SAKSHI ARHA v. THE RAJASTHAN HIGH COURT AND OTHERS

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A the competent authority as per the rules in the prescribed format. It was also stated in the important instructions of the advertisement that the category filled in the application will not be changed under any circumstances, and that the candidates will be required to produce all the original documents/certificates on the basis of which they made claim of reservation, if required by the Rajasthan High Court or the concerned appointing authority.

22. Having regard to the said instructions contained in the said advertisement dated 22.07.2021, there remains no shadow of doubt that if a candidate had applied under any of the reserved categories, he or she was expected to have a valid certificate issued by the competent authority as per rules in the prescribed format, to show his or her eligibility to apply under such category. The time limit for making such application as stated in Clause 17 of the said advertisement was upto 5 PM on 31.08.2021. Under the circumstances, the candidate was expected to have the requisite certificate to show that he or she belonged to the concerned reserved category, on the date of making application or on the last date fixed for the submission of applications i.e. 31.08.2021. Such certificate to be produced by the concerned candidate had to be a valid certificate issued by the competent authority in consonance with the circulars issued by the State Government dated 09.09.2015 and as clarified in the Circular dated 08.08.2019, which governed the issue with regard to the validity of such certificates.

23. Admittedly, all the appellants had the certificates issued after the last date fixed for the submission of their applications i.e., 31.08.2021. So far as OBC-NCL category was concerned the appellant Jyoti Beniwal had furnished the OBC-NCL certificate dated 25.07.2022, appellant F Sakshi Arha had the certificate dated 12.08.2022, appellant Priyanka had the certificate dated 20.06.2022, appellant Bhavya Kulhar had the certificate dated 16.06.2022, appellant Neha Batar had the certificate dated 21.06.2022 and appellant Nikhil Kataria had the certificate dated 09.06.2022. So far as MBC-NCL is concerned, the appellant Sunil Singh G Gurjar had the certificate dated 16.06.2022 and appellant Kuldeep Bhatia had the certificate dated 09.03.2022. So far as EWS category is concerned, the appellant Parul Jain had the certificate dated 07.09.2021. Thus, all the appellants had produced their respective certificates which were obtained by them after the last date fixed for the submission of the application i.e., 31.08.2021, and had also not produced the documents/ H

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OTHERS [BELA M. TRIVEDI, J.]

affidavits in support thereof, in compliance with the circulars dated A 09.09.2015 and 08.08.2019. Therefore, the certificates produced by the appellants at the time of interview could not said to be valid certificates as mandated in the advertisement dated 22.07.2021 by the respondents.

24. It was sought to be submitted by learned counsel for the appellants that there was no specific date mentioned in the advertisement dated 22.07.2021 as to the validity period of the certificates to be furnished by the appellants, and subsequent notice dated 04.08.2022 directing the appellants to produce the certificates as mentioned therein was highly unreasonable, and tantamount to changing the rules of game after the process of selection had started. The Court does not find any substance in the said argument. As stated earlier, there were specific instructions given in the advertisement that the candidates applying under the reserved categories had to submit the valid certificates issued by the competent authority, and therefore such certificates had to be in consonance with the circulars of the State Government dated 09.09.2015 and 08.08.2019 which governed the validity period of such certificates. The subsequent notice dated 04.08.2022 given by the respondent-High Court requiring the candidates belonging to OBC/MBC(NCL) to produce the certificates issued not prior to one year from the last date fixed for the submission of application form i.e., 31.08.2021, was absolutely in consonance with the said circulars issued by the State Government. It was also mentioned in the said notice dated 04.08.2022 that in case the OBC/MBC(NCL) E certificate was issued between 31.08.2018 and 30.08.2020, an affidavit in prescribed format along with the caste certificate had to be produced. For the EWS category, it was stated that the Income and Asset certificate required for seeking reservation in EWS category must not have been issued prior to 01.04.2021 and in case the Income and Asset certificate was issued between 01.04.2019 and 31.03.2021, then an affidavit in the prescribed format along with the certificate had to be produced. It was specifically mentioned therein that SC/ST/OBC/MBC/EWS certificate, as the case may be, must not have been issued after the last date of submission of the application form i.e., 31.08.2021. Such instructions requiring the reserved category candidates to produce the requisite certificates could neither be said to be unreasonable nor could be construed as changing the rules of game after selection process was started, they being in consonance with the important instructions given in the advertisement dated 22.07.2021, and in consonance with the H

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A circulars issued by the State Government with regard to the validity period of caste certificates.

25. It is needless to say that when a candidate applies under a particular reserved category, he or she is required to have the certificate of that particular category on the date on which he or she makes the application to show his or her eligibility to apply under the said category. If such certificates are obtained subsequent to date of their application or subsequent to the last date of submission of the applications mentioned in the advertisement, such certificates could not be said to be valid certificates, more particularly in cases where the candidate applies under OBC-NCL or EWS, which category is highly dynamic and not static, as the economic status of the candidate would keep on changing depending on the income of the candidate.

26. The submission made by the learned counsel for the appellants that in absence of a fixed date specified in the advertisement and in absence of any provision in the Rules, the certificates produced on the date of interview should be treated as valid, cannot be accepted. Though, reliance was sought to be placed by the learned counsel for the appellants on Dolly Chhanda v. Chairman, JEE and Others (supra), Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board and Another (supra) and Karn Singh Yadav vs. Govt. Of NCT Of Delhi & Ors. E (SLP (C) No. 14948 of 2016) they are hardly of any help to the appellants. In Dolly Chhanda (supra), this Court while observing that every infraction of rule relating to submission of proof need not necessarily result in rejection of candidature, had emphasized that: “7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in the application form as the case may be, unless there is an expressed provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail the benefit of reservation or weightage etc. necessary certificates have to be produced. These are the documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement to benefit of reservation..” H

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OTHERS [BELA M. TRIVEDI, J.]

27. In Ram Kumar Gijroya (Supra), the two Judge Bench of this A Court had found the candidate eligible for selection to the concerned post under the OBC category, though the certificate in that regard was submitted after the last date mentioned in the advertisement, however another two judge Bench of this Court in Karn Singh Yadav (supra) had expressed reservation in that regard, and had referred the matter to the B Three-Judge Bench vide the order dated 24.01.2020. The Three-Judge Bench in the said case of Karn Singh Yadav (supra) however relying upon Ram Kumar Gijroya (supra) disposed of the appeal vide the order dated 28.09.2022, without noticing the reference made by the two Judge Bench in the said case. Be that as it may, in none of these two cases, was there an issue whether the candidate could have produced the requisite certificate showing his reserved category, issued after the last date fixed for the submission of the applications mentioned in the advertisement, as has been done in the instant appeals.

28. Further, none of the appellants had raised any such contention in their writ petitions that they had applied on time and the delay in issuing certificates was on the part of the competent authorities. Admittedly, no such affidavits as contemplated in the circulars dated 09.09.2015 and 08.08.2019 were filed by the appellants either before the competent authority issuing the certificates or before the respective High Court at the time of interview, though indicated in the notice dated 04.08.2022. E

Conclusion:

29. It is no more res integra that in absence of a fixed date indicated in the advertisement inviting applications, with reference to which the requisite eligibility is to be judged, and when the rules are silent, the only certain date for the scrutiny of the eligibility of a candidate would be the last date for making the applications. It cannot be gain said that the date of interview or selection would always be uncertain and the uncertainty of the date may lead to an anomalous situation in as much as even those candidates who were not eligible to apply under the reserved category on the date of making application, may apply under the reserved category and subsequently obtain the certificate by the time the interviews are held. In such circumstance, the possibility of playing mischief also cannot be ruled out. In the instant case, the last date for the submission of applications was 31.08.2021 and the interviews were fixed in August 2022. So, there was a gap of one full year between H

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A the last date for submission of the applications and the date of interview, during which period the economic status and resultant status of “creamy layer/non-creamy layer/EWS” of the candidates might have also changed. Therefore, the exposition of law settled by this Court is that in absence of a fixed date indicated in the advertisement, and when the rules are also silent, the last date fixed for submitting the applications would be the date for the scrutiny of the eligibility of the candidates.

30. A Three-Judge Bench of this Court in Dr. M.V. Nair Vs. Union of India & Ors.10, had held inter alia that the qualification and eligibility have to be considered with reference to the last date for receiving the applications, unless the notification calling for applications itself specifies a date.

31. In Rekha Chaturvedi v. University of Rajasthan and Others11, this Court held 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. But a still worse consequence may follow, in that it may leave open a scope for malpractices. G The date of selection may be so 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 inviting applications with reference to which the requisite qualifications 10 (1993) 2 SCC 429 11 H 1993 Supp (3) SCC 168

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OTHERS [BELA M. TRIVEDI, J.]

should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the Selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra [(1990) 2 SCC 669 : 1990 SCC (L&S) 377 : (1990) 4 SLR 235 : (1990) 13 ATC 708] and District Collector & C Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram v. M. Tripura Sundari Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 4 SLR 237 : (1990) 14 ATC 766] .”

32. A Three-Judge Bench of this Court in Ashok Kumar Sharma D & Ors. Vs. Chander Shekhar & Anr.12, observed as under: - “6. 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 authority issuing 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.”

33. It is also pertinent to note that if the appellants were allowed to produce the certificates issued after the last date fixed for the 12 (1997) 4 SCC 18 H

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A submission of applications mentioned in the advertisement i.e. 31.08.2021, the other candidates similarly situated as the appellants might raise a grievance for not giving them such opportunity. The appellants who are the defaulters could not be given preferential treatment by accepting the certificates produced by them as valid, though the same were obtained by them after the last date for the submission of applications fixed in the B advertisement. The said certificates were also not supported by the requisite affidavits as per the Government circulars dated 09.09.2015 and 08.08.2019.

34. In view of the afore-stated factual and legal aspects of the matter, I do not find any error having been committed by the High Court C while passing the impugned judgments and orders. In that view of the matter, the appeals being devoid of merits are dismissed.

Ankit Gyan Matter be placed before Hon'ble CJI (Assisted by : Tamana, LCRA) for constitution of appropriate Bench. D