Sh. Rakesh Kumar vs State Of Himachal Pradesh And Another

Ajay Mohan Goel, J

By way of this writ petition, the petitioner has, inter alia, prayed for the following reliefs:-

“a) That the rejection order dated 5-11-2024 (Annexure P-9) issued by respondent, rejecting the petitioner's BPL certificate may kindly be quashed and set-aside.

b) That the respondents may kindly be directed to accept the petitioner's corrected BPL certificate (Annexure P-8) as valid and eligible for participation in the selection process for the post of fireman, and to include the petitioner in the list of recommended candidates for the said post.”

When the case was listed on 06.12.2024, the following order was passed:-

“Issue notice. Mr. Pushpinder Jaswal, Additional Advocate General, accepts notice on behalf of the respondents.

The grievance of the petitioner is that his candidature for the post of fireman under the ST/BPL has been rejected on the ground that he did not submit the certificate alongwith the application. Learned counsel for the petitioner submits that there was no such stipulation in the advertisement that the certificate had to be appended with the application form and further in terms of the judgment of the Hon’ble Supreme Court of India, non-submission of the certificate alongwith the application is a curable irregularity.

As prayed for, list on 09.12.2024, to enable learned Additional Advocate General to have instructions in the matter.”

Learned Additional Advocate General has produced the record including the application that was submitted by the petitioner. Perusal thereof demonstrates that the petitioner applied under the category of Schedule Tribe (BPL). Further, the Court stands informed by learned Additional Advocate General that it was only on the date of counselling i.e. 30.09.2024, that the petitioner produced his BPL Certificate, which was issued on 25.09.2024. Learned Additional Advocate General also submitted that the Certificate was not only issued after but was also produced after the date of the submission of application form i.e. 16.09.2024, therefore, the petitioner was not considered in the ST (BPL) category. The Court further stands apprised that the posts of ST (BPL) category, have not otherwise been filled up.

Facts as they emerge from the averments made in the petition as well as the record produced by the learned Additional Advocate General, are to the effect that the petitioner indeed belongs to Schedule Caste (BPL) category; at the time when the petitioner applied for the post, he did mention in the column of category that he was applying under ST (BPL) category; as on the last date of submission of the application form, the petitioner had not appended along-with the documents the Certificate of BPL and it was only on 30.09.2024 that the petitioner produced the BPL Certificate, which was issued in his favour by the Authority on 25.09.2024.

Learned counsel for the petitioner has submitted that the reason why the petitioner could not submit his BPL Certificate along-with documents was that there was a typographical error in the name of the village, in the earlier Certificate issued to the petitioner. Therefore, the petitioner applied for the correction thereof. After necessary correction was carried out, fresh Certificate was issued in his favour on 25. 09.2024  and  he  immediately  produced  the  same  on 23. 09.2024 i.e. on the date of counselling.

On the other hand, learned Additional Advocate General has submitted that besides the petitioner, there were other candidates belonging to ST (BPL) category, whose candidature was also rejected on the ground that they had not furnished the BPL Certificate on the last date of filing the application and, therefore, indulgence, if any, shown to the petitioner, would act to the prejudice of the other similarly situated candidates.

Hon’ble Supreme Court of India in Dolly Chhanda Vs. Chairman, JEE and others, 2005 (9) SCC 779, has been pleased to hold that the general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in the application form, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or mark-sheets. Similarly, in order to avail of the benefit of reservation necessary certificates have to be produced. These are documents in the nature of proof of entitlement to gain the benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature.

Thereafter, Hon’ble Supreme Court by referring to its earlier judgment in Charles K. Sakaria Vs. Dr. C. Mathew, 1980 (2) SCC 752, was further pleased to hold as under:-

“9. The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29.6.2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal.

The appellant had qualified in the JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current academic year.”

At this stage, it is relevant to refer to the relevant portion of the judgment of Hon’ble Supreme Court in Charles K. Sakaria Vs. Dr. C. Mathew (supra) also. Paragraph No.20 and 24 thereof, which are relevant and which have been referred to by the Hon’ble Supreme in Dolly Chhanda Vs. Chairman, JEE and others (supra), read as under:-

“20. There is nothing unreasonable nor arbitrary in adding 10 marks for holders of a diploma. But to earn this extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course ? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma, the proof thereof subserves the factum of possession of the diploma and is not an independent factor. The prospectus does say:-

(4)(b) : 10% to Diploma holders in the selection of candidates to M.S., and M.D., courses in the respective subjects or sub- specialties.

Certificates to be produced :- In all cases true copies of the following documents have to be produced:-

(k) Any other certificates required along with the application.

This composite statement cannot be read formalistic fashion. Mode of proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential in the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above board, is to make procedure not the hand made but the mistress and form not as subservient to substance but as superior to the essence.”

It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanises the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in Administration flows from over-emphasis on the external rather than the essential. We think the government and the selection committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and an mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like mark-lists from universities, why, even bail orders from courts and government orders from public offices. This frustrating delay was by-passed by the State Government in the present case by two steps. Government informed the selection committee that even if they got proof of marks only after the last date for applications but before the date for selections they could be taken note of and secondly the Registrars of the Universities informed officially which of the candidates had passed in the diploma course. The selection committee did not violate any mandatory rule nor act arbitrarily by accepting and acting upon these steps. Had there been anything dubious, shady or unfair about the procedure or any mala fide move in the official exercises we would never have tolerated deviations. But a prospectus is not scripture and commonsense is not inimical to interpreting and applying the guidelines therein. Once this position is plain the addition of special marks was basic justice to proficiency measured by marks.”

Therefore, it is evident from the said adjudications of the Hon’ble Supreme Court of India that unlike the proof of possessing the requisite education qualification on the last date of applying for the post, certificates like those which demonstrate the entitlement of a candidate for reservation, can be produced beyond the last date of submission of the application, within reasonable time. Non-submission of such a document with the application form is not fatal. This is obvious for the reason that a BPL candidate, even if he submits such a Certificate, after a few days, does not looses his identify of belonging to BPL category, just because he was not able to submit such a Certificate along-with the application form, for reasons beyond his control.

Accordingly, in light of the above observations, this Court is of the considered view that it would be in the interest of justice, in case, this writ petition is disposed of with the direction that let the merit of the candidates, who had applied for appointment under the ST (BPL) category, be assessed afresh, after taking into consideration the BPL Certificates, which were submitted by these candidates, after the last date of submission of application form, but as on the date, when the counselling was done. Ordered accordingly. Needful be done within four weeks from today and appointment be offered to the candidates, strictly as per merit. Record stands returned. Pending miscellaneous application(s), if any, also stand disposed of accordingly.