Central Administrative Tribunal - Delhi
Selvavinodhini V vs Union Public Service Commission on 21 December, 2022
1
OA No.2616/2021
Court No.1 (Item No.38)
Central Administrative Tribunal
Principal Bench
OA No.2616/2021
MA 3627/2022
Reserved on:15.12.2022
Pronouncement on: 21. 12. 2022
Hon'ble Justice Ranjit More, Chairman
Hon'ble Dr.Chhabilendra Roul, Member (A)
Selvavinodhini V.
D/o K.C. Vetrivel
Aged 25 years
433A, Kolandhapalayam
Anjanur Village, Nambiyar Taluk,
Erode District, Tamil Nadu 638001
-Applicant.
(Through Advocate: Ms. Esha Mazumdar with Mr.Setu
Niket, Ms. Ashima Gupta and Mr. Rajat Bhatia)
Versus
1. Union Public Services Commission
Through its Chairman
Dholpur House, Shahjahan Road,
New Delhi-110069.
2. Union of India
Through Secretary
Ministry of Personnel, Public Grievances
& Pensions, Department of Personnel & Training
North Block, New Delhi.-110 001.
-Respondents
(Through Advocate: Mr.R.V. Shinha with Amit
Sinha, Mr. Piyush Gaur)
2
OA No.2616/2021
Court No.1 (Item No.38)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
The Department of Personnel & Training (DOP&T), Government India, vide notification dated 10.02.2020 notified the rules for the Civil Services Examination-2020. In pursuant to the aforesaid Civil Services Examination-2020 Rules, the Union Public Services Commission (UPSC) issued examination notice No. 4/2020 on 12.02.2020 inviting online applications for Civil Services (Preliminary) Examination-2020. The Last date to fill up the form was 03.03.2020.
According to the Rule 10 of the Civil Service Examination -2020 Rules, the candidate should also be in possession of all the requisite certificates in the prescribed format in support of their claim for such benefits for reservation / relaxation and these certificates should be dated earlier than the due date (Closing date) of the application of the Civil Services (Preliminary) Examination-2020. In other words, the candidates claiming reservation based on any caste/ community should have the requisite certificate in the prescribed proforma issued before 03.03.2020, the closing date for application for Civil Services (Preliminary) Examination- 2020. The said Civil 3 OA No.2616/2021 Court No.1 (Item No.38) Services Examination was held 04.10.2020 and the results were declared on 23.10.2020. The candidates qualified for admission to the Civil Services (Main) Examination-2020 were asked to fill up the Detail Application Form -I (DAF-I) and upload the requisite certificates in support of their age, educational qualification and community etc. Based on her performance the present applicant in the OA was called for Personality Test on 08.09.2021. The result of the Civil Services Examination-2020 was declared by the Union Public Service Commission (UPSC) on 24.09.2021. The present applicant was declared successful under the General Category with a rank of
272.
2. Ms. Selvavinodhini V., the present applicant applied for the Civil Services Examination-2020 under the OBC Category and during registration for Civil Services (Preliminary) Examination-2020 Ms. Selvavinodhini V furnished the community certificate No.4717/2011 of dated 12.12.2011 stating that she belongs to backward class as per Government Order No. 28 Backward Classes and Most Backward Classes Welfare dated 19.07.1994. However, this certificate was not in the format furnished by the Union Public Service 4 OA No.2616/2021 Court No.1 (Item No.38) Commission (UPSC). After she was declared qualified for the admission to the Civil Services (Main) Examination-2020, she filled up the Detail Application Form- I or DFA-I and uploaded OBC certificate dated 05.11.2020 in support of her claim that she belongs to the OBC Category. Ms. Selvavinodhini V, the present applicant's personality test was held on 08.09.2021. During the verification of documents at the time of the personality test, the applicant produced the OBC certificate dated 5.11.2020 and also produced another OBC certificate dated 29.04.2021. As both these certificates were furnished by her were issued after 3.3.2020, she was informed by the officials of UPSC about this deficiency. Vide Email dated 17.09.2021, the applicant was again directed to send a scanned copy of the relevant caste certificate dated prior to 03.03.2020 by stipulated date, i.e., 19.09.2021 followed by a hard copy. The present applicant neither uploaded the valid OBC certificate dated prior to 3.3.2020 nor she could produce the same in response to the Email dated 17.09.2021. On 18.09.2021, Ms. Selvavinodhini V provided the Income and Assets Certificate but she did not produce the copy of her OBC certificate dated 24.1.2020. The Income and 5 OA No.2616/2021 Court No.1 (Item No.38) Assets Certificate was required to support her claim that she does not belong to Creamy Layer of the OBC category. Ms. Selvavinodhini V, in response to the Email dated 17.09.2021, vide her email dated 30.09.2021 6 days after the declaration of the final results, requested the UPSC, respondent No.1, to grant her one week's time for submission of an OBC certificate which was issued prior to 03.03.2020. Subsequently, vide an email dated 01.10.2021, she forwarded an OBC certificate dated 24.1.2020. The respondent No.1, i.e., UPSC in their counter affidavit have stated that though the said OBC certificate was prima facie found to be in order, it was never produced by the applicant at any earlier stage. The certificate was produced by the applicant only after the declaration of the final result on 24.09.2021 wherein she was declared successful under the General Category. Between 06.10.221 and 15.10.2021 the applicant sent representations requesting the respondent no.1 to consider her case under OBC category in view of certificate issued on 24.01.2020. The applicant requested to respondent no.1 to condone the delay in providing the OBC certificate dated 24.1.2020. The UPSC, vide letter dated 29.10.2021 6 OA No.2616/2021 Court No.1 (Item No.38) rejected the request of the applicant. Being aggrieved the applicant has come to this Tribunal in the present OA.
2. Notices were issued to the respondents and the respondents have filed their counter affidavit to which the applicant has also filed her rejoinder.
3. The applicant in her OA has sought the relief for setting aside the communications dated 30.09.2021 and 05.10.2021 and 29.10.2021 issued by the respondent no.1, i.e., UPSC to the applicant stating her OBC certificate furnished earlier were not acceptable to them. She has further prayed to consider her candidature as OBC - Non Creamy Layer (NCL) for the purpose of service allotment in the Civil Services Examination 2020 and modify the provisional selection list dated 27.09.2021 issued by the respondent No.2 to the extent of excluding the name of the applicant as OBC - NCL candidate.
4. The applicant has taken mainly two grounds in support of her claim: (a) The applicant had not fraudulently claimed as OBC candidate. Throughout the process of filing application for the Civil Services 7 OA No.2616/2021 Court No.1 (Item No.38) (Preliminary) Examination-2020, the Civil Services (Main) Exam, particularly DF-I, she filled up the relevant column as OBC candidate and furnished the community certificate dated 5.11.2011, 5.11.2020 and another OBC certificate dated 29.4.2021. Because she was late for a few days for furnishing the requisite OBC certificate in the prescribed proforma, she should not be deprived the benefit of being considered under the OBC -NCL category for the said Civil Services Examination -2020. (b) She had requested for condonation of delay in submission of OBC certificate dated 24.1.2020, which was not considered by the respondent no.1 (UPSC ) favourably.
5. Ms. Esha Mazumdar, learned counsel for the applicant argued that the claim of the applicant is supported by several judgements of the Apex Court and High Courts. She has relied upon the judgment of Apex Court in Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board & Ors. AIR 2016 SC 1098; wherein it was held that the mere mention in the advertisement that non- submission of reserved category certificate within cut-off date would render the candidate ineligible even if otherwise 8 OA No.2616/2021 Court No.1 (Item No.38) selected would amount to denial equality of opportunity contemplated under Article 14,15, 16 and 39 A of Constitution of India. This judgment has relied on the judgments in the case of PUSHPA vs. Govt. of NCT of Delhi, 2009 SCC online 281 and the judgment in Tej Pal vs. Govt. of NCT of Delhi, 1999 SCC online Del 1092: ILR (2000) 1 Del 298; In the later case it has been as under;
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 be 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 petitioner did not belong to SC category prior 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. She has further cited the judgment in Karan Singh Yadav vs. Govt. of NCT Delhi and others; wherein it 9 OA No.2616/2021 Court No.1 (Item No.38) has been held that " it must be stated here that an identical fact situation came up for consideration before this Court in Ram Kumar Gijroya v. Delhi Services Selection Board & anothers, ( 2006) 4 SCC 754, wherein this court rules in favour of the concerned candidate. The instant matter is thus completely covered by the said decision." She has further cited the Union of India & Ors. Vs. Abdul Rasheed W.A. No. 655 of 2016 which has again quoted the judgment of the Apex Court reported in the case of Ram Kumar Gijroya vs. vs. DSSSB and also in the case of Indra Sawhney vs. Union of India 1992 Supp. (3) SCC 217: 1991 (L&S) Supp I : (1992) 22 ATC 385. These judgments have relied upon the decision of Ram Kumar Gijroya's case.
6. Learned counsel for the applicant has cited the judgment in the case of Latika vs. Staff Selection Commission and ors. in W.P. (C) 7695-2016; wherein the Delhi High Court has held that the OBC candidature of the petitioner was accepted though the petitioner had not submitted the OBC certificate within the prescribed time. She has argued that the undertaking demanded from the applicant at the time 10 OA No.2616/2021 Court No.1 (Item No.38) of personality test/ interview has no value in the eyes of law as the candidate was under pressure and she had no other choice but to sign such a undertaking. In Latika's case the Hon'ble Delhi High Court has referred to the decision in WP ( C) No.7304-2010 in Manjusha Banchhore vs. Staff Selection Commission and Anr. decided on 6.5.2013; wherein it was held :
"16. Moreover, in WP ( C) 7304/2010 Manjusha Banchhore vs. SSC and Anors, decided on 6.5.2013, a Division Bench of this Court had the occasion to examine the question of undertaking taken from the petitioner /candidate, in the prescribed format, at the time of interview. In the said undertaking the petitioner had agreed that she could not furnish the OBC certificate in the prescribed proforma, therefore her candidature should be considered in the unreserved category instead of OBC category. Keeping in view the nature of certificate it was observed that the petitioner therein was faced with a Hobson's choice to take it or leave and therefore, undertaking given was not voluntary.
7. Learned counsel for the applicant has further cited the judgment in Institute of Science and Research and others vs. Dr. Samitha VS in WA No.2029/2018; wherein the decision in the case of Ram Kumar Gijroya's judgment has been reiterated.
She further argued that Ms. Selvavinodhini V, present applicant is OBC by birth and she was in possession of 11 OA No.2616/2021 Court No.1 (Item No.38) the requisite OBC certificate in the prescribed proforma well before the date 03.03.2020. Only because she submitted the certificate after the due date she should not have been excluded from the OBC -NCL category.
8. The respondents, in their counter affidavit, have rejected the contentions of the applicant in the OA.
They have drawn attention of this Court to Rule 24 of the Civil Services Examination-2020 Rules wherein it has been stated that the candidate should have in possession of the requisite certificates in the prescribed proforma in support of their claim and such certification should have been issued well before the dated 03.03.2020, the last date to fill up the form for the Civil Services (Preliminary) Examination- 2020.
Note 1 page no.5 of the instruction to the candidates of Civil Services (Main) Examination -2020 stated that the candidate should note that their SC/ST/OBC etc. EWS certificate should be earlier than the closing date of application for Civil Services (Preliminary) Examination 2020, i.e., prior to 3.3.2020 as prescribed in the Rules 24 of the said Rules. Despite such a clear instructions it was not known as to why Ms. Selvavinodhini V, the present applicant, if she had in 12 OA No.2616/2021 Court No.1 (Item No.38) possession of such certificate in the prescribed proforma issued prior to 3.3.2020 and did not upload the said certificate at the time of filling up the information for the preliminary examination 2020 and the DFA-I for the main examination. It was not understood as to why she did not produce such a document, which was in her possession, at the time of personality test/ interview. Several opportunities had been given to her even after the personality test was over on 8.09.2021. On several occasions, she had produced three OBC certificates, none of which were in the prescribed proforma prescribed by the Civil Services Examination -2020 rules notified by the Department of Personnel & Training (DOP&T), Government of India. On three occasions, she had uploaded three OBC certificates dated 5.11.2022, 5.11.2020 and dated 29.4.2021. She was again given time vide email dated 17.09.2021 to furnish the OBC certificate in the prescribed proforma by 19.09.2021.
The Union Public Service Commission, respondent No.1, has to take a conscious decision within the stipulated period regarding the candidates who could not produce the desired documents by such an extended date. Ms.Selvavinodhini was one of the 13 OA No.2616/2021 Court No.1 (Item No.38) five candidates who did not submit the required documents by the stipulated extended time. In view of this the respondent no.1 has taken the conscious decision to consider her candidature under the General Category and she was declared successful with the rank of 272.
9. The respondent no. 1 has further stated in the counter affidavit that the applicant neither uploaded her OBC certificate dated prior to 03.03.2020 at the time of submitting the application for the Preliminary Examination and at the time of uploading the DFA-I for the Main Examination nor she produced the same during the verification of documents before the personality test. The applicant has failed to produce the same even in response to the email dated 17.09.2021. Under such circumstances, the UPSC has no other option but to consider Ms. Selvavinodhini's candidature under the General category to maintain the time schedule and sanctity of the selection process. In view of this, the respondents have asserted that Ms. Selvavinodhini V, the applicant has no case and the present OA should be dismissed 14 OA No.2616/2021 Court No.1 (Item No.38)
10. In support of their arguments, the learned counsel for respondents No.1 & 2, Mr.R.V. Sinha has cited several judgments. The first judgment cited by the learned counsel Ekta Shakti Foundation vs. Govt of NCT of Delhi reported as (2006) 10 SCC 337; decided on 17.7.2006; wherein it has been held as under:
"The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or [is violative of ] the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the court, it cannot interfere.
6. The correctness of the reasons which prompted the Government in decision making taking one course of action instead of another is not a matter of concern in judicial review and the court is not the appropriate forum for such investigation."
Further it has been held that in assessing propriety of a decision of the government, the court cannot interfere, even if a second view is possible from that of the government.
11. Mr.R.V. Sinha, learned counsel cited Union of India & Ors. Vs. Kali Dass BVatish & Anr. reported as (2006) 1 SCC 779; decided on 5.1.2006, wherein it was held that the Tribunals and Courts should not 15 OA No.2616/2021 Court No.1 (Item No.38) become the courts of appeal and sat over the decision of Government of India. It is only in cases where there is non-application of mind and where malafide intention has been alleged, judicial review is warranted. Mr. Sinha, learned counsel, has argued that in the present case the Union Public Service Commission has followed the rules and procedures scrupulously and has afforded several opportunities to the applicant to rectify the deficiencies in her application claiming as OBC-NCL category. Therefore, the principle of natural justice has been followed scrupulously and the UPSC has been more liberal in affording several opportunities to the applicant to correct the deficiencies in her present application and hence, there is no scope for any judicial review by the present Tribunal.
12. Mr.Sinha, learned counsel has cited the judgment in the case of Shankarsan Dash vs. Union of India, reported as (1191) 3 SCC 47 wherein it was held that the appellant is not entitled to be appointed against the General category vacancy after the closure of process of final selection. Citing this judgment Mr.Sinha has argued that when a final selection has 16 OA No.2616/2021 Court No.1 (Item No.38) taken place and the results have been declared, there was no scope for reviewing such results. The claim of the applicant, to review her selection as a General candidate because she submitted the OBC certificate in the prescribed proforma dated prior to 3.3.2020 six days after declaration of the final result, is not tenable.
13. Mr. R.V. Sinha, learned counsel has argued that the present applicant did not submit the OBC certificate in the prescribed proforma as per rule of Civil Services Examination-2020 Rules. She has claimed the benefit of OBC community based on defective OBC certificate. He further cited the judgment Union Public Services Commission. vs. Gaurav Singh & Ors. In SLP (C) No. 426/2021 wherein it was held that the certificate would have to be issued as per the prescribed procedure by the prescribing authority in the prescribed format given in the rules. In the said judgment, it was held:
"Referring to the advertisement/notification dated 24. 04.2019, the High Court found that the criteria in the OM dated 31.01.2019 had been incorporated in the selection process. In other words, the certificate would have to be issued as per the prescribed the procedure by the prescribed authority in the format given in the OM. The High Court noted that the income and asset certificate had to be dated earlier than 17 OA No.2616/2021 Court No.1 (Item No.38) 01.08.2019. This was a one time relaxation since reservation for EWS category was made by a recent notification. In this case, as recorded by the High Court, the appel1ant-Union Public Service commission rejected the certificates on àccount of discrepancies. To be specific, the certificates relate to the financial year 2019-2020 while they should have been for the financial year 2018-2019. Furthermore, the certificates were of a date subsequent to the last date specified."
It has been said that the rejection of the candidate because of the facts and circumstance of the case could not be said to be whimsical. Mr. Sinha, learned counsel drew parallel attention to the instant case wherein the UPSC has adopted due diligence and given several opportunities to correct deficiencies to Ms. Selvavinodhini V.
14. Mr.R. V.Sinha. learned counsel further argued that by giving a relaxation to Ms. Selvavinodhini, the present applicant for her delayed submission of the OBC certificate dated prior to 3.3.2020 would open the pandoras box and it would also be violative of equality. There may be similarly placed people who could not procure the relevant certificate in the prescribed proforma in time and they might have applied as general category. Moreover, four more candidates who could not rectify their deficiencies in 18 OA No.2616/2021 Court No.1 (Item No.38) their applications even after the personality test and opportunity was given to them will equally claim for relaxation. Hence, considering the claim of Ms. Selvavinodhini V as a special case would violate the principle of equality to such large number of candidates who could not apply under the relevant category due to non-procurement / non-furnishing of such certificate in time and applied under the general category. He further cited the judgment of Ashok Kumar Sharma vs. Chandershekhar (1993) SCC page 616-17 para 15, which cited Karan Singh Yadav vs Govt.of NCT of Delhi in SLP (c) No. 19489/2016; wherein it was held as under:
" 6. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this propositions is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the 19 OA No.2616/2021 Court No.1 (Item No.38) prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inspection itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgement"
Mr. Sinha, learned counsel drew analogy of this case to the instant case.
15. Mr. Sinha, counsel for the respondents, further cited the judgment in Union of India & ors vs. Mahendra Singh; reported as 2022 SCC online SC 909 wherein it was held: "In G. Hemalathaa, the condition that usage of whitener, sketch pens, pencil, colour pencils, multi-colour pens would lead to invalidation of the answer book. In these circumstances, it was held that violation of such mandatory conditions by the candidate disentitles for declaration of her result for appointment to the post of Civil Judge." Here in the judgment, Ram Kumar Gijroya's case was also discussed and it was stated that those cases have distinguishably separate facts. The distinguishable facts in the instant case is that Ms. Selvavinodhini V. has submitted the relevant OBC certificate six days after the declaration of the final result but in the case Ram Kumar Gijroya's (supra) 20 OA No.2616/2021 Court No.1 (Item No.38) the candidate has submitted his certificate of belonging to OBC after the last date of submission of the application but before the final selection.
16. Mr.R.V. Sinha, learned counsel in support of his argument cited the judgment in case of Gaurav Sharma vs. State of UP, reported as 2017 SCC online 1286 in which the Full Bench of Allahabad High wherein the Court had formulated three issues. One of the issues was that " Whether the candidature of an OBC candidate is liable to be rejected on the ground of the caste certificate having been submitted after the last date for submission of applications ?". The court answered this question in the negative and held that an OBC candidate is not exempt from the rigours of a cut-off or last date prescribed in an advertisement or recruitment notice. Mr. R.V.Sinha, learned counsel argued that in the present case rigours of the cut off date or the last date prescribed in the rules is sacrosanct. He cited the judgment Bedanga Talukdar vs. Safifudaullah Khan & Ors, reported as 2017 as (2011) 12 SCC 85 wherein it was held:
" Para 29 We have considered the entire matter in detail, In Our opinion, it is too well settled to need any further reiteration that 21 OA No.2616/2021 Court No.1 (Item No.38) 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.
17. Mr.Sinha learned counsel has argued that the rules as notified by the Department Personnel and Training did not have any scope for relaxation of any of these conditions. In the instant case Ms. Selvavinodhini V is praying for relaxation of the conditions that she was required to submit the relevant OBC certificate by the extended due date is 22 OA No.2616/2021 Court No.1 (Item No.38) not valid and not permissible under law and such course would violate the mandate of Article 14 and 16 of the Constitution of India. In the said judgment it has been further held as under:
"32. In the face 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, the same would still have to be specificallý indicated in' the advertisemment. 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.
33. In view of the above, the' appeals are allowed and the impugned judgment and order dated 4-3- 2010 passed in WP (C) No. 950 of 2010 andand the impugned judgment and order dated 2-7- 2010 passed in WP (C) No. 3382 of 2010 of the High Court are set aside."
18. Mr.Sinha learned counsel in support of his argument have cited the judgment in State of Tamil Nadu Public & Ors. Vs. G. Hemalathaa & Anr., reported as 2019 SCC online SC 1113; wherein it has been held as under :
23OA No.2616/2021
Court No.1 (Item No.38)
8. We have given our anxious consideration to the súbmissions made by the learned Senior Counsel, for the Respondent. The Instructions issued by the Commission are mandatory, having the forçe of law, and they have to be strictly Complied with. Strict adherence ťo the terms and conditions of thė Instructions is of paramount importance. The High Court in exercise of powers under Article 226 of the Constitution cannot modify/relax the' Instructions issued by the Commission.
9. XXXXXXXX.
10. In spite of finding that there waş no adherence 'to the Instructions, the High Court granted the relief, ignoring the mandatory nature of the Instructions. 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 examination.
11. In. her persuasive. appeal, Ms. Mohana sought to persuade us to dismiss the appeal whiçh would enable the Respondent to compete in the selection to' the post of Civil Judge. It is a' well-known adage that, hard cases make bad law. In Umesh Chandra Shukla. v. Union of India, Venkataramiah; , held that:
"exercise of such power of moderation is likely to create a feeling of distrust in the process of election to public appointments which is intended to be fair and 'impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness. The cases pointed out by the Hingh Court are no doubt hard Cases, but hard cases cannot be allowed to make bad law. In the circumstances, we lean in favour of a strict construction of the Rules and hold that the High Court had no such power under the Rules."24 OA No.2616/2021
Court No.1 (Item No.38)
12. Roberts, CI, in Caperton v. A.T Massey held that;
"Extrerme casės often test the bounds of established legal principles. There is a cost to yielding to the desire 'to correct the extreme case, rather than adhering to the legał principle. That cost has been demonstrated so often that it is captured in à legal aphorism; Hard cases bad law"
19. Mr. Sinha , learned counsel has argued that in the instant case Ms.Selvavinodhini V, the present applicant, is requesting for correction of an extreme case and correction of such hard case will make a bad law. Mr. Sinha learned counsel has cited the case of Dr. Anandamoy Ghosh vs. UOI & Ors, reported as 2014 SCC online cal 21543 wherein it was held:
13. The UPSC was extremely lenient. It interviewed the petitioner and gave him repeated opportunities to produce his experience certificate when, under the terms and conditions of the employment notice, he was to produce the Original experience certificate at the time of interview . It is not known why the UPSC was so kind to the petitioner and whether it was equally kind to the other candidates adopting the same method. But this court is unable to appreciate the things.
14. A process for selection and appointment to a public office should be absolutely transparent and there should be no deviation from the, terms and conditions of the employment notice and the rules applicable to the process in any manner whatsoever; for a deviation for a' particular candidate amounts to gross injustice to the other candidates not knowing the fact of deviation "benefiting only one or a few. The procedure should be same for all the candidates. In our 25 OA No.2616/2021 Court No.1 (Item No.38) opinion, the Tribunal rightly dismissed the petitioner's OA.
20. Mr. Sinha argued that adequate opportunity has been given to Ms. Selvavinodhini V to correct the deficiencies in her application. Any deviation from the prescribed terms and conditions in her favour will amount to great injustice to other candidates not knowing that such deviation would be adopted by the UPSC. In view of this, Mr. Sinha had argued that the OA has no merit and it should be dismissed.
21. We have gone through the pleadings of the case thoroughly and heard the arguments of both parties carefully. As regards to the prayer by the applicant that UPSC has erred in considering her case as General Category candidate instead of OBC category despite the facts that she has submitted the requisite certificate albeit with a delay of 11 days. The facts and circumstances of the case points to that the decision of the UPSC is not arbitrary or whimsical necessitating any judicial review. The UPSC has adopted due diligence in pointing out to Ms. . Selvavinodhini on several occasions about the deficiencies in her application and she was given several opportunities to 26 OA No.2616/2021 Court No.1 (Item No.38) rectify such deficiencies. The liberal view taken by UPSC in informing her on the date of interview as well as subsequently on 17.09.2021 vide email shows the bonafide nature of UPSC. The UPSC has adopted due procedure and there is no infirmity in their process while dealing with deficiencies of Ms. Selvavinodhini V. The claim of judicial review by this Tribunal is not tenable. There are set principles for judicial review. As it has been held in Ekta Shakti foundation V. Govt of NCT's case, this Tribunal will not or should not substitute its own judgment for that of the Union Public Service that there was a a scope for second view possible i.e. that if the delay in submitting the OBC certificate in the prescribed proforma within the extended period of stipulated date could have been condoned, then it was possible that Ms Selvavinodhini V would have been declared as OBC candidate and she would have got a higher category of civil service . The Union Public service Commission, after considering the facts and circumstances of the case and taking the well-established practice of declaring the results within a time line, formed the opinion and took the decision in a particular manner. It is not enough that a second view is possible.
27OA No.2616/2021 Court No.1 (Item No.38)
22. In the instant case, there is no breach of the principle of natural justice. The appellant was afforded adequate opportunities to rectify the deficiencies in her application and furnishing the requisite information/certificate. UPSC has gone a long distance in accommodating the present applicant and a few others ( 12 of them) in giving extended time even at the time of and after the Personality Test/interview to rectify the deficiency, i.e. producing the OBC certificate dated prior to 3.3.2020 in case of the present applicant and other deficiencies for other 11 candidates. It is well-established law that if the decision of the executive is whimsical or arbitrary, then judicial review is warranted. The perusal of the records and admitted facts of the case point to a contrary position. UPSC has taken due consideration of the facts, the Civil Services -2020 Rules ( Rule 24 and Note-1 of the Instructions to the candidates how to apply) and afforded adequate opportunities to the present applicant to rectify the deficiencies in her application. She failed to provide the requisite certificate to avail her right to be considered as an OBC candidate. The decision of UPSC is neither 28 OA No.2616/2021 Court No.1 (Item No.38) whimsical nor arbitrary. Nor it can be assailed that the decision of UPSC suffers from non-application of mind as it has been discussed in Union of India v. Kalidash Batish case ( CA No.6663 of 2006).
23. The counsel for the applicant has mainly relied on the judgement in case of Ram Kumar Girjoya v. Delhi Subordinate Services Selection Board and Another [(2016) 4 SCC 754] which has accepted the ratio of judgments in Tejpal Singh and others v. Govt of NCT of Delhi and another ( (2000) ILR 1 Delhi 298], Indra Sawhney v. Union of India [ (1992) 3 SCC Supple 217] ; Puspa v. Govt of NCT of Delhi and Others [(2000) 2 Laws (Delhi) 278]. The Girjoya's case has been reiterated by the Apex Court in Karan Singh Yadav v. Govt of Delhi & others. In all these cases, the facts and circumstances are quite different than the present case. In all those cases, the delay in submission was before the final selection. But in the instant case , several opportunities were afforded to the present applicant and she failed to produce/upload the requisite OBC certificate within stipulated time , and further she produced the same after the declaration of the final results of the selection in respect of Civil 29 OA No.2616/2021 Court No.1 (Item No.38) Services , Examiniation-2020. Hence it is our considered view that the ratio of the aforementioned judgments does not apply to the instant case.
24. It has been rightly argued by the counsel for the respondents that the task of completing the selection within a time bound manner is sine qua non of transparency, efficiency and effectiveness in selection of candidates for the Civil Services by UPSC. The counsel for the respondents has relied on the judgment in Shankaranand v. Union of India, CA No 8613 of 1963 where in it was held that the applicant was not entitled to be appointed against a general category after the final selection. Similarly, in UPSC v. Gaurav Singh ( SLP no. 426 of 2020) it has been held that the certificate submitted within the time period of selection should be in the prescribed proforma. In the instant case, the present applicant furnished three OBC certificates on three occasion, namely at the time of filing the Application for the Preliminary Examination, DFA-I, at the time of filing the application for the Civil Services (Main) examination and thereafter at the time of Personality Test. None of these were in the prescribed format and dated prior to 3.3.2020 as 30 OA No.2616/2021 Court No.1 (Item No.38) required under Rule 24 of the Civil Services -2020 Rules. Hence, the rejection of the claim for OBC category can not be said to be whimsical. We agree with the counsel for the respondents that ratio of judgment in Union of India & Others v. Mahendra [CA no. 48 07 of 2002] which has reference to Hemlata case is attracted in the instant case. It has been held that when the mandatory terms and conditions stipulated in the test/examination for the recruitment were violated the declaration of her result for appointment as a civil judge was nullified. In the instant case, the present applicant did not adhere to the terms and conditions of the recruitment process and the system boundary set by the Union Public Service Commission and hence, is not entitled to the benefit of the reservation under OBC -NCL category. Once the applicant has subjected herself to the process and system boundary set up by UPSC, she was bound by the system conditionality. The right to reservation is not an unrestricted right to be exercised by the candidates at their own sweet will whenever they prefer to do so. To get the benefit of the reservation, the applicant has to exercise the option in the right manner at the right time and within the set principles 31 OA No.2616/2021 Court No.1 (Item No.38) or system boundaries set up by the authorities ( in this case UPSC). The counsel for the applicant had argued that the present applicant was in possession of the requisite OBC Certificate dated prior to dated 3.3.2020 but due to personal reasons could not submit/upload the same in time. However, it was not explained as to what compelling circumstances prohibited her to upload/submit such certificate in her possession on several(four) occasions( registration for preliminary examination, DFA-I for main Examination, at the time of Interview/Personality test and even after the email of UPSC to submit /upload it after Interview but by 19.9.2021).
25. The counsel for the applicant has indirectly drawn the applicability of Principle of Estoppel in the present case. She argued that the applicant is born OBC, she is OBC and will remain as OBC. The UPSC had accepted her claim as OBC and qualified her for the Main Examination and the Interview, accepting her as OBC candidate. Even if she failed to produce the requisite OBC certificate in the prescribed proforma during the course of the tests/ interview, the UPSC should have continued to treat her as OBC candidates once she produced the Income and Assets certificate 32 OA No.2616/2021 Court No.1 (Item No.38) within the stipulated time. They were, she argued , barred to act in a different manner once they have accepted her as OBC. We do not agree with this contention of the Counsel for the applicant. The rules and practices adopted in UPSC is quite transparent and applicable to all. The final test as to the category of candidate is decided before the final selection. The UPSC takes abundant precaution to verify the claims of candidates, affording them further opportunities to rectify the deficiencies in their cases. Till the finality of the results, the UPSC accepts the declaration of the candidates as belonging to a certain category as declared by them. This bonafide and liberal acts of UPSC should not be held against them. We do not agree that the principle of estoppels is attracted in the present case.
26. The counsel for the Respondents has argued that the cut-off date set by the Rules or the advertisement for the recruitment is sacrosanct. He has cited the judgment of the full bench of the Allahabad High Court in Gaurav Sharma v. State of U.P. where reference has been made to Bhupinder Singh v. State of Punjab (2000) 5 SCC 262 , Pramod Kumar v. U.P. Secondary 33 OA No.2616/2021 Court No.1 (Item No.38) Education Services Commission (2008) 7 SCC 153 and State of Orissa v. Mamtamohanty (2011) 3 SCC 436 and Rajendra Patel v. State of UP. In all these judgments it has been held that the cut-off date for eligibility is sacrosanct. Granting any benefit to the appellant for submission of legitimate documents after the due date would be violative of the doctrine of equality as enshrined in our constitution. In Rajendra Patel v. State of UP it was held:
" When the Commission holds public examinations on such large scale, candidates must be clearly aware of the fact that it is not open to a candidate to decide as to when an application should be submitted and compliance with the time schedule which has been indicated is mandatory. If this is not read to be mandatory, the entire process of holding an examination would stand dislocated. If no last date for the receipt of the hard copy of the application with the documents were to be provided for the issue which would arise would be until when would the Commission be required to consider the application submitted. Should this be until the examination is held or should this continue until the date fixed for the holding of the interview? These aspects cannot be left in uncertainty more so at the individual discretion of candidates." When the relaxation is given to candidates to furnish the legitimate documents after the due date or even after the declaration of the final selection, it would dislocate the selection/examination process and it 34 OA No.2616/2021 Court No.1 (Item No.38) would render the process in a perpetual state of uncertainty. In Chandra Kishore Jha v. Mahavir Prasad it was held that : " It is a well settled statutory principle that if a statute provides for a thing to be done in a particular manner, then it has to done in that manner and in no other manner". The Civil Services Examination-2020 Rules provided that the legitimate OBC certificate was to be uploaded/ submitted by a stipulated date. It was valid for all candidates and the present applicant should have adhered to the provision for these Rules. Again , we accept the contention of the counsel for the respondents that the ratio of the judgement of the Apex court in Bedanga Talukdar v Saifudullah Khan and Others (CA No 8343-44 of 2011 ) applies to the present case. In the instant case there was no power to relax any condition in favour of any candidate who had not furnished the legitimate certificate in time as this would have violated the mandate of articles 14 and 16 of the Constitution of India. It has been rightly held that : " even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement."
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27. UPSC performs the onerous task of conducting the Civil Services Examinations in which nearly 1.2 million candidates appear every year. The Commission is known for its transparency, efficiency and impartial manner of conducting the Civil Services Examination and selecting candidates to the premier services. By demanding relaxation of set Rules because of the negligent or other attitude of the candidates will open up the pandoras box and it would lead not only to uncertainty but it will also upstage the entire schedule of this annual exercise.
28. In view of the aforesaid reasoning spelled out in Paragraphs 21 to 27, we find no merit in the present OA and accordingly it is dismissed.
Accordingly, MA seeking preponement of date also stands disposed of.
(Dr. Chhabilendra Roul) (Justice Ranjit More) Member (A) Chairman /mk /