Rajasthan High Court - Jodhpur
Navin Kumar Choubisa vs State & Ors on 29 November, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 14869 / 2015
Navin Kumar Choubisa son of Shri Pramanand Choubisa, aged
about 38 years, resident of Village Post Salumber, Tehsil Salumber,
District Udaipur.
----Petitioner
Versus
1. State of Rajasthan through Secretary, Department of Secondary
Education, Secretariat, Jaipur.
2. Secretary, Elementary Education, Secretariat, Jaipur.
3. Director, Secondary Education, Bikaner.
4. Director, Elementary Education, Bikaner.
5. Secretary, Rajasthan Public Service Commission, Ajmer.
----Respondents
Connected With
S.B. Civil Writ Petition No. 6962 / 2015
Smt. Minakshi Joshi daughter of Shri Bhagwati Shankar Joshi, wife
of Vinod Joshi, aged about 38 years, resident of Ganesh Chok,
Village Talwara, Tehsil & District Banswara.
----Petitioner
Versus
1. State of Rajasthan through Secretary, Department of Secondary
Education, Secretariat, Jaipur.
2. Secretary, Elementary Education, Secretariat, Jaipur.
3. Director, Secondary Education, Bikaner.
4. Director, Elementary Education, Bikaner.
5. Secretary, Rajasthan Public Service Commission, Ajmer.
----Respondent
S.B. Civil Writ Petition No. 2229 / 2017
Dev Kunwar Soni D/o Shri Naval Kishore Soni, aged about 38
years, R/o Village Post Nai, Tehsil Girwa, District Udaipur (Raj.)
----Petitioner
Versus
(2 of 6)
[ CW-14869/2015]
1. State of Rajasthan through the Director, Secondary Education
Department, Government of Rajasthan, Bikaner.
2. The Rajasthan Public Service Commission through the
Secretary, Ajmer.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Sukesh Bhati
Mr. D.S. Beniwal
For Respondent(s) : Mr. Tarun Joshi
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 29/11/2017
1. This writ petition under Article 226 of the Constitution of India has been preferred, in sum and substance, with the following prayers and for the sake of convenience, the prayer clauses are being taken from the leading case being S.B. Civil Writ Petition No.14869/2017:
"a. The respondents may kindly be directed to consider the candidature of the petitioner in the category of TSP General Men for the advertised vacancy of PTI Grade-II/III 2013 (Annex.1).
b. The respondents may be directed to give appointment to the petitioner on the post of PTI Grade II/III in pursuance of the advertisement vacancy (Annex.1) with all consequential benefits.
c. The cost of the petition may kindly be awarded to the petitioner and Any other order or relief which this Hon'ble Court deems fit and proper in favour of the petitioner may kindly be passed."
2. Learned counsel for the petitioner has shown Annexure-1, where the correction of TSP could have been made by the petitioner in the advertisement dated 18.09.2013 for the (3 of 6) [ CW-14869/2015] post of PTI Grade-II & III at a subsequent point when the selection process was going on.
3. Learned counsel for the petitioner has shown from the record that the original advertisement did not mention the category TSP at all.
4. Learned counsel for the respondents has shown the press note dated 10.04.2015, by which the inclusion/correction of the TSP was permitted.
5. Learned counsel for the petitioner has relied upon the judgment passed by the Hon'ble Apex Court in the case of Dolly Chhanda Vs. Chairman, JEE and Ors. reported in (2005) 9 Supreme Court Cases, 779. The relevant portion of the judgment reads as under:
"7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature.
8. This principle was explained and applied in Charles K. Skaria and Ors. v. Dr. C. Mathew and Ors. The controversy here related to admission to a post graduate course in medicine. The relevant rule provided for addition of 10% marks if a candidate possessed a diploma in the relevant subject or sub-specialty and this benefit could be given only if (4 of 6) [ CW-14869/2015] the candidate's success in the diploma course was brought to the knowledge of the Selection Committee before completion of selection in an authentic or acceptable manner. The Prospectus provided that the attested copies of statement of marks and other documents should be attached with every application. Three such candidates were given admission who had not attached the certificate of having passed the diploma along with their applications. Their admission to post graduate course was set aside by the High Court on the ground that their applications, wherein they claimed the benefit of diploma, were liable to be rejected as the requisite certificates had not been attached. This Court speaking through Krishna Iyer, J. reversed the judgment of the High Court and held that the admission to the candidates had rightly been given as they had in fact passed the diploma before the date fixed. The relevant parts of paras 20 and 24 of the judgment, where this principle was highlighted are being reproduced below :
"20. There is nothing unreasonable or arbitrary in adding 10 marks for holders of a diploma. But to earn these extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course ? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor. .......... Mode of proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but (5 of 6) [ CW-14869/2015] still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence.
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 dehumanizes 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........."
(Emphasis in original)
9. The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29.6.2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal.
10. The appellant had qualified in the JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current academic year."
6. Learned counsel for the petitioner has also pointed out that the inclusion of the TSP was at a subsequent stage and therefore, it is all the more imperative upon the respondents to liberally accept the inclusion of the category which will be different (6 of 6) [ CW-14869/2015] from change of category.
7. After hearing learned counsel for the parties and perusing the record of the case as well as the precedent law cited at Bar, this Court is of the opinion that the advertisement itself did not contain the word TSP category then it was not the fault of the petitioners and thus, it is not a case of correction but it is a case of inclusion of category which has to done liberally by the respondents as they were at fault for including the TSP at future stage.
8. In light of the aforesaid discussion, the writ petitions are allowed and the respondents are directed to give appointment to the petitioners as per their merit in TSP, if they are otherwise eligible.
(DR. PUSHPENDRA SINGH BHATI)J. zeeshan/