Bedanga Talukdar Vs. Saifudaullah
Khan & Ors.
O R D E R
1.
Leave
granted.
2.
These
appeals are directed against the impugned judgment and order dated 4th March, 2010
in Writ Petition (C) No. 950 of 2010 and impugned judgment and order dated 2nd
July, 2010 in Writ Petition (C) No.3382 of 2010 passed by the High Court of
Guwahati, allowing the writ petitions filed by the respondent No.1 whereby
Assam Public Service Commission (hereinafter referred to as "respondent
No. 3") was directed to examine the entitlement of respondent No.1 by
taking into account the identity card produced by him.
3.
We
may notice the bare essential facts necessary for the determination of the controversy
involved in these appeals .
4.
The
respondent No. 3 issued an advertisement on 10th August, 2006 bearing advertisement
No.6/2006, announcing its intention to hold the preliminary examination of the Combined
Competitive Examination, 2006 for screening candidates for the Main Examination
for recruitment to various posts educated in the advertisement. The last date for
the receipt of the completed application forms was fixed as 11th September, 2006.
In this advertisement, although, posts had been reserved for various categories
such as OBC/MOBC, SC, ST(P) and ST(H), but there was no reservation in favour of
the disabled candidates as required under the Persons with Disabilities [Equal Opportunities,
Protection of Rights and Full Participation], Act,1995.
5.
Consequently,
a Public Interest Litigation being P.I.L. No.61/2006 was filed in the High Court
by Order dated 13th March, 2007. The High Court by an interim order directed respondent
No.3 not to conduct any examination during the pendency of the petition. By
order dated 13th March, 2007, the High Court directed respondent No.3 to make a
fresh advertisement on the basis of the requisitions to be received from the Government
of Assam (respondent No.2) incorporating reservation of 3% for persons with
disabilities.
6.
In
compliance with the orders of the High Court dated 13th March, 2007, respondent
No. 3 issued a corrigendum on 5th June, 2007 reserving three per cent vacancies
for Physically Handicapped persons, in terms of Persons with Disabilities
[Equal Opportunities, Protection of Rights and Full Participation], Act,1995. Applications
were invited for one post in the Assam Civil Service Class-I (Jr. Grade) from persons
suffering from Locomotor Disability, in connection with the conduct of Combined
Competitive (Preliminary) Examination, 2006 for screening candidates for the Main
examination for the posts already mentioned in the earlier advertisement No. 6/2006.
It is evident that this corrigendum was issued in continuation of advertisement
No. 6/2006 dated 10th August, 2006. It was provided therein that candidates,
who had applied earlier to the advertisement No. 6/2006 dated 10th August, 2006,
need not apply again but the candidates with Locomotor Disability must produce
supporting documents in the office of the Assam Public Service Commission or in
the examination hall before the commencement of the examination. The Last date for
submission of the applications under the corrigendum was 6th July, 2007.
7.
Respondent
No.1 had applied in response to the advertisement dated 10th August, 2006. Since
there was no requirement for submission of any details with regard to any disability,
he had not submitted any disability certificate. Although, in view of the corrigendum,
respondent No.1 was not required to make an application afresh, he was required
to produce necessary supporting documents in the office of the Commission or in
the examination hall before the commencement of the preliminary examination. Respondent
No.1 had been certified by the District Medical Board, Dhubri, to be physically
disabled to the extent of 50% on 21st January, 2004. On the basis of this
certificate, respondent No.1 was issued an identity card by the District Social
Welfare Officer, Dhubri on 18th February, 2004 which specified his disability to
be Locomotor Disability to the extent of 50%. The preliminary examination was held
on 23rd September, 2007.
8.
We
may notice here that respondent No.1 did not submit the mandatory documents, to
substantiate his candidature in the seat reserved for candidates with "Locomotor
Disability", on or before 6th July, 2007, i.e., the last date for submission
of applications. He also did not submit the mandatory documents even at the
time when he appeared in the preliminary examination. Therefore, he appeared in
the examination as a general category candidate.
9.
Both
the appellant and respondent No.1 successfully participated in the preliminary examination.
The advertisement had clearly specified that "candidates who are declared by
the Commission to have qualified for admission to the Main examination will
have to apply again in the prescribed application form, which will be supplied
to them." It was the claim of respondent No.1, that he had specifically
indicated in Column No. 11 of his application in the prescribed form for the Main
examination that he suffers from Locomotor Disability upto 50%. According to him,
he had submitted the certificate dated 21st January, 2004 issued by the
District Medical Board, Dhubri. Being satisfied Respondent No.3 had permitted him
to appear in the Main examination.
10.
Having
successfully completed the written examination, both the candidates, i.e., appellant
and respondent No.1, were called for interview on 1st December, 2008. It was the
case of respondent No.1 that he had produced the necessary documents in support
of his claim of Locomotor Disability to the extent of 50%, along with the other
certificates and testimonials at the time of interview. The Commission, respondent
No. 3, published the list of selected candidates on 15th June, 2009. The name of
respondent No.1 did not appear in the said list. In fact, the appellant was
shown to have been selected for appointment in the Assam Public Service Commission
as a physically handicapped candidate.
11.
Respondent
No.1 made an application under the provisions of Right to Information Act, 2005
before the appropriate authority seeking the details of the marks scored by him
as well as the details of the marks obtained by other physically handicapped candidates
called for the interview. From the information supplied to him, respondent No. 1
came to know that he had scored 817 marks, whereas the appellant had scored 695
marks. Respondent No. 1 thereafter made a representation dated 14th September, 2009
addressed to the Chairman of respondent No.3 as well as the Secretary of the
Commission making a grievance that his candidature had been arbitrarily
rejected, even though, he had scored more marks than appellant in the examination.
It appears that respondent No. 1 had also reiterated that his claim for being
considered in the Locomotor Disability category, was duly supported by the
necessary documents, i.e., certificate issued by the District Medical Board, Dhubri
dated 21st January, 2004 and the identity card issued by the District Social
Welfare Officer.
12.
He
had further stated that at the time of interview, he had produced the necessary
documents in support of his claim. According to respondent No. 1, on 4th December,
2009, the Deputy Secretary of the Commission (respondent No.3) had informed him
that the identity card showing respondent No. 1 to be suffering from Locomotor
Disability was not submitted alongwith the application form for the Main examination,
though the same was a compulsory document. Respondent No. 1 was accordingly asked
to submit the same to the Commission as early as possible on receipt of the communication
dated 4th December, 2009. Respondent No. 1 replied vide his letter dated 10th December,
2009 addressed to the Deputy Secretary of the Commission, stating that all necessary
documents showing that he is a physically handicapped person suffering from Locomotor
Disability were submitted alongwith the application form of the Main examination.
Respondent No. 1 also reiterated his claim that all documents were verified by
the Commission at the time of interview on 1st December, 2008. In the letter dated
10th December, 2009, respondent No. 1 also mentioned that as directed by the
Deputy Secretary of the Commission, an attested copy of the ID card issued to him
by the District Social Welfare Officer, Dhubri is being forwarded.
13.
It
would be relevant to notice here that the select list dated 15th June, 2009 was
challenged in Writ Petition No. 2755 of 2009 and other connected cases. The
aforesaid writ petition was disposed of by the High Court by remitting the
matter back to respondent No.3 to take a fresh decision and publish a revised
list. The reservation in the category of Locomotor Disability was not the issue
before the Court in the aforesaid writ petition. The procedural anomaly related
to women candidates.
14.
Subsequently,
respondent No. 1 filed Writ Petition No. 67 of 2010 seeking a direction to
include his name in the fresh list to be issued by the respondent No.3, Commission.
This writ petition was dismissed by the High Court being premature on 7th January,
2010. Thereafter, on 5th February, 2010, the Commission published a revised list,
wherein name of respondent No. 1 was again not included in the list of candidates
selected for the appointment.
15.
Respondent
No. 1, therefore, challenged the select list by Writ Petition No. 950 of 2010. The
writ petition was filed on 8th February, 2010. The High Court granted an
ex-parte order on 11th February, 2010 directing respondent No.3 not to issue
the appointment / posting orders to the appellant.
16.
In
the counter affidavit filed to this writ petition, respondent No.3 specifically
stated that the documents had not been submitted by the respondent No. 1 within
the prescribed time. On 14th March, 2010, the writ petition filed by respondent
No. 1 was allowed.
A direction was issued
to respondent No.3 to reconsider the matter afresh based on the identity card submitted
on 10th December, 2009. We may notice here that this direction had been issued
by the High Court in spite of the categoric assertion made by the respondent No.3
that the candidature of the respondent No. 1 had been rejected on the basis of the
resolution dated 8th January, 2010. In its meeting dated 8th January, 2010, respondent
No.3 had resolved that respondent No. 1 did not submit the identity card along with
the form. This was vital to support the claim of respondent No.1 to be
considered for the post reserved for the candidates having Locomotor
Disability. Therefore, his candidature was rejected for non-fulfillment of an
essential condition.
However, pursuant to
the directions issued by the High Court in its order dated 4th March, 2010, respondent
No.3 in its meeting held on 21st May, 2010 again thoroughly examined the matter
relating to the entitlement of respondent No. 1 for final selection as a physically
handicapped (Locomotor Disability) candidate. Upon a thorough scrutiny and re-examination
of the facts and the material on record, the claim of respondent No. 1 was not accepted.
The name of appellant was duly reiterated as the candidate selected for appointment.
A communication to that effect was sent to the appellant as well as respondent
No. 1 on 31st May, 2010.
17.
At
this stage, respondent No. 1 filed Writ Petition No. 3382 of 2010 challenging
the minutes dated 21st May, 2010 and the communication dated 31st May, 2010. The
aforesaid writ petition has been allowed by the High Court with observations that
respondent No.3 was under a legal obligation to examine the petitioner's entitlement
for selection by taking into account his identity card. The High Court notices that
the resolution of the respondent No.3 contained in the minutes of the meeting dated
21st May, 2010 would indicate that the Commission had resolved not to consider the
case of respondent No. 1 for selection for appointment against the solitary post
earmarked for physically handicapped candidates on the ground that the identity
card, which was required to be submitted by respondent No. 1 at different stages.
The High Court has held
that the aforesaid decision, is not rendered in the light of the directions
given by the High Court in Paragraph 13 of the order dated 4th March, 2010 passed
in Writ Petition (C) No. 950 of 2010. It has been observed by the High Court that
the question of belated submission of the identity card having been already answered
by the Court and directions having been issued to take into account the same,
the Public Service Commission could not have acted in the manner it has done. This
writ petition was, therefore, allowed with the following observations:-
"For the aforesaid
reasons, we set aside the resolution dated 21.5.2010 of the Commission as well as
the communication dated 31.5.2010 and direct that the Public Service Commission
will now examine the entitlement of the petitioner by taking into account the
identity card produced by him. For the purpose of clarification, we deem it appropriate
to add that while considering the case of the petitioner the acceptability, veracity
or otherwise of the contents of the identity card and the effect of the said contents,
if found to be acceptable, would be considered by the Commission." These directions
are challenged by the appellant in these appeals.
18.
We
have heard the counsel for the parties.
19.
Mr.
Jayant Bhushan, learned senior counsel, appearing for the appellant herein submits
that in the advertisement dated 5th June, 2007, one post was reserved for person
suffering from Locomotor Disability only. The advertisement also further
provided that those who applied earlier in response to advertisement No.6/2006 dated
10th August, 2006 need not apply again, but the candidates with Locomotor Disability
must produce supporting documents in the office of Assam Public Service Commission
or in the examination hall before commencement of the examination.
The advertisement further
provided that candidates who are declared by the Commission to have qualified for
admission to the main examination will have to apply again in prescribed - 14 -application
form, which will be supplied to them. All candidates applying in the category of
persons with Locomotor Disability upto 50% were required to send a certificate of
Locomotor Disability from the appropriate authority. According to Mr. Bhushan,
respondent No. 1 did not submit the necessary certificate in the office of the respondent
No. 3 or in the examination hall before commencement of the examination.
In fact, he did not submit
even the ID card till after the interview. By the time, he submitted the ID
card, even the Select List of the successful candidates had been published. Since
respondent No. 1 had not submitted the requisite disability certificate within the
stipulated period as provide in the advertisement, respondent No. 3 rejected his
candidature for valid reasons in its resolution dated 8th January, 2010.
20.
Mr.
Bhushan submits that direction issued by the High Court are contrary to the
settled principle of law that there can be no variation in the conditions of eligibility
as laid down in the advertisement, unless a specific stipulation is made about any
particular condition being relaxable at the discretion of the concerned authority.
Learned senior counsel submits that the High Court has erred in holding that the
rigour of Article 14 would not be automatically applicable "to the domain of
appointment in public office where the employer must strive to pick the best talent
available. To achieve such result, the employer must be conferred a wide
discretion to act in relaxation of the rigour of the terms of an advertisement.
The requirements spelt out in an advertisement for appointment in public service
must, therefore, not to be understood to be inflexible leaving no room for elasticity".
Learned senior counsel further submitted that the High Court failed to appreciate
that claim of respondent No. 1 had been rejected upon due consideration by respondent
No. 3 after according him an adequate opportunity by resolution dated 8th January,
2010.
21.
According
to the learned senior counsel, the High Court has proceeded on the erroneous
assumption that the Commission had itself treated candidature of many candidates
to be provisional on account of the fact that requisite certificates of age or
educational qualifications had not been submitted along with the application form.
According to Mr. Bhushan, the High Court has wrongly concluded that the Public Service
Commission had itself treated the condition about the submission of necessary certificates
to be not mandatory and inflexible requirements. According to the learned
senior counsel, the aforesaid conclusion of the High Court is factually incorrect.
22.
The
learned senior counsel submits that respondent No.3 had in fact rejected the candidature
of respondent No.1 strictly in accordance with the instructions issued in the "Information
to the candidates on the Combined Competitive (Main) Examination". Instruction
No. 13 clearly stipulates that "any application form received without all or
some of the enclosures is liable to be summarily rejected. Any enclosure which was
not sent along with the application earlier but sent subsequently by the candidates
will not be entertained. Thus candidates must ensure that the application form is
properly filled in and is accompanied by all the relevant documents." Mr.
Bhushan submits that in the case of respondent No. 1, he was required to submit
an attested copy of certificate of Locomotor Disability. The High Court records
that the necessary certificate was not submitted by respondent No. 1 before the
last date of receipt of applications, which was 11th September, 2006. Learned
senior counsel has also relied on a judgment of this Court in the case of
Karnataka Public Service Commission & Ors. Vs. B.M. Vijaya S hankar &
Ors. 1
23.
On
the other hand, Mr. V. Hazarika, learned senior counsel submits that the
respondent No.3 reconsidered the entire issue after the High Court set aside the
resolution passed by respondent No.3 on 8th January, 2010. Respondent No. 1 had
to file W.P. (C) No. 950 of 2010 as 1 (1992) 2 SCC 206 - 18 -respondent No.3 again
illegally rejected his candidatures. He, therefore, challenged the selection of
the appellant.
24.
In
the aforesaid writ petition, it was stated that in the application, respondent No.1
had specifically mentioned against Column No. 11 of the application form that he
suffers from Locomotor Disability upto 50%. He had submitted a certificate
issued by the District Medical Board, Dhubri dated 21st January, 2004 in
support of his claim to be a physically handicapped person along with the
identity card issued by the District Social Welfare officer. It was further his
claim in the writ petition that he had qualified in the main examination and was
called for interview by call letter dated 1st December, 2008. It was further
the case of the respondent No. 1 that he had produced the necessary documents in
support of his claim of Locomotor Disability to the extent of 50% along with the
other certificates and testimonials at the time of interview. However, when the
select list was published on 15th June, 2009, the name of respondent No.1 was not
included therein. It was in fact the appellant, who had been selected for appointment.
It was also the case of the respondent No. 1 that the appellant had scored 695
marks whereas respondent No.1 had scored 817 marks in the examination. In spite
of having scored higher marks, he was illegally and arbitrarily not selected.
25.
The
respondent No.1 had, therefore, submitted a representation on 14th September,
2009 to respondent No. 3, seeking to question the selection of the appellant, who
had scored lesser marks. In the representation, respondent No.1 had specifically
stated that he had submitted the necessary supporting documents along with the
application form. The said documents were verified at the time of interview on 11th
December, 2008. The documents were also enclosed with the representation dated
14th September, 2009. Therefore, on 4th December, 2009, the Deputy Secretary of
the Commission had informed respondent No. 1 that the identity card showing him
to be suffering from Locomotor Disability was not submitted along with the application
form for the main examination. Though the same is a compulsory document. Respondent
No.1 was, therefore, asked to submit the same to the Commission as early as possible.
On receipt of the communication dated 4th December, 2009, respondent No.1 through
his letter dated 10th December, 2008 addressed to the Deputy Secretary of the
Commission reiterated that the documents had already been submitted and verified
by the Commission. However, he again sent an attested copy of the identity card
issued to him by the District Social Welfare Officer, Dhubri.
26.
Learned
senior counsel submits that taking into consideration the aforesaid facts, the High
Court correctly came to the conclusion that respondent No. 3 had not specifically
denied the claim of the appellant that he had produced the identity card at the
time of interview on 11th December, 2008. The High Court had also taken into consideration
that the candidature of three other candidates, who had not submitted the necessary
documents was treated as provisional. These candidates were included in the
select list. Therefore, the High Court has rightly concluded that the condition
with regard to submission of certificates and testimonials along with the application
or before the preliminary examination was not mandatory. The action of the
respondent No.3 in rejecting the candidature in the resolutions dated 8th January,
2010 and 21st May, 2010 were rightly quashed by the High Court.
27.
Mr.
Bhushan, in reply, submitted that upon a thorough examination of the entire fact
situation, respondent No.3 in its resolution dated 21st May, 2010 has clearly observed
that respondent No.1 was treated as a general candidate all along in the
examination process and was not treated as physically handicapped with
Locomotor Disability. The respondent No.3 also looked into the question whether
any other candidate, who had not furnished any essential document with the
application or at the time of interview but submitted them after the interview were
accepted or not. Upon examination of the issue, respondent No.3 has observed
that in fact the candidature of one applicant namely Smt. Anima Baishya was specifically
rejected as she had submitted the application before the Chairperson of respondent
No.3 on 26th February, 2009, claiming herself to be a SC candidate for the first
time. In the case of respondent No. 1, the identity card was submitted for the
first time with the letter dated 10th December, 2009 much after the examination
process was over.
28.
We
have considered the entire matter in detail. In our opinion, it is too well
settled to need any further reiteration that all appointments to public office have
to be made in conformity with Article 14 of the Constitution of India. In other
words, there must be no arbitrariness resulting from any undue favour being
shown to any candidate. Therefore, the selection process has to be conducted strictly
in accordance with the stipulated selection procedure. Consequently, when a
particular schedule is mentioned in an advertisement, the same has to be scrupulously
maintained. There can not be any relaxation in the terms and conditions of the
advertisement unless such a power is specifically reserved. Such a power could
be reserved in the relevant Statutory Rules.
Even if power of relaxation
is provided in the rules, it must still be mentioned in the advertisement. In
the absence of such power in the Rules, it could still be provided in the
advertisement. However, the power of relaxation, if exercised has to be given due
publicity. This would be necessary to ensure that those candidates who become eligible
due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation
of any condition in advertisement without due publication would be contrary to the
mandate of quality contained in Articles 14 and 16 of the Constitution of
India.
29.
A
perusal of the advertisement in this case will clearly show that there was no
power of relaxation. In our opinion, the High Court committed an error in directing
that the condition with regard to the submission of the disability certificate either
along with the application form or before appearing in the preliminary
examination could be relaxed in the case of respondent No. 1. Such a course
would not be permissible as it would violate the mandate of Articles 14 and 16
of the Constitution of India.
30.
In
our opinion, the High Court was in error in concluding that the respondent No.3
had not treated the condition with regard to the submission of the certificate along
with the application or before appearing in the preliminary examination, as mandatory.
The aforesaid finding, in our opinion, is contrary to the record. In its resolution
dated 21st May, 2010, the Commission has recorded the following conclusions:- "Though
Shri S. Khan had mentioned in his letter dated 10.12.2009 that he was resubmitting
the Identity Card with regard to Locomotor Disability he, in fact, had
submitted the documentary proof of his Locomotor Disability for the first time
to the office of the A.P.S.C. through his above letter dated 10.12.2009. However,
after receiving the Identity Card the matter was placed before the full Commission
to decide whether the Commission can act on an essential document not submitted
earlier as per terms of advertisement but submitted after completion of entire
process of selection.
The Commission while examining
the matter in details observed that Shri S. Khan was treated as General candidate
all along in the examination process and was not treated as Physically Handicapped
with Locomotor Disability. Prior to taking decision on Shri S. Khan it was also
looked into by the Commission, whether any other candidate's any essential document
relating to right/benefits etc. not furnished with the application or at the time
of interview but submitted after interview was accepted or not. From the record,
it was found that prior to Shri S. Khan's case, one Smt. Anima Baishya had
submitted an application before the Chairperson on 26.2.2009 claiming herself
to be a S.C. candidate for the first time. But her claim for treating herself as
a S.C. candidate was not entertained on the grounds that she applied as a General
candidate and the caste certificate in support of her claim as S.C. candidate
was furnished long after completion of examination process."
31.
In
the face of such conclusions, we have little hesitation in concluding that the conclusion
recorded by the High Court is contrary to the facts and materials on the record.
It is settled law that there can be no relaxation in the terms and conditions contained
in the advertisement unless the power of relaxation is duly reserved in the relevant
rules and/or in the advertisement. Even if there is a power of relaxation in
the rules, the same would still have to be specifically indicated in the advertisement.
In the present case, no such rule has been brought to our notice. In such circumstances,
the High Court could not have issued the impugned direction to consider the claim
of respondent No.1 on the basis of identity card submitted after the selection
process was over, with the publication of the select list.
32.
In
view of the above, the appeals are allowed and the impugned judgment and order dated
4th March, 2010 passed in W.P.(C) No.950 of 2010 and impugned judgment and
order dated 2nd July, 2010 passed in W.P.(C) No.3382 of 2010 of the High Court
are set aside.
...................................J.
[Altamas Kabir]
...................................J.
[Surinder Singh Nijjar]
New
Delhi;
September
28, 2011.
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