selecting authority cannot entertain educational qualifications record subsequent to the last date of the submission of the application.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA-1457-2018(O&M)
Reserved on: 13.04.2023
Date of Decision: 25.04.2023
NARENDER KUMAR . . . . Appellant
Vs.
DR. KULDEEP SINGH AND OTHERS . . . . Respondents
****
CORAM: HONBLE MR JUSTICE M.S. RAMACHANDRA RAO
HONBLE MRS JUSTICE SUKHVINDER KAUR
53. As stated above, the learned Single Judge was of the opinion that in
view of instruction No.10 of the General Instructions, the respondent Nos. 2
to 4 could not have entertained the publications physically produced by the
appellant at the time of his interview and awarded him 25 marks because they
were not submitted by him before the cut off date of 03.10.2011.
54. The question to be considered is:
Whether it was open to the Selection Committee to consider
the physical copy of publications produced by the appellant at
the time of interview which he had not submitted along with his
application?
55. This issue is no longer res integra.
56. In Dolly Chhanda Vs. Chairman, JEE2
, the Supreme Court held as
under:-
The general rule is that while applying for any course of study or a post, a
person must possess the eligibility qualification on the last date fixed for
such purpose either in the admission brochure or in application form, as
the case may be, unless there is an express provision to the contrary. There
can be no relaxation in this regard i.e. in the matter of holding the requisite
eligibility qualification by the date fixed. This has to be established by
producing the necessary certificates, degrees or marksheets. Similarly, in
order to avail of the benefit of reservation or weightage etc. necessary
certificates have to be produced. These are documents in the nature of
proof of holding of particular qualification or percentage of marks secured
or entitlement for benefit of reservation. Depending upon the facts of a
case, there can be some relaxation in the matter of submission of proof and
it will not be proper to apply any rigid principle as it pertains in the
2
2005(9)SCC 779
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domain of procedure. Every infraction of the rule relating to submission of
proof need not necessarily result in rejection of candidature.
(emphasis supplied)
57. The Supreme Court in the above decision relied on its earlier decision
in Charles K. Skaria and others Vs. Dr. C. Mathew and others3
, where it
had held that the candidates who got admission even though they had not
attached the certificate of having passed the diploma along with their
applications, could not have their admission to a Post Graduate course
cancelled provided they had in fact passed the diploma before the date fixed,
but had submitted the diploma with delay. It observed that the important
question is whether or not the candidate secured a diploma before the final
date of application for admission to the degree course and if he did have the
diploma, some relaxation in producing evidence of the diploma can be
granted. It held that the emphasis should be on the diploma, and the proof
thereof sub-serves the factum of possession of diploma, and is not an
independent factor. It held that what is essential is the possession of the
diploma before the given date and what is ancillary is the safe mode of proof
of the qualification. To make mandatory, the date of acquiring the
qualification before the last date for application make sense. But if it is shown
that the qualification has been acquired before the relevant date, to
invalidate the merit factor because proof was adduced a few days later,
would not be proper.
3
1980(2) SCC 752
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58. We may also point out that the decision in Dolly Chhanda (2 Supra)
was applied by the Supreme Court in Archana Chouhan Pundhir (Dr.) Vs.
State of Madhya Pradesh and others4
.
59. In Archana Chouhan Pundhir (Dr.) (4 Supra) as on 30.04.2007, the
appellant had completed more than 7 years service as Medical Officer in
Public Health and Family Welfare Department of Government of Madhya
Pradesh. Her services were regularized w.e.f. 31.12.2005 vide order dt.
10.04.2007. Her application for admission to the post of graduate course as
an in-service candidate was accepted by the authorities and she was allowed
to appear in the entrance exam of 2007, but she was denied admission
because of non award of marks in lieu of her 7 years service. The High Court
dismissed her Writ Petition for admission into the Post Graduate course as an
in-service candidate on the ground that the result of the entrance examination
was declared on 09.04.2007 and the order of regularization of her service was
issued on 10.04.2007. The Supreme Court reversed the order of the High
Court and held that the date on which the order of regularization was issued
was purely fortuitous and the same cannot be made basis for depriving the
appellant of her legitimate right as an in-service candidate. It noted that the
appellant had worked as Assistant Surgeon in District Hospital, Raisen on
contract basis vide order dt.26.10.1999 and her Writ Petition had been
allowed by the learned Single Judge on 21.04.2004 directing consideration of
regularization of her services in three months, but the respondents took three
years and only on 10.04.2007 regularized her service w.e.f. 31.12.2005. It
observed that if the State Government had issued the order of regularization
4
2011 (11) SCC 486
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before 05.03.2007 i.e. the last date fixed for receipt of the application, the
appellant would have been saved of the harassment, mental agony and
financial loss suffered by her on account of unwarranted and post litigation.
60. Thus importance was given to the possession of the eligible
qualification by the candidate as on the cut off date and not on the possession
of the proof of such eligibility on that date.
61. In Ram Kumar Gijroya vs Delhi Subordinate Services Selection
Board and anothe5
case, the appellant had sought appointment to the post of
Staff Nurse under the OBC category, but the said certificate was not
submitted with the application and submitted after the last date mentioned in
the advertisement. The appellant was therefore not selected on that ground,
but the Supreme Court held that the candidature of those candidates, who
belonged to reserved categories, could not be rejected simply on account of
late submission of caste certificate. The Supreme Court held that the purpose
of certificate is to enable the authorities to believe in the assertion of the
candidate that he belongs to a particular category and act thereon by giving
the benefit to such candidate for his belonging to the said category. It was not
as if the petitioners therein did not belong to the reserved category prior to
the cut off date or that they acquired the status of belonging to the said
category only on the date of issuance of the certificate. It held that
necessitating upon a certificate to be issued prior to the cut off date would be
clearly arbitrary and it has no rational objective sought to be achieved.
5
2016 (4) SCC 754
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62. In Dheerender Singh Paliwal vs. Union Public Service Commission6
,
an advertisement issued for filling up the posts of Senior Scientific Officers
(Biology) in the Forensic Science Laboratory, Home Department of
Government of Delhi specified the essential educational qualifications and
experience and stated that candidates should attach attested/self-certified
copies of the certificates in support thereof.
Note III to the instructions to candidates stated that if no copies of
certificates are sent with the application, it is liable to be rejected and no
appeal against its rejection would be entertained.
In the application, the appellant stated that he possessed the essential
qualification but on the ground that proof of possession of his graduation in
the concerned subject was not furnished, his candidature was rejected.
He approached the Central Administrative Tribunal which held that
since he possessed all the essential qualifications required including the
subject Zoology as one of the subjects in the B.Sc degree level, the
respondent-Commission should accept his application as complete and since
he had already been found meritorious to be selected as Senior Scientific
Officer, order of appointment must be issued to him.
The respondent questioned it before the High Court which set aside the
order of the Tribunal.
The Supreme Court held that the High Court had taken a
hypertechnical view as to the production of the required certificate relating to
essential qualifications as subject Zoology in degree level qualification,
6
2017 (11) SCC 276
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namely B.Sc was not enclosed with his application. It relied on its judgment
in Charles K. Skaria (3 supra).
The Supreme Court also considered the clause in the advertisement
which directed submission of copies of certificates along with the application
and the consequence of the failure to do so, and held that the particulars
furnished by the appellant in response to the advertisement and the
production of the degree certificate of having secured the B.Sc degree with
Zoology as the subject at a later point of time is substantial compliance with
the requirement to be fulfilled in the matter of possession of an essential
qualification by the appellant, particularly, when this was mentioned in the
form of resume and other candidates were also given the said benefit. It
declared that the approach of the respondent-Commission was unfair and
non-production of an added qualification as part of the essential
qualification at the degree level which the appellant did possess is a trivial
issue and for mere asking, the appellant could have readily produced the
same.
63. Similar view has also been taken by this Court in Rina and another
Vs. Vice Chancellor, Pt. B.D. Sharma University of Health Sciences,
Rohtak and others7
(to which one of us M.S.R.J. was a party) and also in
Haryana Staff Selection Commission vs. Subhash Chand and others8
(by
this very Bench).
64. We are therefore of the view that since the appellant mentioned in the
list filed along with his application the 6 publications of his, and also
7 Order dt.25.08.2022 in LPA-1963-2017 and batch,
8 Order dt.24.03.2023 in LPA-1199-2019
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produced the same in physical form at the time of his interview, and since the
respondent No.2-University had shown similar indulgence to 6 other
candidates by considering their publications produced during interview which
had not been enclosed to their application, no fault can be found by the
Selection Committee in awarding marks for these publications produced by
the appellant along with those submitted along with his application, and
recommending him for appointment to the post of Assistant Professor
(History).
65. It has to be taken that there is substantial compliance by the appellant
since even by the date of submission of application, these papers of his were
sent for publication, and they had been published before the date of the
interview. So they were rightly considered by the Selection Committee
keeping in mind that he did possess the essential qualification by the date of
the application and only proof of publication was produced later which is an
added essential qualification.
66. No doubt, the respondent No.1 had relied on the decisions of the
Supreme Court in Bedanga Talukdar vs. Saifudaullah Khan and others9
and State of Bihar and others vs. Madhu Kant Ranjan and another10 taking
a view contrary to the one mentioned in the above decisions of the Supreme
Court.
67. In Bedanga Talukdar (9 supra), the respondent No.1 had appeared as a
general candidate for selection to the posts advertised by the Assam Public
Service Commission but later made a claim under the Locomotor Disability
Category by producing a certificate of disability at the time of the interview.
9
2011 (12) SCC 85
10 2021(15) Scale 470
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This was found fault with by the Supreme Court. The said decision is thus
distinguishable.
68. In State of Bihar and others (10 supra), for a post of Constable in the
Bihar Police Force, a candidate had to possess NCC certificates for getting
certain additional marks. Without submitting it, he claimed such marks. The
learned Single Judge of the High Court did not grant him relief. 3 years later,
he filed an LPA before Division Bench which granted him relief. This was
questioned in the Supreme Court by the State of Bihar. The Supreme Court
held that in a later Writ Petition, the said petitioner took a contrary plea that
he produced all the documents along with his original application which
cannot be accepted. In that context, the Court observed that the cut off date
mentioned has to be complied unless extended by the recruiting authority but
the Court was unhappy with the conduct of the respondent.
69. Therefore the said decisions are distinguishable.
70. In the instant case, since the notice issued to the appellant at the time
of the interview (A-4) dt.11.12.2012 itself asked him to bring
certificates/testimonials in support of educational qualifications/experience, if
not supplied earlier and also copies/reprints of publications, if any; and not
only the appellant, but other 6 candidates, who had not submitted
publications along with their applications, were also considered at the time of
interview when they produced them, it has to be taken that the respondents
No.2 to 4 had relaxed instruction No.10 for everyone who had not submitted
such publications along with their application.
71. For all the foregoing reasons, we are therefore of the opinion that the
learned Single Judge erred in allowing Writ Petition bearing No.
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CWP-19103-2012 and setting aside the appointment of the appellant as
Assistant Professor (History) in the Directorate of Distance Education in the
respondent No.2-University.
https://www.livelaw.in/high-court/punjab-and-haryana-high-court/applicant-should-have-the-qualification-on-date-proof-can-be-produced-later-punjab-haryana-hc-reiterates-227955?fbclid=IwAR3jC5Yas9kZPzzb1rDl4EHXic4jGK4VtDGVnG9recxtbl84LJYKGDYXOAQ