Central Administrative Tribunal - Delhi
Gaurav Yadav vs Staff Selection Commission on 9 August, 2024
1
O.A. No.353/2022
Item - 24/C-4
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.353/2022
Order reserved on: 31st July, 2024
Order pronounced on :09th August, 2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Sh. Gaurav Yadav,
S/o Sh. Devender Singh,
Aged about 27 years,
R/o VPO-Boria, Kamalpur, District Rewari
Haryana 123401,
Working as Medical Attendant at CGHS
Ahmedabad,
(Group - "C").
......Applicant
(By Advocates : Mr. Arun Bhardwaj, Sr. Advocate
assisted by Mr. Amit Anand, Advocate)
Versus
Union of India, Through
1. The Chairman
Staff Selection Commission,
Government of India
Lodhi Road, CGO Complex,
New Delhi , Delhi 110003
2. The Secretary,
Ministry of Health & Family Welfare,
Government of India
Nirman Bhawan,
New Delhi - 110011
3. Director General
Central Govt. Health Scheme
Room No.254A, Nirman Bhawan,
Maulana Azad Road, New Delhi
4. The Additional Secretary
Central Govt. Heallth Scheme
Room No.254 A, Nirman Bhawan,
2
O.A. No.353/2022
Item - 24/C-4
Maulana Azad Road, New Delhi.
...Respondents
( By Advocates : Mr. Gyanendra Singh &
Mr. Vijendra Singh )
ORDER
By Hon'ble Mr. Manish Garg, Member (J):
The Original Application (OA) has been filed by the applicant seeking the following reliefs:-
"(i) Quash and set aside the advertisement dated 24/09/2021 (Annexure- A-1)
(ii) The respondent be directed to suitably amend rectify the crucial date for eligibility in their advertisement dated 24/09/2021 as closing date for filing the form or the same may be 1st January or the same may be notified of the year of examination i.e. 01.01.2022;
(iii) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice."
2. Narrating the facts of the case, learned senior counsel for the applicant submits that the notification issued for the advertisement dated 24.09.2021 prescribes the cut-off date for possessing the qualifications with respect to minimum age and education as 01.01.2021. He further argues that pursuant to the said notification, the exam was held in February 2022 and the last date for submission of application was 25.10.2021. He submits that the applicant has been successful in the said examination but on account of not possessing the qualifications with respect to minimum age and education on the 3 O.A. No.353/2022 Item - 24/C-4 cut-off date, the respondents are likely to reject his candidature despite his having been successful. He points out that the cut-off date set out in the examination notification is arbitrary and in contravention to the guidelines issued by the DoP&T as contained in O.M. dated 14.07.1988. The said O.M. stipulates that the relevant date for determining the examination to be held in the second part of the year would be the first day of August and if the examination is held in the first half, it should be first day of January. Relevant part reads as under:-
"As the Ministry of Defence etc., are aware, according to the instructions contained in para 2 of this Department's O.M. No.42013/1/79-Estt(D) dated 4th December, 1979, the crucial date for determining the age limits for competitive examinations held for recruitment by UPSC/SSC etc. in the first half of the year is the first day of January of the year in which the examination is held; and if the examination is held in the second half of the year, the crucial date will be the first day of August of the year in which the examination is held.
2. come doubts have been expressed as to what should be the crucial date for determining the age limits in respect of examinations which are held in two parts on two different dates of the year. For instance, the preliminary examination of the Civil Services Examination is normally held in the first half of the year and the Main examination is held in the second half of the year. In this case the position has been clearly indicated in the rules for this examination that the later of the two dates would be the crucial date. If, however, both parts of an examination fall in the first half of the year, the crucial date for determining the age limits will normally be the Ist of January. Similarly, if both parts of an examination fall in the second half of the year, the crucial date for determining the age limits would be the Ist of August. The position in this regard is clarified in the following illustrations:-
Illustrations 4 O.A. No.353/2022 Item - 24/C-4 Name of Date on Date on Date for Examination which first which determining part of second the age Exam held part of limits Exam. (Minimum Held and Maximum) Exam. A 1-3-88 25-8-88 As on 1-8-88 Exam. B 1-9-88 1-3-89 As on 1-1-89 Exam. C 1-3-88 1-5-88 As on 1-1-88
3. It may sometimes so happen that due to exigencies of circumstances an examination, which is normally held during the first half of the year, is shifted to the second half. In such a case, the date for determining the age limits would still be the Ist of January, The exact position should be clearly indicated in the rules for the respective examinations, which are notified for the purpose."
3. Learned senior counsel for the applicant has also drawn our attention to Annexure A/3 showing opening date, closing date and crucial date of education qualification of various examinations. He would contend that if the examination is sought to be held on a specific date in the first half of the year, the crucial date of determining the eligibility would be 01st January and if the examination is sought to be held in the second half of the year, the crucial date of determining the eligibility would be 01st of August.
4. He would further contend that in this specific advertisement, the date would be the first of January of the next year. It is also contendeed that due to COVID situation there was delay in examination which may not be attributed to the applicant.
5O.A. No.353/2022 Item - 24/C-4
5. Opposing the grant of relief, learned counsel for the respondents not only relies on the counter affidavit but also on the additional affidavit filed on behalf of the respondents. Learned counsel for the respondents, on the other hand, points out that the conditions set out in the aforesaid notification/advertisement as also the provisions with respect to the cut-off date for age and educational qualifications is strictly in accordance with the extant policy. He states that terms and conditions of the advertisement is sacrosanct and cannot be compromised. Relevant paragraphs of additional counter affidavit read as under:-
"4. That the Applicant has filed an OA bearing No.353/2022 challenging the determination of crucial date i.e., 01.01.2021 for the said recruitment for Selection Posts (Advertisement No. Phase-IX/2021/Selection Posts) on the basis of DoPT's OM No. AB.14017/10/87-Estt.(RR) dated 14.09.1988. It is pertinent to mention here that the Applicant herein could not acquire requisite Educational Qualification on the crucial date i.e. 01.01.2021. Therefore, he was found ineligible for the posts applied for. It is further stated that the DoPT's said OM dated 14.09.1988 deals with the reckoning of age. It does not apply for reckoning of Educational Qualification. Whereas, the Applicant herein was found ineligible for the posts in question due to non- possession of requisite Educational Qualification on crucial date. Hence, his claim is baseless.
5. That the respondent most humbly seeks permission to assist this Hon'ble Tribunal as the applicant in the present case has by way of filing this OA has clearly abused the legal remedies his own convenience and procedures available to him for his andhas clearly drawn a veil over his own shortcomings. In the case of Ashok Kumar Sonkar vs. Union of India (2007) 4 SCC 54(Annexure R1); this case has discussed the matter regarding essential educational qualification, wherein Justice Sahai's dissenting note in Ashok Kumar Sharma and Others v. Chander Shekhar and 6 O.A. No.353/2022 Item - 24/C-4 Another [(1997) 4 SCC 18]will be relevant for the present case of Sh. Gaurav Yadav which says :
"The notification, therefore, provided not only, the conditions which a candidate was required to possess when applying for the post mentioned in the notification but he was also required to support it with authenticated certificate and if he failed to do so then the application was not liable to be entertained. In legal terminology where something is required to be done and the consequences of failure to do so are also provided then it is known as mandatory. The mandatory character of possessing the requirements as provided in the first part of the notification stands further strengthened from the third and last part of the notification which prohibited the candidates from applying if they did not possess the requisite qualifications. In view of these clear and specific conditions laid down in the advertisement those candidates who were not possessed of the B.E. qualifications were not eligible for applying nor their applications were liable to be entertained nor could they be called for interview. Eligibility for the post mentioned in the notification depended on possessing the qualification noted against each post. The expression, shall be possessed of such qualifications, is indicative of both the mandatory character of the requirement and its operation in present. That is a candidate must not only have been qualified but he should have been possessed of it on the date the application was made. The construction suggested by the learned counsel for the appellant that the relevant date for purposes of eligibility was the date of interview and not the date of application or July 15, 1982 the last date for submission of forms is not made out from the language of the notification. Acceptance of such construction would result in altering the first part of the advertisement prescribing eligibility on the date of applying for the post t as being extended to the date of interview. If it is read in the manner suggested then the requirement that incomplete applications and those not accompanied by the requisite certificates shall not be entertained, shall become meaningless. Purpose of filing certificate along with application was to prove that the conditions required were satisfied. Non-filing of any of the certificates could have resulted in not entertaining the application as the requirements as specified would have been presumed to be non-existent. Fulfillment of conditions was mandatory and its proof could be directory. The former could not be waived or deferred whereas the defect in latter could be cured even subsequently. That is proof could be furnished till date of interview but not the eligibility to apply for the post. Any other construction would further be contrary to the last part of the notification."
6. Thereafter in the said case (Ashok Kumar Sharma and Others v. Chander Shekhar and Another) [(1997) 4 SCC 18], a review application was filed which was admitted. The matter was again placed before a 3-Judge Bench of the 7 O.A. No.353/2022 Item - 24/C-4 Hon'ble Supreme Court. One of the issues which fell for consideration of the Bench being Issue No. 1 reads as under:
"(1) Whether the view taken by the majority (Hon'ble Dr Thommen and V. Ramaswami. J,) that it is enough for a candidate to be qualified by the date of interview even if he was not qualified by the last date prescribed for receiving the applications, is correct in law and whether the majority was right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy?"
It was held :
"'So far as the first issue referred to in our Order dated 1-9- 1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr T.K. Thommen and V.Ramaswami, J.) is unsustainable in law. 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 issuing the authority 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 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. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan. 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, 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 could not have been allowed to appear for the interview.
7. That it is most humbly submitted that possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to 8 O.A. No.353/2022 Item - 24/C-4 prevail, the Employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by the Hon'ble Courts would be the last date for filing the application. That it is most humbly submitted before this Hon'ble Tribunal that the said decision is, therefore provides the proposition that in absence of any cut-off in date specified in the advertisement or in the rules, the last date for filing of an application shall be considered as such. Indisputably the applicant herein, Sh. Gaurav Yadav, did not hold the requisite qualification as on the said cut-off date. He was, therefore, not eligible therefore.
8. That it is most humbly submitted before this Hon'ble Tribunal that in the matter namely, Shikhar vs National Board of Examination dated 05.04.2022 the Hon'ble Apex Court (Annexure R2) in Para 12 and 13 respectively provided that :
"Whenever a cut-off is extended, Some students are likely to fall on the other side of the dividing Iine. In State of Bihar V. Ramee Prasad, (6 (1990) 3 SCC 368) the State had prescribed that applicants applying for the post of Assistant Professors must have three years of experience. In the preceding year, the cut-off date for the receipt of applications was set in June, however, in the year in question, the date was fixed in January making certain candidates ineligible owing to their failure to meet the three- year requirement. This Court held that the cut-off date cannot be held to be arbitrary unless it is shown that it is unreasonable, capricious or whimsical even if no reason forthcoming as to the choice of date.
Recently in Hirandra Kumar v. High Court of Judicature at Allahabad &Anr.7 (2020) 17 SCC 401, a two-judge Bench of this Court, held that the cut-off date or an age limit does not become arbitrary and violative of Article 14 of the Constitution merely because certain candidates fall on the wrong side of it. A cut-off date an age bar would always exclude some candidates. This Court observed in Para 21 :
"The legal principles which govern the determination of a cut-off date are well settled. The power to fix a cut-off date or age-limit is incidental to the regulatory control which an authority exercises over the selection process. A certain degree of arbitrariness may appear on the face of any cut- off or age-limit which is prescribed, since a candidate on the wrong side of the line may stand excluded as a consequence. That, however, is no reason to hold that the cut-off which is prescribed, is arbitrary. In order to declare that a cut-off is arbitrary and ulta vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis whatsoever or is manifestly 9 O.A. No.353/2022 Item - 24/C-4 unreasonable so as to lead to a conclusion of a violation of Article 14 of the Constitution.27....the validity of the Rule cannot be made to depend on cases of individual hardship which inevitably arise in applying a principle of general application. Essentially, the determination of cut-off dates lies in the realm of policy.. "
9. In the present case of Sh. Gauray Yadav, cogent reasons have been provided as to why the crucial date for determining the age limit as 01.01.2021 cannot be altered extended. An extension of the cut-off any further would result in the disruption of the examination schedule. Moreover, students who have qualified in terms of the cut- off date will be prejudiced by the alteration of the examinations Schedule. Hence, it would not be appropriate for this Court to issue any such direction. The alternative prayer for suitably amending and rectifying the crucial date for eligibility would also involve this Court in micro- managing the floodgate opened by similar litigations due to such relief. This is a function which, in our humble submission, should not be assumed by the Court. Hence, though hardship has been caused to those students who became eligible much later, it would not be possible, at this stage, to disturb the schedule as it would affect the other students who fulfill the cut-off date of 01.01 2021.The Commission conducts its examinations within the framework of these mandatory Rules, Guidelines, Instructions which are uniformly applicable to all candidates and are scrupulously adhered to by most of the candidates. Such an act would not only be discriminatory in nature but would also be in contravention of the provision of equity contained in the Article 14 of the Constitution of India. Waiving or diluting the stipulated conditions of the examination prescribed in its Notice would introduce an element of discrimination, arbitrariness and unfairness in the selection process, which would stand compromised.
10. That it is further humbly submitted that the Hon'ble Orissa High Court in the case of Odisha Public Service Commission vs Varsachala Chetan And Another (Annexure R3) dated 12.10.2022 have held in para 12 and 13 respectively that:
"Having heard learned counsel for the parties, the Court is of the view that the learned Single Judge was in error in coming to the above conclusion since factually by the time of the last date for submission of the completed applications neither candidates possessed a provisional BDS degree or the registration certificate under the Act, both of which are compusorily required to be possessed by them. The crucial date for determining eligibility is the last date for submission of applications i.e., 11th October, 2018. Factually, by that date, neither candidate possessed the requisite qualification".10 O.A. No.353/2022
Item - 24/C-4
11. That in our humble submissions before this Hon'ble Tribunal it is stated that there exists a well settled proposition that there is no estoppel against law. If the candidate does not possess the requisite educational qualification by the date of submission of the application, such candidate cannot be considered for the post in question notwithstanding that such candidate may have been allowed to sit for the written examination. Also, the Hon'ble Punjab-Haryana High Court in Nand Lal vs Union Of India And Others dated 14.01.2009 (Annexure R4) have dealt with a similar issue and dismissed the said Writ Petition on a simple dictum that if a candidate does not hold the requisite qualifications on such Cut-off date, he/she will| be ineligible and cannot be considered at all.
12. Further the Hon'ble Supreme Court of India in The Madhu Kant Ranjan dated State Of Bihar vs Madhu Kant Ranjan dated 16.12.2021 have reiterated in the said case under Para 9 that:
"As per the settled proposition of law, 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 along with 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."
6. In rejoinder to the arguments put forth by learned counsel for the respondents, learned senior counsel for the applicant states that in the same examination different dates, for determining crucial date of eligibility for educational qualifications qua the general candidates( 01.01.2021) vis-a-vis the ex-serviceman 11 O.A. No.353/2022 Item - 24/C-4 (01.08.2021), have been fixed which is by itself arbitrary and discriminatory.
7. We have carefully considered the rival contentions of the parties and have carefully gone through the pleadings on record including the citations relied upon by learned counsel for both the parties.
8. ANALYSIS:-
8.1 We are conscious of the fact that the legal principles which govern the determination of a cut-off date are well settled. The power to fix a cut-off date or age-limit is incidental to the regulatory control which an authority exercises over the selection process. A certain degree of arbitrariness may appear on the face of any cut-off or age-limit which is prescribed, since a candidate on the wrong side of the line may stand excluded as a consequence. That, however, is no reason to hold that the cut-off which is prescribed, is arbitrary. In order to declare that a cut-off is arbitrary and ultra vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis whatsoever or is manifestly unreasonable so as to lead to a conclusion of a violation of Article 14 of the Constitution. The validity 12 O.A. No.353/2022 Item - 24/C-4 of the Rule cannot be made to depend on cases of individual hardship which inevitably arise in applying a principle of general application. Essentially, the determination of cut-off dates lies in the realm of policy.
8.2 We have to examine the action of the respondents and the present case in light of the perspective that the cut-off date is arbitrary and ultra vires. It must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis whatsoever or is manifestly unreasonable so as to lead to a conclusion of a violation of Article 14 of the Constitution.
8.3 Having said so, it may be said that we cannot ascribe to the view that DoP&T guidelines as contained in O.M. dated 14.07.1988 can be strictly applied to the facts of the present case as the same stipulates that the relevant date for determining the examination to be held in the second part of the year would be the first day of August and if the examination is held in the first half of the year, the crucial date for determining the age limits will normally be the 1st of January.13 O.A. No.353/2022
Item - 24/C-4 8.4 We also refer to the following Office Memorandum(s) issued from time to time:-
8.4.1 In case of recruitment through the UPSC and SSC, the crucial date for determining the age-limit shall be advertised by UPSC/SSC.
The crucial date for determining age for competitive examination held by UPSC/SSC is fixed as 1st day of January of the year in which the examination is held, if the examination is held in the first half of the year; and 1st day of August of the year in which the examination is held, if the examination is held in the later half of the year. [Para 2 of O.M. No. 42013/1/79-
Estt.(D) dated 04.12.1979] 8.4.2 Where examinations are held in two parts on two different dates of the year, the later of two dates would be the crucial date. Where both parts of an examination are held in the first half of the year, the crucial date for determining the age limits will normally be the 1st of January. Similarly, if both parts of an examination are held in the second half of the year, the crucial date for determining the age 14 O.A. No.353/2022 Item - 24/C-4 limits would be the 1st of August. [Para 2 of O.M. No. AB.14017/70/87-Estt(RR) dated 14.07.1988] 8.4.3 It may sometimes so happen that due to exigencies of circumstances an examination, which is normally held during the first half of the year, is shifted to the second half. In such a case, the date for determining the age limits would remain the 1st of January. The exact position should be clearly indicated in the rules for the respective examinations, which are notified for the purpose. [Para 3 of O.M. No. AB.14017/70/87-Estt(RR) dated 14.07.1988] 8.5 On touchstone of crucial date for determining eligibility- 1st January of the Vacancy Year- (i.e. for the purpose of DPC in case of promotions) from the year 2018 onwards, Vacancy Year stands shifted to Calendar Year. Accordingly from 2019 onwards, the crucial date for determining eligibility shall be the 1st of January of the Vacancy Year. Whether same yardstick has been applied to present case is to be examined. 15 O.A. No.353/2022 Item - 24/C-4 8.6 In Rekha Chaturvedi (Smt.) v University of Rajasthan, 1993 Supp (3) SCC 1683, the proposition was enunciated as under:-
"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 posts thus swelling the number of applications. still worse consequence may follow, in But a that it may leave open a scope for malpractices. The date of selection may beso 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 invitingbeen put in by the concerned appointees. The Court though, opted not to disturb the appointments therein, on the ground that over 8 years of service had 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. (emphasis supplied)"
8.6 The Court, vide its judgment in State of Bihar v Madhu Kant Ranjan, (2021 SCC OnLine SC 1262), also took the view that "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." 16 O.A. No.353/2022 Item - 24/C-4 8.7 In Rakesh Kumar Sharma (supra), this Court, after noticing, inter alia, Dr M V Nair v Union of India, (1993) 2 SCC 429; Uttar Pradesh Public Service Commission v Alpana, (1994) 2 SCC 723; Bhupinderpal Singh v State of Punjab, (2000) 5 SCC 262, and; State of Gujarat v Arvindkumar T Tiwari, (2012) 9 SCC 545 reiterated that basic qualification is to be adjudged as on the last date of submission of application forms, subject to any extension of such date by the concerned authority.
8.8 A classification of two dates of determining eligibility conditions on the basis amongst two sets of candidates has no nexus or any material on record to show that same is to achieve administrative efficiency which cannot be said to arbitrary or permissible under Articles 14 or 16 of the Constitution. The selection was through a common channel.
8.9 In AS Iyer v. V Balasubramanyam reported in (1980) 1 SCC 634 Union of India v. Atul Shukla reported in (2014) 10 SCC 432, Maharashtra Forest Guards and Foresters Union v. State of Maharashtra reported in (2018) 1 SCC 149, which upheld the proposition of law that differentiation on the 17 O.A. No.353/2022 Item - 24/C-4 basis of 'source of recruitment' cannot be a valid ground of classification.
8.10 In Civil Appeal No. 6072 OF 2023 [ARISING OUT OF S.L.P. (C) NO. 9964 OF 2022] Sweety Kumari Versus The State Of Bihar And Others on 22.09.2023, the Hon'ble Apex Court observed as under :-
"18. The view taken by this Court is fortified by the analogy drawn in the case of Charles K. Skaria and Others vs. Dr. C. Mathew and Others (1980) 2 SCC 752 whereby Justice Krishna Iyer speaking for the Court held that the factum of eligibility is different from factum of proof thereof. This Court held that if a person possesses eligibility before the date of actual selection, he cannot be denied benefit because its proof is produced later.
19. In the present case, the proof is available and true photocopies were on record. The appellants' candidature could not have been rejected merely because the original was not produced before the Commission at the time of interview in particular when such requirement was not mandatory, in view of the manner in which the Rules are couched.
20. Now, coming to the case of appellant Aditi in SLP (Civil) No. 16749/2023, she has passed the final examination but the certificate of law degree was not issued to her. The High Court in the impugned order dated 19.04.2023 has relied upon the judgment of Charles K. Skaria (supra) to support her contention and observed that when the candidate possesses the required essential qualification on the date on which it was required, then there cannot be any justification in not accepting the late arrival of the certificate because of the pandemic. However, the High Court has declined to grant the relief on the pretext that she had applied under EWS category for which 23 posts were earmarked and those posts have already been filled up. The High Court also observed that though she has secured 501 marks which was 2 marks more than the cut off for the EWS category, but it was not known as to who may be the last successful candidate in the EWS category. Also at the time of passing of impugned order those posts had already been filled. Thus due to non-availability of posts, the relief was denied."18 O.A. No.353/2022
Item - 24/C-4 8.11 Now, we examine the time line of present impugned recruitment process vide Advertisement No.Phase-IX/2021/Selection Posts, which is re- produced herein below:-
"Dates for submission of online applications: 24-09-2021 to 25-10-2021 Last date for receipt of application: 25-10-2021 (up to 23.30 PM) Last date for making online fee payment: 28-10-2021 (23.30 PM) Last date for generation of offline Challan: 28-10-2021 (23.30 PM) Last date for payment through Challan (during working hours of Bank): 01-11-2021 Dates of Computer Based Examination:
January/February 2022"
8.12 Relevant Clause of advertisement - conditions on seeking fee concession, age-relaxation, reservation, etc are as under:
"3.1 For SC/ ST applicants: SC/ ST applicants seeking fee concession, age-relaxation, reservation, etc. shall invariably submit the requisite Certificate as per format (Annexure-VI) from competent authority (Appendix-I of this Notice) certifying that their Caste/ Sub-Castes/ Communities are approved by the Government of India under SC & ST Category, as and when called for by the Commission, after conduct of the Computer Based Examination or at any stage thereafter, otherwise their claims for fee concession, age-relaxation, reservation etc. shall not be considered.
3.2 For OBC applicants: OBC applicants not covered under the Creamy Layer, as per the Standing Instructions of the Government of India as amended from time to time, seeking age-relaxation, reservation, etc. shall invariably submit the requisite Certificate as per format (Annexure-VII). A person 19 O.A. No.353/2022 Item - 24/C-4 seeking appointment on the basis of reservation to OBCs must ensure that he/ she possesses the caste/ community certificate. Further, he/she should not fall in creamy layer on the crucial date. The crucial date for this purpose will be the closing date for receipt of applications i.e. 25-10-2021. Candidates may also note in respect of the above that their candidature will remain provisional till the veracity of the concerned document is verified by the Appointing Authority.
3.3 For Economically Weaker Sections (EWS) Applicants:-
EWS applicants seeking reservation shall invariably submit the requisite Certificate as per Format at Annexure-XI from Competent Authority (Appendix-I of this Notice), as and when called for by the Commission otherwise their claims for reservation etc. shall not be considered. The crucial date for submitting the income and asset certificate by the candidate may be treated as the closing date for receipt of online application (i.e. 25-10-2021). Candidates may also note in respect of the above that, their candidature will remain provisional till the veracity of the concerned document is verified by the Appointing Authority.
3.4 Crucial date for claim of SC/ST/OBC/EWS/PwD/ESM status, fee concession and reservation, where not specified otherwise, will be the closing date for receipt of online applications i.e. 25- 10-2021.
( emphasis) ****** 7.5. A Matriculate Ex-Serviceman (which includes an Ex- Serviceman, who has obtained the Indian Army Special Certificate of education or corresponding certificate in the Navy or the Air Force), who has put in not less than 15 years of service as on closing date of receipt of applications (i.e. 25.10.2021) with Armed Forces of the Union shall be considered eligible for appointment to the Group "C" posts having "Graduation" as its minimum EQ, against posts reserved for ESM only subject to fulfillment of other eligibility conditions for the post. Thus, those Matriculate Ex-Servicemen who have not completed 15 years of service as on the closing date for receipt of applications are not eligible for these posts. 7.5. A Matriculate Ex-Serviceman (which includes an Ex- Serviceman, who has obtained the Indian Army Special Certificate of education or corresponding certificate in the Navy or the Air Force), who has put in not less than 15 years of service as on closing date of receipt of applications (i.e. 25.10.2021) with Armed Forces of the Union shall be considered eligible for appointment to the Group "C" posts having "Graduation" as its minimum EQ, 20 O.A. No.353/2022 Item - 24/C-4 against posts reserved for ESM only subject to fulfillment of other eligibility conditions for the post. Thus, those Matriculate Ex-Servicemen who have not completed 15 years of service as on the closing date for receipt of applications are not eligible for these posts.
9. Crucial date for Essential Qualification (EQ) and Age Limit:
9.1. Essential Qualifications (EQs) & Age Limit for each Post as per the requirement of the concerned User Departments/ Ministries, are mentioned in the details/ description of Post(s) as given in the Annexure-III of this Notice.
9.2. The Crucial date for determining of age-limit and possession of Essential Qualifications (EQs)/ Experience will be 01-01-2021.
9.3. Before applying for the post, the candidates must ensure that they possess the Essential Qualifications including Experience wherever it is prescribed as Essential Qualification and also meet the age-limit as on the crucial date mentioned in Para 9.2 above.
9.4. The posts where experience is required, such experience must be acquired by the candidates after completing educational qualification as specified for the concerned post. Further, internship, training, research experience, etc gained in the course of acquiring an educational qualification will not be counted as experience even after the same has been acquired after the completion of his/her educational qualification.
9.5. For posts where experience in a particular field/ discipline for a specified period has been indicated as an Essential Qualification, the applicants must fill the relevant column of the online Application Form and also shall submit self-attested copy of relevant certificates in support of their claim of possession of Experience in that field/ discipline from the Competent Authority along with the print out of the online Application Form, as and when called for by the Commission after the conduct of Computer Based Examination failing which their candidature shall be rejected."
8.13 We observe that the above timeline has no nexus to the vacancy year i.e. 01.01.2021. There is nothing on record to establish that the crucial date for Essential Qualification (EQ) has some or the other 21 O.A. No.353/2022 Item - 24/C-4 rationale in arriving at justification to fixing the said date as on 1.1.2021. On perusal of timeline, it is noticed that the last date for receipt of application is:
25-10-2021 (up to 23.30 PM) and the last date for making online fee payment is : 28-10-2021 (23.30 PM).
This was purport for fixing last date i.e. 25.10.2021 in various categories i.e. SC/ST/OBC/EWS/PwD/ESM etc. There is no intelligible differentia to make such an artificial distinction amongst general category viz a viz SC/ST/OBC/EWS/PwD/ESM etc. 8.14 In MA No.1951/2022 following observations were made vide order dated 3.8.2022:
"If we go by the criterion set out in the O.M. dated 14.07.1988, logically speaking, the cut-off date should have been 01.01.2022. However, we would not like to go into the details of this issue right now since the applicant has already participated in the examination and as stated by the learned counsel, he has succeeded in the same.
It would be in the interest of justice to restrain the respondents from passing any adverse order, including an order disqualifying the candidature of the applicant till the disposal of this O.A. Needless to say that we have neither examined nor commented upon the merits of the claim of the applicant in the O.A."
8.14 In present case, the applicant appeared in final year examination in July, 2021. The result of the examination was declared even prior to 25.10.2021 in various categories, i.e., SC/ST/OBC/EWS/PwD/ESM 22 O.A. No.353/2022 Item - 24/C-4 etc which has a reasonable nexus for the purpose of Selection process. Even we find that for claiming age- relaxation, reservation, etc., the applicants shall submit a declaration as and when called for by the Commission, after conduct of the Computer Based Examination, or at any stage, thereafter, otherwise their claims for fee concession, age-relaxation, reservation etc. shall not be considered. Fixing of 01.01.2021 as a cut off date may be in relation with age limit in terms of OM(s) highlighted above but not with the vacancy status.
8.15. In view of above analysis and discussions, we find merits in the case of the applicant, in peculiar facts of case, wherein the applicant has approached the Tribunal in time and cannot be non-suited merely on the ground that others have not approached.
9. CONCLUSION :-
We, therefore, allow the present OA, with directions to the respondents to process the case of the applicant by treating the cut of date as 25.10.2021 instead of 01.01.2021. We further direct the respondents that in the event the applicant is 23 O.A. No.353/2022 Item - 24/C-4 otherwise found eligible and stand on merits, he shall be offered appointment letter in respective category.
The seniority of the applicant shall be fixed notionally in his category below the last selected candidate in his category. The actual benefit shall accrue from date of joining. The above exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. All pending MA(s), if any, shall also stand disposed of. No Costs.
( Anand S Khati ) ( Manish Garg )
Member (A) Member (J)
/sm /