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Judgment
Dr. S.N. Pathak, J.
The issues involved in all the writ petitions are same, similar or identical and as such all have been tagged and heard together and are being disposed
of by this common order.
Heard learned counsel for the parties.
The core issue involved in all these writ petitions is as to whether benefits of reservations under SC, ST, BC-I and BC-II categories can be given to
concerned petitioners even when they failed to produce valid Caste Certificates at the time of verification of certificates in proforma as mentioned in
the advertisements or issued prior to last date of submission of on-line application forms by the competent authorities in terms of the respective
Advertisements.
The writ petitioner in W.P.(S) No. 3887 of 2018 has prayed for appropriate directions upon the respondents to declare him successful in the
examination â€" cum â€" merit list of BC-I categories Dental Doctors (Basic Grade) Examination held pursuant to Advertisement No. 02/2016 by the
JPSC since he has secured 156 marks in total (written plus interview) and, therefore, he should have been placed at 1st position in the final selection
list recommended vide forwarding letter no. 1148, dated 27.05.2018.
Petitioner has further prayed for quashing the remarks given in the final mark-sheet issued in her favour in which remarks has been made that
candidature of the petitioner has been treated in unreserved category due to non-submission of the requisite caste certificate.
Petitioner has further prayed for a direction upon the respondents to consider her case for appointment to the post of Dental Doctors (Basic Grade) in
BC-1 category on the ground that she admittedly belongs to BC-1 category and accordingly Caste Certificate has been issued by the competent
authority on 16.06.2009.
In all the other writ petitions also, petitioners have claimed the benefits of reservation since they have been declared successful in the respective
examination conducted by the respective Commissions and have scored more marks than the last selected candidates in their respective categories but
their candidatures have been considered in unreserved category only on hyper technical grounds that they have failed to submit the caste certificate as
per the online applications and also in proper proforma and not issued by the competent authority and in most of the cases the caste certificates issued
after the cut-off date and as such the petitioners were treated in unreserved category and benefits of reservations were not extended to them.
ARGUMENTS ADVANCED BY LEARNED COUNSELS FOR THE PETITIONERS:
Learned Sr. Counsels appearing for the petitioners strenuously urges that once petitioners have been allowed to appear in the examination as a
reserved category candidates, their candidatures cannot be considered in an unreserved category at a subsequent stage and as such change of
categories is not permissible once the petitioners have appeared in the selection process as a candidate of reserved category. Learned Sr. Counsels
further argues that petitioners have obtained more marks in their respective categories than the last selected candidates and by changing the
categories of the petitioners, the respondents â€" Commissions are trying to frustrate their candidatures. It has further been argued that the issues
involved in the batch of writ petitions are no more resintegra as the same have been affirmed by the Hon’ble Apex Court in the case of Ram
Kumar Gijroya. It has further been argued that similar issues fell for considered before this Hon’ble Court in the case of Anil Tanti and the same
was affirmed by the Hon’ble Division Bench and also by the Hon’ble Apex Court. Admittedly the caste of the petitioners in their respective
categories are not in dispute. Merely as they failed to abide by the terms and conditions of the advertisement which was beyond their reach due to
prevailing circumstances, their candidature ought not to have been rejected. It was further argued that at the time of verification of the certificates,
admittedly petitioners produced their caste certificate as per the terms and conditions of the advertisement and as such it ought to have been accepted
by the respondents â€" Commission and their cases would have been recommended for appointment as they have been declared successful and have
obtained more marks than the last selected candidates in their respective categories.
To buttress their arguments, learned Sr. Counsels have placed heavy reliance on the following Judgments:-
(i) Anil Tanti Vs. State of Jharkhand and others reported in 2018(1)( JCR 226 (Jhr.), affirmed up to Hon’ble Apex Court;
(ii) Aman Krishna Patel Vs. State of Jharkhand in W.P.(S) No. 5865 of 2017;
(iii) Abdul Rashid Vs. Union of India in W.P.(C) No. 39210 of 2015;
(iv) Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board & Another reported in (2016) 4 SCC 754.
Learned Sr. Counsels further drew attention of this Court towards paragraphs 14 to 18 of the Judgment passed by Hon’ble Apex Court in the
case of
Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board & Another, which reads as under:-
The Division Bench of the High Court erred in not considering the decision rendered in Pushpa. In that case, the learned Single Judge
of the High Court had rightly held that the petitioners therein were entitled to submit the OBC certificate before the provisional selection list
was published to claim the benefit of the reservation of OBC category. The learned Single Judge correctly examined the entire situation not
in a pedantic manner but in the backdrop of the object of reservations made to the reserved categories, and keeping in view the law laid
down by a Constitution Bench of this Court in Indra Sawhney v. Union of India as well as Valsamma Paul v. Cochin University. The learned
Single Judge in Pushpa also considered another judgment of the Delhi High Court, in Tej Pal Singh , wherein the Delhi High Court had
already taken the view that the candidature of those candidates who belonged to the SC and ST categories could not be rejected simply on
account of the late submission of caste certificate.
The relevant paragraph from the judgment of this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217
has been extracted in Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] along with the speech delivered by Dr
Ambedkar in the Constituent Assembly and reads thus:
“9. … ‘251. Referring to the concept of equality of opportunity in public employment, as embodied in Article 10 of the Draft
Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in
public administration, Dr Ambedkar emphatically declared that reservation should be confined to “a minority of seatsâ€, lest the very
concept of equality should be destroyed. In view of its great importance, the full text of his speech delivered in the Constituent Assembly on
the point is appended to this judgment. But I shall now read a few passages from it. Dr Ambedkar stated:
“… firstly, that there shall be equality of opportunity, secondly, that there shall be reservations in favour of certain communities which
have not so far had a ‘proper look-in’ so to say into the administration. … Supposing, for instance, we were to concede in full the
demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we
shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. …
Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of
seats . It is then only that the first principle could find its place in the Constitution and effective in operation. … we have to safeguard two
things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far
representation in the State….â€.]
These words embody the raison d'être of reservation and its limitations. Reservation is one of the measures adopted by the Constitution to
remedy the continuing evil effects of prior inequities stemming from discriminatory practices against various classes of people which have
resulted in their social, educational and economic backwardness. Reservation is meant to be addressed to the present social, educational
and economic backwardness caused by purposeful societal discrimination. To attack the continuing ill effects and perpetuation of such
injustice, the Constitution permits and empowers the State to adopt corrective devices even when they have discriminatory and exclusionary
effects. Any such measure, insofar as one group is preferred to the exclusion of another, must necessarily be narrowly tailored to the
achievement of the fundamental constitutional goal.’ (Indra Sawhney case [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , SCC pp. 433-34, para 251)â€
In Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , relevant paragraphs from Tej Pal Singh [Tej Pal Singh v.
Govt. (NCT of Delhi), 1999 SCC OnLine Del 1092 : ILR (2000) 1 Del 298] have also been extracted, which read thus: (Pushpa
case[Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , SCC OnLine Del para 11)
“11. … ‘15. The matter can be looked into from another angle also. As per the advertisement dated 11-6-1999 issued by the Board,
vacancies are reserved for various categories including SC category. Thus in order to be considered for the post reserved for SC category,
the requirement is that a person should belong to SC category. If a person is SC he is so by birth and not by acquisition of this category
because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact
which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he
belongs to SC category and act thereon by giving the benefit to such candidate for his belonging to SC category. It is not that petitioners
did not belong to SC category prior to 30-6-1998 or that acquired the status of being SC only on the date of issuance of the certificate. In
view of this position, necessitating upon a certificate dated prior to 30-6-1998 would be clearly arbitrary and it has no rationale objective
sought to be achieved.
While taking a particular view in such matters one has to keep in mind the objectives behind the post of SC and ST categories as per
constitutional mandate prescribed in Articles 15(4) and 16(4) which are enabling provisions authorising the Government to make special
provisions for the persons of SC and ST categories. Articles 14(4) and 16(4), therefore, intend to remove social and economic inequality to
make equal opportunities available in reality. Social and economic justice is a right enshrined for protection of society. The right in social
and economic justice envisaged in the Preamble and elongated in the fundamental rights and directive principles of the Constitution, in
particular Articles 14, 15, 16, 21, 38, 39 and 46 are to make the quality of the life of the poor, disadvantaged and disabled citizens of the
society meaningful.’ (Tej Pal Singh case [Tej Pal Singh v. Govt. (NCT of Delhi), 1999 SCC OnLine Del 1092 : ILR (2000) 1 Del 298] ,
SCC OnLine Del paras 15-16)â€
Further, in Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , relevant portion from the judgment of Valsamma Paul
case [Valsamma Paul v. Cochin University, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713] has also been extracted, which
reads as under: (Pushpa case [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] , SCC OnLine Del para 11)
“11. … ‘17. … “21. The Constitution through its Preamble, fundamental rights and directive principles created a secular State
based on the principle of equality and non-discrimination, striking a balance between the rights of the individuals and the duty and
commitment of the State to establish an egalitarian social order.†(Valsamma Paul case[Valsamma Paul v. Cochin University, (1996) 3 SCC
545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713] , SCC pp. 560-61, para 21)’ (Tej Pal Singh case [Tej Pal Singh v. Govt. (NCT of
Delhi), 1999 SCC OnLine Del 1092 : ILR (2000) 1 Del 298] , SCC OnLine Del para 17)â€
In our considered view, the decision rendered in Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 281] is in conformity
with the position of law laid down by this Court, which have been referred to supra. The Division Bench of the High Court erred in
reversing the judgment and order passed by the learned Single Judge, without noticing the binding precedent on the question laid down by
the Constitution Benches of this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S)
Supp 1 : (1992) 22 ATC 385] and Valsamma Paul [Valsamma Paul v. Cochin University, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996)
33 ATC 713] wherein this Court after interpretation of Articles 14, 15, 16 and 39-A of the directive principles of State policy held that the
object of providing reservation to the SCs/STs and educationally and socially backward classes of the society is to remove inequality in
public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general
category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged
in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39-A of the directive principles of State policy is to achieve the concept
of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the
learned Single Judge. Hence, the impugned judgment and order passed by the Division Bench in Letters Patent Appeal No. 562 of 2011 is
not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in Indra
Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and Valsamma Paul
[Valsamma Paul v. Cochin University, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713] . Therefore, the impugned judgment
and order [Delhi Subordinate Services Selection Board v. Ram Kumar Gijroya, 2012 SCC OnLine Del 472 : (2012) 128 DRJ 124] passed
by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order dated 24-11-2010
passed by the learned Single Judge in Ram Kumar Gijroya v. Govt. (NCT of Delhi) [Ram Kumar Gijroya v. Govt. (NCT of Delhi), WP (C)
No. 382 of 2009, order dated 24-11-2010 (Del)] is hereby restored.
It is further argued by counsel for the petitioners that respondents â€" Commissions have tried to threadbare the entire judgment of the case of Ram
Kumar Gijroya in order to get better out of it and in order to showcase that the judgment is based on the proposition that change of game in the amidst
is impermissible in the case of advertisement whereas that is not the case in hand. Controverting stands and referring to the basic contention in the
facts of the present case that the present petitioners had all submitted the required documents in the required formats at the time of document
verification which is admitted as per the counter affidavits filed in all the writ applications. The basic bone of contention in regard to rejecting
candidature of the petitioner s is that petitioners have submitted their respective caste certificates obtained after the last date of filling up of the
application forms and as such, their candidatures have been rejected.
Referring to the points of law formulated by the Hon’ble Court vide order dated 12.12.2018 first, whether there was any cut -off date
mentioned in the advertisement, it is argued by learned counsel for the petitioners that Cut- off date is the date on which a candidate is required to
submit a document. In the present case in all the cases it was mentioned in the column “Anyaay†i.e. the last clause of the advertisement, that the
candidate who would be required to submit the required documents in the particular format on the date on which they are called for document
verification and as such, there was no specific cut-off date which was merely mentioned that on date on which they required us to submit a certificate
that would be the cut -off date and on the cut-off date that is the date of document verification the petitioners have submitted their certificate.
Respondents have tried to canvas a case that there is a cut-off date in regard to issuance of certificate as well as this issue has been set at rest in the
case of Abdul Rashid affirmed by the Hon’ble Supreme Court referred supra. Second, whether caste certificate was required to be submitted on
or before the cut-off date. Cut-off date is merely the date of document verification and on that date petitioners had duly submitted all the required
certificates as per the advertisements. Third, whether the cut -off date so fixed was the date of verification of caste certificate or the last date of
submission of the application form. Learned counsel submits that this issue has also been answered in issue no.1 i.e. the cut-off date is the date for
verification of caste certificate and not the date of submission of the forms as held in the case of Abdul Rashid. Learned counsels appearing on behalf
of the petitioners submit that in the light of aforesaid, case of the petitioners ought to have been considered and their cases ought to have been
allowed. It is further essential to point out that in one of the writ applications being W.P.(S)No.3261 of 2018 an affidavit was filed on 11.12.2018
wherein it was categorically mentioned at paragraph no.8 that there are certain candidates who had provided different details at the time of online
application and submitted different caste certificate at the time of document verification same as the case of the petitioner but, were allowed joining
and are also undergoing training whereas, the case of the petitioners have been rejected. The aforesaid application/affidavit has not been replied
to/rebutted to and as such, under Order 8 Rule 5 and in terms of doctrine of non-traverse it is an admission on part of the respondents.
Learned Sr. Counsels assisted by other counsels appearing on behalf of petitioners submits that they have also filed I.A. in many writ applications
in order to implead and array the newly selected candidates as party â€" respondents as because in furtherance to the aforesaid advertisements
appointment has already been made. Learned Sr. Counsels further submits that as per submissions made in the open court, there are certain posts
which are still vacant but the details of the same are with the respondents -State authorities which the petitioners do not have in their hand. It is further
pointed out that in two of the writ applications, no cut-off date for issuance of caste certificate has been issued and petitioners have submitted caste
certificates prior to declaration of their results and as such the same are completely covered by the judgement passed in the case of Ram Kumar
Gijroya. It has further been pointed out that Hon’ble Supreme Court in the case of Ram Kumar Gijroya had held that the Constitutional mandates
and benefits provided to an individual by virtue of his/her birth in reserved category is a special benefit which is being provided and a proof in that
regards can be given any time prior to final appointment and this has further been dealt in case of Anil Tanti by the Hon’ble Division Bench
wherein it has been observed that Minor Discrepancies must be overlooked.
ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE RESPONDENTS:
Mr. Sanjoy Piprawal, learned counsel appearing on behalf of the respondents â€" Commission [JPSC as well as JSSC] submits that the main
dispute that has arisen in the instant case is the question of not extending the benefits of reservation to the candidate of reserved categories of the
respective categories. Learned counsel, for reference purposes, has referred Clause-9 of one of the Advertisement No. 02/2016, which relates to
Reservation. Learned counsel further submits that similar clauses are there in almost all the advertisements, but for the sake of brevity, relevant clause
of one of the advertisements is being placed herewith:
Clause- 9- -
() (Online)
()
/
/
(OBC)
()
,
Online
(UNR)
( ) , / / -I (BC-I)/ -II
(BC-II) , /
, , -
5682, - 22.10.2008 - 10007, - 29.08.2012 -1
-II
â€" www.jpsc.gov.in
() -
,
◌◌
() (Entry)
Learned counsel further draws attention towards Clause-12 ( ) (iii) of the said Advertisement, wherein candidates were also instructed that they are
required to mention about their certificate and caste certificate in the prescribed column of the Online Application Form and original copy of aforesaid
certificates will have to be produced before the J.P.S.C. at the time of interview and if any discrepancy is found at the time of verification of the
documents about the details mentioned in the Online Application Form and documents produced by the candidates at the time of verification,
candidature of the candidates will be rejected. Learned counsel submits that Proforma of the caste certificates i.e. Appendix-I (for SC/ST candidates)
and Appendix-II (for BC-I & BC-II candidates) have been brought on record at page No.24 and 25 of the Counter Affidavit filed in W.P.(S) No.
3887 of 2018.
Learned counsel further submits that from the perusal of Clause 9(Gha) of the Advertisement it is clearly evident that the reserved categories
candidates were required to submit Caste Certificate issued by an officer not below the rank of Sub divisional Officer in a Proforma as indicated in
Advertisement i.e. for S.C/S.T categories candidates in Proforma- I and for E.B.C-I and B.C-II categories candidates in Proforma-II and it was
clearly mentioned that other Caste Certificates will not be valid for extending the benefits of reservation.
Learned counsel submits that it would be also evident from perusal of Clause-9(Gha) of the Advertisement that reserved categories candidates who
have claimed the benefits of reservation were required to mention details of their Caste Certificates in their Online Application Form. Further from
perusal of clause-9(Angh) of the Advertisement, it is evident that candidates were instructed that only after obtaining the requisite caste certificate in
the prescribed Proforma before the last date of submission of Application Form and thereafter submit their Online Application Form and same will
have to be produced at the time of verification of testimonials.
Learned counsel submits that it would be also evident from perusal of Clause-9(Cha) of the Advertisement that reserved categories candidates who
have claimed the benefits of reservation were also required to produce their caste and other certificates which have been mentioned in their Online
Application Form before the J.P.S.C at the time of interview for verification.
Learned counsel further submits that it would be evident from perusal of Advertisement that last date for submission of Application Form was fixed as
29.2.2016 however the last date of submission of Application Form was extended upto 15.03.2016.
It has been pointed out by Mr. Sanjoy Piprawal, learned counsel appearing on behalf of the JPSC as well as JSSC that after publication of the
Advertisement, several candidates including the Petitioners, after going through the terms and conditions of the Advertisement, submitted their online
application forms before the commission for considering their candidature for appointment against the advertised posts. In this connection, learned
counsel specifically gives example of Online Application Form of petitioner Khushboo Garg in W.P.(S) No. 3887 of 2018 and submits that she has
claimed the benefits of reservation as BC-I category candidate and has mentioned Caste Certificate No. 5185/09 dated 09.06.2009 in her On-line
Application Form, which has been brought on record vide Annexure- B to the Counter Affidavit in the said writ petition. Respondent â€" JPSC, on the
basis of the declaration made by the Petitioner in her online application form, allowed her to appear in the examination. After the examination, JPSC
published the result on 21.02.2018 in which Petitioner was also declared successful vide Annexure- 3 page- 33 of the said Writ Application. Said writ
petitioner has claimed benefits of reservation under BC-I category in her on-line application form and as such her candidature was treated under BC-I
category and she was also declared successful in the written examination as a BC-I category candidate. However, after publication of result, said writ
petitioner was issued interview letter, in which, the date of verification of documents has been given on 7.3.2018 and date of interview was fixed on
8.3.2018, vide Annexure-4 page- 34 of the said writ application.
It has been further pointed out by learned counsel that from perusal of Clause-2 (v) of the interview letter, it is evident that candidates were directed
to bring their caste certificate, as mentioned in their on-line application form, issued by the competent authority (not below the rank of Sub Divisional
Officer as mentioned in Advertisement) for S.C. and S.T. of the State of Jharkhand in Performa-I and for B.C-I and B.C.-II categories of the State
of Jharkhand in Performa-II, with non-creamy layer certificate and no other caste certificate will be entertained. On the date of verification of
documents, i.e. on 7.3.2018 in terms of Annexure-4 page- 34 of the said writ application, said writ petitioner â€" Khushboo Garg appeared before the
JPSC and submitted her Caste Certificate bearing No. 4344 dated 16.06.2009 of B.C-I category issued by the Sub Divisional Officer, which is placed
at Annexure-5 page- 35 of the said writ application. The said Caste Certificate No. 4344/09 dated 16.06.2009 is not valid for extending the benefit of
reservation under B.C.-I category for the services in the State of Jharkhand in view of the fact that in the aforesaid caste certificate there is no
mentioning about the creamy layer and more so ever the same is also not in Proforma- II mentioned in the Advertisement.
Learned counsel further submits that it is not out of place to mention here that said writ petitioner did not produce the Caste Certificate No. 5185/09
dated 09.06.2009 of BC- I category as mentioned by her in her on-line application form and as such her candidature was considered under unreserved
category. Petitioner â€" Khushboo Garg did not produce Caste Certificate in terms of Advertisement and as such her candidature was considered
under unreserved category and as such there is no illegality in considering the candidature of the petitioner as unreserved category candidate. Said
petitioner â€" Khushboo Garg has secured only 156 marks whereas the last selected candidate in unreserved category has secured 158 marks and as
such she was not declared successful. JPSC, after conducting the interview, has already made recommendation for Appointment of successful
candidates on the post of Dentist (Basic Cadre) to the State Government vide letter No. 1148, dated 17.05.2018 [Annexure- 7 page- 39 of W.P.(S)
No. 3887 of 2018].
Learned counsel submits that thus it would be clearly evident from the facts stated above that selection process for appointment of Dentists (Basic
Cadre) in terms of Advertisement No. 2/2016 has already been completed.
Learned counsel further submits that this Court in W.P.(C) No. 6149 of 2018, vide order dated 29.01.2019 in the case of Pankaj kumar-Vs- State
and others, has been pleased to held that “benefits of reservation to a member of B.C-I category is to be extended in favour of such candidate who
is not coming under creamy- layer but the caste certificate is simplicitor as a caste certificate showing the petitioner a member of the B.C-I category
but whether he is entitled to get benefits of reservation in the initial recruitment would be depend when a certificate to that effect would be issued by
the competent authority taking into consideration the income but the same is not available in the caste certificate as Annexed as annexure-6†and
after considering the facts and circumstances of the case and specific terms and condition of the Advertisement, the Hon’ble single judge has
been pleased to dismiss the same in terms of the order dated 29.01.2019.
Learned counsel submits that in view of the facts and circumstances of the case and in view of the specific terms and condition of the Advertisement
about obtaining the Caste Certificate first and thereafter only submit the online application form upto the last date of submission of online application
form i.e. 15.03.2016, mentioning the details about the Caste Certificate i.e. Caste Certificate Number and date of issuance and to produce the same
before JPSC for verification at the time of verification of the testimonials, the ratio as laid down by the Hon’ble Supreme court in Ram Kumar
Gijroya case is not applicable in this case.
Learned counsel submits that during the course of the arguments, counsel for the petitioners have submitted before this Court that Hon’ble
Kerala High Court in W.P(C) No.39210 of 2015 (A) after considering the Gijroya Case has been pleased to allow the writ application and the
petitioner in the said writ petition was granted relief on the ground that on the basis of delay submission of OBC certificate, petitioner would not be
disentitled for consideration for the said post. It was also submitted that aforesaid order was also upheld by the Hon’ble Division Bench in W.A
No. 655/2016 and thereafter Hon’ble Supreme Court also dismissed the S.L.P which was filed by the Union of India against the order passed by
the Hon’ble Division Bench of Kerala High Court.
Learned counsel submits that the submission of the Petitioner is not correct in view of the fact that Hon’ble single judge of Kerala High Court
had been pleased to pass order in W.P(C) No. 39210 of 2015 (A) on 20.01.2016 whereas in Ram Kumar Gijroya case order was passed by the
Hon’ble Supreme Court on 24.02.2016 and as such, the same has been decided without considering the order and Judgment passed by the
Hon’ble Supreme Court. Hon’ble Division Bench of Kerala High Court decided the W.A No. 655/2016 vide order dated 21.07.2016 and at
the time of passing the order since the Ram Kumar Gijroya case was in existence and as such same was considered in view of findings given by the
Hon’ble single judge in Para-4 and 8 of the order dated 20.01.2016, which is quoted below.
Para-4 “the learned counsel for the Petitioner raises two ground of challenge against Ext-P10. First, that the OBC certificate could be produced
even at the time of the Interview since there is no specific date of issuance of the OBC certificate prescribed in the Notification. The requirement, it is
argued , was only for production of the certificate at the time of interview for document verification. The other ground is that the choices / option
made by the Petitioners were unilaterally varied by the Respondents.â€
Para -8 “ learned CGSC would refer to Annexure-R3 (c) a circular issued by the Department of Personnel and Training, which mandates that
OBC Certificate in prescribed format issued up to 180 days from the closing date of application alone could be accepted. First of all the internal
communication issued cannot be relied on to restrict a benefits given to a person under the Notification.â€
Learned counsel submits that it is evident from the facts and circumstances as stated above that in the aforesaid case, no date was fixed for
submission of OBC certificate in the advertisement and criteria for obtaining and producing OBC certificate in prescribed format issued upto to 180
days from closing date of application was only based on internal communication of the Government in other words the same was not the criteria
mentioned in the Advertisement and as such aforesaid condition which was imposed later on was not accepted by the Hon’ble Kerala High Court.
Learned counsel submits that in view of the aforesaid facts and circumstances, in instant case, the order passed by the Hon’ble Kerala High
Court are not applicable rather the Order dated 18.05.2019 passed by Hon’ble Division Bench of this Hon’ble Court in W.P.(S) No. 1921 of
2018 in the case of Rohan Thakur â€"vs- State of Jharkhand and Ors is applicable.
Learned counsel further submits that in these batch of writ applications, petitioners have also claimed the benefits of reservation under S.C., S.T.,
B.C.-I and B.C-II Categories but have failed to produce valid caste certificates at the time of verification in Proforma as mentioned in the respective
Advertisements issued by the competent Authority as mentioned in the advertisement in the prescribed format and as such benefits of Reservation
were not extended to the Petitioners. At the time of verification of the documents several Petitioners have produced caste certificates issued by Circle
Officer/Block Development Officer and some of the Petitioners have produced caste certificates issued in a format meant for services for the
Government of India which are not valid for extending the benefits of reservation in view of the specific terms and conditions of the Advertisement
and as such benefits of reservation was not extended to the Petitioners. When deficiencies were pointed out to the candidates about their caste
certificates, Petitioners in order to claim benefits of reservation have submitted caste certificates issued after the last date of submission of the Online
Application form, which were not considered for extending the benefits of reservation and such instant writ applications have been filed, which are not
maintainable in view of the facts and circumstances of the cases and are fit to be dismissed by this Hon’ble Court.
Mr. Sanjoy Piprawal, learned counsel submits that counter Affidavit have already been filed in most of the cases and details about the caste
certificates as mentioned by Petitioners in their online application form and caste certificates as produced by them at the time of verification of the
Documents have been also been detailed. In view of specific terms and conditions as mentioned in the Advertisements, the Judgements as cited by the
learned Counsel for the Petitioners are not applicable in view of the fact that same will amount to challenge the terms and conditions of the
Advertisement after appearance in the examination which is not permissible in the eyes of law and if the said submissions of the Petitioners will be
accepted the same will also amount to change the terms and conditions of the Advertisements.
To discard the arguments advanced by learned Sr. Counsel appearing on behalf of the petitioners that once Petitioners are allowed to appear in the
examination as a reserved category candidates there after their candidature cannot be considered in unreserved category, it has been submitted by
Mr. Sanjoy Pipawal that it is settled law that on the ground of not possessing the requisite caste certificate by the reserved categories candidates, their
candidature cannot be rejected rather they have to be considered in unreserved/General Category as held by the Hon’ble Supreme Court in case
reported in 2001(6) SSC 571 M.C.D-Vs- Veena and Ors.(Para-8).
Further to discard the arguments advanced by learned counsel for the petitioners in W.P(S) No 3876/2018 (Dr.Rishi Raj-Vs- State of Jharkhand
and Ors.) that caste certificates which were issued after the cutoff date in favour of Kumar Arnav Swarup and Priti Kiran who belong to S.C
category, were taken into consideration and thereafter they have been appointed and Petitioners in support of his aforesaid contention has also filed
3rd supplementary affidavit on 02.08.2019, it has been submitted by Mr. Sanjoy Piprawal that Kumar Arnav Swarup and Priti Kiran have submitted
valid caste certificate issued before the last date of submission of online application form issued by competent Authority at the time of verification of
their testimonials and thereafter only they were recommended for appointment which would be evident from perusal of their caste certificates which
is being filed along with reply to the 3rd supplementary affidavit filed by the Petitioner.
To strengthen his arguments, learned counsel appearing for the Commission has placed heavy reliance on the following Judgments:-
(i) L.P.A. No. 610 of 2017 â€" Jharkhand Staff Selection Commission Vs. The State of Jharkhand and others.
(ii) W.P.(S) No. 1921 of 2018 - Rohan Thakur Vs. The State of Jharkhand and others.
(iii) L.P.A. No. 469 of 2015 and other analogous cases - Prem Chand Kumar Vs. The State of Jharkhand and others and other analogous cases.
(iv) L.P.A. No. 169 of 2015 â€" Rishi Kumar Vs. Jharkhand Public Service Commission and others.
(v) W.P.(C) No. 6149 of 2018 â€" Pankaj Kumar Vs. The State of Jharkhand and others.
FINDINGS AND OBSERVATIONS OF THE COURT:
It appears that these matters were heard on various dates and ultimately it was heard on 02.08.2019. On earlier dates, certain questions of law
were also formulated by this Court for determination:
i. Whether there was any cut-off date mentioned in the advertisement?
ii. Whether caste certificate was required to be submitted on or before the said cut-off date?
iii. Whether cut-off date so fixed was the date for verification of caste certificates or last date of submission of application form?
iv. Whether the petitioners can be treated as a reserved category candidate even though they did not produce valid caste certificate in terms of the
respective advertisements?
v. Whether the caste certificate, if submitted by the petitioners, had been issued by the competent authority in terms of the stipulation made in the
advertisements?
vi. Whether the caste certificates, if submitted, had been issued in prescribed proforma in terms of the respective advertisement and as per rule?
vii. Whether in a situation when petitioners have qualified and obtained more marks than the last selected candidates in their respective categories,
their candidature can be rejected on hyper-technical grounds in their respective category for non-submission of Caste Certificates before the cut-off
date?
viii. Whether the respondents can be permitted to once allow the petitioners to appear in the examination as a reserved category candidates in
respective category, can further treat them under general category on the hyper - technical grounds?
From the materials available on record, it appears that in the Advertisements specific criteria have been mentioned to the effect that reserved
categories candidates will have to obtain valid caste certificates first in terms of respective Advertisements in prescribed Proforma issued by
competent officer in terms of advertisement and thereafter only they will submit their online application and in online application forms candidates
were also required to mention details of their caste certificates and its issuance date and aforesaid caste certificates were required to be produced by
the candidates before the Commission at the time of verification of the documents and if candidates failed to produce valid caste certificates in terms
of the Advertisements, then their candidature will be consider only under unreserved category and no benefits of reservation will be extended.
Petitioners after going through the terms and conditions of the respective Advertisements have submitted their online application forms and in order to
claim benefits of reservation have mentioned their caste certificate number and issuance date in their online application forms. On the basis of the
declaration as made by the Petitioners, respective Commissions treated their candidatures in reserved category and accordingly they were allowed to
appear in the Examination. Petitioners on being declared successful in the Examination, were directed to appear before the Commission for
verification of their testimonials as mentioned by them in their online application form and in terms of the Advertisement. On the date of verification
and during the course of verification of the testimonials, it was found that Petitioners have no valid caste certificate in terms of the Advertisement and
it was also found that petitioners have made false declaration in their online application form about possessing valid caste certificate in terms of the
Advertisement issued before the last date of the submission of the online application form or in terms of the advertisement. Thereafter Petitioners
have produced caste certificates issued after last date of submission of the online application form, which was not considered by the respective
Commissions and candidature of the Petitioners were considered in unreserved category and Petitioners have secured less marks than the last
recommended candidate in unreserved category and some are over age in unreserved category and as such they have not been recommended for
appointment.
Instant writ applications have been filed by the Petitioners on the ground that in view of the Judgment passed in the case of Ram Kumar Gijroya,
the Commission is bound to accept the caste certificate issued after the last date of submission of the online application form. This prayer of the
Petitioners is not acceptable on the ground that Petitioners were well aware about the terms and condition of the Advertisements and there after only
they have submitted their online application form before the Commission for consideration of their candidature. The Petitioners were well aware that
they are not possessing the valid caste certificates in terms of the Advertisement upto the last date of submission of online application form, in spite of
that they mentioned wrong information about caste certificate number and date in their online application form. When it has been detected by the
Commission that Petitioners are not possessing the valid caste certificate as mentioned by them in their online application form and they have made
wrong declaration in their online application form and as such benefits of reservation cannot be extended to them, thereafter Petitioners have filed
instant writ applications and as such the same are not maintainable and fit to be dismissed for the following facts and reasons.
(i) After appearance in the examination, terms and condition of the Advertisement cannot be challenged by the unsuccessful candidates.
(ii) Selection process has to be completed strictly in terms of the Advertisement.
(iii) After starting the selection process the terms and condition of the advertisement cannot be changed.
(iv) That if the prayer of the Petitioners is allowed, the same will amount to change of terms and conditions of the Advertisement, which is not
permissible in the eyes of law.
(v) If submission of the Petitioners as made during course of hearing to the effect that even if there is criteria mentioned in the Advertisement about
submission of the caste certificate issued in Proforma by an officer not below the rank of Sub Divisional Officer before the last date of the submission
of the Online application form is not mandatory in view of the judgments of the Hon’ble Supreme Court is accepted, the same will amount to
challenging the terms and conditions of the advertisement after appearance in the examination and same will also amount to change the terms and
conditions of the Advertisement which is not permissible in the eyes of Law.
(vi) The submission of the Petitioners to the effect that once the petitioners have been allowed to appear in the Examination as a reserved category
candidate there after their candidature cannot be considered in unreserved category, the aforesaid submission of the Petitioners is also not correct and
cannot be accepted in view of the law laid down by the Hon’ble Supreme Court that candidature of the reserved category candidate on the
ground of having no valid caste certificate cannot be rejected rather their candidature has to be considered in unreserved category.
(vii) Ratio as laid down by the Hon’ble Supreme Court in Ram Kumar Gijroya case is not applicable in these cases in view of the fact that in Ram
Kumar Gijroya case, the submission of OBC certificate was introduced at the time of publication of the result where as in the present case the
specific criteria has been mentioned in the Advertisement that reserved categories candidates will have to obtained the caste certificate first and there
after only they will submit their online application form mentioning therein the caste certificate number and date of issue and caste certificate must be
issued before the last date of submission of online application form i.e.15.03.2016 in proforma mentioned in the Advertisement issued by an officer not
below the rank of Sub Divisional Officer.
(viii) The order dated 21.01.2016 as passed by the Hon’ble Kerala High Court in W.P(C) 39210/2015 (A) and order dated 12.07.2017 passed by
Hon’ble Kerala High writ appeal No. 655 of 2016 are not applicable in view of the fact that facts of the aforesaid case is different which would
be evident from perusal of Para-4 of the Order dated 21.01.2016 passed in W.P(C) 39210/2015 (A) which is quoted below:-
“the learned counsel for the Petitioner raises two ground of challenge against Ext-P10. First, that the OBC certificate could be produced even at
the time of the Interview since there is no specific date of issuance of the OBC certificate prescribed in the Notification. The requirement, it is argued
, was only for production of the certificate at the time of interview for document verification. The other ground is that the choices / option made by the
Petitioners were unilaterally varied by the Respondents.â€
In Para -8 it has further been held that
“learned CGSC would refer to Annexure-R3 (c) a circular issued by the Department of Personnel and Training, which mandates that OBC
Certificate in prescribed format issued up to 180 days from the closing date of application alone could be accepted. First of all the internal
communication issued cannot be relied on to restrict a benefits given to a person under the Notification.â€
(ix) In the facts and circumstances of the instant cases, the Order dated 18.05.2019 passed by Hon’ble Division Bench of this Hon’ble Court
in W.P(S)1921/2018 Rohan Thakur â€"vs- State of Jharkhand and Ors is applicable in which the ratio laid down by the Hon’ble Supreme Court in
Ram Kumar Gijroya Case and order dated 12.10.2018 passed in L.P.A No. 610/2017 Anil Tanti case have been considered in terms of Advertisement
of aforesaid cases.
(x) The law laid down by Hon’ble Supreme Court in Ram Kumar Gijroya Case is not applicable in the instant case. In the said case of Ram
Kumar Gijroya, requirement of submission of O.B.C. certificate was not mentioned in the Advertisement and requirement of the submitting of the
O.B.C certificate before the cut-off date of the application was introduced by the respondents, which would be evident from perusal of Para-08 and
14 of the order of the Hon’ble Supreme Court.
Para-8 and 14 of the judgment are being quoted herein below:-
“8. the requirement of submitting the O.B.C certificate before the cut-off date of the application was introduced by the respondent D.S.S.S.B only
while declaring the result on 15.12.2008 holding that appellant was not eligible for selection to the post of Staff Nurse as the O.B.C certificate was
received after the cut-off dateâ€.
“14. the learned single judge of the High Court has rightly held that the Petitioners therein were entitled to submit the O.B.C certificate before the
provisional selection list was published to claim the benefits of reservation of O.B.C category.â€
It further appears that in the instant selection processes, the specific criteria has been mentioned in the respective advertisements for obtaining the
caste certificate before the last date of submission of online application forms and details of the caste certificates were required to be mentioned in the
online application forms and as such the Ram Kumar Gijroya case, is not applicable in this case.
It is further relevant to mention here that the Division Bench of this Court in L.P.A No 610/2017 and L.P.A No.618/2017, Jharkhand Staff
Selection Commission â€"Vs- State of Jharkhand and Ors. after considering the several judgment of this Hon’ble court and other Hon’ble
High Courts has been pleased to held that “a coordinate bench in the case of Prem Chnad Kumar (Supra) distinguished between default or delay in
furnishing caste certificate and residential certificates and decided the case against the applicant on default on the latter count. The coordinate Bench
opined that no leniency could be shown by the Court if the cut â€"off date is crossed and it was upto the employing body to relax any qualification
norm†. The Hon’ble division Bench in Para-21 of the judgment has further been pleased to hold that “the Full Bench decision of the
Hon’ble Allahabad High Court in the case of Gaurav Sharma (Supra) examined the question as to whether candidature of the OBC candidate is
liable to be rejected on the ground of the caste certificate having been submitted after the last date from submission of applications. In these two
proceeding, that is not the question.
The Hon’ble Division Bench of this Court in L.P.A 610/2017 and L.P.A 618/2017 has been pleased to hold that where there is no cut-off date
fixed for submission of caste certificate in that case Ram Kumar Gijroya case is applicable and where there is specific date i.e cut â€"off date
mentioned in the Advertisement for submission of caste certificate, the ratio of Ram Kumar Gijroya case will not be applicable. It is not out of place to
mention here that judgment and Order dated 12.10.2018 passed in L.P.A No.618/2017 and L.P.A 610 of 2017 were challenged by the Jharkhand
Staff Selection Commission before the Hon’ble Supreme Court and the Hon’ble Supreme Court has been pleased to dismiss the same with
the observation “however, the question of Law is kept openâ€. After passing the order by the Hon’ble Supreme Court in SLP No. 32332/2018,
the Hon’ble Division Bench of this Hon’ble Court in W.P(S) No. 1921/2018 Rohan Thakur â€"Vs- State and Ors. again considered the ratio
laid down by the Hon’ble Supreme Court in Ram Kumar Gijroya case as well as Order passed by this Hon’’ble Court in L.P.A No.610
/2017 i.e. Anil Tanti case and Hon’ble Division after hearing has been pleased to dismiss the aforesaid case with an observation vide Para- 3, 4,
5,6 and 7 that in view of the specific stipulation made in the Advertisement about obtaining the caste certificate before last date of submission of
Application form, the ratio laid down in Ram Kumar Gijroya case and Anil Tanti case are not applicable.
Further, the Hon’ble Division Bench of this Court in L.P.A No. 469 /2015 Prem chand Kumar Vs. State of Jharkhand And Ors. vide its Order
dated 21.06.2018 has been pleased to hold that in view of the specific criteria mentioned in the Advertisement about submission of the caste and
residential certificate along with application form upto the last date of submission of application form for extending the benefit of reservation, the
prayer of the Petitioner can’t be allowed for submission of aforesaid Certificate after the last date of submission of application form in the light of
judgment passed by the Hon’ble Supreme Court in Ram Kumar Gijroya case and further been pleased to hold “much has been argued by the
learned counsel for the appellant by relying upon the decision rendered by the Hon’ble Supreme Court reported in (2016 (4) SCC 754), in which it
has permitted to supply the documents after the cut of date. Perhaps, it is only the exception to catena of the decisions. We have to look carefully at
the facts of that case. In the facts of that reported case, explicitly the condition was imposed to supply a particular type of Certificate, after the result
was declared. The format was given after the result was declared (as per Para-8 of the said judgment). It is a distinguishable feature. In the facts of
the present case, looking to clause 12 of the public Advertisement which is at Annexure-1 to the memo of this Letters Patent Appeal, Residential
Certificate as well as Caste Certificate issued by an Officer not below the Rank of Sub-divisional Officer was to attached with the application form.
This appellant (original Petitioner) has submitted the Caste Certificate correctly, whereas, Residential Certificate was not supplied as per the
requirement. This fact make the present case different from the facts of the aforesaid reported decision and further been pleased to dismissed the
L.P.A. in terms of order dated 21.06.2018.
Further, the Hon’ble Division Bench in view of the specific stipulation made in the Advertisement No.04/2013 has been pleased to hold in
L.P.A No. 169/2015 (Rishi Kumar Vs. J.P.S.C and Ors) vide Order dated 1.09.2015 that “this Appellant could not produce the caste certificate of
B.C- II on or before 10.01.2014 in the format which is prescribed by the J.P.S.C as mentioned in the Advertisement no error has been committed by
the learned Single Judge. This appellant cannot get benefits of any reservation for the seat of the B.C â€"II category and therefore he is considered as
General category candidate by the J.P.S.C. We, therefore, see no reason to interfere with the decision rendered by the learned single judge in W.P.
(C) 842/2015. (This Order relates to submission of OBC caste certificate meant for Government of India services which has been held not valid for
extending the benefits of reservation in state because in Jharkhand State there are two category i.e. B.C-I and B.C-II )
In the case of Pankaj kumar-Vs- State and Ors. in W.P.(C) No. 6149/2018., vide order dated 29.01.2019, it has been held that
“Benefits of reservation to a member of B.C-I category is to be extended in favour of such candidate who is not coming under creamy- layer but
the caste certificate is simplicitor as a caste certificate showing the petitioner a member of the B.C-I category but whether he is entitled to get
benefits of reservation in the initial recruitment would be depend when a certificate to that effect would be issued by the competent authority taking
into consideration the income but the same is not available in the caste certificate as Annexed as annexure-6â€
And after considering the facts and circumstances of the case and specific terms and condition of the Advertisement the Hon’ble single judge has
been pleased to dismiss the same in terms of the order dated 29.01.2019.
Further, in W.P(C) No. 6267 of 2018 (Deepak Kumar Das â€"Vs- J.S.S.C and Anr.), after considering the facts and circumstances of the case
as well as specific criteria mentioned in the advertisement, vide order dated 28.02.2019, it has been held in Para-13 of the order that
“if the caste certificate, submitted with the application form by the Petitioner would be found to be proper i.e. the condition stipulated to be fulfill,
but since the Petitioner has got the caste certificate on 29.07.2017, therefore he cannot be treated to be at par with the other candidates in absence of
the caste certificate, not obtained on or prior to 26.07.2017â€.
While dismissing the writ application, it has further been observed in Para-14 of the order that
“it is not in dispute that if a condition is mentioned in the advertisement, it is to be strictly adhered to. Reference in the regard will be made to the
judgment rendered in the case of Bedanga Talukdar â€"Vs- Saifudaullah Khan And Ors reported in 2011(12) SCC 85†.
This Court in W.P(S)No. 5665/2013 Surja Kujur -Vs- State Of Jharkhand And Ors., in terms of order dated 05.11.2018, has been pleased to hold
vide para-7 of the judgment that Ram Kumar Gijroya’s case is not applicable in view of the specific terms and condition of the Advertisement.
Further, in L.P.A No. 517/2016 [Jamshed Kazi â€"Vs- J.P.S.C and Ors] in terms of order dated 09.07.2018, it has been held by the Hon’ble
Division Bench that caste certificate issued by circle officer is not valid for extending the benefits of reservation.
In W.P. (S )No. 6122/2017 Rahul Kumar â€"Vs- State and Ors in terms of order dated 4-7-2018, this Court has been pleased to hold that caste
certificate issued after the cut-off date is not valid and OBC caste certificate is also not valid for extending the benefits of reservation to BC-I and
BC-II categories candidates.
In view of facts and circumstances mentioned hereinabove, I find that instant writ applications are also not maintainable and fit be dismissed in
view of the fact that Petitioners were well aware about the terms and condition of the advertisement and thereafter only they submitted their online
application forms but at the time of verification of documents, they failed to produce proper caste certificate in Proforma as mentioned in the
advertisement for extending the benefits of reservation and when Petitioners were treated as a unreserved category, they filed instant writ applications
for relaxation of the terms of the Advertisement which is not maintainable in view of the facts and in view of the settled law that after appearance in
the examination, the terms and condition of the advertisement cannot be challenged by the unsuccessful candidate. In this connection, reference may
be made to the Judgment reported in (2011) 1 SCC 150 [Para 24 to 28] and (2007) 8 SCC 100 [Para 18] and recent Full Bench Judgment of the
Hon’ble Supreme Court reported in (2017) 4 SCC 357 (Para 12 to 21).
The instant writ applications are also not maintainable and fit to be dismissed in view of the settled law that terms of the advertisement cannot be
changed after starting the selection process as has been held by Hon’ble Supreme court as reported in (2015) 8 SCC 484 [para-8 to 10] and 2005
(3) JLJR 100 SC [Para -14].
The writ applications are also not maintainable and fit to be dismissed by this Court in view of the settled law that selection process has to be
completed strictly in terms of the criteria mentioned in the Advertisement as held by the Hon’ble Supreme Court in the case of Bedanga Talukdar
-Vs- Saifudaullah Khan and Ors reported in (2011) 12 SCC page 85. Paragraph-29 and 32 of the Judgment rendered in the case of Bedanga Talukdar
Vs. Saifudaullah Khan and others reported in (2011) 12 SCC 85, reads as under:
“29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public
office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any
undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection
procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be
any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the
relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such
power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This
would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and
compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14
and 16 of the Constitution of India.â€
… … …
In the fact of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and
materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of
relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, he same would still have
to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High
Court could not have issued the impugned direction to consider the claim of Respondent 1 on the basis of identity card submitted after the selection
process was over, with the publication of the select list.â€
The Hon’ble Supreme Court again in case reported in 2019 (3) SCC 672 in the case of High Court of Hyderabad â€"Vs- P. Murali Mohan
Reddy and Ors has been pleased to retreat in Para 15 that appointment are to be made in terms of the stipulation contained in the Advertisement.
Hon’ble Supreme Court in judgement reported in 1996(3) SCC 320 (J. Ashok Kumar â€"Vs- A.P and Ors.) has been pleased to hold that
“Selection having already over and selected candidates having been appointed, relief refused.â€
Hon’ble Supreme Court in judgement reported in 2001(6) SCC 571 (M.C.D â€"Vs- Veena and Ors.) has been pleased to hold that “that
candidature of a reserved category candidate cannot be rejected on the ground of not possessing the valid caste certificate rather his candidature has
to be considered in unreserved category .†The order passed by Hon’ble Kerala High Court in W.P(C)
No.39210/2015 (A) and Order date 22.07.2017 passed by Hon’ble Division Bench in Writ appeal No. 655/2016 are not applicable in this case in
view of the facts and circumstances of the case.
The Hon’ble Apex Court in the case of Municipal Corporation of Delhi Vs. Surender Singh & Others, reported in 2019(7) Supreme 30,6 has
specifically held at paragraph-9 thereof that Courts have observed that even if the criteria fixed is defective, the Courts are ordinarily not required to
interfere as long as the same standard/ yardstick has been applied to all the candidates and did not prejudice any particular candidate. It is further
relevant to quote para-19 of the said Judgment, which reads as under:-
“19. On noticing the manner of consideration made by the Division Bench, we are of the view that the Division Bench has exceeded the
jurisdiction while exercising the power of judicial review in the matter of selection process by evolving its own criteria and substituting the same with
the criteria adopted by recruiting agency. We are of the said view for the reason that the position of law is well established that the recruiting agency
cannot be compelled to fill up all available posts even if the persons of the desired merit are not available. This Court in the case of Ashwani Kumar
Singh vs. U.P. Public Service Commission & Ors. (2003) 11 SCC 584 : (2003) 4 Supreme 573 relied upon by the learned counsel for the appellant had
considered these aspects and held that it is not a rule of universal application that whenever vacancies exist persons who are in the merit list per force
have to be appointed. It is held therein that if the employer fixes the cutoff position the same is not to be tinkered with unless it is totally irrational or
tainted with malafides. It was further stated therein that the employer in its wisdom may consider the particular range of selection to be appropriate.
The decision of the employer to appoint a particular number of candidates cannot be interfered with unless it is irrational or malafide.â€
Further, in paragraph-23 of the said Judgment, the Hon’ble Court has held as under:
“23. Any undue sympathy shown to the private respondents herein so as to direct their selection despite not possessing the desired merit would
amount to interference with the right of the employer to have suitable candidates and would also cause injustice to the other candidates who had
participated in the process and had secured a better percentage of marks than the private respondents herein but lower than the cutoff percentage and
had accepted the legal position with regard to the employer’s right in selection process. In such event providing the benefit to the private
respondents herein by applying the principles laid in the case of U.P. Jal Nigam (Supra) as done by the Division Bench, would not be justified.â€
It has categorically been held by various Court that in no case can the court, in the garb of judicial review, sit in the chair of the appointing
authority to decide what is best for the employer. In the case of Maharashtra Public Service Commission v. Sandeep Shriram Warade, (2019) 6 SCC
362, in para-9 of the said Judgment, the Court has been pleased to hold as under in:
The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable
qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according
to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with
regard to desirable qualifications being on a par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of
equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the court cannot sit in
judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing
authority after appropriate orders, to proceed in accordance with law. In no case can the court, in the garb of judicial review, sit in the chair of the
appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the
same.â€
In the case of Rakesh Bakshi Vs. State of J & K, reported in (2019) 3 SCC 51,1 it has been held that the eligibility of the candidate must be
decided with reference to the qualification possessed as on the cut-off date and the qualification acquired later in point of time cannot make a
candidate eligible.
The question as to whether a person consciously takes part in the process of selection can turn around and question the method of selection, is no
longer resintegra and has been decided in the case of Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454. After
having taken part in the process of selection knowing fully well the criteria fixed by the Commission, the petitioners are not entitled to challenge the
criteria or process of selection. The petitioners have invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he
found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioners clearly disentitles them from
questioning the selection and the High Court did not commit any error by refusing to entertain the writ petitions.
As already discussed hereinabove with respect to the decision rendered by Hon’ble Kerala High Court in W.P(C) No.39210 of 2015 (A), the
said Judgment of Hon’ble single judge of Kerala High Court was passed on 20.01.2016 whereas in Ram Kumar Gijroya case, the order was
passed by the Hon’ble Supreme Court on 24.02.2016 and as such, the same has been decided without considering the order and Judgment passed
by the Hon’ble Supreme Court. In view of the aforesaid facts and circumstances, in instant case, the order dated 21.01.2016 as passed by the
Hon’ble Kerala High Court in W.P(C) 39210/2015 (A) and order dated 12.07.2017 passed by Hon’ble Division Bench of Hon’ble Kerala
High Court in writ appeal No. 655 of 2016, are not at all applicable and as such, in view of the specific terms and conditions mentioned in the
Advertisement, Order dated 18.05.2019 passed by Hon’ble Division Bench of this Hon’ble Court in W.P.(S) No. 1921 of 2018 in the case of
Rohan Thakur â€"vs- State of Jharkhand and Ors is applicable in which the ratio laid down by the Hon’ble Supreme Court in Ram Kumar Gijroya
Case and order dated 12.10.2018 passed in L.P.A No. 610 of 2017 [Anil Tanti case], have been considered in terms of Advertisement of aforesaid
cases. In view of the aforesaid facts and circumstances, instant writ applications are not maintainable and as such same are fit to be dismissed.
In the case of State of Tamil Nadu and others Vs. G. Hemalathaa and Another, reported in 2019 SCC Online (SC) 1113, the Hon’ble Apex
Court has been pleased to observe that the Instructions issued by the Commission are mandatory, having the force of law and they have to be strictly
complied with. Strict adherence to the terms and conditions of the Instructions is of paramount importance. The Apex Court stated that the High Court
in exercise of powers under Article 226 of the Constitution cannot modify/ relax the Instructions issued by the Commission. Further, the Hon’ble
Apex Court said that â€
“It cannot be said that such exercise of discretion should be affirmed by us, especially when such direction is in the teeth of the Instructions which
are binding on the candidates taking the examinations.â€
In the case of Union of India Vs. S. Vinod Kumar & Ors., reported in 2007(8) SCC 100, in paragraph-18, it has been held that:
“It is well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not
entitled to question the same.â€
In view of the facts and circumstances stated above and in view of the settled principles of law, this Court is of the considered view that prayer as
made by the petitioners in the aforesaid cases, cannot be accepted in view of the fact that the same will amount to violation of provisions of Articles
14 and 16 of the Constitution of India in view of the fact that other candidates who could not submit their online application forms due to non-
availability of the requisite Caste Certificates, as per the terms and conditions of the advertisement, up to the last date of submission of online
application forms, will be discriminated, as equal opportunity has to be given to all the candidates. It is not case of the petitioners that any candidate
securing lesser marks than the petitioners, have been selected under unreserved category. Since petitioners failed to fulfill requisite conditions
stipulated in the advertisement and could not submit valid caste certificate issued by competent authority within stipulated period, their candidatures
under respective reserved categories have rightly been rejected. There is no case that any person having lesser marks than the petitioners have been
declared successful under unreserved category ignoring the petitioners. Petitioners have been considered under unreserved category and no person
below the rank of petitioners have been considered under unreserved category. No ground for any interference is made out.
As a sequitur of the aforesaid rules, guidelines, legal proposition and judicial pronouncements, no case for any interference is made out and hence
all the writ petitions stand dismissed.
As a sequel thereof, all the Interlocutory Applications also stand disposed of.
No order as to costs.