Uttarakhand High Court
Ishank vs Uttarakhand Public Service Commission on 15 September, 2020
Equivalent citations: AIRONLINE 2020 UTR 309
Bench: Ravi Malimath, R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No.481 of 2019
Ishank ... Petitioner
Vs.
Uttarakhand Public Service Commission, Haridwar
And another ... Respondents
Shri Himanshu Pal, learned counsel for the petitioner.
Shri B.D. Kandpal, learned counsel for the U.K. Public Service Commission/
respondent no.1.
None is present for respondent no.2.
Dated: September 15, 2020
Coram:Hon'ble Ravi Malimath, A.C.J.
Hon'ble R.C. Khulbe, J.
Hon'ble Ravi Malimath, A.C.J. (Oral) The case of the petitioner is that in terms of the notification dated 31.05.2019, the Uttarakhand Public Service Commission, namely, respondent no.1 issued an advertisement for the post of Uttarakhand Judicial Services Civil Judge (Junior Division) Examination-2019, for selection of 15 posts by way of direct recruitment. The fees, documents, last date, were enumerated. By a corrigendum dated 27.8.2019 issued by respondent no.1, the number of vacancies were increased from 15 to 28. Out of these vacancies, 7 seats were reserved for the OBC category of which 2 seats were reserved for Uttarakhand Women candidates; 3 seats were reserved for the Economically Weaker Sections (EWC), 2 seats were reserved for the scheduled castes, and 16 seats were for the un-reserved category, out of which, 4 seats were reserved for the Uttarakhand Women candidates.
2. The petitioner applied as a candidate belonging to the un-reserved category. The pattern of examination was a preliminary examination to be followed by a Main Examination and thereafter, an interview. The preliminary examination was scheduled to be held on 01.09.2019. The petitioner, having applied for the same, received an admit 2 card and, accordingly, wrote the exam. After the examination, the key-answers were released and objections were called for. Various objections were furnished. Thereafter, the final key-answer was published on 25.9.2019. Thereafter, the Uttarakhand Public Service Commission declared the list of successful candidates and the cut-off marks under each category. The petitioner's name was not included in the list of successful candidates. It was indicated that the cut-off marks for the un-reserved category was 145.75 marks, whereas the petitioner had secured 141.75 marks. Therefore, he was not qualified to take up the main examination.
3. The petitioner, being convinced that he has received less marks than what he deserves, filed the instant writ petition seeking for a writ, order or direction to declare the impugned result, as declared by the Uttarakhand Public Service Commission, as void; to direct the respondents to examine the veracity of the answers to question nos.49, 51, 164, 175 and 182; and thereafter, to award appropriate marks.
4. Notices were issued to the respondents.
5. By the order dated 17.10.2019, the Division Bench of this Court considered the answers to question nos.49, 51, 164, 175 and 182. It considered the key answers by respondent no.1 as well as the answers furnished by the petitioner. Errors were noticed in the marks awarded. On considering the same, the Court was of the view that the petitioner would be entitled for 5 more marks i.e. 4 marks for the 4 correct answers, and also 1 more mark towards the negative marks of 0.25 for each of the four questions. Hence by adding 5 marks to 141.75 marks secured by petitioner, it was held that he would, in all, receive 146.75 marks which is more than the cut-off marks of 145.75 marks. In terms of the said order, the petitioner was permitted to submit his application form to appear in the main examination, the last date of which was 3 prescribed as 19.10.2019. Petitioner wrote the main examination.
6. In the interregnum, petitioner filed an application before respondent no.1 to consider him as a candidate belonging to the OBC category. The same was declined by the first respondent. Thereafter, an application was filed seeking for additional prayers to quash the impugned order rejecting the plea of the petitioner to declare that he is entitled to be considered under the OBC category; and to direct the respondent-Commission to revise the result of the examination, and consequential reliefs. The said application was contested.
7. By the order dated 27.08.2020, the application seeking amendment of the writ petition was allowed, and the petitioner was permitted to amend the writ petition. Thereafter, the matter was taken up for consideration.
8. The learned counsel for the petitioner contends that the petitioner belongs to the OBC category. He has received the caste certificate on 14.10.2019. The last date of submission of the relevant documents to the first respondent was 25.10.2019. However, by the order dated 14.01.2020, the request of the petitioner to be treated as one belonging to the OBC category, has been wrongly denied. Therefore, he pleads that the petition be allowed, and he should be declared as eligible to participate in the interview as an OBC candidate. In support of his case, he relies on the following judgments of the Hon'ble Supreme Court: -
A. Dolly Chhanda v. Chairman Jeet and others; (2005) 9 SCC 779;
B. Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & another; (2016) 4 SCC 754.
9. The same is disputed by Shri B.D. Kandpal, learned counsel for the Commission. There are two 4 objections raised by the learned counsel. The first is that the petitioner is not a domicile of the State of Uttarakhand, and therefore, is disqualified from writing the exam.
Secondly, that the petitioner has applied under the unreserved category while filling up the form for the preliminary exam. Having done so, he cannot be allowed to change the category to OBC. So far as the document called for by the Commission is concerned, the documents are relatable to the application filed by the petitioner at the time of making an application for the preliminary exam. It is those documents alone which are required to be filed in original, and not change of category or change of any other material pertaining to the petitioner. Hence, he pleads that the petition be dismissed. He relies on the following judgments:-
A. Smt. Ranjana Kumari v. State of Uttaranchal and others; (Civil Appeal No.8425 of 2013) dated 01.11.2018 (Hon'ble Supreme Court);
B. Yamini Joshi v. State of Uttarakhand and another; 2010 SCC Online Utt 1224 (Uttarakhand High Court);
C. Babli Gaur v. Uttarakhand Public Service Commission (WPSB No.130 of 2018) and connected matters, decided on 02.05.2018 (Uttarakhand High Court);
10. Heard learned counsels and examined the material on record.
11. The petitioner had applied for the post in question in the unreserved category. He wrote the exam as such. He secured 141.75 marks. The cut-off for the said category was 145.75. Questioning the non-grant of marks for the right answers given, the instant petition was filed.
12. By the order dated 17.10.2019, the Division Bench of this Court notionally granted 5 marks to the petitioner. Consequently, he was held to have crossed the 5 cut off mark, and was entitled to write the main exam. He was accordingly, permitted to do so. This order has attained finality and has not been questioned by respondent no.1. Even at the stage of final hearing of this matter, there is no objection raised by the learned counsel for respondent no.1 so far as this order is concerned. Therefore, it has to be held that the petitioner was qualified to write the main exam by virtue of the marks granted to him in terms of the interim order dated 17.10.2019. Hence, so far as this relief is concerned, respondent no.1 is directed to declare that the petitioner has secured 146.75 marks in the preliminary exam, and therefore, eligible to write the main exam.
13. The main exam has been written by the petitioner. He secured 388 marks out of 850 marks. The cut off for the general merit category is 50%, namely, 425 marks, and for the OBC category, it is 40%, namely 340 marks. Therefore, the petitioner does not qualify to attend the interview, since the cut-off marks for the general merit category is 425 marks, and he has secured only 388 marks.
14. However, what is relevant herein is that the caste certificate was produced by the petitioner before the respondent-Commission. The caste certificate was issued to him on 14.10.2019. He has submitted the same to respondent no.1 along with the request letter dated 04.12.2019. The respondent no.1 considered the same, and by their communication dated 14.01.2020, rejected the request of the petitioner to be considered as an OBC category candidate. The writ petition was amended seeking to question this order also. It is in this background that the learned counsel for the petitioner relied on the judgments of the Hon'ble Supreme Court in support of his case.
615. In the case of Dolly Chhanda Vs. Chairman, JEE and others reported in (2005) 9 SCC 779, the Hon'ble Supreme Court held that that a person must possess the eligibility qualification as on the last date fixed; there can be no relaxation in this regard. Paragraph nos.7 and 8 of the said judgment are extracted hereinbelow: -
"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 & Ors. v. Dr. C. Mathew & Ors. 1980 (2) SCC 752. 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 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 7 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 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."
16. He further places reliance on the judgment of Hon'ble Supreme Court in the case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & another reported in (2016) 4 SCC 754, with reference to paragraph nos.14 and 16, which read as follows:
"14. The Division Bench of the High Court erred in not considering the decision rendered in the case of Pushpa (supra). In that case, the learned single Judge of the High Court had rightly held that the petitioners therein were entitled to submit the O.B.C. certificate before the provisional 8 selection list was published to claim the benefit of the reservation of O.B.C. category. The learned single judge correctly examined the entire situation not in a pedantic manner but in the backdrop of the object of reservations made to the reserved categories, and keeping in view the law laid down by a Constitution Bench of this Court in the case of Indra Sawhney v. Union of India as well as Valsamma Paul v. Cochin University & Ors. The learned single Judge in the case of Pushpa (supra) also considered another judgment of Delhi High Court, in the case of Tej Pal Singh (supra), wherein the Delhi High Court had already taken the view that the candidature of those candidates who belonged to the S.C. and S.T. categories could not be rejected simply on account of the late submission of caste certificate.
16. In Pushpa, relevant paragraphs from Tej Pal Singh have also been extracted, which read thus :-
"11. ... '15. The matter can be looked into from another angle also. As per the advertisement dated 11-6-1999 issued by the Board, vacancies are reserved for various categories including SC category. Thus in order to be considered for the post reserved for SC category, the requirement is that a person should belong to SC category. If a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to SC category and act thereon by giving the benefit to such candidate for his belonging to SC category. It is not that petitioners did not belong to SC category prior to 30-6-1998 or that acquired the status of being SC only on the date of issuance of the certificate. In view of this position, necessitating upon a certificate dated prior to 30-6-1998 would be clearly arbitrary and it has no rationale objective sought to be achieved.............."
17. Therefore, learned counsel for the petitioner contends that as on the last date of filing of the relevant documents, he was already in possession of a certificate declaring him belonging to the OBC category. Hence, he pleads that by following the aforesaid judgments of the Hon'ble Supreme Court, a similar relief may be granted herein also.
18. The learned counsel for the respondent- Commission firstly relied on the judgment of the Hon'ble Apex Court in the case of "Ranjana Kumari v. State of Uttaranchal". Paragraph no.4 of the said judgment reads as follows:-
9"4. Two Constitution Bench judgments of this Court in Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College & Ors. and Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra & Anr. vs. Union of India & Anr. have taken the view that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State. The issuance of a caste certificate by the State of Uttarakhand, as in the present case, cannot dilute the rigours of the Constitution Bench Judgments in Marri Chandra Shekhar Rao (supra) and Action Committee (supra)."
19. We are of the considered view that the said judgment will not be applicable to the case at hand in view of the fact that the subject matter therein was with regard to the caste of a particular person in a migrant state, and whether it can be considered in the parent State also. However, that is not a question that arises for consideration herein. Hence the said judgment has no application herein.
20. The second judgment on which reliance is placed by the respondent is by a Division Bench of this Court in the case of "Yamini Joshi Vs. State of Uttarakhand and another", reported in 2010 SCC Online UTT 1224 wherein it was held in paragraph no.3 as follows:-
"3. We have considered the solitary contention advanced by the learned counsel for the appellant. All those candidates, who were desirous of being considered by way of reservation, were required to respond to column No.12. Column No.12 envisaged reservation for Scheduled Castes, Scheduled Tribes, Other Back Ward Categories, Defence Personnel, Ex Service Men, Sports Persons, Government Servants earlier employed in the State of Uttaranchal, Uttaranchal Females, Physically Handicap candidates, whether they were possessing low vision, hearing impairment or locomoter disability. Every candidate, who was desirous of being considered for any of the aforesaid reserved categories, was liable to respond to column No.12 of the OMR sheet depicting the particular reservation the candidate was claiming. Undisputedly, the appellant herein did not fill up column No.12 so as to claim reservation as an Uttaranchal female. As such, the learned Single Judge declined the claim of the appellant by passing the impugned order dated 05.05.2010 to issue a direction to the respondent to consider the appellant against the reserved category of Uttaranchal Females. We find no infirmity in the instant determination rendered by the learned Single Judge. It is apparent that the appellant did not choose to claim appointment by way of reservation, inasmuch as, she did not fill up column No.12. Having failed to fill up 10 column No.12, so as to claim 3 reservation as an Uttaranchal female, even though she may have been awarded more marks than other Uttaranchal females who sought such reservation, her claim cannot be evaluated from the reserved category of Uttaranchal Females, as she never applied for the same."
21. This judgment also is not applicable in view of the fact that the application sought for was in a particular category, and what was being pleaded, was for another category. In the facts of that case, the appellant did not fill up column no.12 so as to claim relaxation as an Uttaranchal female, and therefore, no relief was granted. The facts herein are quite different and hence the said judgment will not be applicable.
22. In the case of "Babli Gaur vs. Uttarakhand Public Service Commission", a Division Bench of this Court, in WPSB No.130 of 2018 decided on 02.05.2018, in paragraph no.22, has held as follows: -
"22. The last aspect, which we must deal with, is about the 'asterix'(*) in the online application form. The requirement in the online application form is that the columns, which carry an 'asterix'(*) are mandatory and that the columns relating to category/subcategory does not have an 'asterix'(*). The 'asterix'(*) is there, as pointed out by the learned counsel for the Commission, in regard to columns, which relate to basic eligibility. As we have noted, the candidates, who may be entitled to the benefit of vertical or horizontal reservation, need not claim reservation. It is entirely optional for a candidate to claim reservation. Therefore, a category and subcategory can certainly not be made a mandatory condition and, therefore, if they do not wish to lay a claim for reservation, then they would certainly be entitled to be considered as a 'General' candidate. This alone would be the result."
23. We are of the view that the said judgment will not be applicable in view of the fact that the petitioner therein claimed as an un-reserved candidate. Therefore, the petitioner has deliberately not claimed the reserved category. Therefore, this judgment also will not be applicable.
1124. The relevant fact to be considered in this petition is that applications were sought for by the respondent no.1 to write the preliminary examination, as indicated hereinabove. After the results of preliminary examination were announced, yet another notification was issued on 04.10.2019, which has been produced as annexure-12. Therein, it is indicated that all those persons, who are eligible to write the main exam, are expected to furnish the list of documents, fees and all other relevant papers, on or before 25.10.2019. It is then that the petitioner made an application to be considered as an OBC category candidate. The certificate entitling the petitioner, as belonging to OBC category, was issued on 14.10.2019. The last date for filing the documents, in terms of the notification dated 04.10.2019, was 25.10.2019. Therefore, well before the cut off date, a caste certificate was already issued to the petitioner. Therefore, respondent no.1 should have rightly considered the petitioner as belonging to the OBC category. This is not a case where the petitioner has obtained an OBC certificate after the cut-off date, as held by the Hon'ble Supreme Court in the aforesaid judgments. There is a difference between 'fact' and 'proof'. There can be no relaxation so far as facts are concerned. The fact is that the candidate must belong to a category which he claims. The proof is a submission of material in proof of such a claim. Therefore, even if there is a delay in submitting the proof of the claim, the same can be condoned. But however, the factum of belonging to a particular category is not a matter that can be condoned. In those cases, the relevant certificates were already available with the candidates, but for some reason, the same could not be produced before the cut-off date. In view of the availability of the certificate before the cut off date, the Hon'ble Supreme Court granted relief.
1225. The facts in the present case are almost similar. The petitioner possessed the caste certificate which was dated 14.10.2019, wherein, the last date to submit the form was only on 25.10.2019. Therefore, following the aforesaid judgments of the Hon'ble Supreme Court, appropriate relief should be granted to the petitioner.
26. The contention of the counsel for respondent no.1 is that in terms of the notification dated 04.10.2019, the last date for submitting the documents was relatable to those documents that were stated at the time of submitting the preliminary examination application. Therefore, no new document has been sought for. It is in this background that we have re-considered the notification dated 04.10.2019.
27. The documents were called for from the candidates for the very first time in terms of the notification dated 04.10.2019. Therefore, if 25.10.2019 is the last date for filing the certificate, the petitioner is well within the cut- off date.
28. Furthermore is a fact that the marks that have been obtained by the petitioner, pursuant to the intervention by this Court, are the cut-off marks for an unreserved category. As on the date he applied for the post, he did not possess the certificate of O.B.C. Therefore, rightfully so, he was honest enough to apply as an un- reserved candidate. Even the marks that he has obtained in the preliminary exam, are the cut-off marks as are applicable to an un-reserved candidate. There is no claim whatsoever by the writ petitioner that he belongs to an OBC category and must be considered as such at the stage of preliminary exam. Therefore, we are of the view that only because of the error committed by the writ petitioner, he cannot be penalized in this manner. Furthermore is a fact 13 that when he applied for the exam, he applied as a general merit category because he did not possess the caste certificate. It is only when he received the caste certificate dated 14.10.2019, that he sought for a request to be considered as an OBC category candidate.
29. The further contention of the learned counsel for respondent no.1- Commission is that the petitioner does not belong to the State of Uttarakhand. He, therefore, relies on the copy of the on-line application which has been filed as annexure no.3.
30. We have considered the same.
31. The address indicates two columns, present address and the permanent address. The present address indicated is that of Uttar Pradesh and the permanent address is that of Uttarakhand. Therefore, it is contended that the petitioner, who does not belong to the State of Uttarakhand, is disqualified from writing the exam.
32. We have also considered the domicile certificate issued to the petitioner dated 14.10.2019. The same indicates that the petitioner is a resident of Uttarakhand. Therefore, we do not find much force in this contention. The documents produced by the petitioner himself indicates his domicile certificate and hence cannot be ousted on that ground.
33. Under these circumstances, we are of the view that the petitioner is entitled to participate in the subsequent proceedings as an O.B.C. candidate. The caste certificate issued to him is not contested by the respondents. It is not their case that the certificate dated 14.10.2019 is either false, fabricated or otherwise. Their only submission is that change of category is not 14 admissible at a later stage. The said issue has since been discussed earlier.
34. The learned counsel for respondent no.1 further pleads that if the petitioner is permitted to proceed further as an O.B.C. candidate, the entire law will be changed. We are afraid that the submissions made by respondent no.1 cannot be accepted. There is no change of law. There is no new direction by this order. What we are only holding is that before the cut-off date, as mentioned by respondent no.1 itself, all documents produced are required to be considered by them. Non-consideration of the documents, which were filed before them before the cut-off date, is opposed to law. Therefore, it is based on the notification dated 04.10.2019 itself that the petitioner has a vested right to submit the documents. Therefore, the question of re-writing the law is quite alien idea to this petition.
35. Hence for all these reasons, we are of the view that appropriate relief requires to be granted to the petitioner, and hence this order: -
A. Pursuant to the interim directions of this Court in its order dated 17.10.2019, the appropriate marks shall be awarded to the petitioner, and he shall be declared to have secured 146.75 marks in the preliminary examination held on 01.09.2019. Consequently, he shall be declared eligible to take up the Main Examination. The results of the main exam shall be declared.
B. The order of rejection passed by the respondent no.1- Commission dated 14.01.2020 is quashed. The respondent no.1 is directed to consider the writ petitioner as a candidate belonging to the OBC category for the purposes of the main examination. As a consequence thereof, since the cut-off for the 15 OBC is 340 marks and the petitioner has secured 388 marks, the respondent no.1 shall declare the petitioner to have qualified in the main exam as an OBC candidate, and therefore, entitled to participate in the interview.
C. Consequently, the respondent no.1 is directed to ensure that the writ petitioner participates in the interview to be held by the Commission between 17th to 19th September, 2020 as an OBC candidate.
D. Necessary orders shall be issued by respondent no.1 to the said effect, including intimating the Selection Board and other authorities of the same.
Consequently, the petitioner shall attend the interview on the date specified therein.
36. The writ petition is disposed off accordingly.
37. All pending applications stand disposed off.
(R.C. Khulbe, J.) (Ravi Malimath, A.C.J.)
15.09.2019
R.D.