Amit Nayyer vs State Of HP And Ors

Sureshwar Thakur, J

Through an advertisement embodied in Annexure A-1, the respondents concerned, advertised various posts, for being filled up, on a contractual

basis. However, vis-Ã -vis the apposite, to the extant writ petition, five posts, of Assistant Professor (Computer Engineering), hence on a contractual

basis, also became through Annexure A-1, hence, advertised for being filled up. The petitioner and co-respondent No.3, both, applied for the afore

advertised post. However, the writ petitioner was not selected, rather co-respondent No.3 became selected, and, also became appointed.

Consequently, through the extant writ petition, a challenge is made by the writ petitioner, to, the selection and appointment of co-respondent No.3

against the afore-advertised post. The essential qualification(s), as prescribed in Annexure A-1, for theirs becoming imperatively possessed by the

aspirants concerned, hence, for theirs becoming awarded prorata marks, in consonance therewith, is/are, qua theirs possessing BE/B. Tech. and

ME/M. Tech. in the relevant branch of Engineering with first class or equivalent either in BE/B. Tech. or ME/M. Tech.

A reading of Annexure A-1, discloses that the last date, for submission of applications, as, appertaining to the afore advertised posts becoming

recited therein, to be 20.8.2014. Consequently, the possession(s), if any, of the afore essential qualification(s), by the aspirants concerned, for theirs

being awarded prorata marks in consonance therewith, were enjoined to be possessed or were enjoined to be submitted, before the recruiting agency

concerned, hence on or before 20.8.2014, (i) or in other words, after expiry of the afore set forth deadline, in Annexure A-1, upon, the aspirants

concerned acquiring the afore apposite essential qualification(s), thereupon, they became debarred to canvass, for any entitlement, for prorata marks

in consonance therewith, becoming awarded to them.

The learned counsel representing the writ petitioner, contends with much vigor, before this Court that since co-respondent No.3, as, become(s)

unfolded by Annexure R3-C, rather, became awarded a provisional degree certificate, personifying qua his successfully qualifying the degree, of,

Master of Technology in Computer Science & Engineering, from Bahara University (i) and also, when it became issued on 26.8.2014, (ii) thereupon

when obviously its issuance emanated after expiry of the afore set- forth deadline in Annexure A1, inasmuch as 20.8.2014, (iii) thereupon the

awarding of prorata marks in consonance therewith to co-respondent No.3, was grossly illegal and unmeritworthy, and obviously, hence his selection

and appointment, to the apposite advertised post, becomes amenable for being quashed and set-aside. The afore made submissions made, before this

Court, by the learned counsel appearing for the writ petitioner, does, hold immense weight, and legal vigor, as it becomes completely succored, by a

verdict made by the Hon’ble Apex Court in Rakesh Kumar Sharma v. State (NCT of Delhi) and Ors, (a/w connected matter) (2013) 11 SCC 58,

apposite para 11 whereof stands extracted hereinafter:-

“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.â€​

Thereins, a, trite principle of law becomes cast qua the selection process or recruitment process, hence commencing from the date of the

applications becoming invited through issuance of an advertisement notice, and the eligibilities of the aspirants concerned, becoming tested, on the

anchor vis-Ã -vis, on the deadline/timeline, hence, prescribed for the relevant purpose, in the apposite advertisement notice, rather thereat, each of the

aspirant(s) concerned, satiating the thereins cast imperative essential qualification(s) concerned. Reiteratedly, hence since the provisional degree, as,

issued by the Bahara University vis-Ã -vis the co-respondent No.3, became issued on 26.8.2014, hence subsequent to the expiry of the

deadline/timeline, of, 20.8.2014, as, set-forth in Annexure A-1 (i) thereupon the afore provisional degree became legally un-vindicable rather, for all

relevant purposes.

Be that as it may, even though, hence the afore made submission(s) become well rested. However, it becomes legally enfeebled, through the

learned counsel, representing the writ petitioner, remaining oblivious to the echoing made in Annexure R2-1, in as much as, therein it becoming

exemplified, that co-respondent No.3 obtaining the apposite qualifying marks, on 14.8.2014. Nonetheless, since the afore provisional degree, as

aforestated, became issued after the expiry of the deadline of 20.8.2014, as set-forth in Annexure A-1, (i) thereupon the learned counsel appearing for

the writ petitioner yet makes an emphatic address before this Court, that the afore made echoing in Annexure R2-1, yet remaining devoid of any legal

force or legal vigor. However, for the reasons to be assigned hereinafter, the afore made submissions made by the learned counsel, for the writ

petitioner become(s) rudderless (ii) in as much as, the reliance as placed by him, upon, the verdict (supra), rather making it distinguishable, inasmuch

as, the afore ratio decidendi embodied therein acquiring reinforced vigor, and, also the completest legal clout only upon the afore made echoing made

in Annexure R2-1 becoming (iii) established to become scuttled of its vigor, through cogent material, in displacement thereof, becoming adduced on

record (iv) and/or the provisional degree in the apposite discipline as became issued subsequent, to the afore made echoing in Annexure R2-1,

becoming cogently established to be not bearing any compatibility therewith, nor it being in tandem therewith. However, the learned counsel for the

writ petitioner has completely failed to de-establish through adducing the afore cogent material, the, vigor of occurrence, of an echoing, in Annexure

R2-1, inasmuch as, its making a candid communication, that co-respondent No.3, had obtained, (on 14.8.2014), the qualifying marks, in the apposite

discipline, (v) thereupon, when the date of acquisition of qualifying marks by co-respondent No.3, has occurred before the deadline of 20.8.2014 set-

forth, in Annexure A-1, (vi) thereupon the insistence made by the learned counsel appearing for the writ petitioner, that yet a consonant therewith

issuance, of a provisional degree or a final degree, by Bahara University, upon the co-respondent No.3, was also a dire necessity, cannot be accepted,

as the latter steps in aid, are obviously merely, of, a ministerial genre, and do not detract the efficacy of the otherwise valid acquisition of qualifying

marks, in the relevant discipline, by the co-respondent No.3, and, that too, when the afore acquisition evidently occurred before, the, expiry of the

deadline of 20.8.2014 as set-forth in Annexure A-1. Moreover, the entitlement of co-respondent No. 3 to receive prorata marks inconsonance

therewith, cannot also come, to be scuttled or defeated, merely through the afore steps in aid or the apposite ministerial acts, becoming taken or

completed subsequent, to the expiry of the deadline, of, 20.8.2014, as become set- forth in Annexure A-1. Moreover, when in contemprarity vis- Ã -

vis the selected candidate(s) facing the selection committee concerned, he evidently acquired qualifying marks, before the afore deadline set forth in

Annexure A-1, thereupon he became amenable for being awarded prorata marks in consonance therewith. In coming to the afore conclusion, this

Court derives immense succor from the verdict(s) made by the Hon’ble Apex Court in case titled Charles K. Skaria and Ors v. Dr. C. Mathew

and Ors (a/w connected matter), (1980) 2 SCC 752, relevant paras whereof stand extracted hereinafter:

“20. There is nothing unreasonable nor arbitrary in adding 10 marks for holders of a diploma. But to earn this extra 10 marks, the

diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from

the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree

course ? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary.

Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted,

cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma, the proof

thereof subserves the factum of possession of the diploma and is not an independent factor. The prospectus does say:

(4)(b) : 10% to Diploma holders in the selection of candidates to M.S., and M.D., courses in the respective subjects or sub-specialities.

Certificates to be produced :- In all cases true copies of the following documents have to be produced:-

(k) Any other certificates required along with the application.

This composite statement cannot be read formalistic fashion. Mode of proof is geared to the goal of the qualification in question. It is

subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time.

What is essential in the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To

confuse between fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the

last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is

the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a

manner not mentioned in the prospectus, but still above board, is to make procedure not the hand made but the mistress and form not as

subservient to substance but as superior to the essence.

Even so, there is a snag. Who are the diploma-holders eligible for 10 extra marks ? Only those who, at least by the final date for making

applications for admissions possess the diploma. Acquisition of a diploma later may qualify him later, not this year. Otherwise, the dateline

makes no sense. So, the short question is when can a candidate claim to have got a diploma? When he has done all that he has to do and the

result of it is officially made known by the concerned authority. An examinee for a degree or diploma must complete his examination-

written, oral or practical-before he can tell the selection committee or the court that he has done his part. Even this is not enough. If all goes

well after that, he cannot be credited with the title to the degree if the results are announced only after the last date for applications but

before selection. The second condition precedent must also be fulfilled, viz., the official communication of the result before the selection and

its being brought to the ken of the committee in an authentic manner. May be, the examination is cancelled or the marks of the candidates

are with-held. He acquires the degree or diploma only when the results are officially made known. Until then his qualification is inchoate.

But once these events happen his qualification can be taken into account in evaluation of equal opportunity provided the selection committee

has the result before it at the time of- not after-the selection is over. To sum up, the applicant for post-graduate degree course earns the right

to the added advantage of diploma only if (a) he has completed the diploma examination on or before the last date for the application, (b)

the result of the examination is also published before that date, and (c) the candidate's success in the diploma course is brought to the

knowledge of the selection committee before completion of selection in an authentic or acceptable manner. The prescription in the

prospectus that a certificate of the diploma shall be attached to the application for admission is directory, not mandatory, a sure mode, not

the sole means. The delays in getting certified copies in many departments have become so exasperatingly common that realism and justice

forbid the iniquitous consequence of defeating the applicant if, otherwise than by a certified copy, he satisfies the committee about his

diploma. There is nothing improper even in a selection committee requesting the concerned universities to inform them of the factum and

get the proof straight by communication therefrom- unless, of course, this facility is arbitrarily confined only to a few or there is otherwise

some capricious or unveracious touch about the process.â€​

Consequently, in view of the above, there is no merit in the writ petition and the same is dismissed being devoid of any merit. Pending application(s),

if any, also stands disposed of accordingly. No costs.