Madras High Court
K.Lakshmi vs The Registrar General on 2 August, 2022
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
W.P.No.841 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.08.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.841 of 2022
K.Lakshmi .. Petitioner
vs
1. The Registrar General,
High Court, Madras 600 104.
2. The Registrar Recruitment,
High Court, Madras 600 104. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Mandamus directing the respondents to appoint
the petitioner as sweeper in the notified unfilled vacancy in the Judicial
District of Cuddalore, considering her representation dated
14.12.2021.
For the Petitioner : Mr.R.Ezhilarasan
For the Respondents : Mr.B.Vijay
*****
____________
Page 1 of 36
https://www.mhc.tn.gov.in/judis
W.P.No.841 of 2022
ORDER
(Order of the Court was made by the Hon'ble Chief Justice) The writ petition is filed to seek a direction on the respondents to appoint the petitioner on the post of Sweeper in the Judicial District of Cuddalore, after consideration of her representation dated 14.12.2021.
2. The facts require for consideration of this petition are as under:
In reference to the recruitment, Notification No.65/2021 for the post of Office Assistant and Notification No.66/2021 for the posts of Sanitary Worker, Watchman, Night Watchman-cum-Masalchi, Masalchi and Sweeper, in the Judicial Department of Cuddalore District, were issued. In pursuance to the notifications aforesaid, on 23.05.2021, the petitioner made on-line application No.46082 for the posts of Night Watchman-cum-Masalchi, Masalchi, Office Assistant and Watchman.
The petitioner also made another on-line application bearing No.46089 for the posts of Sweeper and Sanitary Worker. While applying, the petitioner claimed reservation under the category of MBC (Destitute ____________ Page 2 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 Widow). In the application form, she had given the number of the certificate for Destitute Widow as 7G37H2B and obtained fee exemption. But, she did not submit the Destitute Widow certificate in the prescribed format as contemplated under the notification.
3. The petitioner was permitted to undertake the selection, which was divided into three parts, namely, written test, practical test and interview. The respondents declared the result of different categories after written and practical tests after fixing the minimum required marks. The petitioner could not find place for any of the posts other than for the post of Watchman. The results were declared 10 times the number of vacancies. The petitioner was shortlisted for oral test only for the post of watchman under the category of MBC(V)(W). It was for the reason that during the process, a notification was issued by the Government to provide reservation for the category of MBC (Vanniar). The petitioner could not qualify for other posts. Taking into consideration the marks obtained by her, she was placed in the waiting list and ultimately, finding her to be low in the merit position, the petitioner could not get appointment even for the post of watchman. ____________ Page 3 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022
4. The learned counsel for the petitioner submits that the petitioner had rightly disclosed her category to be MBC (Destitute Widow) as application to obtain the said certificate was made much earlier, it was issued only on 09.09.2021. The certificate number was given, as furnished for the category of MBC (W) and therefore, the petitioner has made true disclosure while submitting on-line application. Accordingly, she was called for the selection and even remained successful in the written examination so as to be short-listed at least for the post of Watchman, though the petitioner was entitled to be considered for the post of Sweeper. A reference to the cut-off marks has been given to indicate that for the post of Sweeper, no cut- off marks were specified for the category of MBC (DW) and therefore, it cannot lie in the mouth of the respondents to say that the petitioner or any other candidate failed to secure the minimum marks to qualify for the next stage of selection. A reference of a document has also been given where the petitioner was placed in the waiting list showing her category to be MBC (W) and MBC (DW) and thereby even the respondents themselves have considered the petitioner under the category of MBC (DW) and thus, there was no reason to not to declare ____________ Page 4 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 minimum qualifying marks for the post of Sweeper, taking her category to be of MBC (DW). The action of the respondents is thus challenged on the aforesaid ground with a direction to give her appointment for the post of Sweeper, taking her to be under the category of MBC (DW).
5. To support the arguments, learned counsel for the petitioner has given reference to the judgment of a Division Bench of this Court in the case of Subabalasundari vs Tamil Nadu Public Service Commission rendered in W.P. (MD) No.481 of 2015 decided on 23.03.2015. According to the petitioner, the judgment aforesaid applies squarely to the facts of this case and as such, the petitioner should have been considered against the post of Sweeper in the category of MBC (DW). The next judgment relied upon by the learned counsel for the petitioner is in the case of State of Tamil Nadu and Others vs. Kanimozhi, rendered in W.A.No.411 of 2021 decided on 08.07.2021. In the said case also, the Division Bench refused to go into the hyper-technicalities of the category once it was found that the candidate was having required qualification, thus, should have been adjusted against one or other category to which he or she ____________ Page 5 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 belongs. In view of the above, taking into consideration that the petitioner had produced the certificate of MBC (DW), though belatedly on 09.09.2021, she should have been considered for the post of Sweeper, taking her candidature in the category of MBC (DW). The respondents, thus, committed illegality to consider the petitioner on the post of Watchman and placing her in the waiting list while she was entitled for appointment to the post of Sweeper. Accordingly, the prayer is to allow the writ petition.
6. The writ petition has been seriously contested by the learned counsel for the respondents. It is submitted that the conduct of the petitioner was such that, which in fact, should result in rejection of her candidature and for that, reference of certain clauses of the notification/advertisement has been given. Referring to it, the learned counsel for the respondents would submit that any application containing false declaration for fee concession, reservation and age relaxation will be rejected at any stage of selection. The petitioner, while submitting the on-line application, disclosed herself to be in the category of MBC (DW), though she was not in possession of any certificate to support her candidature in that category, thus, ____________ Page 6 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 declaration of the category to seek reservation was falsely made. The conduct of the petitioner would further reveal from the perusal of the application form where she had even given the number of the certificate for the category of MBC (DW) while submitting the on-line application on 23.05.2021, though certificate was issued or obtained on 09.09.2021. The conduct of the writ petition is writ large and was only to take the benefit of reservation and fee relaxation. On the aforesaid ground itself, the writ petition should fail and be dismissed.
7. The further ground taken by the learned counsel for the respondents is that the candidature of the petitioner was considered in the category of MBC (Women) in which she remained successful only for the post of Watchman having secured the required qualifying marks. The learned counsel has made elaborate submission about the procedure adopted in the selection process. The reference of two notifications/advertisements for different posts has been given with the clarification that for each post, separate qualifying marks were declared which were not more than ten times of the posts advertised and in the said procedure, the petitioner could not secure the required qualifying marks for any of the posts other than the post of Watchman ____________ Page 7 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 taking her to be in the category of MBC(V)(W). Her candidature was accordingly considered and she was placed in the waiting list for the post of Watchman. She was not entitled for consideration in the category of MBC (DW) in the absence of submission of certificate mandated in the notification/advertisement. In the absence of the certificate, the candidature of the petitioner should not have been considered for any category, but taking a liberal view, her candidature was considered in the category of MBC (Women). In the light of the facts given above, the prayer is to dismiss the writ petition not only taking into consideration the conduct of the petitioner, but even on the facts of this case.
8. Learned counsel would further submit that a candidate cannot seek consideration of her candidature by changing of the category. It is from the category of MBC (Women) to MBC (Destitute Widow). Such change is not permissible and otherwise, in the case on hand, the petitioner was not even in possession of the required certificate as on the last date for submission of the application form rather the certificate was obtained much subsequently. It is now settled law that the certificate available as on the date of submission of application or ____________ Page 8 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 as on the last date of submission of the application form would alone be relevant and not the certificate obtained and produced subsequent would not be permissible. In view of the above, the petitioner's claim for consideration of her candidature for the post of Sweeper taking her to be in the category of MBC (DW) is not tenable.
9. Learned counsel for the respondents, referring to the judgments of the Division Bench cited by the learned counsel for the petitioner, has elaborately clarified that the judgments are not applicable on the facts of the case and otherwise, he has made a reference to the judgment of the Apex Court holding that any qualification or certificate obtained after the submission of the application cannot be considered and it cannot be for a certificate obtained after the last date of submission of the application, otherwise the candidature of a candidate cannot be adjusted while drawing the merit. Things cannot be kept in lurch for that reason and therefore, the decision to allow change of category has been taken.
10. The learned counsel for the respondents took us to one of the Division Bench judgments of this Court cited by the petitioner, ____________ Page 9 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 where a reference of the judgment of the Supreme Court in the case of Bedanga Talukdar vs. Saifudullah Khan, (2011) 12 SCC 85 has been made. In the case supra, it was held that selection process has to be conducted strictly in accordance with the stipulated selection procedure. When a particular schedule is mentioned in the advertisement, the same has to be maintained. There cannot be any relaxation on the terms and conditions of the advertisement unless such a power is specifically reserved and such power could be reserved in the relevant Statutory Rules. Therefore, the terms of the notification/advertisement for the post has to be followed meticulously and without relaxation. It is apart from the fact that what would be the relevant date for consideration of the candidature for qualification or category of the candidate has also been decided by the Apex Court. It was held that the relevant date for consideration of the qualification, category, etc., is as given in the Statutory Rules. If the Rules are silent, then what is given in the advertisement/notification to advertise the post. If the Rules as well as the notification to advertise the post are silent, then it would be the last date for submission of the application form. That being the position, the petitioner could not ask for change of category based on the certificate obtained on ____________ Page 10 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 09.09.2021, which was much later in point of time. The prayer is, accordingly, to dismiss the writ petition.
11. We have considered the rival submission of the parties and perused the records.
12. The facts which are not in dispute are that pursuant to the notification issued to advertise for the post of Office Assistant and another notification for the post of Sanitary Worker, Watchman, Night Watchman cum Masalchi, Masalchi and Sweeper, the petitioner made an application with certain disclosures. So far as the priority category given in the application form, the petitioner had shown herself to be in the category of MBC (Destitute Widow) and the certificate number as 7G37H2B. The on-line application was not supported by the said category certificate, despite requirement and otherwise, the petitioner was not having the certificate of the category referred by her in the application form on the date of submission of the application, yet she had given certificate number. The application form was submitted on 23.05.2021, while the certificate for it was obtained on 09.09.2021. Therefore, wrong disclosure was made to seek benefit of reservation ____________ Page 11 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 as well as relaxation in fee. This shows the conduct of the petitioner, as otherwise if we go strictly by the terms of advertisement, she should have been rendered ineligible for giving incorrect information in the application form. The relevant para of the condition given in the notification is quoted hereunder for ready reference:
" Note: (1) ...
(2) The application of the candidate who makes false claim for fee concession, reservation and age relaxation will be rejected at any stage of selection..."
13. This apart, the application form was required to be supported by the document without a false information. The petitioner was, in fact, falling in the category of MBC (Women), in absence of any document to show her to be Destitute Widow and accordingly, her candidature was considered in the said category, where she failed to obtain the required qualifying marks for the post of Sweeper or any other posts other than the post of Watchman. She could find place in the waiting list for the post of Watchman.
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14. The issue for our consideration would be if the certificate of particular category is obtained subsequent to the submission of the application form, whether it is required to be considered by the respondents or not. The answer for the aforesaid would be against the petitioner and in favour of the respondents. It is a settled proposition of law that the certificate produced subsequently cannot be taken into consideration and if the aforesaid practice is allowed, then the selection cannot be finalised at any point of time because candidates may keep on giving information about the category or about the qualification if obtained during the intervening period which should have been given at the time of submission of the application form and therefore, the Apex Court has not endorsed consideration and acceptance of any document after submission of the application form unless so permitted in the notification to advertise the post or it is so permitted under the Rules. At this juncture, a reference of the following decisions would be gainful:
(i) Paragraphs 15 and 16 of the Apex Court judgment in the case of State of Bihar and others v. Madhu Kant Ranjan and another, 2021 SCC OnLine SC 1262:
____________ Page 13 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 “15. At the cost of repetition, it is to be observed that in the earlier round of litigation, the learned Single Judge specifically observed that there is no pleading in the writ petition that the petitioner had annexed his NCC ‘B’ certificate alongwith the original application. Once, it is found that the respondent No. 1- original writ petitioner did not submit the photocopy of the NCC ‘B’ certificate alongwith the original application which was the requirement as per the advertisement and the cut-off date as per the advertisement was 22.02.2004 and he produced the same after the physical test on
15.01.2007, the appointing authority rightly held that he shall not be entitled to additional five marks of NCC ‘B’ certificate. Though in the select list dated 08.09.2007, he was awarded 17 marks, which included five additional marks of NCC ‘B’ certificate, the appointing authority disagreed with the same on the ground that as photocopy of the NCC ‘B’ certificate was not produced alongwith his application form, which was the requirement as per the advertisement, he shall not be entitled to five additional marks of NCC ‘B’ certificate. Therefore, when a decision was taken on the representation made by the respondent No. 1 - original writ petitioner which was pursuant to the earlier order passed by the learned Single Judge in writ petition being CWJC No. 5431 of 2008, the authority rightly refused to allot/award five additional marks of ____________ Page 14 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 NCC ‘B’ certificate.
16. As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted alongwith the application form, which are required to be submitted as per the advertisement have to be considered. Therefore, when the respondent No. 1 - original writ petitioner did not produce the photocopy of the NCC ‘B’ certificate alongwith the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC ‘B’ certificate. In these circumstances, the Division Bench of the High Court has erred in directing the appellants to appoint the respondent No. 1 - original writ petitioner on the post of Constable considering the select list dated 08.09.2007 and allotting five additional marks of NCC ‘B’ certificate.”
(ii) Paragraphs 29 to 32 of the Apex Court judgment in the case of ____________ Page 15 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 Bedanga Talukdar, supra it was held:
“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 ____________ Page 16 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 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.
30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.
31. In our opinion, the High Court was in error in concluding that Respondent 3 had not treated the condition with regard to the submission of the certificate along with the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion, is contrary to the record. In its resolution dated 21-5-
2010, the Commission has recorded the following conclusions:
“Though Shri S. Khan had mentioned in his letter dated 10-12-2009 that he was ____________ Page 17 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 resubmitting the identity card with regard to locomotor disability he, in fact, had submitted the documentary proof of his locomotor disability for the first time to the office of the APSC through his above letter dated 10-12- 2009. However, after receiving the identity card the matter was placed before the full Commission to decide whether the Commission can act on an essential document not submitted earlier as per terms of advertisement but submitted after completion of entire process of selection.
The Commission while examining the matter in details observed that Shri S. Khan was treated as general candidate all along in the examination process and was not treated as physically handicapped with locomotor disability. Prior to taking decision on Shri S. Khan it was also looked into by the Commission, whether any other candidate's any essential document relating to right/benefits, etc. not furnished with the application or at the time of interview but submitted after interview was accepted or not. From the record, it was found that prior to Shri S. Khan's case, one Smt Anima Baishya had submitted an application before the ____________ Page 18 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 Chairperson on 26-2-2009 claiming herself to be an SC candidate for the first time. But her claim for treating herself as an SC candidate was not entertained on the grounds that she applied as a general candidate and the caste certificate in support of her claim as SC candidate was furnished long after completion of examination process.”
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 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.” ____________ Page 19 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022
(iii) Paragraphs 11 to 15, 17, 19 and 22 of the Apex Court judgment in the case of Rakesh Kumar Sharma v. State (NCT of Delhi) and others, (2013) 11 SCC 58 are also relevant:
“11. There can be no dispute to the settled legal proposition that the selection process commences on the date when applications are invited. Any person eligible on the last date of submission of the application has a right to be considered against the said vacancy provided he fulfils the requisite qualification.
12. In U. P. Public Service Commission v. Alpana [(1994) 2 SCC 723 : 1994 SCC (L&S) 742 :
(1994) 27 ATC 101], this Court, after considering a large number of its earlier judgments, held that eligibility conditions should be examined as on the last date for receipt of applications by the Commission. That too was a case where the result of a candidate was declared subsequent to the last date of submission of the applications.
This Court held that as the result does not relate back to the date of examination and eligibility of the candidate is to be considered on the last date of submission of applications, therefore, a ____________ Page 20 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 candidate, whose result has not been declared up to the last date of submission of applications, would not be eligible.
13. A three-Judge Bench of this Court in M.V. Nair v. Union of India [(1993) 2 SCC 429 : 1993 SCC (L&S) 512 : (1993) 24 ATC 236] held as under: (SCC p. 434, para 9) “9. … It is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date.”
14. In Harpal Kaur Chahal v. Director, Punjab Instructions [1995 Supp (4) SCC 706 : 1996 SCC (L&S) 226 : (1996) 32 ATC 172] this Court held: (SCC p. 707, para 2) “2. … It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates, who possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment according to the rules.” ____________ Page 21 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022
15. This Court in Rekha Chaturvedi v. University of Rajasthan [1993 Supp (3) SCC 168 : 1993 SCC (L&S) 951 : (1993) 25 ATC 234] held: (SCC p. 175, para 10) “10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence viz. even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the ____________ Page 22 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily.
Hence, in the absence of a fixed date
indicated in the
advertisement/notification inviting
applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. … Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission v. B. Sarat Chandra [(1990) 2 SCC 669 : 1990 SCC (L&S) 377 : (1990) 13 ATC 708] and Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [(1990) 3 SCC 655 :
1990 SCC (L&S) 520 : (1990) 14 ATC 766].” ...
17. A three-Judge Bench of this Court in Ashok Kumar Sharma v. Chander Shekhar [(1997) 4 SCC 18 : 1997 SCC (L&S) 913] reconsidered and explained the judgment of Ashok Kumar Sharma (1993) [1993 Supp ____________ Page 23 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 (2) SCC 611 : 1993 SCC (L&S) 857 : (1993) 24 ATC 798] observing: (Chander Shekhar case [(1997) 4 SCC 18 : 1997 SCC (L&S) 913] , SCC pp. 21-22, para 6) “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 proposition 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 ____________ Page 24 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment.” The Court in Ashok Kumar Sharma [(1997) 4 SCC 18 :
1997 SCC (L&S) 913] further explained that the majority view in Ashok Kumar Sharma (1993) [1993 Supp (2) SCC 611 : 1993 SCC (L&S) 857 : (1993) 24 ATC 798] was not correct, rather the dissenting view by R.M. Sahai, J. was correct as the Court held as under: (SCC p. 22, para 6) “6. … The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents ____________ Page 25 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 could not have been allowed to appear for the interview.”
19. In Bhupinderpal Singh v. State of Punjab [(2000) 5 SCC 262 : 2000 SCC (L&S) 639 : AIR 2000 SC 2011] this Court placing reliance on various earlier judgments of this Court held: (SCC p. 268, para 13) “13. … The High Court has held (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with.”
22. It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of ____________ Page 26 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement.”
(iv) Paragraph 16 of the Full Bench judgment of the Allahabad High Court in the case of Gaurav Sharma v. State of U.P.. AIR 2017 All 116 is also quoted hereunder:
“16. Not too a long ago, a Full Bench of this Court in Rajendra Patel v. State of U.P., AIR 2015 All 161 (FB) called upon to consider the validity of the requirement placed by the Public Service Commission upon candidates to submit hard copies of documents and testimonials by a particular date even though the same had already been uploaded along with an online application form. Underlining the importance to adhere to such requirements as placed in an advertisement, the Full Bench noted as follows:
“Having regard to the clear stipulations which are contained in the advertisement which was issued by the Commission and the instructions ____________ Page 27 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 to candidates in the brochure, all candidates were placed on an unambiguous notice in regard to the process of compliance and the consequences of a breach. Compliance was not made optional but was mandatory for all the candidates. When the Commission holds public examinations on such a 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. The submission of the hard copy of the application together with the documents is not a mere ministerial act nor does it constitute a mere confirmation of the ____________ Page 28 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 application which has been submitted online. Candidates who submit applications online are still required to submit full documentary evidence which evinces eligibility and satisfaction of the required conditions. For instance, a candidate who applies for a particular post may be required to hold a qualification with a specialisation in a particular subject. It is only on scrutinising the application and the documents that the Commission can determine whether the candidate does fulfil the required conditions. This process cannot be left in a perpetual state of indecision or uncertainty. Hence, we are of the view that as a matter of first principle, the time schedule which was prescribed by the Commission for submission of the print out copy of the application submitted online with the documents was of a mandatory nature. Non-compliance with the schedule would invite the consequence which was clearly specified, namely the rejection of the candidature of the applicant.
Even on merits, we are not inclined to accept the correctness of the principle which has been laid down in Nirbhay Kumar (supra) that the ____________ Page 29 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 submission of a hard copy of the application together with the accompanying documents is merely an act of confirmation of the application. The view which has found acceptance in Nirbhay Kumar (supra) would, in our view, dislocate the examination process and would render the process which is conducted by the Commission in a perpetual state of uncertainty. We are, with respect, in agreement with the view which was expressed by the Division Bench in Raj Narayan Singh (supra) decided on 18 February 2015. Reliance was also sought to be placed on a judgment of the Supreme Court in Dolly Chhanda v. Chairman, JEE 6. In Dolly Chhanda (supra), the Supreme Court has observed that the general rule is that while applying for any course of study or 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, as the case may be, unless there is an express provision to the contrary. The Supreme Court held that there could be no relaxation in the matter of holding the requisite eligibility qualification by the date fixed. However, depending upon the facts of ____________ Page 30 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 the case, there can be some relaxation in the matter of submitting proof and it may not be proper to apply a rigid principle which may pertain to the domain of procedure. Hence, every infraction of the rule relating to submission of proof need not necessarily result in the rejection of the candidature. These principles which have been laid down are not in dispute and they cannot be. However, the issue in the present case is whether the submission of a hard copy by the specified date together with all the documents was merely a matter of procedure. To accept the submission of the petitioner would, as we have held earlier, result in a situation where a candidate would be entitled to assert that despite the stipulated last date and a prescribed consequence of invalidation which has been drawn to the notice of the candidates, the Commission would be bound to scrutinise applications which are received together with the hard copies beyond the prescribed date. This, in our view, would not be permissible. We may also note that in a judgment in Secretary, UP Public Service Commission v. S Krishna Chaitanya, the Supreme Court has held that the Commission ____________ Page 31 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 cannot be directed to declare the final results when the application form of a candidate had not been received within the prescribed period.”
15. The notification pursuant to which the petitioner submitted the application does not postulate or provide that a candidate can submit a document even subsequent to the submission of the application or on the last date for it. In the absence of it, we do not find the action of the respondents to be illegal. They have not considered the candidature of the petitioner in the category of MBC (DW), but in the category of MBC (Women). Since the petitioner failed to secure the required qualifying marks for any post other than the post of Watchman, her candidature was considered and placed in the waiting list as per the merit position. The claim for appointment to the post of Sweeper has been made mainly on the ground that the petitioner is falling in the category of MBC (DW), for which no qualifying marks were given by the respondents while declaring the result to qualify the candidate for the next stage of selection. The aforesaid has been clarified by the learned counsel for the respondents giving out that for the post of Sweeper, no candidate has applied in the category of MBC (DW) and therefore, there was no question of giving ____________ Page 32 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 the qualifying marks of that category for the post of Sweeper. In view of the above, the main attack of the petitioner on the procedure applied by the respondents cannot be accepted. In the absence of any candidate of a particular category, there was no reason for the respondents to give or provide qualifying marks to allow the candidate to appear for the next stage of selection. For the post of Sweeper, the qualifying marks of the candidates falling under the category of MBC (DW) was not given by the respondents in absence of application from any candidate in that category.
16. The petitioner has made a reference of the wait list issued by the respondents for the post of Watchman when she has been shown in the category of MBC(V)(W) and MBC (DW). The aforesaid has also been clarified by the respondents. It is submitted that at the midst of the selection, a notification was issued by the State of Tamil Nadu to provide reservation to MBC (Vanniar) and therefore, the petitioner falling in that category was considered accordingly and extended the benefit. She was shown to be in that category and if erroneously her name was shown indicating the category of MBC (DW), it will not create a right in favour of the petitioner going contrary to the settled ____________ Page 33 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 law. In fact, a candidate cannot be adjusted and considered against two different categories, but has to be against one category alone.
The petitioner cannot take the benefit of the mistake committed by the respondents in doing so. In view of the discussion made above, we do not find a case in favour of the petitioner.
17. At this stage, we would be referring to the judgments of the Division Bench of this Court cited by the petitioner in the case of S.Subabalasundari vs. TNPSC (supra) and State of Tamil Nadu and Ors. vs. Kanimozhi (supra). The judgment in those cases were given not only in reference to the facts, but in terms of the condition of the notification to advertise the post. In the instant case, we have also referred to the condition of the notification which does not permit submission of certificate subsequent to the last date for submission of the application form or for the change of category, rather the notification mandated for the correct disclosure of information by the candidate. In view of the above, the judgments of the Division Bench would not provide any assistance rather the judgment of the Apex Court in the case of Bedanga Talukdar vs. Saifudullah Khan, (supra) would rule.
____________ Page 34 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 In view of the discussions made above, we find no merit in the writ petition. Accordingly, the writ petition is dismissed. No costs.
(M.N.B., CJ.) (N.M., J.) 02.08.2022 Index : Yes/No sra To:
1. The Registrar General, High Court, Madras 600 104.
2. The Registrar Recruitment, High Court, Madras 600 104.
____________ Page 35 of 36 https://www.mhc.tn.gov.in/judis W.P.No.841 of 2022 M.N.Bhandari, CJ.
and N.Mala, J.
(sra) W.P.No.841 of 2022 02.08.2022 ____________ Page 36 of 36 https://www.mhc.tn.gov.in/judis