could not be rejected simply on account
of late submission of caste certificate. The Supreme Court
held that the purpose of certificate is to enable the
authorities to believe in the assertion of the candidate that
he belongs to a particular category and act thereon by
giving the benefit to such candidate for his belonging to the
said category. It was not as if the petitioners therein did not
belong to the reserved category prior to the cut off date or
that they acquire the status of belonging to the said category
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only on the date of issuance of the certificate. It held that
necessitating upon a certificate to be issued prior to the cut
off date would be clearly arbitrary and it has no rational
objective sought to be achieved.
In Charles K. Skaria and others Vs. Dr. C. Mathew
and others8,the Supreme Court held that the candidates who
got admission even though they had not attached the
certificate of having passed the diploma alongwith their
applications, could not have their admission to a Post
Graduate cancelled provided they had in fact passed the
diploma before the date fixed, but had submitted the
diploma with delay. It observed that the important question
is whether or not the candidate secured a diploma before the
final date of application for admission to the degree course
and if he did have the diploma some relaxation in producing
evidence of the diploma can be granted. It held that the
emphasis should be on the diploma and the proof thereof
subserves the factum of possession of diploma and is not an
independent factor. It held that what is essential is the
possession of the diploma before the given date and what is
ancillary is the safe mode of proof of the qualification. To
make mandatory, the date of acquiring the qualification
before the last date for application make sense. But if it is
shown that the qualification has been acquired before the
relevant date, to invalidate the merit factor because proof
was adduced a few days later, would not be proper.
xxx-xxx-xxx-xxx
16. The aforesaid Division Bench judgment of this Court was assailed
by the Haryana Staff Selection Commission by filing a Civil Appeal before the
Hon'ble Supreme Court, which was dismissed on 31.01.2024.
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17. The Hon'ble Supreme Court in Ram Kumar Gijroya's case
(supra) also dealt with this important issue as to whether a candidate who
appears in an examination under the OBC category and submits the certificate
after the last date mentioned in the advertisement is eligible for selection to the
post under the OBC category or not. It also referred to the judgment of the
Delhi High Court is Ms.Pushpa's case (supra) and another judgment in Tej Pal
Singh & others versus Govt. of NCT of Delhi, ILR 2001 Delhi 298. It was so
held by the Hon'ble Supreme Court that the decision rendered in the case of
Ms.Pushpa's case (supra) is in conformity with the position of law laid down
by the Hon'ble Supreme Court.
18. However, two judgments have been referred by the learned State
counsel as aforesaid in the present case. The first judgment i.e. Madhu Kant
Ranjan's case (supra) pertains to grant of NCC certificate, which is
distinguishable on facts and therefore, not applicable to the present case. The
second judgment i.e. Amit Kumar's case (supra) is also distinguishable on facts
since the candidates of that case were not eligible on the cut off date.
19. The facts of the present case would therefore clearly suggest that it
was not the fault of the petitioner to have not possessed the aforesaid M.Com
certificate at the time of scrutiny of documents despite the fact that much prior
to the same i.e. about two years before the same, he had already appeared for
the examination and the examination of M.Com was withheld only because of
unfair practice adopted by the Guru Jambheshwar University of Science and
Technology, Hisar in non-declaration of the result because of non-receipt of
some money from the Government.
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20. The last date for submission of application was 17.02.2020. When
result of the petitioner was declared in the year 2020, the date of certificate is
20.01.2022 as per Annexure P-13, which is after the cut off date. However, the
Degree pertained to June, 2019 in Second Division. The aforesaid certificate is
reproduced as below:-
SR. No. : 5113625 REGN.-CUM-ROLL NO.17074101034
GURU JAMBHESHWAR UNIVERSITY OF SCIENCE &
TECHNOLOGY, HISAR (HARYANA)
This is to certify that SAWAN KUMAR son/daughter
of SH. DHARSHAN LAL, a student of Master of Commerce
(Batch: 2017-2019) in the Directorate of Distance
Education is hereby awarded the degree of MASTER OF
COMMERCE on his/her having passed the entire
examination for the said Degree held in JUNE, 2019 in
SECOND Division.
Given under the seal of the University
Controller of Examinations
HISAR-125001, Dated: 20.01.2022
21. A perusal of the same would show that the petitioner had
qualification of M.Com pertaining to examination held in June, 2019 which was
prior to the cut off date. Even if result was declared later because of no fault of
the petitioner but due to fault of the University, the time of acquiring
qualification will relate back to June, 2019 which was prior to cut off date.
Therefore, the petitioner was eligible much prior to the cut off date.
22. This Court is of the considered view that it is a fit case for
exercising its powers under Article 226 of the Constitution of India in the light
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of above-stated exceptional circumstances and to direct the Haryana Staff
Selection Commission to consider the case of the petitioner in accordance with
law.
23. Consequently, the present writ petition is allowed. The respondent-
Haryana Staff Selection Commission is hereby directed to consider the case of
the petitioner for the post of Senior Account Clerk in the SC Category and after
processing the same in accordance with law, in case the petitioner comes on
merit, then it shall recommend his case to respondent No.1-HSIIDC, which has
already kept one post of Senior Account Clerk vacant in the SC Category in
pursuance of the order passed by this Court. The aforesaid exercise shall be
completed within a period of three months from today.
(JASGURPREET SINGH PURI)
16.04.2024 JUDGE
Chetan Thakur
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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