Union Public Service
Commission Vs. Gyan Prakash Srivastava
Jurisdiction Civil Appeal No. 10178 of 2011]
J U D G M E N T
G. S. Singhvi, J.
question which arises for consideration in this appeal is whether the decision
of the Union Public Service Commission (for short, `the Commission') to reject the
respondent's candidature for the post of Legal Advisor-cum-Standing Counsel in Land
and Building Department, Government of NCT of Delhi was legally correct and the
Central Administrative Tribunal (for short, `the Tribunal') and the Delhi High
Court committed an error by nullifying the same.
acquiring Degree in Law from Allahabad University in 1979, the respondent got
himself enrolled as an Advocate with the Bar Council of Uttar Pradesh. He
practiced in the Allahabad High Court from September 1980 to September 1986. Thereafter,
he worked as Assistant (Legal), Law Officer, Assistant Director of Estates (Litigation),
Vigilance-cum-Legal Officer and Officer on Special duty (Litigation) in different
departments of the Central Government for over two decades.
response to Advertisement No.11 issued by the Commission, which was published
in Employment News 13-19 June, 2009, the respondent applied for the post of
Legal Advisor (fully described in the opening paragraph of this judgment). Along
with the application, he attached copies of the following documents:
School Certificate, (ii) Degree of Bachelor of Arts awarded by Allahabad
issued by the Bar Council of Uttar Pradesh under Section 22(1) of the Advocates
dated 23.5.1986 issued by the High Court Bar Association, Allahabad, and
certificates issued by different departments of the Central Government.
Commission rejected the respondent's application on the ground that he had not enclosed
any document to show that he had been awarded a Degree in Law by a recognized
University, which is an essential qualification for the post of Legal Advisor.
respondent challenged the decision of the Commission in an application filed
under Section 19 of the Administrative Tribunals Act, 1985 by asserting that even
though he possesses the prescribed qualification and produced the relevant documents,
the Commission arbitrarily rejected his candidature. In the counter affidavit
filed on behalf of the Commission, it was averred that the respondent's application
was rejected because he had not annexed any document to show that he had secured
Degree in Law from a recognized University.
Tribunal referred to paragraph 7 of the advertisement, the respondent's reply to
the questions enumerated in paragraphs 9 and 10, the details of his educational
qualifications and employment in different departments of the Central
Government and observed: "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.
distinguished the orders passed by the Delhi High Court in Writ Petition (C)
No. 13451 of 2009 - Dr. Vineet Relhan v. U.P.S.C. decided on 13.1.2010 and Writ
Petition No. 10058 of 2009 - U.P.S.C. v. Government of N.C.T. of Delhi and
others decided on 25.1.2010 and observed: "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
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.
The Commission challenged the Tribunal's order in Writ Petition (C) No.2889 of
2011, which was dismissed by the High Court. The Division Bench of the High Court
referred to the relevant portions of the advertisement, the documents annexed
with the application submitted by the respondent, noticed the ratio of the
judgments of this Court in Charles K. Skaria v. Dr. C. Mathew and others (1980)
2 SCC 752 and Dolly Chhanda v. Chairman, JEE (2005) 9 SCC 779 and held that the
Tribunal did not commit any error by quashing the decision of the Commission.
Indira Jaising, learned Additional Solicitor General argued that the impugned
order is liable to be set aside because it runs contrary to the orders passed
by the High Court in four other cases, i.e. Dr. Vineet Relhan v. U.P.S.C. (supra),
U.P.S.C. v. Government of N.C.T. of Delhi and others (supra), Writ Petition (C)
No.9934 of 2009 - U.P.S.C. v. Neelam Yadav decided on 5.5.2010 and Writ
Petition (C) No. 2734 of 2010 - Union Public Service Commission v. Dheerender
Singh Paliwal decided on 30.9.2010 in which similar issues were considered and
decided in favour of the Commission. She further argued that the Tribunal and
the High Court committed serious error by tinkering with the decision taken by the
Commission, which is a Constitutional body, not to entertain the respondent's candidature.
The learned Additional
Solicitor General also pointed out that the Commission had rejected 99 out of 187
applications received for the post of Legal Advisor and of them 38 were
rejected on the ground of non-submission of the requisite documents including
Degree in Law.
Amrendra Sharan, learned senior counsel representing the respondent argued that
rejection of his client's application by the Commission was ex facie illegal,
arbitrary and discriminatory and the Tribunal and the High Court did not commit
any error by ordering consideration of his candidature. Learned senior counsel
submitted that even though the judgments in Charles K. Skaria v. Dr. C. Mathew
and others (supra) and Dolly Chhanda v. Chairman, JEE (supra) relate to admissions
in medical colleges, the ratio thereof was rightly invoked by the Tribunal and the
High Court for deciding the issue relating to entitlement of the respondent to be
considered for appointment as Legal Advisor.
emphasized that the certificate issued by the Uttar Pradesh Bar Council under
Section 22(1) of the Advocates Act, 1961 (for short, `the Act') is sufficient
to show that the respondent possesses Degree in Law and the Commission had no
right to reject his application. Learned senior counsel then argued that if the
expression `other certificates' in support of their educational qualifications'
used in paragraph 7(ii) of the advertisement is interpreted keeping in view
other paragraphs thereof, it becomes clear that even though a candidate may not
have produced copy of the Degree/Diploma in the particular subject, which is an
essential qualification, his application cannot be rejected on that ground if he
has produced other certificate(s)/documents to show that he possesses the
Shri Sharan then
submitted that the Commission was duty bound to carefully scrutinize all the
documents annexed with the application of the respondent including the
certificate issued by the Bar Council of Uttar Pradesh and if that had been
done, his application could not have been rejected on the ground of
non-production of the copy of Degree in Law from a recognized University.
have considered the respective arguments/submissions. Paragraph 8 of the main portion
of the advertisement which relates to the post of Legal Advisor and paragraph 7(i)
and (ii) of the instructions and additional information, which are relevant for
deciding the question raised in the appeal are as under: "8. (REF. NO.F.1/66/2009-R-II)
ONE LEGAL ADVISOR- CUM-STANDING COUNSEL IN LAND & BUILDING DEPARTMENT, GOVT.
OF NCT OF DELHI. QUALIFICATIONS: ESSENTIAL:
A. EDUCATIONAL: Degree
in Law of a recognized University or equivalent.
B. EXPERIENCE: 12
years' experience as an advocate or as a member of a State Judicial Service or
equivalent experience in the legal department of the Central/State
i) Experience of Land
Acquisition cases. Ii) Experience in Handling Revenue Lands and Acts. DUTIES:
To conduct Litigation work on behalf of Department in relation to Land Acquisition
cases/Compensation cases before District Court, RFAs and Writ Petitions before
the High Court and the cases before Supreme Court of India. Impart legal advice
in Land Acquisition and related statue. To supervise the Legal Branches of the Land
& Building Department and also the work assigned to him by the Govt. of Delhi.
HQ: Delhi/New Delhi."
TO BE ATTACHED: Candidates should note that they should attach with their applications
attested/self certified copies of the following documents: (i) Matriculation or
equivalent certificate in support of their declaration of age. (ii) Degree or Diploma
Certificate or other certificates in support of their educational
qualifications; 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 or granted.
NOTE: III: If no
copies of the above certificates are sent with the application, it is liable to
be rejected and no appeal against its rejection will be entertained. NOTE: IV: The
period of experience rendered by a candidate on part time basis, daily wages, visiting/guest
faculty will not be counted while calculating the valid experience for short- listing
the candidates for interview."
emerges from an analysis of the above extracted portions of the advertisement is
that Degree in Law of a recognized University or equivalent was an essential qualification
for the post of Legal Advisor. In addition, 12 years' experience as an Advocate
or as a member of a State Judicial Service or equivalent experience in the legal
department of the Central/State Government/UTs was a must.
In terms of paragraph
7(i) and (ii), the 1candidates were required to attach with their applications
attested/self certified copies of Matriculation or equivalent certificate in
support of their declaration of age and Degree or Diploma Certificate or other
certificates in support of their educational qualifications.
use of the expression or other certificates in support of their educational
qualifications' in paragraph 7(ii) of the instructions contained in the
advertisement is clearly indicative of the intention of the Commission that if
a candidate did not readily have the Degree or Diploma Certificate, he could
attach attested or self certified copies of other certificates in support of his
is not in dispute that after securing Degree in Law from Allahabad University,
the respondent got himself enrolled with the Bar Council of Uttar Pradesh and a
certificate to this effect was issued under Section 22 (1) of the Act. Section
24(1) of the Act specifies the conditions which a person seeking admission as
an Advocate must fulfill. These are:(a) He is a citizen of India;(b) He has
completed the age of twenty-one years;(c) He has obtained a Degree in Law - i) before
the 12th day of March, 1967 from any University, in the territory of India; or
(ii) before the 15th
of August, 1947, from any University in any area which was comprised before that
date within India as defined by the Government of India Act, 1935; or
(iii) after the 12th
day of March, 1967, save as provided in sub-clause
(iiia), after undergoing
a three year course of study in law from any University in India which is
recognised for the purposes of this Act by the Bar Council of India; or
undergoing a course of study in law, the duration of which is not less than two
academic years commencing from the academic year 1967-68 or any earlier
academic year from any University in India which is recognised for the purposes
of this Act by the Bar Council of India; or
(iv) in any other case,
from any University outside the territory of India, if the degree is recognised
for the purpose of this Act by the Bar Council of India or; He is a barrister and
is called to the Bar on or before the 31st day of December, 1976 or has passed
the article clerks examination or any other examination specified by the High Court
at Bombay or Calcutta for enrolment as an attorney of that High Court; or has
obtained such other foreign qualification in law as is recognised by the Bar
Council of India for the purpose of admission as an advocate under this Act;
(e) He fulfils such other
conditions as may be specified in the rules made by the State Bar Council under
this Chapter;(f) He has paid, in respect of the enrolment, stamp duty, if any,
chargeable under the Indian Stamp Act 1899 (2 of 1899), and an enrolment fee
payable to the State Bar Council of six hundred rupees and to the Bar Council of
India, one hundred and fifty rupees by way of a bank draft drawn in favour of
Provided that where
such person is a member of the Scheduled Castes or the Scheduled Tribes and
produces a certificate to the effect from such authority as may be prescribed,
the enrolment fee payable by him to the State Bar Council shall be one hundred
rupees and to the Bar Council of India, twenty-five rupees. Explanation - For the
purposes of this sub-section, a person shall be deemed to have obtained a
degree in law from a University in India on the date on which the results of the
examination for that degree are published by the University on its notice-board
or otherwise declaring him to have passed that examination.
reading of the plain language of the above reproduced provision makes it clear
that no person can be admitted as an Advocate unless he has obtained Degree in
Law. If he has obtained such degree after 12.3.1967, then he must have undergone
a three years course of study in law from any University in India which is recognized
for the purposes of the Act by the Bar Council of India.
the respondent had attached with his application the certificate issued by the Bar
Council of Uttar Pradesh, which must have been issued keeping in view the fact that
he possessed Degree in Law awarded by a University recognized by the Bar
Council of India for the purpose of the Act and the certificates issued by
different departments of the Central Government showing his employment on
different posts (for two of these posts, Degree in Law was an essential
qualification), the Commission was not at all justified in refusing to
entertain his application for the post of Legal Advisor.
The rejection of the respondent's
application may have been justified only if it could be shown that Allahabad
University is not recognized by the Bar Council of India for the purposes of
the Act or that he had not undergone a 3 year degree course in law from that University.
However, it is neither the pleaded case of the Commission nor it has been
argued before us that Allahabad University is not recognized by the Bar Council
of India or that the respondent had not undergone 3 years' course of study in law.
It is also not in dispute that the respondent had been appointed as Assistant
(Legal) and Officer on Special Duty (Litigation) in the employment of the Central
Government because he was having a Degree in Law and was duly selected by the
Therefore, there is no
escape from the conclusion that rejection of the respondent's application for
the post of Legal Advisor was per se illegal and arbitrary and the Tribunal and
the High Court did not commit any error by quashing the decision of the
Commission. True it is that the Commission is a constitutional body but its actions
and decisions are not immune from judicial review and if a competent judicial forum
finds that the impugned action is ultra vires the Constitution or any
legislation or is otherwise arbitrary or discriminatory, there will be ample
justification to nullify the same.
may now advert to the orders passed by the Delhi High Court on which reliance
has been placed by the learned Additional Solicitor General. In Writ Petition (C)
No. 13451 of 2009 - Dr. Vineet Relhan v. Union Public Service Commission, the
High Court upheld the order passed by the Tribunal which had dismissed the
original application filed by the writ petitioner against the rejection of his application
by the Commission for the post of Specialist Grade-II (Dermatology) on the ground
that he had not attached the required documents along with his application.
A perusal of the
order passed in that case shows that the writ petitioner had not attached the required
document along with the application form but, after the last date, he submitted
the relevant papers. While dismissing the writ petition, the Division Bench of the
High Court observed: "Before us, learned counsel for the Petitioner
contended that the documents could have been produced by him later on and his mere
failure to submit the requisite documents at the appropriate time ought not to have
an adverse effect.
In this regard,
learned counsel for the Petitioner relied upon Charles K. Skaria and others v.
Dr. C. Mathew and others, (1980) 2 SCC 752 which was followed in Dolly Chhanda v.
Chairman, JEE and others, (2005) 9 SCC 779. We have perused the two decisions
cited by learned counsel for the Petitioner. It is true that the Supreme Court held
that a formalistic and ritualistic approach should not be followed in such
matters. However, in Charles K. Skaria the relevant proof of eligibility was in
fact produced by the candidates before the selection was made, as mentioned in paragraph
20 of the Report.
In Dolly Chhanda the candidate
belonged to the reserved MI category and there was some error in the
certificate issued to her as a result of which her candidature was cancelled. This
error was later rectified and under these circumstances, the Supreme Court held
that depending upon the facts of a case, there can be some relaxation in the matter
of submission of proof and it would not be proper to apply any rigid principle
as it pertains to the domain of procedure.
In so far as the
present case is concerned, there is nothing on record to suggest that the Petitioner
submitted the requisite documents at the appropriate time. That apart, it is
not as if the Petitioner is uneducated or could not have filled the form 1 intelligibly.
He claims to hold a degree of M.D. (Dermatology) and he ought to have been
clear about the fact that the requisite certificates must be furnished along
with the application form. For his failure to do so, the Petitioner has only himself
Writ Petition (C) No. 10058 of 2009, which was disposed of by order dated
25.1.2010, the Division Bench of the High Court considered several writ
petitions. The first batch of seven writ petitions was directed against order
dated 2.4.2009 passed by the Tribunal in relation to the selection made by the
Commission for recruitment of 38 Assistant Public Prosecutors in the
Directorate of Prosecution, Government of NCT of Delhi. In that case, the
Commission had issued Special Advertisement No.52 of 2008. The respondents
appeared in the recruitment test held on 3.8.2008 and cleared the same.
submitted detailed application forms. The Commission rejected their
applications on the ground that the same were not accompanied by the relevant documents
including LL.B. Degree Certificates and Matriculation/Senior Secondary
certificates. The respondents claimed that they could not attach LL.B. Degree
Certificates because the same had not been made available by the concerned
University. They also pleaded that enrolment with the Bar Council was sufficient
proof of their having passed the LL.B. Examination.
The Division Bench of
the High Court declined to accept the 1reason put forward by the respondents for
not producing LL.B. Degree Certificates by making the following observations: "In
our opinion, it is difficult to believe that the LLB degree certificate was not
issued to the Respondents for several years. It may be mentioned that one of the
requirements for the applicants is to have three years experience at the Bar, which
they all had. It is, therefore, extremely unlikely that these Respondents did not
get their LLB degree for three years. In any event, there is no evidence of this,
except their bald averment.
That apart, we find that
soon after the rejection of their candidature on 30th December, 2008 these Respondents
managed to produce their LLB degree certificates within a few days. It is obvious
that these Respondents, if they were in possession of the LLB degree certificate,
did not make any effort to attach it to the DAF and took the matter very
casually until they found that their DAF was rejected. If what these Respondents
say is correct and if they did not have the LLB degree certificate in their possession,
they did not make any special effort to obtain the LLB degree certificate despite
Nor did these Respondents
place on record any material to show the special efforts made by them (if any),
in spite of which they were unable to obtain the LLB degree certificate. We are
of the opinion that these Respondents were aware well in advance, that is, from
the issue of the Employment News dated 22-28 March, 2008 that they would be
required to submit the LLB degree certificate on their passing the written examination
scheduled for 3rd August, 2008. These Respondents, therefore, had sufficient
time (from March, 2008 at least till August, 2008 if not November, 2008) to
obtain their LLB degree certificate for submission along with the DAF.
These Respondents, who
did not make even this minimum effort for such a long time, have only
themselves to blame for their cavalier and casual approach." 1 The Division
Bench then considered the respondents' plea that the enrolment certificates
produced by them were sufficient for considering them eligible for recruitment as
Assistant Public Prosecutors. While rejecting this plea, the Division Bench
observed: "These Respondents say that because they were enrolled with the
Bar Council, therefore it must be assumed that they had a valid LLB degree certificate.
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."
our view, even though the Division Bench of the High Court was right in not entertaining
the respondents' plea that they could not produce LL.B. Degree Certificates because
the same had not been made available by the University, it is not possible to approve
the view that enrolment certificates issued by the Bar Council were not sufficient
for treating the respondents eligible for the post of Assistant Public
Division Bench of the High Court did not give due weightage to the essential
qualifications specified in the advertisement, i.e. a Degree in Law of a
recognized University or equivalent and 3 years' experience at the Bar and the
fact that one can gain experience at the Bar only by practicing as an Advocate
and for that purpose enrolment with the Bar Council is sine qua non and, as mentioned
above, the requirement of having passed the requisite examination in law is a
must for enrolment as an Advocate with the Bar Council.
We may also mention that
although, paragraph 7 of the instructions contained in advertisement No.6,
which was also considered by the Division Bench is almost identical to
paragraph 7 contained in the advertisement pursuant to which the respondent had
applied for the post of Legal Advisor, no such stipulation was contained in Special
Advertisement No.52 of 2008 and absence thereof may offer semblance of
justification for the conclusion recorded by the High Court.
third order relied upon by the learned Additional Solicitor General is dated 5.5.2010
vide which Writ Petition (C) No. 9934 of 2009 filed by the Commission was allowed
and the order passed by the Tribunal directing consideration of the case of
respondent Neelam Yadav for the post of Assistant Public Prosecutor was
The Division Bench
simply relied upon order dated 25.1.2010 passed in Writ Petition (C) No. 10058
of 2009 and observed: "In the case of respondent, this cannot be disputed that
the respondent did not attach a valid LL.B. degree certificate, and consequently,
the respondent did not fulfill the criteria for applying for the post of Assistant
Public Prosecutor, and the order of the Tribunal directing the petitioner to consider
the case of the respondent and allowing her to appear in interview, and in
case, she qualifies the interview to select her for the post of Assistant Public
Prosecutor, therefore cannot be sustained.
There was no requirement
for submitting the certificate from Bar Council and submitting the certificate
of registration with 2 Bar Council would not cure the defect of not submitting the
degree of LL.B. as was contemplated in the application form."
Writ Petition (C) No. 2734 of 2010, which was disposed of by the High Court vide
order dated 30.9.2010, the Division Bench noted that the respondent had not attached
B.Sc. Degree Certificate with the application, which was an essential qualification
for appointment to the post of Senior Scientific Officer (Biology) in Forensic Science
Laboratory and reversed the order of the Tribunal by observing that production of
the certificate of the Master's Degree in Zoology was not sufficient compliance
of the stipulation contained in the advertisement. The Division Bench also
referred to order dated 25.1.2010 passed in Writ Petition (C) No. 10058/2009 and
held that the Commission did not commit any error by rejecting the candidature of
the respondent Dheerender Singh Paliwal.
none of the above noted cases, the High Court had interpreted a stipulation
like the one contained in paragraph 7(ii) of the advertisement issued in this
case. Therefore, the orders passed in those cases cannot be relied upon for
upsetting the well reasoned order passed by the Tribunal and the High Court in
the present case.
the result, the appeal is dismissed. The parties are left to bear their own
costs. Since the respondent was allowed to participate in the process of
selection and he was placed at No.1 in the merit list, we deem it proper to
issue the following directions –
1) within two weeks from
the date of receipt/production of the copy of this judgment, the Commission shall
forward the respondent's name to the competent authority of the concerned
department of the Central Government.
2) within next two weeks,
the competent authority shall issue order of appointment in favour of the
(Sudhansu Jyoti Mukhopadhaya)