Anil Kumar vs State of Haryana and Another

Rajiv Narain Raina, J.—A recruitment process for filling up 204 posts of Firemen in Urban Local Bodies Department, Haryana, was

initiated through public advertisement No. 3/2008 inserted in the print media on 7.6.2008. The petitioner''s candidature as dependent of ex-

serviceman category (DESM-General) was rejected since he did not append the eligibility certificate of the Zila Sainik Board concerned with the

application form in proof of claim based on reservation. Accordingly, his candidature was considered in general category where he did not make it

on merit since he only secured 37.15 marks as against 41.43 marks obtained by the last selected general category candidate. The eligibility

certificate subsequently obtained on 1.7.2009 was after the cut-off date meant for determining eligibility. The cut-off date fixed in the advertisement

was 7.7.2008. Merely because a vacant post in the category of ex-serviceman was available which could not be filled under the recruitment

process-2008 it would not create a right in favour of the petitioner for appointment on the strength of the certificate dated 1.7.2009 (P-4). There

was a term and condition in the advertisement which required candidates of Haryana to attach fresh eligibility certificates to claim benefit of

horizontal reservation. Therefore, the dependent of ex-serviceman certificate dated 29.5.2006 could not be considered as a fresh certificate from

the point of view of the cut-off date, i.e. 7.7.2008. The term in the advertisement reads thus:

ESM/DESM candidates of Haryana claming benefit will have to attach with their application fresh Eligibility Certificate from the concerned Zila

Sainik Board. Mere dependent certificate will not be entertained.

Heard the learned counsel for the parties.

Mr. Kuthiala submits that there is no indication in the above reproduced term as to what is meant by fresh eligibility certificate. No time period

has been prescribed, therefore, the certificate dated 29.5.2006 may qualify as a fresh certificate. He would next submit that 18 posts were

reserved for ex-servicemen and DESM. Seven posts remain vacant. One post has been filled up under order of this Court passed in CWP No.

10955 of 2009; Sandeep v. Haryana Staff Selection Commission; decided on 16.8.2010. The dispute in that case was with respect to the

question of physical fitness of the petitioner therein. The Court had directed the examination of the petitioner by a medical board constituted by the

Government Multi Speciality Hospital, Sector-16, Chandigarh. The Board on examination of the candidate declared him medically fit since chest

expansion measurement was found as per prescribed norms. Thereafter, he was directed to be interviewed by the Haryana Staff Selection

Commission and his result was ordered to be kept in sealed cover. When sealed cover was opened, it was found that the petitioner had obtained

31.08 marks out of 75 and was qualified to be appointed. In these circumstances, Sandeep secured appointment.

On 2.8.2012, this Court made an interim order directing the respondents to file an affidavit whether the petitioner can be considered in DESM

category instead of general category. An affidavit dated 24.8.2012 was filed by the Secretary, Haryana Staff Selection Commission. It was

categorically stated that the petitioner had applied as DESM (General) candidate but did not append the eligibility certificate with the application

form which was the requirement and was to be issued by the local Zila Sainik Board. The certificate dated 1.7.2009 appended as P-4 to this

petition is after the cut-off date 7.7.2008 and therefore, the petitioner cannot be considered in the category applied for.

In AIR 1998 91 (SC) the Supreme Court held that the candidate who does not possess the eligibility qualification prescribed in the

advertisement on or before the cut-off date has no right of consideration since the cut-off date is not flexible and cannot be ignored in an individual

case. There may be other persons who would have applied had their known that the date of acquiring qualifications was flexible. They may not

have applied because they did not possess the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of

one individual, may, therefore, cause injustice to others.

Mr. Nehra would draw support from the decision of the Division Bench of this Court in Devanshi Sharma v. Punjab University and others 2009

(1) SCT 168 : 2009(2) SLR 721 where it was held that if a candidate applies in a reserved category of sports quota for taking benefit of

reservation on account of being a sports person, he must attach with the application testimonials in support and mere writing in the admission form

of being a sports person or that he can be called for sports trial, will not make him eligible. The sports category and dependent of ex-serviceman

category both fall in analogous horizontal reservation and therefore the principles laid down in this case apply on all four to the present case.

To give due credit to Mr. Kuthiala, learned counsel appearing for the petitioner a word on his reliance on the dicta laid down by the Supreme

Court in Charles K. Skaria and Others Vs. Dr. C. Mathew and Others, would be in order. The Supreme Court there was dealing with admission

to post graduate medical degree course seats in ophthalmology in medical colleges in the State of Kerala. The prospectus laid down that an

applicant for post graduate degree course earns the right to the added advantage of diploma certificate only if (a) candidate has completed the

diploma examination on or before the last date for application, (b) The result of the examination is also published before that day and (c) the

candidate''s success in the diploma course is brought to the notice of the Selection Committee, before completion of selection in an authentic and

acceptable manner. V.R. Krishna Iyer, J., in his characteristic style held in paragraphs 20, 26 and 27 of the report as under:

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 sub-serves 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-specialties.

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 unshakably 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 stilt 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 avaricious touch about the process.

Judged by the above tests it is conceded that while the Calicut University''s diploma-holders had completed their examination before the last

date for M.D. applications and produced the certificate before the selection, the Kerala University diploma-holder completed his diploma

examination including public action of results only after the last date for applications and produced the certificate before the selection. By this token

he is ineligible for admission because his diploma result was published only after the last date for applications. The accident of time has cheated him

even as in human affairs generally, be it individual or collective, fortune ebbs and flows, influenced critically by happenstances of time and

circumstances of life. That is the relativity of Life, if one may look at problems philosophically. We, therefore, hold that appellant Nos. 2 & 3 are

entitled to admission and their appeal must succeed. By the same token the appeal of appellant No. one must be dismissed.

The Court was dealing with merit in selection of candidates to fill post graduate degree course seats in medicine. In this background the Court took

the view that if it is unshakably shown that the diploma qualification which earned credit of 10 marks towards merit had been acquired before the

relevant date, then merit factor cannot be invalidated merely because proof, though indubitable, was adduced to few days later but before the

selection or in a manner not mentioned in the prospectus, but still above-board. This decision is clearly distinguishable from a case of public

employment where the cut-off date is relevant and remains inflexible so as not to open the Pandora''s box and infract third party rights of non

contestants preserved under Articles 14 and 16 of the Constitution of India who may have acted prudently in compliance with the letter and spirit

of the cut-off date.

In the instant case the petitioner did not append the eligibility certificate with the application form at all and his assertion in para 4 of the writ petition

that he had submitted his DESM certificate dated 29.5.2006 has been denied by the Commission. Even if it was submitted even then in my view it

could not be accepted or taken as a ''fresh'' eligibility certificate. The argument of Mr. Kuthiala may have been attractive at first blush that no time

period has been prescribed nor the word ''fresh'' defined but a two year old certificate even if it were presented with the application form cannot

mean ''fresh''. The argument therefore merits rejection.

There is no merit in the present petition which is accordingly dismissed, however, with no order as to costs.