Punjab-Haryana High Court
Vinod Kumar vs Haryana Vidyut Prasaran Nigam And Ors on 14 March, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:039277
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102+265
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-19481-2017 (O&M)
Date of decision: 14.03.2024
VINOD KUMAR
...Petitioner
VERSUS
HARYANA VIDYUT PRASARAN NIGAM AND OTHERS
...Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Kamal Sharma, Advocate and
Mr. Raja Sharma, Advocate
for the petitioner.
Mr. Gaurav Jindal, Addl. A.G., Haryana.
****
JASGURPREET SINGH PURI, J. (Oral)
CWP-3431-CWP-2024
Prayer in this application is for placing on record the replication to
the affidavit dated 23.11.2023 filed on behalf of respondent No.4.
For the reasons mentioned in the application, the same is allowed.
The replication to the affidavit dated 23.11.2023 filed on behalf of respondent
No.4 is taken on record, subject to all just exceptions.
CWP-19481-2017
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 mandamus
directing respondent No.4-Haryana Staff Selection Commission to call the
petitioner for interview/viva-voce for the post of Shift Attendant in the Nigam
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as the petitioner has fulfilled all the conditions as per the advertisement dated
20.02.2016 (Annexure P-1) and the Service Rules and with a further prayer to
direct the respondents to allow the petitioner to appear in the Interview by
considering him in the category of Dependant of Ex-Servicemen (ESM) and
Scheduled Caste provisionally as he has applied under this category in his
application form within the prescribed period.
2. The brief facts of the present case are that the petitioner applied for
the post of Shift Attendant in pursuance of an advertisement, which was issued
vide Annexure P-1 dated 20.02.2016 by the Haryana Staff Selection
Commission and as per the aforesaid advertisement, the closing date for
submission of online applications was 04.04.2016 and it was an online process.
There were total 2426 posts of Shift Attendant under Category No.1, out of
which 58 posts were reserved for Ex-Serviceman-Scheduled Caste Category
(hereinafter referred to as ESM-SC). The petitioner applied against the
aforesaid reserved category on the basis of being Dependent of Ex-Servicemen
as well as Scheduled Caste. Along with the application, the petitioner attached
the relevant documents which were so required in the aforesaid advertisement
especially pertaining to reservation. So far as the eligibility requirement
pertaining to the Scheduled Caste is concerned, the same is not in dispute but
the dispute in the present case is only pertaining to the certificate of Dependent
of Ex-Servicemen which was attached by the petitioner along with the
application form, which according to the Haryana Staff Selection Commission
was not a valid eligibility certificate. The petitioner submitted a certificate
issued to him by the Secretary, Zila Sainik Board, Jind dated 15.06.2012, which
has been attached along with the affidavit dated 23.11.2023 filed by the
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Haryana Staff Selection Commission as Annexure R-4/3. The aforesaid
certificate of Ex-Serviceman (Annexure R-4/3) is reproduced as under:-
CERTIFICATE OF EX-SERVICEMAN
Sr. No.644
It is certified that Smt. Kamlesh Devi w/o
No.2472531-N Rank Ex/Hav. Name Nafe Singh Resident of
Buwana District Jind (Haryana) served in the
Army/Navy/Air Force from 28.11.79 to 30.06.2000 and is
entitled to:-
a) Electric connection of priority basis
b) For getting admission only.
c) Exemption for the payment of house Tax in Municipal
area.
d) Mr./Miss Vinod Kumar is the real son/Daughter of
above ESM/Widows of ESM
e) He/She is eligible to apply in HUDA for plots.
He/She is bonafide ESM/Widows of ESM.
Place:Jind Signature Thumb of
Dated: 15.06.2012 ESM/Widows of ESM
SECRETARY
ZILA SANIK BOARD
JIND
3. On the basis of the aforesaid process, the petitioner appeared for
the written examination and he cleared the same. Thereafter, he was called for
scrutiny of documents and the scrutiny of documents took place on 11.05.2017.
During the scrutiny of documents, the petitioner produced the aforesaid
certificate (Annexure R-4/3) for the purpose of seeking reservation in the
Dependent of Ex-Servicemen Category. However, during the scrutiny of
documents, the Haryana Staff Selection Commission did not consider the
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aforesaid certificate as a valid certificate and therefore, the petitioner was
rendered ineligible. It is a case of the petitioner that he was never told that the
format of the aforesaid certificate was not in a proper form but thereafter, when
the candidates were called for interview vide Annexure P-9, the roll number of
the petitioner did not figure in the list of candidates called for interview and he
thereafter, sought information from the Haryana Staff Selection Commission as
to why he has not been called for the interview/viva-voce, to which he was told
that the certificate of Dependent of Ex-Servicemen was not proper. After the
petitioner inquired the same from the Haryana Staff Selection Commission with
regard as to what was the proper format of certificate, to which he was told that
a different kind of certificate is issued by the Zila Sainik Board. The petitioner
thereafter approached the Zila Sainik Board and another certificate was issued
to him vide Annexure P-5 dated 17.07.2017. The aforesaid certificate
(Annexure P-5) is reproduced as under:-
(Refers to Para 3 of RSB Haryana letter No.50/4/96-SE-I RSB dated 11.10.2001)
Serial No. of the Eligibility Register 183/2017
PHOTO
ELIGIBILTY CERTIFICATE
Smt Kamlesh Devi W/o
1. Number 2472531 -N Rank Hav
Name Nafe Singh ............... of the Ex-servicemen
2. Regiment/Unit of the Ex-Servicemen Punjab Regt(Army)
3. Address of Ex-serviceman..VPO-BUWANA, The& Distt-
Jind (Haryana)
4. Name of Dependent VINOD KUMAR seeking
employment.
Date of Birth 17 SEP 1992
Civil Education Qualification 10th
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5. Specimen Signature of the Ex-servicemen..... (Thumb)
6. Specimen Signature of the Dependent.... Vinod Kumar
(SD/-)
7. This certificate is valid only for one year from the
date of issue which will have to be renewed every
year on expiry.
8. CERTIFICATES
(i) Certified That the applicant whose particulars
alongwith the particulars of Ex- Servicemen. whose
dependent he/she is/are given above is eligible for
employment under the State Govt. Policy against the
quota reserved for the Ex-servicemen as per Haryana
Govt. Instructions issued from time to time.
(ii) It is further certified that as per the affidavit of
Father/Husband of the applicant he is not a State
Govt./Central Govt./PSU employee.
(iii) That this certificate has been issued to only one
dependent of the EX-servicemen relevant records
maintained in the Zila Sainik Eligibility register.
(iv) That the first eligibility certificate issued to the
dependent has been received in original and entries
made in the register before issue of the second/third
certificate to the only dependent.
(v) I have personally perused all relevant documents and
the affidavits of the individuals and have satisfied
myself for correctness before issuing this certificate.
Station: JIND SD/-
Dated: 17 JUL 2017 Secretary
Zila Sainik Board, Jind
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4. Since the petitioner was never called for interview, the result was
declared by the Haryana Staff Selection Commission, whereby the petitioner
was not selected. The aforesaid result was declared on 08.03.2019, which was
about 1 year and 10 months after the scrutiny of documents and in the
meantime, the petitioner already had the aforesaid certificate (Annexure P-5)
and as per the petitioner, he requested the Haryana Staff Selection Commission
to consider the aforesaid certificate but they did not do the same. Thereafter, on
28.08.2017, the petitioner filed the present writ petition, wherein notice of
motion was issued by this Court on 30.08.2017, which was accepted by the
respondent No.4-Haryana Staff Selection Commission on the same date and a
direction was issued to file an affidavit.
5. Learned counsel for the petitioner submitted that it is a case where
the petitioner has been non-suited purely on irrelevant considerations since
there was no violation of any statutory provision of law nor there was any
violation of any conditions of the advertisement itself. He submitted that the
only reason as to why the petitioner was rendered ineligible was that he had
attached the certificate (Annexure R-4/3) of the year 2012, which was also
issued by the Zila Sainik Board pertaining to the fact that he was Dependent of
an Ex-Servicemen but it was not in the format which was so sought by the
respondent-Haryana Staff Selection Commission at the time of interview. He
further submitted that in fact it is a case where there is no dispute that the
petitioner is Dependent of an Ex-Servicemen but the only dispute is that after
the cut-off date, the aforesaid certificate (Annexure P-5) was issued to the
petitioner but the same was issued to him prior to the declaration of result and
even much prior to the declaration of result, the present writ petition was filed
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before this Court, in which notice of motion had been issued and therefore, the
respondent-Haryana Staff Selection Commission ought to have considered the
aforesaid certificate of Ex-Servicemen in accordance with law but the same was
not even considered only because of the reason that according to the Haryana
Staff Selection Commission, it was not a valid eligibility certificate.
6. Learned counsel for the petitioner also submitted that rather when
the present matter came up for hearing before this Court on 02.08.2018, it was
so directed that the learned State counsel will inform as to how many posts of
Dependent of Ex-Servicemen and SC Category (ESM-SC) are still lying vacant
but no such affidavit was filed by the Haryana Staff Selection Commission and
it was only thereafter, on 23.11.2023 that such an affidavit was filed, which was
after the result was declared but the aforesaid order was passed by this Court
prior to the declaration of the result. He further submitted that be that as it may,
even otherwise also there were total 58 advertised posts under the aforesaid
category and as per the affidavit filed by the Haryana Staff Selection
Commission, out of the aforesaid 58 posts advertised, only 34 candidates were
found eligible for interview, which finds mentioned in Annexure P-9 and out of
the said candidates, only 28 posts were filled up and the remaining posts out of
the aforesaid 58 posts were filled up from the SC category in view of the Policy
of the State Government with regard to the residue posts which are not filled up
and are to be filled up from the remaining category. He further submitted that it
is not a case of the Haryana Staff Selection Commission that the vacancies were
not available during the pendency of the present petition and prior to the
declaration of the result on 08.03.2019 and now from the affidavit which has
been filed by the Haryana Staff Selection Commission, it is very clear that the
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vacancies were still available since out of 58 posts, only 28 posts were filled up
and the remaining 30 posts were channelized in different reservation channel i.e
of SC category and therefore, once the certificate (Annexure P-5) was given to
the Haryana Staff Selection Commission by the petitioner, which was very well
in the knowledge of the Haryana Staff Selection Commission much before the
finalization of the selection process and much before the interview and also
before the declaration of result, it was the duty of Haryana Staff Selection
Commission to have considered the aforesaid certificate (Annexure P-5)
especially in view of the fact that large number of vacancies were available and
the candidature of the petitioner has been rejected on hypertechnical grounds,
which is not supported by any Statutory Rule or even the advertisement itself.
7. Learned counsel for the petitioner also referred to the conditions of
the advertisement (Annexure P-1) in this regard. He referred to the contents at
page No. 18 of the paper-book, wherein it has been so provided that the
dependents of ESM who fulfill all conditions of qualifications, age etc.
prescribed for posts will be considered on merit for the posts reserved for ESM
to the extent of non-availability of suitable ESM candidates and the
ESM/DESM candidates of Haryana claiming benefit must have a valid
eligibility certificate on last date of submission of online application form and
will have to produce valid eligibility certificate from the concerned Zila Sainik
Board at the time of interview. It was further pointed out that mere dependent
certificate will not be entertained and ESM candidates should also produce
attested photo copy of Identity Card issued by concerned Zila Sainik Board &
Discharge Book at the time of interview. Further, it is also so stated in the
advertisement that the benefit of reservation will be given only to those
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SC/BCA/BCB/PHC/EBPG and ESM candidates and outstanding sportsperson
candidates who are domicile of Haryana State and the
SC/BCA/BCB/PHC/EBPG candidates are required to submit
SC/BCA/BCB/PHC/EBPG certificate duly issued by the competent authority at
the time of interview and that the Dependent of Ex-Servicemen (DESM) shall
be required to produce the valid eligibility certificate duly issued by the
respective Zila Sainik Board at the time of interview. The relevant portion of the
aforesaid advertisement is reproduced as under:-
Note:-1 Disabled ex-servicemen will mean ex-servicemen
who, while serving in the Armed Forces of the
Union were disabled in operations against the
enemy or in disturbed areas.
Note:-2 The dependents will include besides wife/widow,
dependent sons/daughters.
The dependents of ESM who fulfill all conditions of
qualifications, age etc. prescribed for posts will be
considered on merit for the posts reserved for ESM to the
extent of non-availability of suitable ESM candidates.
ESM/DESM candidates of Haryana claiming benefit
must have valid eligibility certificate on last date of
submission of online application form and will have to
produce the valid Eligibility Certificate from the concerned
Zila Sainik Board at the time of interview. Mere dependent
certificate will not be entertained. ESM candidates should
also produce attested photo copy of Identity Card issued by
concerned Zila Sainik Board & Discharge Book at the time
of interview.
NONE OF THE PERSON BELOW SHALL FALL
WITHIN THE DEFINITION OF WORD DEPENDENT
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OF EX-SERVICEMEN IN TERMS OF HARYANA
GOVT. LETTER NO.12/37/79-GSII, DATED 21.11.1980:-
i) A person may be working on an adhoc basis against the
post advertised or somewhere else.
ii) A person may be unemployed at the time of making the
application but he may have other source of income viz.
from agriculture, trade, property, Bank Balance etc.
iii) A person who is a member of the joint Hindu family and
remains dependent upon the Karta till there is partition in
the family or he ceases to be a member of the joint Hindu
family and is obliged to pass on all his income to the Karta
and he draws money for his subsistence from the pool of the
joint Hindu family with the consent of the Karta.
iv) A candidate who is a member of the joint Hindu family is
employed on adhoc basis but he is otherwise dependent on
his father.
Note :- i) The benefit of reservation will be given only to
those SC/BCA/BCB/PHC/EBPG and ESM and outstanding
sportsperson candidates who are domicile of Haryana State.
The SC/BCA/BCB/PHC/EBPG candidates are required to
submit SC/BCA/BCB/PHC/EBPG Certificate duly issued by
the competent authority at the time of interview. Likewise the
Outstanding Sports Person shall be required to produce the
Sports Gradation Certificate as per Government instructions
duly issued by the competent authority. DESM shall be
required to produce the Valid Eligibility Certificate duly
issued by the respective Zila Sainik Board at the time of
interview.
ii) Qualification and other term and conditions of
eligibility will be determined with regard to the last date
fixed for receipt of online applications.
iii) Candidates applying for a post must ensure that they
fulfill all the eligibility conditions on the last date of
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application. If on verification at any time before or after the
written examination or interview or appointment, it is found
that they do not fulfill any of the eligibility condition or it is
found that the information furnished is false or incorrect
their candidature will be cancelled.
8. Learned counsel for the petitioner while referring to the aforesaid
advertisement submitted that it is very clearly mentioned in the advertisement
that the certificate of Dependent of Ex-Servicemen was to be produced at the
time of interview, whereas in the present case, the petitioner has been ousted at
the time of scrutiny of documents on the basis of the aforesaid certificate
(Annexure R-4/3). He further submitted that immediately thereafter, the
petitioner got another certificate (Annexure P-5) issued much before the
interview and had he been called for the interview, he would have produced the
aforesaid certificate at the time of interview but the same was not done by the
Haryana Staff Selection Commission. While referring to the earlier condition as
reproduced above, wherein it has been so stated that the candidates must have
valid eligibility certificate on the last date of submission of the online
application form and that the mere dependent certificate will not be entertained
on the basis of which the candidature of the petitioner has been rejected is not
only an arbitrary condition and liable to be ignored but even otherwise also, it
only states that a valid eligibility certificate has to be on the last date of
submission of the online application form. He further submitted that the
petitioner already had a certificate duly issued by the Zila Sainik Board stating
that he is a Dependent of Ex-Servicemen (Annexure R-4/3) but as to what was
the valid eligibility certificate and what was the format of the same, there was
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nothing mentioned in the advertisement and as a layman, the petitioner could
not know as to what could be the format which the Haryana Staff Selection
Commission is wanting and when at the time of scrutiny of documents, he was
made aware of the same, he immediately got the aforesaid certificate (Annexure
P-5) issued which was in consonance with their requirement and which was so
asked at the time of scrutiny of documents and which was given to the Haryana
Staff Selection Commission and also attached with the present petition. He
further submitted that once the aforesaid formality itself was completed vide
Annexure P-5, then on the aforesaid hypertechnical and superficial condition,
the petitioner could not have been non-suited particularly in view of the fact
that large number of vacancies were still available with the Haryana Staff
Selection Commission. He further submitted that in the absence of any format
or criteria to explain or to define as to what was the valid eligibility certificate,
the petitioner could not have been rendered ineligible in this regard.
9. Learned counsel for the petitioner also submitted that it is not the
case of the respondent-Haryana Staff Selection Commission that the petitioner
was not an Ex-Serviceman or a Dependent of Ex-Servicemen nor they have
disputed the same but the only dispute which they have raised is that the
petitioner did not attach the valid eligibility certificate at the time of the filling
of the online application before the cut-off date. He further submitted that in
other words, the factum of being Dependent of Ex-Servicemen has not been
disputed by the respondent-Haryana Staff Selection Commission but it was only
because of the aforesaid hypertechnicality that the petitioner has been rendered
ineligible. In this regard, he referred to judgments of Hon'ble Supreme Court in
of Supreme Court in Dolly Chhanda versus Chairman JEE, 2005 (9) SCC 779
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and Ram Kumar Gijroya versus Delhi Subordinate Services Selection Board
and another, 2016 (4) SCC 754, 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, and a Division Bench judgment of this Court in LPA
No.1199 of 2019, Haryana Staff Selection Commission versus Subhash
Chand and others to contend that when a candidate is in a reserved category,
then the mere fact that the certificate was given to the respondent-recruiting
agency after the cut-off date would not have any effect and it can always be
considered in the facts and circumstances of each and every case. He further
submitted that during the pendency of the present writ petition, the respondent-
Haryana Staff Selection Commission has recruited Shift Attendants and when
there were 30 vacancies as per the affidavit filed by the respondent-Haryana
Staff Selection Commission, it ought to have given preference to the petitioner
and considered him for appointment but instead of giving an appointment to the
petitioner, the Haryana Staff Selection Commission diverted the aforesaid
vacancies to another reservation i.e. Scheduled Caste category and now
therefore, in view of the aforesaid facts and circumstances, a direction may be
issued to the respondent-Haryana Staff Selection Commission to consider the
petitioner for the post of Shift Attendant on the basis of Dependent of
Ex-Servicemen in the light of aforesaid certificate (Annexure P-5) and also in
the light of the aforesaid judgments as relied upon.
10. On the other hand, Mr. Gaurav Jindal, Addl. A.G., Haryana
submitted that when the petitioner applied for the aforesaid post, he had
uploaded and attached the certificate of Zila Sainik Board (Annexure R-4/3),
which was not in accordance with the terms and conditions of the advertisement
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(Annexure P-1). While referring to the aforesaid terms and conditions, he
submitted that it has been specifically provided that the Ex-Servicemen or
Dependent of Ex-Servicemen must have a valid eligibility certificate on the last
date of submission of the online application form, whereas in the present case
the petitioner did not have a valid eligibility certificate on the last date since the
certificate (Annexure P-5), which has been attached with the present petition is
of a date which is much later than the last date of submission of application
form. He further submitted that the certificate (Annexure R-4/3), which was
attached by the petitioner along with the application form although was issued
by the Zila Sainik Board and pertains to Ex-Servicemen but the aforesaid
certificate cannot be termed as a valid eligibility certificate since the same was
for a different purpose and it was not meant for getting the recruitment. He also
submitted that the actual valid certificate is in the format of Annexure P-5,
which clearly shows that it is meant for the purpose of recruitment but the
aforesaid eligibility certificate was much after the cut off date and therefore, it
could not have been considered at the time of scrutiny of documents and the
petitioner was rightly declared to be ineligible in this regard. He further
submitted that the aforesaid terms and conditions of the advertisement were
binding upon both the parties and in this regard, he referred to judgments of
Hon'ble Supreme Court in The State of Bihar and others versus Madhu Kant
Ranjan and another, 2022 AIR (Supreme Court) 1310, Rakesh Kumar
Sharma versus Govt. of NCT of Delhi and others, 2013 (11) SCC 58 and
Divya versus Union of India and others, (2024) 1 SCC 448 in this regard. He
also submitted that the aforesaid judgments which have been referred by the
learned counsel for the petitioner are distinguishable and in terms of the
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advertisement itself, the Haryana Staff Selection Commission has rightly
disqualified the petitioner for being considered for appointment to the post of
Shift Attendant and therefore, the present writ petition is liable to be dismissed.
11. I have heard the learned counsels for the parties.
12. The short issue involved in the present case is as to whether the
petitioner ought to have been disqualified/rendered ineligible by the Haryana
Staff Selection Commission on the basis of the certificate which was attached
along with the application form i.e. Annexure R-4/3 or not. While the petitioner
had applied for the post of Shift Attendant, he had attached Annexure R-4/3
which was a certificate issued by the Zila Sainik Board and it was also
depicting that it is a certificate of Ex-Serviceman, which is clear from the
aforesaid heading of the aforesaid certificate, which states "Certificate of
Ex-Serviceman". The said certificate is issued by the competent authority i.e.
Zila Sainik Board, Jind. The authenticity and genuineness of the aforesaid
certificate is not in dispute and it is also not in dispute that the aforesaid
certificate was a part of the application form, which the petitioner had submitted
and the date of the aforesaid certificate is 15.06.2012, which is much before the
cut-off date and much before the filling of the application form by the
petitioner. However, when the petitioner appeared for the written examination,
he cleared the same and as a next step in the process, he was called for scrutiny
of documents along with other candidates. There were total 58 posts meant for
the aforesaid reserved category of ESM-SC as per the advertisement and as per
the affidavit filed by the Haryana Staff Selection Commission, only 28 posts
were filed up and the remaining 30 posts were diverted to another reserved
category i.e. SC category because of non-availability of the candidates from the
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ESM-SC category. The scrutiny of documents took place on 11.05.2017 qua the
petitioner and the petitioner was told that he is not eligible because his
certificate is not in a proper format. Thereafter, the petitioner got another
certificate from the Zila Sainik Board, which was issued to him just after about
2 months of the scrutiny of documents i.e. on 17.07.2017 vide Annexure P-5,
which states that it is an eligibility certificate. As per the learned counsel for the
petitioner, when the petitioner was not called for interview vide Annexure P-9,
then he immediately submitted the aforesaid certificate to the Haryana Staff
Selection Commission and stated that he has the requisite certificate (Annexure
P-5) and the same should be considered especially in view of the fact that it is
not in dispute that he is a Dependent of Ex-Servicemen but it is only the format
which the respondent-Haryana Staff Selection Commission wanted to have and
which was not the same format as that of Annexure R-4/3 but now he has got
Annexure P-5 and the result has not been declared, so therefore, he should also
be interviewed and be considered in accordance with law.
13. The interview was stated to be held on 02.08.2018, whereas the
petitioner filed the present writ petition on 28.08.2017, which was almost one
year prior to the interview. Thereafter, the result was declared on 08.03.2019.
Before further analyzing the facts of the present case, it will be necessary to
refer to the proposition of law in this regard. The learned counsel for the
petitioner referred to a judgment of Delhi High Court in Ms.Pushpa's case
(supra). In that case, the petitioner 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
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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's case (supra), the Hon'ble Supreme Court
while discussing a case of a girl, who was a daughter of Ex-Serviceman and
was discharged from Armed Forces on the ground of disability also discussed
the aforesaid issue as to what is the effect of filing the certificate after the cut-
off 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:-
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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
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 Subhash Chand's case (supra), the matter came up for hearing
before this Court in LPA, wherein the candidature was also rejected on the
ground that the condition was that the certificate should have been issued prior
to the last date of submission of online application form. 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
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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
Supreme Court in Ram Kumar Gijroya's case (supra) 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
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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
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
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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.
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. Some judgments were also relied upon by the learned State
counsel. One of the judgments i.e. Madhu Kant Ranjan's case (supra) was a
case where the writ petitioner of that case did not produce/submit the photocopy
of the NCC certificate along with the original application and therefore, it was
held that once the NCC certificate which was required to be attached along with
the application form was not produced, then rendering the petitioner of that case
to be ineligible was in accordance with law. This Court is of the view that this
judgment of the Hon'ble Supreme Court is totally distinguishable from the
present case since the certificate of NCC, which was required to be produced
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along with the application cannot be considered on the same rationale of law as
that of any OBC/SC/Ex-Servicemen category because as stated above, now it a
settled law that a person who is under reserved category is always in the
reserved category and the date of certificates would not make any difference.
19. So far as the judgment of Hon'ble Supreme Court in Rakesh
Kumar Sharma's case (supra) is concerned, the same was a case where the
appellant had made a representation that he has obtained BA degree, but could
not submit a copy of the mark-sheet or degree certificate. A perusal of para
No.16 of the aforesaid judgment would show that the appellant of that case did
not possess the requisite qualification on the last date of submission of the
application, though he applied representing that he possessed the same. The
aforesaid judgment is therefore distinguishable on facts.
20. So far as judgment of Hon'ble Supreme Court in Divya's case
(supra) as relied upon by the learned State counsel is concerned, the same also
dealt with the earlier judgments in Ram Kumar Gijroya's case (supra) and
Dolly Chhanda's case (supra) etc. In Divya's case (supra), the candidate was
seeking reservation in the EWS category for the purpose of CSE-2022 and she
was to provide the income and assets certificate for the financial year of
2020-21, but she did not attach the same, which was provided later on. In this
way, before the closing date of the application, the candidate of that case was
not in possession of the requisite certificate for the financial year 2020-21 and
before the main examination. Again, the facts and circumstances of that case
were pertaining to the income certificate, which cannot be treated at par with
the rationale of the certificates, which are pertaining to the reservation under the
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SC/OBC/Ex-Serviceman category and therefore, the aforesaid judgment is also
distinguishable from the present case.
21. Coming to the facts of the present case again, a perusal of the
advertisement (Annexure P-1) as reproduced above would show that the
certificate of reservation was to be produced at the time of interview, which is
clear from the aforesaid terms and conditions of the advertisement. However, in
the present case, the petitioner has been shunted out at the time of scrutiny of
documents on the ground that he had submitted a certificate (Annexure R-4/3),
which was not in accordance with the format but after the scrutiny of
documents and before the interview, which was held on 02.08.2018, the
petitioner already had the certificate (Annexure P-5) with him, which was
issued at least one year prior to the aforesaid date of interview. This Court is of
the view that had the petitioner been not shunted out at the time of scrutiny of
documents and was told about the aforesaid certificate which was required, he
could have produced the same at the time of interview in accordance with the
terms and conditions, but he had no opportunity to do so because he was never
called for interview and much before the interview, he had rather preferred to
file present petition before this Court on 28.08.2017, wherein notice of motion
was issued by this Court on 30.08.2017 and the learned State counsel accepted
notice on the same date. Therefore, even otherwise also, it came to the
knowledge of the Haryana Staff Selection Commission at least one year before
the interview was conducted with regard to the possession of the aforesaid
certificate (Annexure P-5), which has been attached with the present petition
and therefore, it appears that it was only because of some superficial and
artificial reasons that the petitioner has been non-suited and rendered ineligible.
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22. Even otherwise also, a perusal of the aforesaid condition which has
been heavily relied upon by the learned State counsel shows that the
ESM/DESM candidates of Haryana claiming benefit must have
"Valid Eligibility Certificate" on the last date of submission of online
application does not clarify or define as to what is the meaning, extent or
definition of the aforesaid "Valid Eligibility Certificate". During the course of
arguments, a specific query was put to the learned State counsel as to whether
the aforesaid expression "Valid Eligibility Certificate" has been defined or
mentioned in the format along with the advertisement or not, to which he
submitted that no such format or definition is provided. In other words, what
was the meaning of the aforesaid expression "Valid Eligibility Certificate" was
ambiguous and was not known to a candidate, who is a layman when he applies
in pursuance of the advertisement and it appears that the petitioner applied
under the reserved category along with the supporting document of his
certificate of Ex-Servicemen (Annexure R-4/3), but according to the Haryana
Staff Selection Commission, it was not in accordance with the format.
However, no such format has been provided anywhere in the advertisement nor
it is so there in any Statutory Rule or Instruction. Therefore, it cannot be
expected from a candidate who is a layman as to what kind of format was
required by the recruiting agency. Even otherwise also, after the scrutiny of
documents when the candidates were called for interview vide Annexure P-9,
the petitioner came to know that the certificate (Annexure R-4/3) was not in
accordance with the format and he got issued another certificate (Annexure P-5)
immediately within a period of 2 months after the scrutiny of documents and
the entire process of interview took place after about one year and the result
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was declared again after about 7 months and in this way, the respondent-
Haryana Staff Selection Commission had lot of time to consider the aforesaid
certificate, which was otherwise attached with the present petition as Annexure
P-5 and was in the knowledge of the Commission much prior to interview and
declaration of result. This Court is therefore of the view that in the light of the
aforesaid judgments of the Hon'ble Supreme Court, judgment of Delhi High
Court and a Division Bench judgment of this Court as relied upon by the
learned counsel for the petitioner, the candidature of the petitioner was wrongly
rejected.
23. Apart from the above, there was no difficulty with regard to the
vacancies even as per the affidavit filed by the Haryana Staff Selection
Commission. As per the affidavit filed by Haryana Staff Selection Commission,
out of total 58 advertised posts against the reserved category of ESM-SC, only
28 posts have been filled up and 30 remained unfilled, which they had to divert
to another reservation of SC category and therefore, at that time when the
recruitment was made the vacancies were available.
24. In view of the aforesaid facts and circumstances and considering
the factual position of the present case, the present writ petition is allowed. The
respondent-Haryana Staff Selection Commission is directed to consider the
candidature of the petitioner by taking into consideration the certificate
(Annexure P-5) and thereafter, to follow the further process by interviewing
him in accordance with law and thereafter, all the consequential process shall
follow. The aforesaid exercise shall be completed within a period of two months
from today.
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25. In case the petitioner is found to be suitable for being
recommended and he is recommended by the Haryana Staff Selection
Commission, then he shall be given appointment on the aforesaid post by the
respondent-Nigam and in case no vacancy is available, then by creating a
supernumerary post. The petitioner will also be entitled for his notional fixation
of pay and other benefits with effect from the date when the other candidates
had joined, but he will not be entitled for any monetary benefits for that period.
However, his seniority will also relate back to the date when the other
candidates were appointed in pursuance of the aforesaid advertisement.
(JASGURPREET SINGH PURI)
14.03.2024 JUDGE
Chetan Thakur
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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