Central Administrative Tribunal - Delhi
Gyan Prakash Srivastava S/O Ramanuj Lal vs Secretary on 11 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2656 of 2010 This the 11th day of March, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Gyan Prakash Srivastava S/o Ramanuj Lal, R/o 16/436, Lodhi Colony, New Delhi-110003. Applicant ( By Shri Nidhesh Gupta, Sr. Advocate and with him Shri A. K. Behera and Shri Ramesh Gopinathan, Advocates ) Versus Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110069. Respondent ( By Ms. Jasmine Ahmed, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Gyan Prakash Srivastava, the applicant herein, a candidate for the post of Legal Advisor-cum-Standing Counsel in the Land and Building Department, Government of NCT of Delhi, aggrieved of having not been called for interview scheduled to be held on 23.8.2010, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking a direction to be issued to the respondent to call him for interview for his consideration against the post aforesaid. When the matter came up for hearing before us on 13.8.2010 at motion stage, while issuing notice to the respondents, in consideration of the pleadings made in the OA and the contentions raised by the learned counsel representing the applicant, we, as an interim measure, directed that the applicant would be interviewed on 23.8.2010 provisionally subject to outcome of this OA. On the dint of the interim directions, as mentioned above, the applicant indeed appeared for interview. Before we were to proceed further in the matter, we required to know from the respondents as to whether the applicant, on the basis of his performance in the interview, would find his selection, as in that event only we may proceed to determine the controversy in issue. Surely, if the applicant was not to make it on the basis of his performance in the interview, there would have been no need to deal with the case on its merits, as that would have been only an academic exercise, without any tangible result. We are informed during the course of hearing that the performance of the applicant was such that he stood first in the interview. We thus proceed to determine the controversy on merits, for which it shall be appropriate to refer to the relevant averments made in the pleadings of the parties.
2. The applicant, as per the case set out by him in the Original Application, was enrolled as an advocate with the Bar Council of Uttar Pradesh in September, 1980 after passing the Bachelor of Law degree from University of Allahabad for the examination of 1979. Thereafter he practiced as advocate at the Allahabad High Court till September, 1986, for about six years. He applied to the Union Public Service Commission (UPSC) for the post of Assistant (Legal) in the Ministry of Law & Justice, a Group B post, which required the essential qualification of degree in law, with three years experience in legal work. The applicant was selected by UPSC and recommended for appointment on the said post. He worked on the said post from 29.9.1986 to 26.2.1991. While in the Central Government service, the applicant applied for the post of Law Officer, Group B Gazetted post in the Land & Building Department, Government of NCT of Delhi, advertised by UPSC in 1991. The post of Law Officer also required the legal qualification of degree in law with at least five years legal experience. He was again selected by UPSC and recommended for appointment on the post aforesaid. He worked on the said post from 27.2.1991 to 29.9.1994, 1.10.1999 to 28.6.2000 and from 1.2.2003 to 9.9.2003. During the period aforesaid, the applicant was appointed on deputation as Assistant Director of Estate (Litigation) in Directorate of Estates, Ministry of Urban Development from 21.9.1994 to 30.9.1999 for five years, where he was notified as a Government Pleader by the Ministry of Law and Justice under provisions of the Code of Civil Procedure, for defending cases before the Honble High Court and subordinate courts. He was also on deputation in the Land and Development Office of Ministry of Urban Development as Vigilance-cum-Legal Officer from 29.6.2001 to 31.1.2003. There also he performed legal work, and was also appointed as Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The applicant applied for the post of Officer on Special Duty (Litigation), Group A Gazetted post, in the Land & Building Department of the Government of NCT of Delhi. The said post was advertised by UPSC, for which the required minimum qualification was degree in law with at least seven years of experience as an advocate or working in the legal departments of Centre/State Governments. He was selected and recommended by UPSC for appointment on the said post. He was appointed on the said post on 10.9.2003 and since then he is working as such. The applicant was in-charge of writ cell for conduct of litigation relating to land acquisition, compensation, alternative plot and other cases of the department before the Honble High Court and the Honble Supreme Court. He has also been advising the Government on legal issues and on the judgments passed by courts for filing appeals or actions required to be taken by the department for compliance of court orders. The next post in the hierarchy in the department of the applicant is the post of Legal Advisor-cum-Standing Counsel in the pay band IV (Group A post) and as per recruitment rules, OSD (Litigation) and Deputy Legal Advisor are eligible to be considered for selection on the said post along with open candidates, and if they are to be selected, they would be deemed to be promoted.
3. Respondent-UPSC advertised and invited applications for the post of Legal Advisor-cum-Standing Counsel vide advertisement No.11 in the Employment News dated 13-19 September, 2009. The said post, as per the advertisement, would require educational qualification of degree in law from a recognized university/institution and experience of twelve years as an advocate, or as member of a State Judicial Service or equivalent service in the legal departments of Central/State Governments/UTCS. Experience in land and acquisition cases etc. was prescribed as desirable qualification. Pursuant to the advertisement aforesaid, the applicant submitted his application on 30.6.2009, making a declaration that he was having the essential educational, experience and desirable qualifications. He also enclosed a statement in form of Annexure-A giving details of educational qualification in a statement form, where the year of passing, and name of the institution/university from where the qualification was acquired were mentioned. Another statement was also enclosed as Annexure-B furnishing the details of employment in form of statement, mentioning the length of experience, nature of duties, and pay scales. The application duly complete in all respects was submitted to UPSC by hand under acknowledgement receipt. When a year from applying had gone by and the applicant did not receive any information in that regard, he made enquiries. He also made representation dated 5.7.2010 to UPSC for consideration of his application for interview. He came to know that UPSC had fixed the date of interview for the post under contention on 23.8.2010, and that even his juniors having less experience had been called for interview. It is averred that Shri A. Krishna Kumar, working as Deputy Legal Advisor in the same department, at the time of applying for the post aforesaid and having only 23 years of experience in legal field, had been called for interview, whereas the applicant, even though having more than 28 years of experience at the time of applying, had been ignored. It is the case of the applicant that he was either ignored or his application has not been considered for the reason that he had not attached any specific document in support of educational or experience qualification, without considering the fact that he had enclosed all relevant documents, such as age proof certificate, copy of graduation degree as well as certificate from the Bar Council of Uttar Pradesh, which would show that he has been registered as an advocate on the basis of a valid degree in law from the University of Allahabad, with experience certificate of more than 28 years in legal field in support of his eligibility. It is pleaded that he had submitted all the documents related to his educational qualification as well as experience in the legal field as per proforma required by UPSC with a declaration that he would have the required educational and experience qualification. The applicant further pleads that he was selected by UPSC itself three times, i.e., for the post of Assistant (Legal) in the Ministry of Law; Law Officer; and OSD (Litigation) in the Land & Building Department, on the basis of his experience in the legal field, which requires degree in law and practice experience. He was also notified as a Government Pleader by the Ministry of Law and Justice and worked on all posts which require degree in law with experience in the field of law. A certificate from the department that the applicant is still working on the post of OSD (Litigation) is enclosed with the OA as Annexure A-10. Despite this impressive array of documents conclusively establishing that the applicant was a law graduate and had a degree in law, he was not called for interview. It is in these circumstances that the present Application came to be filed for the reliefs already indicated above.
4. Pursuant to notice issued by this Tribunal, the respondent-Commission has entered appearance and by filing its counter reply contested the cause of the applicant. It is averred that Commission is a constitutional body established under Articles 315 to 323 of the Constitution, and enjoined with the solemn duty of making recruitment to all civil services and posts under the Government of India, and that in discharge of its constitutional obligation, the Commission is vested with the power to devise its autonomous modes of functioning and procedures objectively and in a just and equitable manner, of which reasonable classification of various applicants on the basis of their qualifications and experience is an integral part. The powers of the Commission for reasonable classification, it is further averred, have been upheld by various judicial fora including the Honble Supreme Court in Civil Appeal No.44 of 1990 in the matter of Union of India v T. Sundaraman & others. The Commission, it is averred, sets in motion the process of recruitment by advertising the posts strictly in conformity with the notified recruitment rules framed under Article 309 of the Constitution. One post of Legal Advisor-cum-Standing Counsel in the Land & Building Department, Government of NCT of Delhi, in the pay scale of `37400-67000 + Gr. Pay `8700/- was advertised vide advertisement dated 13.6.2009. Educational qualification for the post mentioned in the advertisement was of degree in law of a recognized university or equivalent. It required 12 years experience as an advocate or as a member of a State Judicial Service or equivalent experience in legal departments of the Central/State Governments. It is pleaded that 187 applications were received against the advertisement, and after short-listing criteria, initially 11 candidates were short-listed for interview which was scheduled to be held on 23.8.2011. The short-listing criteria adopted is mentioned as EQ-A + EQ-B + 22 years experience under EQ-B. The applicant was not short-listed as his application was rejected under the category of Incomplete Applications for not furnishing the degree certificate along with his application. Subsequently, three more candidates, including the applicant, were also called for interview in pursuance of interim orders passed by this Tribunal. It is stated that the result of the interview has not been declared in view of pendency of OAs before this Tribunal. We may mention that vide interim orders, we directed the respondents to declare the result, and it is thereafter that we are informed that the applicant, as per his credentials and performance in interview, has stood first. The application of the applicant was rejected under the category of Incomplete Applications for not furnishing the degree certificate along with his application. It is averred that as per general instructions for filling up the application form, copies of certificates are to be attached in support of the information given in the form, and that these instructions are uniformly applicable to all applicants. It is further averred that the practice of rejecting incomplete applications due to lack of supporting documents followed by the Commission has also been upheld by the Honble High Court of Delhi recently in WP(C) No.13451/2009 in the matter of Dr. Vineet Relhan v UPSC, decided on 13.1.2010, against the orders of the Tribunal dated 4.11.2009 in OA No.1914/2009, by observing as follows:
that the UPSC had clearly mentioned in the advertisement that no provisional claim would be accepted and the requisite certificates must be filed along with the application form. Given these facts, we are not inclined to re-open the selection process of interfere with the impugned order.
5. The applicant has filed rejoinder, wherein it is pleaded that as per instructions, copies of certificates are to be attached in support of the information given in the form. In that regard the applicant has reproduced column 7 of the advertisement, which reads as follows:
7. CERTIFICATE TO BE ATTACHED:
Candidates should note that they should attach with their applications attested/self certified copies of the following documents:
Matriculation or equivalent certificate in support of their declaration of age;
Degree or Diploma certificate or other certificates in support of their educational qualifications;
If the qualification possessed by the candidate is equivalent, then the authority (with number and date) under which it has been so treated must be indicated;
Certificate(s) from the Head(s) of Organisation(s)/Department(s) for the entire experience claimed, clearly mentioning the duration of employment (date, month & year) indicating the basic pay and consolidated pay. The certificate(s) should also mention the nature of duties performed/experience obtained in the post(s) with duration(s). These certificates should be issued on Letter Head or duly stamped by the Competent Authority.
A candidate who claims to belong to one of the Scheduled Castes or Scheduled Tribes has to submit, in support of his claim, an attested copy of a certificate in the prescribed form issued by the competent authority (original to be produced at the time of interview). The applicant submitted his application as per prescribed performa which includes two pages of application, and in the first page itself a declaration was required to be made by the candidate about the possession of essential qualifications (column 9). It was mentioned in the application itself that the applicant is having degree in law as the required educational qualification. He also annexed the statement as required by UPSC in pursuance of column 7, where all the educational and other professional qualifications were required to be given. He submitted his details in the statement form mentioning the name of university, the year of passing graduation and LLB degree, and the subjects opted in the courses. The said statement is a part of the application. A copy of the application with the statement has been annexed as Annexure A-8. A perusal of the said Annexure would reveal that against columns 9 and 10, the applicant has mentioned 1. We may reproduce columns 9 and 10 and as to how they were filled in by the applicant, thus:
9. DO YOU POSSESS THE ESSENTIAL EDUCATIONAL QUALIFICATIONS AS MENTIONED IN THE ADVERTISEMENT? (Write 1 for Yes, 2 for No)
10. (A) DO YOU POSSESS RELEVANT EXPERIENCE FOR THE POST? (Write 1 for Yes, 2 for No) (See Instruction-II) (B) IF YES, INDICATE THE LENGTH OF EXPERIENCE AS ON CLOSING DATE Against column 9 and 10(A), the application has written 1, whereas against column 10(B), he has mentioned 28 years 07 days and 09 days. Accompanying the application form as filled by the applicant as Annexure A-8, are two statements as regards educational and other professional qualifications, and details of employment in chronological order, which read as follows:
7. ALL EDUCATIONAL/OTHER PROFESIONAL QUALIFICATIONS:
LEVEL EXAM. PASSED DIV./ GRADE YEAR OF PASSING DUREATION OF COURSE BOARD/UNIV/ INSTITUTION SUBJECT Subject of specializ-ation Xth High School IInd 1970 U.P.BOARD Hindi, English, Maths, Science, Geo., Art NIL GRADUATE B.A. IInd 1976 Two years Allahabad University Pol. Science, Anct. History, Eco, General English NIL LAW LL.B IInd 1979 Three years -do- All Compulsory subjects with labour law and taxation as optional subject NIL
8. DETAILS OF EMPLOYMENT IN CHRONOLOGICAL ORDER:
Office/ Instt/ Firm Post held Part time/ contract basis/ad hoc/ regular/ temp./Pmt Exact dates to be given (indicate day, month & year Total period (in years) Scale of pay Nature of duties From To Year Month Days Allahabad High Court Advocate Practiced as Advocate 19.9.80 28.9.86 06 0 09 No fixed income To appear in the cases as private practitioner in civil side dealing with property matters M/o Law & Justice, dept. of Legal Affairs, New Delhi Assistant (Legal) Permanent 29.9.86 26.2.91 04 04 27 6500- 10500 (PR) To deal with Supreme Court litigation & provided precedents and assistants to govt. advocates in disposing of matters of legal advice/ conduct of litigation before Hon. Supreme Court Land & Building Deptt., GNCTD Law Officer Permanent 27.2.91 1.10.99 1.2.03 20.9.94 28.6.01 9.9.03 03 01 05 06 08 07 23 27 08 6500- 10500 (PR) 1.) Monitored litigation in relation to land acquisition/ compensation cases before the High Court & supreme Court.
2.) Provided legal advice to the Deptt. on legal issues in acquisition and revenue matters.
3.) Appointed to appear before Estate Officer in place of govt. counsel Director of Estates, Ministry of Urban Dev., New Delhi Asstt. Director of Estates (Litigation) Deputation 21.9.94 30.9.99 05 0 09 6500- 10500 (PR) 1.) Assigned with the work of litigation on behalf of Directorate of Estates on all the law courts in govt. properties cases
2.) Appointed as Estate Officer under Public Premises Act
3.) Nominated as govt. counsel by Min. of Law & Justice to appear on behalf of Directorate Land & Dev. Office, M/o Urban Dev., New Delhi Vigilance- cum- Legal Officer Deputation Group A 29.6.01 31.1.03 01 07 02 8000- 13500 (PR) 1.) The court cases of the deptt. before the law courts
2.)Verification of legal documents in property matters
3.) Tendering legal advice
4.) Appointed as Estate Officer under Public Premises Act
5.) Worked as Vigilance Officer of the Deptt.
Land & Building Deptt., GNCTD Officer on Special Duty (Litigation) Permanent 10.9.03 Still working 05 *On closing date 09 22 15600- 39100 (Revised) GP 6600 1.) In charge of conduct of litigation related to land acquisition/ compensation /alternative plots/ administrative & other cases of Deptt. before the Hon. High Court
2.) Tendering legal advice on the legal issues pertaining to land acquisition/ revenue/ other matter
3.) Briefing to sr. advocates/ Solicitor General/Addl. Solicitor General appearing for deptt. in land acquisition cases
4.) In-charge of the computer cell & nodal officer (IT) for monitoring court case monitoring system The applicant with his application had attached matriculation certificate in support of his age, copy of the Bachelors Degree (BA), and enrollment certificate as an advocate. He also attached documents as regards his selection by UPSC from time to time as mentioned above in the law department, for which the essential educational qualification is degree of law, as also his experience certificates. It is the case of the applicant that UPSC has been permitting candidates to appear for interview subject to their furnishing the requisite certificates at a later stage, and that would also be in consonance with the law laid down by the Honble Supreme Court in Charles K. Skaria v Dr. C. Mathew & others [(1980) 2 SCC 752] and Dolly Chhanda v Chairman, JEE & others [(2005) 9 SCC 779]. It is the case of the applicant that he is already working in the legal department of the Government of NCT of Delhi upon selection by UPSC, and that he has been working on the posts for which degree of law is an essential and pre-condition, and, therefore, UPSC cannot now reject his application, and further that even if the applicant had not attached the law degree certificate with his application form, other certificates attached by him along with the same would clearly support his claim of having possessed the requisite educational qualification, and, therefore, in these circumstances, rejection of his application summarily by UPSC would be arbitrary and uncalled for. Insofar as the judgment of the Delhi High Court in Dr. Vineet Relhan (supra) is concerned, it is the case of the applicant that the facts of the said case would reveal that the certificates mentioned in the advertisement were not enclosed, including matriculation certificate, MBBS degree, and post graduation degree. Along with the application, he submitted only the documents relating to published papers, clinical conference conducted and papers relating to academic activities, whereas in the present case, the applicant had admittedly submitted all the certificates including matriculation certificate, degree certificate and the experience certificate from the concerned government departments. It is further pleaded that the facts of the case decided by the High Court would be distinguishable. All certificates were attached by the applicant with his application and insofar as, the law degree is concerned, the same was also attached before the interview could be held. It is urged that the facts of the present case would be more akin to the facts of the cases decided by the Honble Supreme Court in Charles K. Skarna and Dolly Chhanda (supra).
6. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Before we may advert to the rival contentions of the learned counsel representing the parties, we may mention some essential features of this case. In the advertisement inviting applications for the post under contention, as regards instructions for attaching certificates along with the application, column 7, and notes-I and II appended thereto, insofar as the same are relevant, would need a necessary mention. In column 7 under the caption Certificates to be attached, it is mentioned, Candidates should note that they should attach with their applications attested/self certified copies of the following documents. The documents as mentioned in column 7 are Matriculation or equivalent certificate in support of their declaration of age, and Degree or Diploma Certificate or other certificates (emphasis supplied) in support of their educational qualifications. Notes-I and II appended to column 7 read as follows:
Note-I: Original Certificate should not be sent with the application. These should be produced at the time of interview.
Note-II: Candidates should note that only the date of birth recorded in the Matriculation, Higher Secondary Examination Certificate or any equivalent certificate on the date of submission of application, will be accepted by the Commission. Mark Sheet, Admit card as a proof of date of birth will not be accepted. No subsequent request for its change will be considered. [ What clearly emerges from the advertisement is that whereas matriculation or equivalent certificate in support of declaration of age had necessarily to be attached, it was not essential to attach the degree or diploma certificate, and it would have been permissible for a candidate to have attached other certificates in support of educational qualification. As regards degree or diploma, in the present case it would be the degree of law, and if, therefore, copy of the same was not to be attached, it was permissible to attach other certificates which may show that the candidate had the degree. Further, note-I would clearly indicate that there was not to be any compromise or concession in submitting the matriculation or equivalent certificate, like higher secondary, which was to be submitted for purpose of proof of age. Marks sheet and admit card as a proof of date of birth was not to be accepted. This strict adherence, insofar as the degree in law is concerned, was not the requirement. A combined reading of column 7 with Notes-I and II appended thereto, as reproduced above, would clearly demonstrate that whereas, matriculation or equivalent certificate as regards the proof of age had to be necessarily attached, the certificate of degree in law need not have been attached, as one could show from other certificates attached that he was having a degree in law. In this background, we may first consider the judgment of the High Court of Delhi in WP(C) No.10058/2009 and connected matters decided on 25.1.2010 in the matter of UPSC & others v Government of NCT of Delhi & others, a clear distinction on facts would emerge. We may mention that the respondent-UPSC in the reply has placed reliance upon the judgment of the High Court of Delhi in Dr. Vineet Relhan (supra). The said judgment may not be relevant at all. That was a case where the Tribunal had dismissed the OA filed by Dr. Vineet Relhan was a candidate for the post of Specialist Grade-II (Dermatology). He was informed that since he had not annexed necessary certificates his application form was not accepted. He had not submitted the matriculation certificate as proof of date of birth, MBBS degree certificate and MD (Dermatology) degree certificate. It was his case before the Tribunal that the certificates were in fact submitted by him and his application was received by an official of the UPSC, who spent a considerable amount of time in checking the application, and it was thereafter only that he was issued a card for being called for interview. This assertion of the applicant was denied by UPSC. We called for original records and found that the applicant had submitted only published papers, certificates as regards clinical trials conducted, conferences attended and presentation done, other academic activities, and experience certificates. We were satisfied that the applicant had not submitted the documents mentioned in letter dated 23.7.2009. On dismissal of the OA, the applicant filed a writ petition before the High Courts which was dismissed. The plea of the applicant was that documents could be produced by him later and that his mere failure to submit the requisite documents at the appropriate time ought not have an adverse effect. The facts of the case aforesaid and the one in hand have no parity. However, it is to our notice that a batch of connected Original Applications came to be disposed of by us, which were allowed and the judgment recorded by this Tribunal has since been set aside by the High Court in the matter of UPSC v Govt. of NCT of Delhi (supra). The facts of this case would be more relevant. We may also mention at this stage that in the present case, even though the applications that might have been received pursuant to the advertisement aforesaid, may be 187, but by short-listing on a criteria as adopted by UPSC, in the fray were only eleven candidates who were called for interview.
7. The facts of the case decided by the Division Bench of the Honble High Court in the case aforesaid reveal that vide special advertisement No.52/2008, UPSC advertised for recruitment 38 posts of Assistant Public Prosecutor in the Directorate of Prosecution, Government of NCT of Delhi. The special advertisement was published in the Employment News dated 22-28 March, 2008. Essential qualification for appointment was degree in law of a recognized university or equivalent and three years experience at the Bar. The format of the application was given along with the advertisement. Candidates were advised to go through the instructions and additional information to candidates for recruitment by selection given in another advertisement published in the same issue of Employment News. Recruitment test was to be held on 3.8.2008, and the proformae for all the certificates were given in the special advertisement. The prescribed essential qualifications were the minimum and if the number of applications received in response to the advertisement was to be large and it would not be convenient or possible for the Commission to interview all the candidates, the Commission at its discretion could restrict the number of candidates to a reasonable limit by any or more of the methods, such as, on the basis of either qualifications and experience higher than the minimum prescribed in the advertisement; or on the basis of experience in the relevant field; or by counting experience before or after the acquisition of essential qualifications; or by holding a screening test. The candidates were thus required to mention all the qualifications and experience in the relevant field over and above the minimum qualifications and should attach attested/self certified copies of the certificates in support thereof. Notes-III and IV appended to column 7 of the advertisement, read as follows:
NOTE-III: In regard to Educational Qualifications, the mark sheet in lieu of Educational Certificates will not be accepted by the Commission.
NOTE-IV: The provisional claim whatsoever in regard to eligibility to the post will not be accepted by the Commission. The facts of the case aforesaid thus reveal that there were two stages leading to selection and appointment of candidates. The first stage was the recruitment test. The second stage started with filling up of the Detailed Application Form (DAF) which was meant only for those who had passed the recruitment test. In the first stage the requirement as regards attaching of certificates is exactly the same as in the present case. In that regard, it has been mentioned, Degree or Diploma or other certificates (emphasis supplied) in support of their educational qualifications. It is absolutely clear that despite the fact that the concerned candidates had not attached the LLB degree, but had submitted their Bar Council certificates, they were allowed to appear in the recruitment test. They had cleared the written test for being called for interview. Along with the letter in that regard, a DAF was enclosed, which was required to be submitted by the respondents to UPSC within fifteen days. A perusal of the DAF would make it clear that it had to be sent along with all requisite certificates and documents, originals of which were required to be produced at the time of interview. The respondents before the High Court submitted that they submitted DAF within time but they were not called for interview and their candidature was cancelled. There were different reasons with regard to different persons, but we are concerned with those who had not furnished LLB degree certificate with the DAF. For not furnishing the law degree certificate, the common explanation of the respondents in all the cases was that the same was not made available by the concerned university and, therefore, it could not be furnished with the DAF, but it was urged on their behalf that since they had been enrolled with the Bar Council, that by itself would be sufficient proof of their having passed the LLB examination. The enclosures which the candidates were supposed to send to the Commission were clearly mentioned in the DAF. Column 12 of the DAF deals with the enclosures to the application form to be sent to the Commission by the candidates, clause (ii) whereof reads as follows:
(ii) An attested/certified copy of the certificate of educational qualification Registration & Experience. The facts, as mentioned above, would thus reveal that when initially applications were invited, the requirement was to attach degree or diploma certificate or other certificates in support of educational qualifications. As mentioned above, even though they had only attached the certificates issued by the Bar Council of their having been enrolled as advocates and not the degree in law, but they were all called to take the recruitment test. Then came the second stage when they had cleared the recruitment test. At that stage, they were sent a detailed application form requiring them to send or attach all requisite certificates and documents, originals of which could, however, be produced at the time of interview. Attaching attested/certified copies of certificates of educational qualifications was a necessary requirement. In the present case, there was only one stage, as surely, after short-listing the candidates from whom applications had been received, only interview was to be held. All those who answered the eligibility criteria as fixed by short-listing, were to be called for interview. There is nothing like that those who were short-listed were required to fill up a DAF as was required in the case before the Honble High Court. We repeat and reiterate that whereas the requirement in the present case was of attaching degree or diploma certificate or other certificates in support of educational qualifications, in the case before the High Court, one had to attach only attested/certified copy of the certificate of educational qualification. There was nothing like that other certificates in support of educational qualifications could also be submitted.
8. At this stage, we may also mention that in the case before the High Court, 3011 applications were received pursuant to the advertisement inviting application for 38 posts, which would be, as mentioned by the High Court, roughly about 90 applications per post. Out of these applications, 2765 were admitted for written examination for which 1885 actually appeared, and total number of candidates who qualified for the interview was 134. In the case in hand, the applicants may have been 187, but short-listing was only of eleven candidates and the post that was to be filled was one. In the background as mentioned above with regard to there being distinction in the facts of the two cases the one in hand and the one decided by the Honble High Court, we may find as to what was held by the High Court and whether the judgment of the High Court would clinch the issue against the applicant. The common plea raised by the concerned candidates was that the concerned universities had not issued the LLB certificates. This plea was not accepted on grounds inclusive of that soon after rejection of their candidature, they managed to produce their LLB degree certificates within a few days. It was also held that they did not make any special effort to obtain the LLB degree certificate despite the requirement, nor had they placed on records any material which would show the special efforts, if any, made by them, in spite whereof they were unable to obtain the LLB degree certificate. On the plea raised by them that since they were enrolled with the Bar Council, therefore, it must be assumed that they had a valid LLB degree certificate, the Honble Division Bench observed as follows:
This is neither here nor there. There was no requirement for a candidate to attach the proof of enrolment with the Bar Council. Consequently, if an applicant attached such a document, the UPSC was not obliged to take note of it. What was required to be attached was a valid LLB degree certificate, nothing more or less (emphasis supplied).
There is a stark difference between the facts of the case in hand and the one subject matter of decision by the Honble High Court. In the present case, it is not that the candidates were required to attach LLB degree certificate, nothing more or less. As mentioned above, it was permissible for them to either attach the LLB degree certificate or other certificates in support of their educational qualifications. We may again mention that in the case before the Honble High Court when the requirement was not strictly to only produce the LLB degree certificate, and the requirement was similar to the one as in the case in hand, at the first stage where candidates could either produce the LLB degree certificate or other certificates in support of their educational qualifications, they were allowed to appear in the recruitment test. In the same very judgment, some of the writ petitions arising from the common judgment were dismissed, wherein the rejection of the candidature was only on the ground that the concerned candidates had not produced a certificate stating that they had three years experience at the Bar. Inasmuch as, such was not the requirement in the DAF, it became a conceded position before the High Court that it was not a valid ground for rejection of their candidature. Actually, it is this part of the judgment of the Honble High Court which would be akin to the facts of the present case. On the basis of distinction on material facts, as enumerated above, which may have entirely different result, there would be no need to refer to other facts that may be distinguishable. However, we may mention that in the case before the High Court, in response to the advertisement 3011 applications were received, which would be roughly 90 applications per post. Out of these applicants, 2765 wee admitted for written examination for which 1885 actually appeared. The total number of candidates who qualified for interview was 134. In the facts and circumstances as mentioned above, it was held, With such a large number of DAFs having been received by the UPSC, it is impracticable to expect the UPSC to give a go by to the instructions that have categorically and specifically been mentioned in the advertisements issued by it. Such is not the position in the present case. As mentioned above, against one post, 187 applications were received, and after applying the criteria of short-listing, only 11 were short-listed. Before we may part with the judgment passed by the Honble High Court, we may mention that the applicants had sought to defend the orders passed by the Tribunal on the basis of judgment of the Honble Supreme Court in Charles K. Skaria (supra), but the same was distinguished on facts by observing that the facts of the case before the Supreme Court were such where the controversy was only with respect to three seats and six candidates, whereas in the case before the High Court the large number of contenders in the musical chair scenario would run into a couple of thousands. The judgment of the Apex Court has been distinguished on facts. However, it would be relevant to mention as to the law laid down by the Supreme Court on the issue.
9. The case before the Honble Supreme Court in Charles K. Skaria (supra) was with regard to admission to courses in medical college. One of the requirements for making applications was of attaching attested copies of the statement of marks at each professional examination and those of other documents with every application. Those who were holding diploma or having military service or rural service were required to produce certificates in that regard. There was a provision of giving 10% marks to diploma holders in the selection of candidates to M.S. and M.D. courses in the respective subjects or sub-specialties. Some of the candidates had not attached the diploma certificate, even though information in that regard from the respective universities from where they had passed the examination was available. On such persons having been admitted who had not produced the diploma certificate, the controversy arose. It was a case of three seats and six contenders. In a lucid judgment in the picturesque language of the Honble Justice V. R. Krishna Iyer, as he then was, it was held that 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. It was further held, thus:
24. 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 as 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.
10. In Dolly Chhanda (supra), the Supreme Court following its judgment in Charles K. Skaria (supra), held that possession of requisite qualifications on date required has to be distinguished from submission of proof thereof by date required. General rule, it was held, is that eligibility qualification must be possessed on the last date fixed for purpose of applying for any course of study or a post for availing benefit of reservation or weightage, unless there is an express provision to the contrary. Possession of requisite qualification by the date fixed has to be established by producing the necessary certificates, degrees or mark sheets. There can be no relaxation in regard to possession of requisite eligibility qualification by the date fixed. However, depending on facts of a case, there can be some relaxation in matter of submission of proof of possession of the said qualification. Settled law on the issue is that it is the possession of requisite qualifications which is essential and not the submission of proof thereof by the date required, and whether the proof can be submitted later, would depend upon the facts and circumstances of each case. The judgment of the Honble Supreme Court in Charles K. Skaria (supra) has been distinguished by the Honble High Court only on facts. The facts of the present case appear more akin to the facts of the case before the Supreme Court, as herein the musical chair scenario was between eleven contenders only, and if the candidature of the applicant and others equally situate was not rejected, it may add only to three or four more. However, once, rejection of the candidature of the applicant was illegal, as there was no necessary requirement of attaching the degree in law certificate, and that the applicant had obtained the law degree could be substantiated by other documents, there may not be any need to further deal with the facts of the case, being more near to the judgment of the Honble Supreme Court in Charles K. Skaria (supra).
11. Ms. Jasmine Ahmed, learned counsel representing the respondent, in addition to placing reliance upon the judgment of the Delhi High Court in Dr. Vineet Relhan (supra), and on UPSC v Government of NCT of Delhi (supra), which we brought to her notice, would also contend that in the present case there were others too whose candidature was rejected on the ground that they had not submitted the law degree along with the application form. When confronted with the position that no such averment has been made in the reply, the learned counsel would have practically nothing to say. In all fairness to the learned counsel, we may state that she has placed reliance upon the following observations in the judgment of the High Court in UPSC v Govt. of NCT of Delhi (supra):
The matter may be looked at from another point of view. The UPSC has rejected the candidature of 45 persons due to non-submission of the required documents and/or submission of documents in the wrong format. If any relief is granted to the Respondents before us, surely it would be appropriate to grant a similar relief to other similarly placed candidates, some of whom may not have approached the Tribunal for relief. If this exercise were to be undertaken, perhaps the entire examination would be required to be cancelled.
Shri Nidhesh Gupta, learned sr. counsel representing the applicant, would, however, contend that the observations as extracted above came to be made without it being an issue before the Honble High Court, and that it was not as if a plea might have been raised by the petitioners before the High Court that if reliefs were granted to the respondents, it would be appropriate to grant reliefs to all similarly placed as well, some of whom might not have approached the Tribunal, and that the entire examination would require to be cancelled. It is urged that this was not an issue before the High Court; there was no debate for and against the same, and, therefore, the observations should not be considered as binding on this Tribunal. It is urged that the settled law on the issue is that the court helps those who are vigilant and not those who are dormant and sleep over their rights. In that regard the learned counsel has placed reliance on Tej Pal Singh v Government of NCT of Delhi [WP(C) No.1357 of 1999, decided on 24.12.1999, reported as 2000 (83) DLT 649], wherein it has been held that it is no ground to reject the cases of the petitioners or deny them relief merely because some other persons whose cases were also rejected, had not approached the court, if it was found that wrong had been done to the petitioners, and if petitioners had approached the court for redressal of their grievances, relief could not be denied to the petitioners on the ground that other similarly situated persons had not approached the court. We may not, however, rest our judgment on this aspect of the case, as we do not prefer to go into the issue. In that regard we may only note the rival contentions of the learned counsel representing the parties and leave the matter at that. We would rest our judgment on the only issue that the present was a case where there was no requirement of necessarily attaching the law degree certificate. The requirement was that either it should be a degree in law or other certificates in support of educational qualifications. The applicant, in addition to attaching the certificate issued by the Bar Council of his enrollment as an advocate, had attached voluminous record which would unmistakably show even to a man of ordinary prudence that he must have obtained degree of law. In this connection, we may only mention that the claim of the applicant that he has been working on different posts which all essentially require degree of law, has been substantially proved by placing necessary documents on record, mention whereof has been made hereinbefore. We are of the considered view that a great deal of injustice would be caused to the applicant if despite his impressive service credentials and number of posts held by him for which he was selected by UPSC only, and on the basis of his essential degree of law and when he has stood first, that he should be denied the well earned appointment on the post of Legal Advisor-cum-Standing Counsel. The candidature of the applicant was rejected in the category of those who had not attached the requisite certificates. No effort was made thus as to whether he answered the eligibility as per the criteria adopted for short-listing. It is, however, not the case of the respondent that the applicant could not be short-listed as per such criteria. The impressive array of the facts as given by the applicant, it appears to us, would bring him within the criteria for short-listing. However, we express no opinion on this issue.
12. For the reasons mentioned above, we allow this Original application. A direction is issued to the respondents to consider the candidature of the applicant as valid, and if the applicant answers the criteria for short-listing, to consider him for appointment on the post aforesaid. Let the exercise as ordained above be done as expeditiously as possible and preferably within a period of three weeks from today. In view of peculiar facts of the case, costs of the litigation are, however, made easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/