Kureshi Najma Kadarmiyan vs State of Gujarat and Another

M.R. Shah, J.—Present Letters Patent Appeal No. 154 of 2009 with Civil Application No. 1548 of 2009 is filed by the appellant herein - original petitioner challenging the impugned order passed by the learned Single Judge dtd. 12/1/2009 in Special Civil Application No. 56 of 2009 in dismissing the same and in not quashing and setting aside the order dtd. 8/12/2008 issued by the GPSC in rejecting the appellant''s application for appearing in the examination for the post of Assistant Public Prosecutor, Class-II. It was further prayed in the said Special Civil Application to direct the respondent authorities to permit the appellant to appear in the examination of Assistant Public Prosecutor, Class-II, to be held on 11/1/2009.

Before considering the Letters Patent Appeal on merits, few facts and the history which lead to filling up the post of Assistant Public Prosecutor in the State of Gujarat deserves consideration, and the same are as under:

Criminal Misc. Application No. 13937 in Criminal Appeal No. 487 of 2006 was placed before the Division Bench of this Court to condone the delay of 1695 days caused in filing the Criminal Appeal against the judgement and order of acquittal passed by the learned trial court, wherein one of the ground in the application for condonation of delay was shortage of Assistant Public Prosecutor and one Additional Public Prosecutor was required to attend more than one courts and in most of the cases in different Talukas and the resultant effect was delay in disposal of the criminal trials, as Assistant Public Prosecutor was attending the particular Criminal Court in the Taluka only once a week and it was found that on rest of the days, the Additional Public Prosecutors were not available in the Court due to which the work of the Court was suffering and therefore, the Division bench asked the State to file detailed reply stating that how many posts of Assistant Public Prosecutors in the State are vacant. By order dtd. 19/2/2008, Division Bench directed the Legal Department of the State Government to file detailed reply giving particulars of the statement with respect to the Additional Public Prosecutors in the entire State with respect to each of the Sessions Court, Additional Sessions Court and Magistrate''s Court by observing that in so many cases, grievances is made that there is shortage of Additional Public Prosecutors and due to shortage of Additional Public Prosecutor, Judicial Magistrate First Class''s Courts, Additional Sessions Court, Sessions Courts, Magistrate''s Court have to adjourn the matters which is one of the reason for arrears.

Initially Dy. Secretary, Legal Department filed reply giving particulars with respect to the Criminal Courts in each District and how many sanctioned posts of Additional Public Prosecutors are there and how many posts of Additional Public Prosecutors are vacant. It appeared that there are no sufficient Additional Public Prosecutor / Assistant Public Prosecutors. It was found that in Vadodara District, there were total 25 Courts taking up criminal matters against which sanctioned post of Assistant Public Prosecutors was only 8 and out of which one was vacant, therefore, it was found that at least 17 to 18 criminal courts in Vadodara District were without Additional Public Prosecutors / Assistant Public Prosecutors. Similar was the position with respect to other Sessions Court in each District. Therefore, Division Bench directed the Legal Department, State of Gujarat to come out with a specific instructions when each court would be having Additional Public Prosecutors / Assistant Public Prosecutors, so that Criminal Courts can proceed further with the matter and to that the Secretary, Legal Department filed the reply that the State Government intends to create 270 Posts of Assistant Public Prosecutors and other Assistant Public Prosecutors may be appointed in three different phases. It was also pointed out that even against the sanctioned strength of 236 Assistant Public Prosecutors, 60 posts of Assistant Public Prosecutors were vacant, it was proposed that the said vacant posts would be filled in by GPSC by undertaking appropriate selection procedure. Even to meet with the emergent situation, the State Government also took a decision to appoint Additional Public Prosecutors on adhoc basis, so that the said adhoc Additional Public Prosecutors may appear before the Magistrate Court.

The Division Bench was not satisfied with the reply filed by the Legal Department and the Division Bench in its order dtd. 11/3/2008 in the aforesaid Criminal Misc. Application made the following observations in para 5:

... Even against the sanctioned strength of 236 Additional Public Prosecutors, 60 posts are vacant. Even the sanctioned posts are less than the requirement considering each Court. It cannot be disputed that without the Public Prosecutors may be Additional and/or Assistant Public Prosecutors, the Criminal Courts cannot proceed further with the matter, and as stated above, when one Additional Public Prosecutor is in charge of three Criminal Courts at various places/Talukas, it will not be possible for an Additional Public Prosecutor to remain present in each Court every day, and if an Assistant Public Prosecutor is in charge of three Taluka JMFC Courts, he can remain present only before one Court and other two Courts will have to wait and/or adjourn the matters. This can be the reason for arrears and delay in disposal of criminal cases. In the reply filed on behalf of the State, it is not stated that when and how vacant posts are likely to be filled in and even when the sanctioned posts are likely to be increased.

The Division Bench directed the Secretary, Legal Department to file detailed reply dealing with the aforesaid aspects.

That thereafter the State of Gujarat responded positively and Notifications dtd. 5/8/2008 and 6/98/2008 came to be issued creating / sanctioning 180 additional posts of Assistant Public Prosecutor and the State Government also responded positively to fill up the vacant posts against the sanctioned posts. It was further stated that looking to the work and the strength of the Court and the judges, there was a further requisition for 198 posts from various courts and the same will be looked into by the State Government.

When the aforesaid application came up for hearing before the Division Bench on 27/8/2008, the learned Advocate General submitted that 180 posts of Additional Public Prosecutors are already sanctioned by the State Government inclusive of the Finance Department and accordingly considering 180 additional posts of Additional Public Prosecutors and 60 posts of Assistant Public Prosecutors vacant against sanctioned posts, State Government sent requisition to the GPSC for 240 posts of Assistant Public Prosecutors. The learned Advocate General also stated on behalf of the State that as one time programme and with a view to see that the posts of Assistant Public Prosecutors are filled in as early as possible, it has been decided to have the examinations of paper Nos. 2, 3 and 4 by Objective Type of 200 marks. The State Government also came out with a time bound schedule so that the posts of Assistant Public Prosecutors are filled in at the earliest and there are sufficient Assistant Public Prosecutors in most of the criminal courts.

The learned Advocate General, in consultation with the Secretary, Legal Department; Dy. Secretary, GAD and Secretary GPSC, submitted that Draft Rules for filling of posts of Assistant Public Prosecutors as one time measure will be published on or before 20/10/2008. It was submitted that as one time measure for filling 242 posts of Assistant Public Prosecutors which is proposed to have been one question paper of 200 marks for various subjects inclusive of Law Paper-I, Law Paper-II, which will be for framing of issues, framing of charges, principles of pleadings, Code of Civil Procedure, Code of Criminal Procedure, Evidence Act, Indian Penal Code. It was also further submitted that the question paper with respect to English, Gujarati will be there and separate marks will be allotted for different subject. It was further submitted in consultation with the Secretary, GPSC that the advertisement inviting applications for 242 posts of Assistant Public Prosecutors in the local news paper as per the rules shall be published on or before 20/10/2008 and the last date for submitting application would be 10/11/2008 and GPSC would further require one month for scrutiny of those applications. It was also submitted by the learned Advocate General approximately three times of number of posts to be filed in starting from top to bottom, the applicants will be called for oral interview. It was also further submitted that minimum qualifying marks will be prescribed and the aforesaid will also be reflected and/or notified in the advertisement. It was submitted that scrutiny of the applications would be done on or before 10/12/2008 and simultaneously setting of the question paper would also be done on ior before 10/12/2008. It was further submitted that the examination will be conducted on or before 16/1/2009 and a further six weeks time is required by GPSC for assessing answer papers and that would be done on or before end of February, 2009. It was further submitted that thereafter oral interview of the eligible candidates would commence from 15/4/2009 and approximately six weeks'' time would require to complete the oral interview. It was further submitted that within 15 days on completion of oral interviews immediately list would be sent to the State Government, more particularly Legal Department. The learned Advocate General, in consultation with the Secretary, Legal Department submitted that approximately minimum 30 days time would require for police inquiry, medical test etc. and immediately thereafter all the vacancies of Assistant Public Prosecutors will be filled in.

Considering the above, the Division Bench directed all concerned to act as per the above schedule. Considering the above, it was hoped that the entire process of filling of aforesaid 242 posts of Assistant Public Prosecutors in the State of Gujarat would be completed on or before 31/7/2009, if the aforesaid time schedule is strictly followed and acted upon.

In the above background, process to fill up the 242 posts of Assistant Public Prosecutors started.

The GPSC invited applications for 242 posts of Assistant Public Prosecutors from the eligible candidates by giving advertisement in local news paper on 17/10/2008. In the said advertisement, it was specifically mentioned that out of 242 posts of Assistant Public Prosecutors, Class-II, 122 posts are for General category, 15 posts are reserved for the candidates belonging to Scheduled Caste and 36 posts are reserved for candidates belonging to Scheduled Tribe candidates and 69 posts are reserved for the candidates belonging to SEBC. Even reservation for the Women candidates was also provided in the said advertisement. In the said advertisement, age relaxation with respect to reserved category candidate was also provided and the candidates were required to fill in the form in the prescribed format and were required to produce necessary documents as mentioned in the said advertisement inclusive of necessary marksheet and educational experience certificate issued by the concerned criminal courts, caste certificate and creamy layer and non-creamy layer (in case of reserved category candidate). It was specifically provided in the said advertisement that candidate belonging to General category and Women candidates were required to deposit Rs. 100 as fees and candidates belonging to reserved category were not required to pay/deposit the aforesaid Rs. 100 as fees. It was also provided in the advertisement that if a reserved category candidate even wants to apply in General category and do not want to get benefit of reservation in that case also he is not required to pay/deposit Rs. 100 as fees. It was also provided in the said advertisement that candidates belonging to SEBC category who have produced non-creamy layer certificate will also be given age relaxation. It was specifically provided in the said advertisement that incomplete applications will be rejected and such candidate will not be called for written examination.

It is also to be noted that in the form, there was a specific column with respect to which category candidate belongs to i.e. General category, Scheduled Caste, Scheduled Tribes, SEBC etc. and candidate belonging to put a particular category was required to tick mark against the said category, so that their applications can be scrutinized and considered in that particular category.

In response to the aforesaid advertisement, appellant - original petitioner No. 13 submitted application for the post of Assistant Public Prosecutor, Class-II before the date mentioned in the said advertisement. The appellant belongs to SEBC community and in the form she has also put a specific tick mark against SEBC category. Candidates belonging to SEBC category were required to submit Creamy Layer / Non-Creamy Layer certificate issued by the competent authority for considering their case in the said reserved category. The appellant did not submit non-creamy layer certificate along with her application though required and though it was must and therefore, vide communication dtd. 8/12/2008 the appellant was informed by GPSC that she is considered ineligible for appearing in the preliminary examination as having not produced non-creamy layer certificate and her application being incomplete.

The preliminary examinations were to be conducted on 11/1/2009. As the appellant was considered ineligible for appearing in preliminary test / examination for the post of Assistant Public Prosecutor, Class-II, appellant preferred aforesaid Special Civil Application.

It was contended on behalf of the appellant that as she was not in a position to get creamy layer certificate at the relevant time, she submitted the form in general category and therefore, her case ought to have been considered in the general category. It was further contended that assuming that her case was required to be considered in SEBC category, in that case also on non production of non-creamy layer certificate, her case was required to be considered in general category automatically, however, she could not have been declared ineligible for appearing in the preliminary examination / test. It was also contended that before communication dtd. 8/12/2008, and before considering her as ineligible for appearing in preliminary test / examination, opportunity ought to have been given to her and therefore, the impugned order / decision treating her ineligible, is against the principles of natural justice.

The learned Single Judge vide impugned order dtd.30/12/2008 dismissed the said Special Civil Application by holding that as the appellant submitted form and applied in SEBC category and as she did not produce non-creamy layer certificate which was must and required, she is rightly held ineligible for appearing in preliminary examination / text.

Being aggrieved by and dissatisfied with the impugned order dtd.30/12/2008 in dismissing the aforesaid Special Civil Application, the appellant herein - original petitioner has preferred present Letters Patent Appeal along with the Civil Application for stay.

Mr. Ashok Parekh, learned advocate appearing on behalf of the appellant has submitted that those SEBC candidates who were not seeking age relaxation and who were not interested in getting the benefit of a reserved category, were not required to produce non-creamy layer certificate and therefore, as the appellant at the relevant time was not interested in getting benefits of reserved category - SEBC, she applied for the post of Assistant Public Prosecutor, Class-II in general category. It is further submitted that even the impugned communication dtd. 8/12/2008 is in breach of principles of natural justice. It is submitted that had an opportunity been given to the appellant to produce non-creamy layer certificate, she would have produced it. It is submitted that in any case before considering the appellant as ineligible on non-production of non-creamy certificate, an opportunity ought to have been given to the appellant. Therefore, it is submitted that the impugned decision dtd. 8/12/2008 is against the principles of natural justice.

It is further submitted that it is well settled proposition of law that the person falling in SEBC is entitled to compete in General Category. If on merit a reserved category candidate gets higher marks and thereby entitled to compete with the general candidates, he can claim his selection/admission or appointment in open/general category. He cannot be compelled to be considered against the reserved quota only. It is submitted that on the same analogy if the present appellant did not fulfill OBC criteria, she is entitled to be considered in open category subject to the eligibility criteria prescribed for general category.

Mr. Parekh, learned advocate appearing on behalf of the appellant has heavily relied upon the decision of the Hon''ble Supreme Court in the case of M.C.D. Vs. Veena and Others, , more particularly para 8. He has also relied upon the decision of the Hon''ble Supreme Court in the case of R.K. Sabharwal and others Vs. State of Punjab and others,

Mr. Parekh learned advocate appearing on behalf of the appellant has also relied upon the decision of the Hon''ble Supreme Court in the case of Karnataka Public Service Commission and others Vs. B.M. Vijaya Shankar and others, in support of his submission that the impugned communication / order dtd. 8/12/2008 is in breach of the principles of natural justice.

Mr. Parekh, learned advocate appearing on behalf of the appellant has submitted that even advertisement published by the respondent was vague and does not clearly specify the requirement to be fulfilled by the SEBC candidate. No specific option was given to the SEBC to fill up separate form if intending to complete in open category. On the contrary an indication is given that even if a candidate belonging to SEBC wants to compete in general category, he need not pay Rs. 100 fees. Therefore, the order of rejection shows total non-application of mind.

Mr. Parekh, learned advocate appearing on behalf of the appellant, relying upon ground (a) of the petition, has submitted that even the appellant was not given opportunity / time to produce non-creamy layer certificate though the respondents authorities have extended time limit for producing the experience certificate, however for the reserved candidate candidate no time is extended.

By making above submissions and relying upon the aforesaid decisions, it is requested to allow present Letters Patent Appeal.

While opposing the present appeal it is submitted by the learned advocate appearing on behalf of the respondents - GPSC and the State Government that for getting benefit of reservation under SEBC, a candidate has to produce non creamy layer certificate as, as per the reservation policy , only those candidates who are falling within the definition of non-creamy layer are entitled to get benefit of reservation in the reserved category of SEBC. It is submitted that candidate belonging to reserved category of SEBC under the reservation is not required to be given age relaxation only but his case is required to be considered along with the candidates belonging to SEBC Category and cut of marks etc. would be different. Therefore, it is submitted that non-creamy layer certificate was required only for age relaxation, cannot be accepted.

It is further submitted that even the contention on behalf of the appellant that the advertisement was vague is also not true. It is submitted that the advertisement is as clear as it can be and every necessary particulars are mentioned in the advertisement. It is submitted that in all 4985 candidates submitted applications out of which 1699 candidates were belonging to SEBC Category and in fact 966 candidates belonging to SEBC category, submitted non-creamy layer certificate. It is submitted that if those candidates could understand the advertisement and submit non creamy layer certificate which is required for the candidate belonging to SEBC category, in that case, the appellant ought to have produced non creamy layer certificate.

Now, so far as the contention on behalf of the appellant that as she did not want to get benefit of age relaxation which is available to candidates belonging to SEBC category and as she did not intend to get benefit of reservation in the reserved category of SEBC candidate and therefore, she did not produce non-creamy layer certificate and therefore, her case was required to be considered along with other general category candidates, is concerned, learned advocate appearing on behalf of the respondents more particularly GPSC has stated that as such there is no power vested with the GPSC to suo motu consider the applications of the candidate belonging to reserved category automatically in the general category on non-fulling the requirement by reserved category candidate. It is further submitted that the decision relied upon by the learned advocate appearing on behalf of the appellant in the cases of M.D.C. v. Veena and Ors. (supra) and R.K. Sabharwal and Ors. v. State of Punjab and Ors. (supra) will not be applicable as in the aforesaid cases, applications from the candidate belonging to reserved category were found to be complete and in order and they were found to be more meritorious than general category candidate and to that it was held that their cases should be considered in the general category quota first as they are having more meritorious than general category candidate and their cases cannot be considered in the reserved category quota. It is submitted that in none of the cases it is held that irrespective where their applications were found to be complete or not, and the moment applications submitted by the respective reserved category candidate are found to be incomplete, automatically their cases are required to be considered in the general category.

It is further submitted on behalf of the GPSC that even the decision of the Hon''ble Supreme Court in the case of M.D.C. v. Veena and Ors. (supra) would not be applicable to the facts of the present case. It is submitted that the controversy before the Hon''ble Supreme Court was as to whether certificate of a candidate belonging to backward class in States other than Delhi could hold good for the purpose of recruitment for the post of primary and nursery teachers in Municipal Corporation of Delhi in the national capital territory of Delhi and ancillary question posed for the consideration of the Hon''ble Supreme Court was as to whether other backward classes of the States other than Delhi can be treated as OBC in Delhi and can be extended benefits related thereto in Delhi. It is submitted that before the Hon''ble Supreme Court there was no direct issue posed for consideration of the Hon''ble Supreme Court with respect to automatically treating the candidate belonging to reserved category into general category on non fulfillment of requisite qualification /criteria for getting benefit under reserved category. It is submitted that every decision is required to be considered in light of the issue and controversy raised in the case and few sentences here or there without any lis, cannot be considered in isolation.

It is further submitted by Mr. Shukla, learned advocate appearing on behalf of the GPSC that in fact, the appellant who has preferred Special Civil Application has made a false statement in the petition that she has applied in general category. It is submitted that in the form, the appellant had put tick mark against SEBC Category. It is submitted that if the intention of the appellant was not to considered her case in the SEBC Category, in that case, she would not have put tick mark against SEBC category. It is submitted that, therefore, the intention of the appellant from the very beginning was to consider her case in the general SEBC category and when she is held to be ineligible on incomplete application on account of not producing non-creamy layer certificate, now the appellant has come out with a false case that her application was in general category. Therefore, it is submitted that the aforesaid conduct of the appellant disentitles her to get discretionary relief of this Court.

It is further submitted that even the contention with respect to violation of the principles of natural justice is neither pleaded in the petition nor has been argued before the learned Single Judge and therefore, now the appellant should not be permitted to contend with respect to breach of the principles of natural justice.

It is submitted by the learned advocate appearing on behalf of the respective respondents - GPSC as well as State Government that examinations have already been completed on 11/1/2009 and now GPSC is required to declare results and they are required to act as per the schedule fixed by the Division Bench of this Court to fulfill 242 posts of Assistant Public Prosecutor. Therefore, it is submitted that it is not possible now for the GPSC to take fresh examination of the appellant, otherwise it would further delay the process of filling up the posts of Assistant Public Prosecutor in the State which is the need of the day to clear arrears, as on account of non-availability of the Assistant Public Prosecutors in most of the cases, the courts have to adjourn criminal cases.

Mr. D.G. Shukla, learned advocate appearing on behalf of the GPSC has further submitted that even on the ground of delay and in approaching the Court at the last moment, the appellant is not entitled to any discretionary relief. It is submitted that as so observed by the learned Single Judge when the appellant was informed vide communication dtd. 8/12/2008 that she is considered ineligible for appearing in the preliminary examination / text and though the examination was scheduled on 11/1/2009, the appellant approached this Court at the fag end and filed the petition on 11/1/2009.

So far as the contention on behalf of the appellant that no opportunity was given to the appellant and candidates belonging to reserved category to produce non-creamy layer certificate, though time limit was extended for producing experience certificate qua other candidates is concerned, Mr. Shukla, learned advocate appearing for the GPSC has submitted that no time limit has been extended in favour of any candidate to produce experience certificate, as alleged. It is submitted that only in a case where experience certificate was produced along with the application, but it was not in prescribed format and there was a mistake on the part of the competent criminal court in not issuing the experience certificate in prescribed format, in those cases only opportunity was given to those candidates to produce experience certificate in prescribed format. It is submitted that time limit was not extended to produce experience certificate which was not produced at all at the time of submitting the application form.

Submitting accordingly, it is requested to dismiss the present appeal.

Heard the learned advocates appearing on behalf of the respective parties at length.

At the outset it is required to be noted that against the 236 sanctioned posts of Assistant Public Prosecutors in the State, 64 posts of Assistant Public Prosecutors were found to be vacant. Looking to the strength of the criminal courts in the Courts, in the Sessions Court, Additional Sessions Courts, Magistrate''s Court etc. it was found that sufficient number of Assistant Public Prosecutors are not available and it was also found that one Additional Public Prosecutor was in-charge of 3 to 4 Magistrate Courts and that too in different Talukas and even one Assistant Public Prosecutor was attending Taluka Court once a week and therefore, due to non-availability of the Assistant Public Prosecutor the Taluka Courts were required to either wait for the Assistant Public Prosecutor or adjourn the criminal cases and it was found to be the major reason / cause for the delay in disposal of the criminal cases. The State Government responded immediately to meet with the aforesaid situation and sanctioned 180 additional posts of Assistant Public Prosecutors. Necessary Draft Rules came to be published immediately; necessary sanction from the Finance Department was also obtained immediately, and process was started to fill up 242 posts of Assistant Public Prosecutors in the State of Gujarat in the time bound schedule and it was hoped that if everything is done within stipulated schedule 242 posts of Assistant Public Prosecutors will be filled in by September 2009 and that is why process of filling up posts of Assistant Public Prosecutor started. Applications came to be invited by giving advertisement in local news paper from the eligible candidates (advocates) with other particulars as mentioned in the advertisement. There is specific column mentioned in the prescribed form pointing out with respect to each category i.e. General category, Scheduled Caste, Scheduled Tribe, SEBC etc. Candidate belonging to respective category were required to put tick mark against the respective category they belong to. It was also specifically pointed out that the candidate belonging to the SEBC has to produce non-creamy layer certificate. It was specially pointed out that a candidate belonging to general category and women candidate is required to pay Rs. 100 fees and candidate belonging to reserve candidate is not required to pay such a fee, however, if a candidate belonging to reserved category does not want to get benefit under the reserved category, in that case he is not required to pay the aforesaid fee. It is specifically provided in the said advertisement that if candidate belong to SEBC category has not produced the creamy layer certificate, he shall not be entitled to the age relaxation of five years. Considering the above, it is sought to be contended on behalf of the appellant that as she did not want to get benefit of age relaxation, she has not submitted non-creamy layer certificate. However, it is to be noted that reserved category candidate belonging to SEBC under the reservation policy will not be getting age relaxation only but there will be different merits for SEBC category candidate and cut of marks would also be different. It is also to be noted that in the advertisement it was specifically mentioned that those applications without requisite certificates and particulars will be considered as incomplete and those candidates would be considered ineligible for the preliminary tests.

Admittedly, the appellant had not submitted non-creamy layer certificate which was must for getting benefit in reserved category of SEBC. It cannot be disputed that only those candidates who belong to non creamy layer will be entitled to the benefit under the reserved category of SEBC. As the appellant did not submit non creamy layer certificate along with the application, her application is considered incomplete and accordingly she is held ineligible for appearing in the preliminary test / examination.

At the outset, it is required to be noted that in the petition it was the case on behalf of the appellant that the appellant submitted application for considering her case in general category, however, it is to be noted that such a stand of the appellant is nothing but afterthought to come out of consequences of non-production of the creamy layer certificate and treating the same as incomplete application and treating her ineligible for appearing in the preliminary test / examination. It is to be noted that in fact, the appellant has put tick mark against SEBC category in the application form. If the intention of the appellant from the very beginning was to consider her case in general category, in that case, she would not have put tick mark against SEBC category in the application form. Aforesaid shows intention of the appellant to consider her case in the SEBC category. Therefore, as such the appellant has made a false / in correct statement in the petition which disentitles her to get equitable discretionary relief of this Court under Article 226 of the Constitution of India. Even otherwise, for the reasons stated hereinafter, on merits also the appellant has no case.

It is the contention on behalf of the appellant that even if she had not produced the non-creamy layer certificate in that case also, GPSC was required to consider her case in general category. In support of above submission, learned advocate has relied upon the decision in the cases of K. Sabharwal and Ors. (supra) and Barot Jignesh Lakshmansinh and Ors. (supra). However, on considering the above decisions, there is no absolute proposition of law laid down by the Hon''ble Supreme Court in the said decisions that even in a case where application of the candidate belonging to reserved category is found to be incomplete on non-production of the required caste certificate etc. their cases are required to be considered automatically in general category. In the case before the Hon''ble Supreme Court a candidate belonging to reserved category whose application was found to be complete and who had submitted necessary caste certificate etc. was found to be more meritorious than general category candidate and to that the Apex Court held that his case was required to be considered in the quota of general category candidate and his case is not required to be considered in the reserve quota. Therefore, the submission on behalf of the appellants that on non-production of the non-creamy layer certificate along with the application, GPSC was required to consider the case of the candidate in the general category automatically, cannot be accepted. It is not so provided in the advertisement. GPSC has no suo-motu power and/or it is not the practice of the GPSC to automatically consider case of the candidate belong to reserved category in the general category on non-production of requisite caste certificate etc. It can be done provided the same is mentioned in the advertisement and/or the same is the practice of the GPSC. Therefore, the contention on behalf of the respective appellants / petitioners that on non-production of the non creamy layer certificate by them their cases were required to be considered in the general category, cannot be accepted.

Learned advocate appearing on behalf of the appellant has heavily relied upon the decision of the Hon''ble Supreme Court in the case of M.D.C. v. Veena and Ors. more particularly para 8 of the said decision. It can not be disputed that every decision is required to be considered in light of the controversy and the issue involved and the lis in the case. Any observation for which there was no lis and for which there was no controversy/issue, cannot be considered to be a binding precedent and/or laying down law. On considering the decision in the case of M.D.C. v. Veena and Ors. (supra), the issue before the Hon''ble Supreme Court was as to whether the certificate of candidate belonging to backward classes in the States other than Delhi could hold good for the purpose of recruitment to the post of primary and nursery teachers in Municipal Corporation of Delhi in the national capital territory of Delhi and ancillary question posed for the consideration before the Hon''ble Supreme Court was as to whether other backward classes of the States other than Delhi can be treated as OBC in Delhi and can be extended benefits related thereto in Delhi. Those were the only issue before the Hon''ble Supreme Court in the said decision. There was no issue before the Hon''ble Supreme Court whether even in a case where the application submitted by the reserved category candidate was in complete on non production of requisite certificate belonging to reserved category and to that extent their applications are incomplete which were otherwise liable to be rejected, their cases are automatically required to be considered in general category. There is no absolute proposition of law laid down by the Hon''ble Supreme Court in the said decision to the aforesaid effect. Therefore, reliance placed upon the decision of the Hon''ble Supreme Court would not be of any assistance to the appellant.

Now, so far as the reliance placed upon the decision of the Hon''ble Supreme Court in the case of Karnataka Public Service Commission and Ors. v. B.M. Vijaya Shankar and Ors. (supra) with respect to violation of principles of natural justice is concerned, it is required to be noted that principles of natural justice is neither pleaded in the petition, nor the same is argued before the learned Single Judge. Even otherwise, considering the facts of the case, the aforesaid decision would not be of any assistance to the appellant. On the contrary it goes against the appellant. Para 4 of the said decision reads as under:

Was natural justice violated? Natural justice is a concept which has succeeded in keeping the arbitrary action within limits and preserving the rule of law. But with all religious rigidity with which it should be observed, since it is ultimately weighed in balance of fairness, the courts have been circumspect in extending it to situations where it would cause more injustice than justice. Even though the procedure of affording hearing is as important as decision of merits yet urgency of the matter, or public interest at times require flexibility in application of the rule ass the circumstances of the case and the nature of the matter required to be dealt may serve interest of justice better by denying opportunity of hearing and permitting the person concerned to challenge the order itself on merits not for lack of hearing to establish bona fide or innocence but for being otherwise arbitrary or against rules. Present is a case which, in our opinion, can safely be placed in a category where natural justice before taking any action stood excluded as it did not involve any misconduct or punishment.

Thus, only in a case of misconduct or punishment, principles of natural justice would be made applicable. At this stage, decision of the Hon''ble Supreme Court in the case of Mahesh T. Rabari v. Director of Primary Education and Ors. reported in 2002 (1) GLH 438, requires to be considered. As held by the Hon''ble Supreme Court, in a case where even after giving an opportunity it would not have effected ultimate result, and the decision is taken without giving an opportunity, in that case, the impugned decision which is in breach of principles of natural justice is not required to be set aside. In other words, if no other view could have been taken even after giving opportunity, the impugned decision / order is not required to be set aside on breach of principles of natural justice. In the present case, admittedly the appellant has not produced non-creamy layer certificate and therefore, to that extent the application of the appellant was incomplete and therefore, the same was liable to be rejected. Under the circumstances, even if an opportunity would have been given, no other view could have been possible and the application of the appellant was liable to be rejected, as the same was incomplete on non-production of non-creamy layer certificate. Under the circumstances, on merits also it cannot be said that the impugned decision dtd. 8/12/2008 is in breach of the principles of natural justice.

Now, the contention on behalf of the appellant that as she did not intend to get age relaxation and that she did not intend to consider her case in the reserved category and therefore, she did not produce non creamy layer certificate and therefore, her case was required to be considered in the general category, cannot be accepted. If the intention of the appellant that her case may not be considered in the reserved category and her case was required to be considered in general category in that case, first of all, she should have specifically mentioned in the application that though she belong to SEBC candidate, she does not intend to get benefit of reservation and her case be considered along with general category candidate.

The contention on behalf of the appellant that the application form was vague, cannot be accepted. In all 4985 candidates have submitted applications and none of the candidate except the appellant, has made any grievance that the application is vague. Even considering the advertisement, it cannot be said that the advertisement is vague as sought to be contended by the appellant. All the necessary particulars have been mentioned in the advertisement inclusive of the requirement of non-creamy layer certificate etc.

Now, so far as the contention on behalf of the appellant that no prejudice would be caused if examination of the appellant is taken is concerned, it is to be noted that only 10 to 12 candidates have made grievance and have approached this Court against 4985 candidates, out of which applications of 1302 candidates have been rejected on various grounds and/or they are found to be not eligible and therefore, for few of them who have come before this Court separate examination cannot be conducted. Even otherwise, the same is likely to upset the schedule fixed by the Division Bench and further process of filling up the post of Assistant Public Prosecutors would be delayed and it will result in further delay in disposal of the criminal cases. As and when in future applications are invited, the appellant can submit fresh application along with necessary certificate etc. and her case can be considered and there shall not be any question of age bar, as they belong to SEBC category and he is entitled to age relaxation of five years. Under the circumstances, the prayer of the appellant to conduct her examination, cannot be accepted.

Over and above, even on the ground of delay in approaching the Court and not approaching the Court at the earliest, the appellant is not entitled to any discretionary relief. It is to be noted that the appellant was informed by communication dtd. 8/12/2008 that she is ineligible for appearing in the preliminary examination / test, still the appellant did not approach the Court at the earliest and preferred the petition on 5/1/2009 and got it circulated on 12/1/2009 when the preliminary examination was held on 11/1/2009. Thus, the appellant approached this Court at the fag end which in the facts and circumstances of the case disentitles her to any relief. Considering above also, it cannot be said that the learned Single Judge has committed any error in dismissing the petition.

Now, so far as the submission on behalf of the appellant that though the respondents had not given any opportunity to produce non-creamy layer certificate though time limit was extended by the respondents authorities for producing experience certificate is concerned, it is to be noted that time limit to produce experience certificate has never been extended. No time has been extended to those candidates to produce experience certificate who had not produced the experience certificate along with the application. The opportunity was given to those candidates who submitted experience certificate but the same was defective as it was found then, there was no fault of them and the experience certificate issued by the competent criminal court was not in prescribed format. Therefore, the submission of the appellant that discriminatory treatment has been given to the appellant cannot be accepted.

For the reasons stated above, as the application submitted by the appellant was incomplete and she has not produced the requisite non-creamy layer certificate along with the application form though she belongs to SEBC category and so stated in the application form and thereby she is held to be ineligible for appearing in the Preliminary Text/Examination for the posts of Assistant Public Prosecutor, Class-II and even the examination is already conducted on 11/1/2009 and now only result is to be declared and further process to fill up the posts of Assistant Public Prosecutors is to be taken, present Letters Patent Appeal deserves to be dismissed and is accordingly dismissed. Any interference at this stage is likely to further delay the process to fill up the post of Assistant Public Prosecutors in the State, which is the need of the day to clear the backlog and the arrears of criminal cases.

In view of dismissal of the main Letters Patent Appeal, no orders in the Civil Application.

In the facts and circumstances of the case, there shall be no order as to costs.