Himmat Singh Bais vs State of Chhattisgarh and Others

Pritinker Diwaker, J.—Grievance of the petitioner in this petition is that though he has been permitted to appear in the written examination conducted by respondent No. 3/Chhattisgarh Public Service Commission (for short "the PSC") held in the month of November, 2009 for the post of Assistant Professor (Law), he has not been issued the call letter to appear in the interview and has been shown as ineligible vide Annexure P-8 on the ground that he has passed the M. Phil examination after the due date, i.e., 22-6-2009. Facts of the case in brief are that an advertisement (Annexure P-4) was issued by the PSC for the post of Assistant Professor for 32 subjects including that of Law, pursuant to which the petitioner had filled in the form before the last date fixed for it, i.e., 22-6-2009. However, while the result being declared by the PSC, name of the petitioner has been included in the list of ineligible candidates with miscellaneous reasons vide Annexure P-8. In the said document name of the petitioner finds place at SI. No. 07, and it has also been mentioned in the same that he has acquired the degree of M. Phil examination after the due date, i.e., 22-6-2009.

Counsel for the petitioner submits that the petitioner had appeared in the M. Phil examination conducted by respondent No. 2 (Pt. Ravi Shankar Shukla University, Raipur) for the academic session 2007-08 and initially he was shown unsuccessful but thereafter on revaluation being done he was declared successful on 27-6-2009, vide Annexure P-3 and thus in other words it can be said that he has passed the said examination before the cut off date, i.e., 22-6-2009. H further submits that in the OMR sheet the petitioner had mentioned that he was having the requisite qualification as per Clause 7.6 of the advertisement and that he was not required to file any document along with the OMR sheet. According to him, as per Clause 8 of the advertisement the petitioner was required to show the relevant document at the time of interview. He submits that though the petitioner had passed the M. Phil Examination on 17-6-2009, mark-sheet was issued by the University on 3-7-2009, vide Annexure P-2. He submits that on 21-9-2010 the petitioners had made a representation (Annexure P-9) to the PSC apprising it of the facts of the case but unfortunately the respondent/PSC has not considered the same. He submits that having qualification and having proof of the qualification are two different things and once the petitioner is having qualification, he cannot be deprived of his legitimate right. According to him, once it is an admitted position that the petitioner possessed the requisite qualification before the last date of submission of form, technicality should not come in the way of the petitioner and he should not be deprived of participating in the interview.

Opposing the submissions of the Counsel for the petitioner it has been argued by the Counsel for the PSC that once the petitioner was not having the relevant document showing that he had passed the M. Phil examination before 22-6-2009, PSC is fully justified in including the name of the petitioner in the list of ineligible candidates. He submits that once the petitioner has not given correct information duly supported by the documents, stand of the PSC in not calling the petitioner to appear in the interview is also fully justified.

Counsel for the respondent/State also supports the stand taken by the Counsel for the PSC. However, Counsel for the University submits that as the matter in question is purely between the State and the PSC, University has hardly any role to play in it.

Heard Counsel for the parties and perused the material available on record.

From the advertisement dated 20-5-2009, it is apparent that last date for submission of forms was 22-6-2009. Clause 3 of the said advertisement contains the requisite qualification prescribed by the PSC, which reads as under:--

Clause 7 of the said advertisement reads thus:-

Clause 8 of the said advertisement reads thus:-

A bare reading of the above-mentioned clause makes it clear that the candidate was required to possess all the educational qualification on or before filling in the form. It also reveals that in the OMR sheet, the candidate is required to disclose all the information but he is not required to submit any related document including the original or Xerox along with the application form. Clause 8 makes it clear that the candidate is required to submit the relevant document at the time of interview.

In the case in hand undisputedly the petitioner has passed his M. Phil examination on 17-6-2009 and the relevant information was disclosed about having the qualification in the requisite form. Case of the petitioner is strengthened on the ground that as per the advertisement he was required to submit the documents at the time of interview and once the petitioner has declared himself to have passed the M. Phil examination, he ought to have been called for the interview and at the time of interview the PSC could have examined the documents submitted by the petitioner including acquisition of M. Phil qualification by him. It is clear from the record that last date for submission of form was 22-6-2009 and the petitioner was declared successful in the M. Phil examination on 17-6-2009. Expounding the legal position in somewhat similar matter in Dolly Chhanda Vs. Chairman, JEE and Others, , it has been held by the Apex Court as under:-

Para 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 here 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.

Para 8. This principle was explained and applied in Charles K. Skaria and Others Vs. Dr. C. Mathew and Others, The controversy here related to admission to a post graduate course in medicine. The relevant rule provided for addition of 10% marks if a candidate possessed a diploma in the relevant subject or sub-specialty and this benefit could be given only if the candidate''s success in the diploma course was brought to the knowledge of the Selection Committee before completion of selection in a an authentic or acceptable manner. The prospectus provided that the attested copies of statement of marks and other documents should be attached with every application. Three such candidates were given admission who had not attached the certificate of having passed the diploma along with their application. Their admission to post graduate course was set aside by the High Court on the ground that their application, wherein they claimed the benefit or diploma, were liable to be rejected as the requisite certificates had not been attached. This Court speaking through Krishna Iyer, J. reversed the judgment of the High Court and held that the admission to the candidates had rightly been given as they had in fact passed the diploma before the date fixed. The relevant parts of Paras 20 and 24 of the judgment, where this principle was highlighted are being reproduced below:-

There is nothing unreasonable or arbitrary in adding 10 marks for holder of a diploma. But to earn these 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 form 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 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.......... 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 ancillary is the safe mode of proof of the qualification. To confuse between a 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 still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence.

It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanizes the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from over-emphasis on the external rather than the essential. We think the Government and the Selection Committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and as mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like mark-lists from universities, why, even bail orders from Courts and Government orders from public offices.....

During the argument it has been informed by the Counsel for the parties that though as many as 57 posts of Assistant Professor (Law) were advertised, only 31 candidates have been found suitable to appear in the interview. Counsel for the PSC also informs that in number of cases the orders have been passed by this Court allowing the writ petitions filed by the candidates and, therefore, PSC is again going to hold interview of the successful petitioners.

Considering this aspect of the matter, this Court is of the opinion that it will not be inconvenient for the PSC to call the petitioner to appear in the interview and assess his merit. Moreover, even if the petitioner is allowed to appear in the interview, nobody''s right is going to be adversely affected and on this count also, according to the considered opinion of this Court the petitioner has to be permitted to appear in the interview.

This Court does not find force in the argument of the Counsel for the PSC that if the petitioner is permitted to participate in the interview, number of candidates whose application forms have been rejected by the PSC for one reason or the other, would approach this Court. Present is entirely a different case from the persons whose application forms have been rejected. It is a case where form of the petitioner has not been rejected rather he has passed his written examination but he has not been issued the interview call letter solely on the round that relevant certificate of M. Phil examination was furnished subsequently.

Thus considering the aforesaid factual and legal position this Court is of the considered view that the petition deserves to be allowed. It is accordingly allowed. It is directed that respondent No. 3/PSC will issue call letter to the petitioner and after interviewing the petitioner his candidature shall be considered in accordance with law. Petition is thus allowed.