Chandra Prakash vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 387 of 2019 dated 6.3.2019. The appellant herein filed the said writ petition seeking a writ of mandamus commanding the Uttarakhand Public Service Commission to consider the claim of the petitioner for selection to the post of Lecturer in English against the quota reserved for the Scheduled Castes, and to permit him to participate in the remaining selection process i.e. verification of documents and the interview scheduled to be held from 28.2.2019 onwards; and a writ of mandamus commanding the Uttarakhand Public Service Commission to allow the petitioner to make necessary corrections in the application form with respect to his category of reservation, or to make such correction on the basis of the representation moved by him.

Facts, to the limited extent necessary, are that an advertisement was issued by the Uttarakhand Public Service Commission on 4.9.2018 inviting applications, among others, for the post of Lecturer in English in various Government Inter-Colleges in the State of Uttarakhand. The petitioner is, admittedly, a member of the Scheduled Castes and he paid the fee, prescribed for Scheduled Caste candidates, of Rs. 60/- along with the application form. In response to the query in the application form, as to whether he wanted to claim the benefit of reservation Category/Sub Category, the petitioner answered in the negative. The admit card, issued to the petitioner, recorded his category as "unreserved". On receipt of the Admit Card, the petitioner submitted a representation on 24.12.2018, informing the authorities concerned that he had erroneously answered the column, as to whether he desired to claim the benefit of reservation, in the negative; and his mistake may be condoned, and he be permitted to correct the error in the application form. The fact, however, remains that the Commission did not accede to his request. In the ensuing preliminary examination, the petitioner secured 111 marks, which is 0.5 marks more than the cut-off marks of 110.5 prescribed for candidates from the Scheduled Castes category.

On the ground that he was illegally treated as a general category candidate, and was erroneously held ineligible to participate in the interview, the petitioner invoked the jurisdiction of this Court contending that, since he was a member of the Scheduled Castes, the mistake made by him in the application form should not result in his being denied his right to be considered for appointment to posts reserved in favour of the Scheduled Castes.

Before the learned Single Judge, the appellant-writ petitioner relied on the doctrine of estoppel contending that, while he may have made a mistake in filling up the application form stating that he was not willing to claim the benefit of reservation, the authorities had also erred by accepting the lesser fee prescribed for applicants belonging to the Scheduled Castes, and they had, therefore, tacitly accepted the petitioner's contention that he was entitled to claim the benefit of reservation as a member of the Scheduled Castes. The appellant-writ petitioner also relied on the doctrine of forgiveness before the learned Single Judge placing reliance on a Division Bench Judgment of the Rajasthan High Court in Neetu Harsh 2017 (2) RLW 1545 (Raj.).

In the order under appeal, the learned Single Judge observed that clause 5 (should have been clause 6) of the advertisement explicitly stated that all entries, pertaining to the name, eligibility, reservation, subject, discipline for which applied, age, examination centre, etc. made in the application form, could not be amended later; no such permission could be granted even if a request was made by the candidates; the Commission was bound to follow the specified norms of selection as stipulated in the advertisement dated 4.9.2018; candidates, applying for the advertised posts, were supposed to be cautious and vigilant while providing various particulars in terms of the advertisement; the advertisement itself created a restriction that no representation shall be entertained for making any changes, relating to various heads, in the application form submitted on-line; and hence denial, to act upon the representation of the petitioner, could not be termed as violative of any right under the statutory provisions. The learned Single Judge, thereafter, observed that a direction, in the nature of mandamus, could be issued only when the statute, or the law governing the field, contemplated a representation being submitted seeking rectification, or where there was apparent inaction on the part of the authorities in considering enforcement of any statutory rights; and a direction to consider the representation could only be passed in exceptional circumstances, that too where the law provided for such representation, or for enforcement of the statutory rights; and, in the absence of any such obligation, the request, that the representation be considered, could not be acceded to.

With regards the doctrine of forgiveness, and the Division Bench judgment of the Rajasthan High Court on which the petitioner had placed reliance upon, the learned Single Judge held that the said doctrine would not apply to the process of selection, more so when it entailed disruption of the selection process. The writ petition filed was thus dismissed. Aggrieved thereby, the present appeal.

Dr. Harshveer Prakash Sharma, learned Counsel appearing on behalf of the appellant-writ petitioner, would submit that the very fact that the Public Service Commission had accepted the petitioner's application fee of Rs. 60/-, which is applicable only to Scheduled Caste candidates, would itself show that they had condoned the error on the part of the petitioner in declaring that he did not want to claim the benefit of reservation; the respondents had received his application form on the basis that he was claiming the benefit of reservation, and for being considered for appointment to posts in the quota earmarked for the Scheduled Castes; having received the application, and having processed it, the Public Service Commission could not thereafter treat him as an unreserved candidate, more so since his application was not rejected on the ground of payment of insufficient application fee; the Division Bench of the Rajasthan High Court, in more or less similar circumstances, held that the doctrine of forgiveness was required to be applied, and an error on the part of weaker sections of society should be condoned; and, in the light of the said judgment of the Division Bench of the Rajasthan High Court, the petitioner's application should again be received and processed.

Learned Counsel would also draw our attention to that part of the judgment of the Division Bench of the Rajasthan High Court wherein reference is made to the judgment in Seema Kumari Sharma (1998) 9 SCC 128, to submit that the Supreme Court had directed, in more or less identical circumstances as that which arises for consideration in the present case, that the application should be received. He would also rely on clause 19 of the advertisement dated 4.9.2018 to submit that, even in terms thereof, issuance of the Admit Card is not conclusive, and it is evident therefore that the Admit Card is provisional in nature; and the error committed by the petitioner earlier can always be rectified.

On the other hand Sri B.D. Kandpal, learned Standing Counsel for the Public Service Commission, would submit that no exception can be made in favour of any particular candidate; the Public Service Commission is as much bound by the conditions of the advertisement, as are candidates who apply pursuant thereto; clause (1) of the advertisement dated 4.9.2018 makes it clear that candidates, claiming the benefit of vertical/horizontal reservation, were required to specifically state whether they intended to claim the benefit of such reservation; clause (6) of the said advertisement stipulated that applications, once submitted, could not be amended thereafter; the prescribed fee, in terms of the advertisement, was Rs. 100/-for general category candidates, and Rs. 60/- for candidates belonging to the OBC, the Scheduled Castes, and the Scheduled Tribes; the Public Service Commission had rightly accepted the appellant-writ petitioner's application, along with the fee of Rs. 60/-, since he belonged to the Scheduled Castes category; while the petitioner was, undoubtedly, a member of the Scheduled Castes, it was for him to decide whether or not to claim the benefit of reservation; since he consciously chose not to take the benefit of reservation, the respondent Commission had no choice but to treat him as an unreserved category candidate, and to issue an Admit Card accordingly; the petitioner's representation, thereafter, seeking correction of the error committed by him earlier, in filling up the application form, could not be entertained, since the conditions stipulated in the advertisement prohibited any such request being entertained; a Division Bench of this High Court, in Yamini Joshi Special Appeal No. 76 of 2010 dated 8.6.2010 (Uttarakhand High Court), and in Radha Mittal Special Appeal No. 79 of 2010 dated 8.6.2010 (Uttarakhand High Court), upheld the action of the Public Service Commission in refusing to permit correction of the application submitted by the candidate; and the learned Single Judge was justified in dismissing the writ petition, and in upholding the action of the Public Service Commission in refusing to entertain any request, subsequently made, for correction of the particulars furnished in the application form.

The relief, which the appellant-writ petitioner had sought in Writ Petition (S/S) No. 387 of 2019, was for a writ of mandamus directing the Public Service Commission to consider his claim for selection to the post of Lecturer in English against the quota earmarked for the Scheduled Castes. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office, and is in the nature of a public duty. A mandamus would lie to any person who is under a duty imposed by a statute, or by the common law, to do a particular act. (M.R. Appa Rao (2002) 4 SCC 638). The chief function of a writ of mandamus is to compel the performance of the public duty prescribed by a statute and to keep subordinate Courts/tribunals, and officers exercising public functions, within the limits of their jurisdiction. (Lekhraj Satramdas Lalvani AIR 1966 SC 334; Rai Shivendra Bahadur (Dr) AIR 1962 SC 1210; Umakant Saran Dr AIR 1973 SC 964; Sipahi Singh (1977) 4 SCC 145).

One of the conditions for exercising power under Article 226, for issuance of a mandamus, is that the Court must come to the conclusion that the aggrieved person has a legal right, and that such a right has been infringed. The applicant has to satisfy the Court that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought. The duty that may be enjoined by a mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law. (M.R. Appa Rao (2002) 4 SCC 638; Kalyan Singh AIR 1962 SC 1183). No one can seek a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one, suffering a legal grievance, can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (Halsbury's Laws of England, 4th Edn., Vol. I, para 122; Subash Chander Marwaha (1974) 3 SCC 220; Jasbhai Motibhai Desai (1976) 1 SCC 671; Ferris: Extraordinary Legal Remedies, para 198; and Mani Subrat Jain (1977) 1 SCC 486). In order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority, and the aggrieved party has a legal right under the statute to enforce its performance. (Subash Chander Marwaha (1974) 3 SCC 220; Rai Shivendra Bahadur (Dr.) AIR 1962 SC 1210). If there is no statutory basis for the claim, and there is no provision in the statute imposing an obligation, it would not furnish a ground for issuance of a writ of mandamus. (E. Merck India (1998) 9 SCC 412). No provision having the force of law, which confers any such right to the petitioner, has been brought to our notice. We find it difficult, therefore, to agree with the submission, urged on behalf of the appellant-writ petitioner, that the learned Single Judge had erred in refusing to issue such a writ.

Since emphasis is placed, by learned counsel on either side, on clauses (1), (6), (19) and (21) of the advertisement dated 04.09.2018, it is necessary to note its contents. The aforesaid clauses in Hindi, when translated into English, read thus:

"Clause (1):

Candidates must indicate, in the online application form, their category / sub-category relating to vertical and horizontal reservation. In case of not raising a claim for reservation, the benefit of reservation will not be given in sequel of the order dated 08.06.2010 passed by the Hon'ble High Court, Nainital in Special Appeal No. 79 of 2010, "Radha Mittal vs. Uttarakhand Public Service Commission" and Special Leave Petition (Civil) No(s). 19532 / 2010 passed by Hon'ble Supreme Court. Reservation related certificate should be held by the candidate till the last date of submitting application form.

Clause (6):

The request for change in the entries made in the application form, such as: name of post, eligibility, category / sub-category relating to reservation, subject, branch, age and examination center etc. will not be accepted after submitting application form before the commission.

Clause (19):

Candidates, applying for examination, must ensure that they fulfill all the eligibility criteria for admission which will be completely tentative, and would depend upon fulfillment of the eligibility criteria. Mere issuance of admission card / memo of interview, would not mean that their candidature has been finally accepted by the Commission. If, at any stage, it is found that the candidate was not eligible or his application form ought to have been cancelled or it was liable to be rejected at the initial stage, his candidature will be cancelled and if he is selected / recommended finally, even then his recommendation of selection will be taken back from the Government.

Clause (21):

If any candidate deposits lesser fee, than the fee prescribed for his category, his application form / candidature will be cancelled.

In terms of Clause (1) of the advertisement dated 04.09.2018, candidates were required to indicate their categories/ sub-categories to claim the benefit of reservation. The said Clause made it clear that, if candidates did not raise any claim for reservation, they would not be extended the benefit of reservation as a consequence of the order passed by the Division Bench of this Court in Special Appeal No. 79 of 2010 dated 08.06.2010, and SLP (Civil) No. 19532 of 2010 passed by the Supreme Court. The appellant-writ petitioner, despite being a member of the Scheduled Castes, specifically indicated, in response to the relevant column of the application form as to "whether he desired to claim the benefit of reservation", in the negative indicating thereby that he did not want to claim the benefit of reservation extended to the members of the Scheduled Castes. It is, in such circumstances, that an Admit Card was issued to him treating him as "unreserved".

While it is, no doubt, true that the appellant-writ petitioner had, thereafter, submitted a representation seeking correction of the application form, Clause (6) of the advertisement dated 04.09.2018 disabled the Public Service Commission from entertaining any request for effecting changes in the entries in the application form, such as categories/sub-categories relating to reservation, after the application was submitted to the Commission. As the Commission is obligated to strictly adhere to the conditions of the advertisement, and to ensure that all applicants are treated on the same footing, rejection of the petitioner's application on this score cannot be faulted.

It is true that Clause (21) of the advertisement dated 04.09.2018 stipulates that, if any candidate deposits lesser fee than the fee prescribed for his category, his application form was liable to be cancelled. It is also true that, for general category candidates, the prescribed fee, as per the advertisement, was Rs. 100/-, whereas for all other reserved category candidates, including members of the Scheduled Castes, the fee prescribed was Rs. 60/-. We are, however, not impressed with the submission of Dr. Harshveer Prakash Sharma, learned counsel for the petitioner, that, since his form, submitted along with the fee of Rs. 60/-, was accepted, the respondent-Commission is estopped from contending that the appellant-writ petitioner did not apply as a member of the Scheduled Castes.

Black's Law Dictionary defines "estoppel" as a bar that prevents one from asserting a claim or a right that contradicts what one has said or done before or what has been legally established as true; a bar that prevents the re-litigation of issues; an affirmative defense alleging good-faith, reliance on a misleading representation, and an injury or detrimental change in position resulting from that reliance. Black's Law Dictionary defines equitable estoppel, or estoppel by conduct, as a defensive doctrine preventing one party from taking unfair advantage of another when, through false language or conduct, the person to be estopped has induced another person to act in a certain way, with the result that the other person has been injured in some way. This doctrine is founded on principles of fraud.

P. Ramanatha Iyer: Law Lexicon defines "estoppel" as an admission, or something which the law treats as an equivalent to an admission, of so high and conclusive a nature that any one who is affected by it is not permitted to contradict it. Estoppel is an impediment or bar to a right of action arising from a man's own act; or where he is forbidden by law to speak against his own deed for, by his act or acceptance, he may be estopped to allege or speak the truth. In the broad sense of the term "Estoppel" is a bar which precludes a person from denying the truth of a fact which has, in contemplation of the law, become settled by the acts and proceedings of judicial or legislative officers, or by the act of the party himself, either by conventional writing or by representations, express or implied. Estoppel is an equitable relief and, where it is operated by cheating another of his rightful claim, it will not be effective to help him to deprive another of his rights. "Estoppel" means that a party is prevented by his own acts from claiming a right to the detriment of the other party who was entitled to rely on such conduct, and has acted accordingly. A principle that provides that an individual is barred from denying or alleging a certain fact or state of facts because of that individual's previous conduct, allegation or denial. A doctrine which holds that an inconsistent position, attitude or course of conduct may not be adopted to the loss or injury to another. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

The doctrine of estoppel has, in modern times, been extended so as to embrace practically any act or statement by a party which it would be unconscionable to permit him to deny. The rule has been authoritatively stated as follows: "Where one by his words or conduct willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is prevented from averring against the latter a different state of things as existing at the same time. And whatever a man's real intention may be, he is deemed to act willfully "if he so conducts himself that a reasonable man would take the representation to be true and believe that it was meant that he should act upon it. (Freeman v. Cooke 1848 (2) Ex. 654; Pickard v. Sears (1837) 6 A.&E. 469; Phipson on Evidence (Fourteenth Edn.); Tata Iron and Steel Co. Ltd. (2001) 2 SCC 41)

The issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation, and on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status. Where the conduct is negligent or consists wholly of omission, there must be a duty to the person misled. (Mercantile Bank v.Central Bank 1938 AC 287; National Westminster Bank 1975 Q.B. 654; Tata Iron and Steel Co.Ltd. (2001) 2 SCC 41; Phipson on Evidence (Fourteenth Edn.); Moorgate Mercantile Co. Ltd. (1977) AC 890).

The party asserting the estoppel must have been induced to act to his detriment. So long as the assumption is adhered to, the party who altered the situation upon the faith of it cannot complain. (Tata Iron and Steel Co. Ltd. (2001) 2 SCC 41; Grundt 1939 59 C.L.R. 641). It is only when the represented wishes to disavow the assumption contained in his representation that an estoppel arises, and the question of detriment is considered, accordingly, in the light of the position which the represented would be in if the representor were allowed to disavow the truth of the representation. (Grundt 1939 59 C.L.R. 641; Tata Iron and Steel Co. Ltd. (2001) 2 SCC 41; Spencer Bower and Turner: Estoppel by Representation 3rd Ed.; Central Newbury Car Auctions Ltd. 1956 (3) All ER 905)). Estoppel is not a cause of action. It is a rule of evidence. (All India Power Engineer Federation (2017) 1 SCC 487; Krishna Bahadur (2004) 8 SCC 229). In estoppel the actual intent to abandon or surrender the right is immaterial. The necessary condition is the detriment to the other party by the conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose any existing right. (Provash Chandra Dalui 1989 Supp (1) SCC 487).

It is not in dispute that the appellant-writ petitioner is a member of the Scheduled Castes. As such, he was required only to pay the application fee of Rs. 60/-. Despite his belonging to the reserved category , it was for him to decide whether or not to claim the benefit of reservation and since he had stated, in the application form submitted by him, that he did not want to claim such a benefit, he was treated as "unreserved". That does not mean that he was also required to pay the application fee of Rs. 100/- as prescribed for general category candidates since he, admittedly, belongs to the Scheduled Castes, and the fee prescribed for candidates belonging to the Scheduled Castes, was Rs. 60/- only. The Public Service Commission was, therefore, justified in accepting his application form, along with the prescribed fee of Rs. 60/-.

As the appellant-writ petitioner had specifically indicated, in the relevant column of his application form, which required him to state whether he intended to claim the benefit of reservation, in the negative, the mere fact that his application was accepted, along with the fee of Rs. 60/-, cannot be construed as the Public Service Commission having treated the appellant-writ petitioner to have applied under the Scheduled Caste category, and as being entitled to claim the benefit of reservation. It is only if one of the parties has admitted to something, by which another is affected, is the former not permitted to contradict it. In effect, the law forbids a person from speaking against his own act or deed which has affected another. In the present case, it is the appellant-writ petitioner who, by filing up the relevant column in the negative, has admitted that he did not want to claim the benefit of reservation, though he belonged to the reserved category. There has neither been an admission on the part of the Commission nor is there any act or deed on their part which has adversely affected the appellant-writ petitioner.

It is the appellant-writ petitioner who, while on the one hand paying lesser fee of Rs.60/- (i.e. the lower fees applicable to the reserved category), has, on the other hand, chosen not to claim the benefit of reservation. Both the aforesaid acts are that of the appellant-writ petitioner and not that of the respondent-Commission. The mere fact that the Commission had received the application of the appellant-writ petitioner, at a lesser fee of Rs. 60/- cannot be construed as their being deemed to have treated the appellant-writ petitioner's application as having been made to a post reserved in favour of the Scheduled Castes, when the appellant-writ petitioner has explicitly stated, in his application form, that he did not wish to claim the benefit of reservation.

In Neetu Harsh 2017 (2) RLW 1545 (Raj.), on which reliance is placed on behalf of the appellant-writ petitioner, a Division Bench of the Rajasthan High Court observed:

".....It is also admitted fact that in online application, for appearing in Rajasthan Judicial Service Examination, 2016, by mistake against column no.3(i) meant for the person with disability (differently abled), the petitioner mentioned "No" but soon after the declaration of final result of main examination on 15.11.2016 a representation was submitted by the petitioner on (32 of 34) [CW-692/2017] 28.11.2016 with the prayer to consider her candidature under the category of person with disability in the Rajasthan Judicial Service Competitive Examination, 2016 and all above facts were narrated before the respondents nos.1 and 2 and to consider her candidature under the category of persons with disabilities as she is having 80% disability. Admittedly, after declaration of result, the representation was filed on 28.11.2016 much before issuance of appointment orders and submitted that out of two posts kept reserved for disabled category, one unfilled post is available upon which her candidature may be considered while treating her candidature under the category of physically handicapped candidate. It is true that there is no fault of the respondents because the petitioner allowed to appear in the competitive examination as general category candidate as per information furnished in her online application form. In our opinion, the physically handicapped candidate is a class apart, therefore, at the time of making prayer to rectify the mistake by him/her even after appearing in the examination, to achieve the purpose of enactment of the Act of 1995, the respondents were under obligation to accept the prayer of the petitioner to treat her candidature under the category of person with disability because on the date of deciding her representation one unfilled post of said category was available with them. Under Section 36 of the Act of 1995 it is the duty of the employer that first efforts should be made to fill in the vacancy kept reserved for physically disabled candidates from the candidates having disability and in the event of non-availability of candidate of such category to carry forward the post in succeeding recruitment year. In this case, it is nowhere pleaded by the respondents that post which remained unfilled was earlier carry forward, therefore, they were free to fill up the said vacancy from the candidate other than the person with disability. At the time of consideration for appointment, it was within their knowledge that the petitioner with disability is available who can be considered for appointment but without considering the spirit of Section 36 of the Act, the representation of the petitioner was rejected by saying "considered and rejected". On the basis of above discussion, to consider the intention of legislature for enactment of the Act of 1995, we are of the view that the theory of forgiveness was required to be applied by the respondents to rectify the mistake committed by the petitioner because Father of the nation Mahatma Gandhi said that "Weak never forgive. Forgiveness is attributed to the strong", therefore, it was expected from the strong respondents that in the event of availability of vacancy kept reserved for disabled candidate, a pious decision should have been taken for the welfare of disabled candidate to whom we are treating weaker section of the society as per Constitution of India. In view of the above discussion, we hold that rejection of the petitioner's prayer to consider her candidature under the category of physically disabled candidate is not in accordance with the spirit of the Act of 1995..." (emphasis supplied)

In Neetu Harsh 2017 (2) RLW 1545 (Raj.)  the petitioner, a physically challenged applicant, had in the relevant column of her application form, as to whether she suffered from a physical disability, answered in the negative. A Division Bench of the Rajasthan High Court observed that, in order to achieve the purposes of the Persons with Disabilities Act, 1995 (hereinafter referred to as the "1995 Act"), the respondents were under an obligation to treat the petitioner as falling under the category of persons with disabilities as, on the date of deciding her representation, one unfilled post, in the physically handicapped category, was available to be filled up. Section 36 of the 1995 Act casts a duty on the employer to make efforts to first fill-up the vacancy reserved in favour of the physically disabled, from those suffering from such a disability; and it is only in the event of non-availability of a candidate from such category, could the post be carried forward to the succeeding recruitment year. The 1995 Act required the respondents, in the event of availability of a vacancy in a post reserved in favour of the physically disabled, to fill-up the said post only with a candidate belonging to the said category.

The aforesaid observations of the Division Bench of the Rajasthan High Court, in Neetu Harsh 2017 (2) RLW 1545 (Raj.), were made in the light of the statutory provisions contained in the 1995 Act. In the said case, there were no other physically disabled candidates available to fill up the post. Failure to appoint the petitioner to the said post would have resulted in a vacancy, reserved in favour of the physically challenged, remaining unfilled. Unlike in Neetu Harsh 2017 (2) RLW 1545 (Raj.), no statutory provision which obligates the respondent-Commission to call the appellant-writ petitioner for interview to posts reserved in favour of the Scheduled Castes, despite his having declared that he did not want to claim the benefit of reservation, has been brought to our notice. Reliance placed by the appellant-writ petitioner, on the opinion of the Division Bench of the Rajasthan High Court in, Neetu Harsh 2017 (2) RLW 1545 (Raj.), is therefore misplaced.

Even otherwise, the decision of a High Court has the force of a binding precedent only in the State or territories over which the Court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, at best, have persuasive effect. The doctrine of stare decisis cannot be so stretched as to give the judgments of one High Court the status of a binding precedent so far as other High Courts are concerned. (Geoffrey Manners & Co. Ltd. Vol. 89 Taxman, 287 (Bom. H.C. DB); Thana Electricity Supply Co. Ltd. [1994] 206 ITR 727 (Bom); Consolidated Pneumatic Tool Co. [1994] 209 ITR 277 (Bom)). This doctrine is applicable only to different benches of the same High Court. The ratio of the decisions of other High Courts cannot be exalted to the status of a binding precedent nor can the ratio decidendi of those decisions be perpetuated by invoking the doctrine of stare decisis. (Valliama Champaka Pillai (1979) 4 SCC 429) ; Thana Electricity Supply Co.Ltd. [1994] 206 ITR 727 (Bom)). Judicial decorum, propriety and discipline require that the High Court should, especially in the event of its contra view or dissent, discuss the judgments of the other High Courts and record its own reasons for its contra view. A High Court would be within its right to differ with the view taken by other High Courts but, in all fairness, it should record its dissent with reasons therefor. That the judgments of other High Court have persuasive value should be taken note of by the High Court, and dissented from only by recording its own reasons. (Pradip J. Mehta (2008) 14 SCC 283).

Applying the law, declared by the Division Bench of the Rajasthan High Court in Neetu Harsh 2017 (2) RLW 1545 (Raj.), to the present case would result in the Public Service Commission violating its own instructions in the advertisement. Accepting the contention, urged on behalf of the appellant-writ petitioner, would require this Court to direct the Commission to extend a concession to the appellant-writ petitioner which has not been extended to any other candidate. Clause (1) of the notification stipulates that, in case the claim for reservation is not made, the benefit of reservation would not be given to the candidate. The petitioner has specifically stated, in his application form, that he did not wish to claim the benefit of reservation. Clause (6) of the notification stipulates that any request for change of the entries in the application form, after it is submitted to the Commission, would not be entertained. The appellant-writ petitioner had, admittedly, submitted his application form to the Commision; and it is only after receipt of the admit card, where he was shown as unreserved, did he submit a representation seeking alteration of the entries made by him in the application form. In the light of the aforesaid clauses in the advertisement, we must express our inability to agree with the opinion expressed by the Division Bench of the Rajasthan High Court in Neetu Harsh 2017 (2) RLW 1545 (Raj.), or to extend the benefit of reservation to the appellant-writ petitioner herein, as that would require this Court to issue a mandamus directing the Uttarakhand Public Service Commission to act contrary to its own instructions. A mandamus to the authorities concerned, to act contrary to the law, is impermissible.

In Yamini Joshi Special Appeal No. 76 of 2010 dated 8.6.2010 (Uttarakhand High Court), a Division Bench of this Court observed:

"....We have considered the solitary contention advanced by the learned counsel for the appellant. All those candidates, who were desirous of being considered by way of reservation, were required to respond to column No. 12. Column No. 12 envisaged reservation for Scheduled Castes, Scheduled Tribes, Other Back Ward Categories, Defence Personnel, Ex Service Men, Sports Persons, Government Servants earlier employed in the State of Uttaranchal, Uttaranchal Females, Physically Handicap candidates, whether they were possessing low vision, hearing impairment or locomoter disability.

Every candidate, who was desirous of being considered for any of the aforesaid reserved categories, was liable to respond to column No. 12 of the OMR sheet depicting the particular reservation the candidate was claiming. Undisputedly, the appellant herein did not fill up column No. 12 so as to claim reservation as an Uttaranchal female. As such, the learned Single Judge declined the claim of the appellant by passing the impugned order dated 05.05.2010 to issue a direction to the respondent to consider the appellant against the reserved category of Uttaranchal Females. We find no infirmity in the instant determination rendered by the learned Single Judge. It is apparent that the appellant did not fill up column No. 12. Having failed to fill up column No. 12, so as to claim reservation as an Uttaranchal female, even though she may have been awarded more marks than other Uttaranchal females who sought such reservation, her claim cannot be evaluated from the reserved category of Uttaranchal Females, as she never applied for the same..."

(emphasis supplied)

In Yamini Joshi Special Appeal No. 76 of 2010 dated 8.6.2010 (Uttarakhand High Court), reservation was provided, among others, for Uttaranchal females. Column No.12 of the application form depicted the particular reservation a candidate was claiming. Since the petitioner therein did not fill up Column No.12, she was not extended the benefit of reservation as an Uttaranchal female. It is in this context that a Division Bench of this Court observed that the applicant, having failed to fill up Column No.12, could not insist that her claim should be evaluated for the reserved category, as she had never applied for the same. Similarly, in the present case, the petitioner, having refused to claim reservation cannot now turn around and contend that he should be extended the benefit of reservation despite his specific claim, in the application form, to the contrary. Unlike the judgment of the Division Bench of the Rajasthan High Court, in Neetu Harsh 2017 (2) RLW 1545 (Raj.), which has only persuasive value, the judgment of the Division Bench of this Court in Yamini Joshi Special Appeal No. 76 of 2010 dated 8.6.2010 (Uttarakhand High Court), binds us.

To ignore the decision of a Co-ordinate Bench is judicial impropriety. Judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked by a Judge. (Yadav Engineer and Contractor AIR 1982 SC 1302; Thana Electricity Supply Co. Ltd. [1994] 206 ITR 727 (Bom)). The doctrine of binding precedent is applicable only to different benches of the same High Court. (Valliama Champaka Pillai (1979) 4 SCC 429)). If one thing is more necessary in law, than any other, it is the quality of certainty. That quality would disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another's decisions. (Mahadeolal Kanodia (1960) 3 SCR 578; Thana Electricity Supply Co. Ltd. [1994] 206 ITR 727 (Bom)). As the judgment in Yamini Joshi Special Appeal No. 76 of 2010 dated 8.6.2010 (Uttarakhand High Court) binds us, we must respectfully express our inability to agree with the contrary view taken by the Division Bench of the Rajasthan High Court in Neetu Harsh 2017 (2) RLW 1545 (Raj.).

In Neetu Harsh 2017 (2) RLW 1545 (Raj.), the Division Bench of the Rajasthan High Court had referred to the judgment in Seema Kumari Sharma (1998) 9 SCC 128, wherein the Supreme Court observed:

"....The admitted position is that the Director of Education issued a notice for Junior Basic Teacher's Training. The criteria for selection was 100 marks based on the percentage of marks obtained in matric or equivalent examination. 20 marks for candidates belonging rural areas and 10 marks for candidates belonging to backward panchayat were allotted. Similarly, 10 marks were allotted for candidates belonging to IRDP families. Though the appellant claimed to belong to IRDP family, the authorities have not considered her claim and consequently did not award 10 marks as required under the criteria. When the appellant filed the writ petition, the High Court dismissed the same holding that the appellant had not produced the certificate along with the application and, therefore, she is not entitled to the above status. When we directed the appellant to produce the record, she made the certificate a part of the record. Unfortunately, it does not bear the date of issue; but we find that she has been given serial number of the IRDP family. In view of the fact that serial numbers are ascribed to all the candidates in the order, we are of the view that her failure to furnish the certificate along with the application does not disentitle her to claim the status for consideration of award of 10 marks. Pursuant to the interim direction granted by this Court, the appellant has already appeared for the examinations conducted but her result has not been announced.

Therefore, the appeals are allowed; the order of the Tribunal stands set aside. There shall be a direction to declare the result and her case for appointment will be considered in accordance with the rules, if she is selected. No costs."

(emphasis supplied)

The aforesaid directions were issued by the Supreme Court in the exercise of its jurisdiction under Article 142 of the Constitution of India. The Constitution has, by Article 142, empowered the Supreme Court to make such orders as may be necessary "for doing complete justice in any case or matter pending before it", which authority the High Court does not enjoy. The jurisdiction of the High Court, in writ proceedings, is circumscribed by limitations which cannot be transgressed on the whim or subjective sense of justice varying from Judge to Judge. (Surinder Kumar (1992) 1 SCC 489). The power which is available to the Supreme Court under Article 142 is not available to the High Courts. (Sukamani Das (1999) 7 SCC 298).

The power conferred on the High Court, under Article 226 of the Constitution of India, is not on par with the constitutional jurisdiction conferred upon the Supreme Court under Article 142 of the Constitution of India. (Johri Mal (2004) 4 SCC 714; State of H.P. v. A parent of a Student of Medical College (1985) 3 SCC 169 and Asif Hameed 1989 Supp. (2) SCC 364; Johri Mal (2004) 4 SCC 714; C.K. Rajan (2003) 7 SCC 546; B.C. Chaturvedi (1995) 6 SCC 749). Exercise of the extra-ordinary jurisdiction, constitutionally conferred on the Supreme Court under Article 142(1) of the Constitution, can be of no guidance on the scope of Article 226. (Naresh Kumar Bali (1994) 4 SCC 448; Mahendra Pal 1995 Supp. (2) SCC 731). As the power conferred on the Supreme Court under Article 142 of the Constitution of India, to do complete justice, is not available to be exercised by the High Court under Article 226 of the Constitution of India, a direction, similar to that issued by the Supreme Court in Seema Kumari Sharma (1998) 9 SCC 128, cannot be issued by the High Court, more so when it is contrary to the express conditions stipulated in the notification.

Reliance placed by the petitioner on Clause (19) of the notification (advertisement) to contend that mere issuance of an admit card is not conclusive, is misplaced. Clause (19) stipulates that candidates, applying for the examination, must ensure that they fulfill all the eligibility criteria; and mere issuance of an admit card/memo of interview would not mean that the candidature has been finally accepted by the Commission. The obligation, placed on a candidate, in terms of Clause (19) of the advertisement, is for him to fulfill the eligibility criteria; and, even in cases where an admit card has been erroneously issued to a candidate who does not fulfill the eligibility criteria, Clause (19) makes it clear that such issuance of an admit card would not mean that the candidature has been accepted by the Commission. In the present case, the petitioner has opted not to claim the benefit of reservation, specifically stating so in his application form. The admit card issued by the Commission, treating him as an unreserved candidate is strictly in accordance with what the appellant-writ petitioner has stated in the application form submitted by him. Clause (19) has, therefore, no application.

The doctrine of forgiveness, as expounded in Neetu Harsh 2017 (2) RLW 1545 (Raj.), does not also appeal to us. It is not for the High Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, to prescribe conditions, fulfillment of which would enable the candidate to participate in the selection process, as the conditions to be fulfilled for recruitment is required to be, and has been, stipulated by the Public Service Commission. As the appellant-writ petitioner has chosen not to claim the benefit of reservation in the application form submitted by him to the Commission, permitting him to now make corrections in the application form, contrary to the specific conditions stipulated in Clauses (1) and (6) of the Advertisement dated 04.09.2018, would require this Court to issue a mandamus to the Commission, to permit the application to be corrected, despite the conditions stipulated in the advertisement to the contrary. That a High Court should not do.

Interference in an intra-Court appeal is justified only if the order under appeal suffers from a patent illegality. We find no such infirmity in the order under appeal. The appeal fails and is, accordingly, dismissed. No costs.