Dr. Sweta Kumari v. State Of Jharkhand And Others

1. The matter has been heard through video conferencing with the consent of learned counsel for the parties. They have no complaint about any audio and visual quality.

2. The instant intra-court appeal preferred under Clause-10 of Letters Patent is directed against the order/judgment dated 20.12.2019 passed by the learned Single Judge of this Court in W.P.(S) No. 3152 of 2018, by which the writ petition has been dismissed declining to give any positive direction in favour of the writ petitioner pertaining to her appointment on the post of Dental Doctor.

3. The brief facts of the case as per the pleading made in the writ petition are required to be enumerated which read hereunder as:—

The writ petitioner, namely, Dr. Sweta Kumari who belongs to Scheduled Caste Category, having the degree of Bachelor of Dental Surgery from the Vinoba Bhave University, Hazaribagh, has made an application in pursuant to advertisement no. 02/2016 published by the Jharkhand Public Service Commission, in short ‘JPSC’, for the post of Dental Surgeon claiming herself eligible and suitable as per the terms and conditions of the advertisement.

4. The writ petitioner, had applied to the said post under the Scheduled Caste Category by supplying the details of caste certificate dated 10.10.2014 issued by the SDO, Giridih but in Central Format vide Sl. No. 128 dated 10.10.2014 which was accepted by the JPSC as valid, accordingly, the admit card on the basis of the said certificate was issued and the writ petitioner was allowed to participate in the written examination.

5. The writ petitioner, accordingly, had appeared for the written examination held on 20.12.2017, in which, she was declared qualified under the SC category. The writ petitioner, thereafter, had appeared in the interview along with the relevant documents for its verification but on publication of the final result, she was declared failed and, as such, her name did not appear in the SC category, which led the writ petitioner to approach this Court by filing the writ petition being W.P.(S) No. 3152 of 2018.

6. A ground has been taken before the writ Court that non-consideration of her case under the SC category is nothing but an arbitrary exercise of power and going on hyper technicality, her candidature has been considered under the unreserved category.

7. According to the writ petitioner, the details of caste certificate issued at the time of submission of online application, was issued by the competent authority i.e., SDO, Giridih, although, the said certificate was not issued under Form-I as prescribed and contained in the advertisement but there is no material difference so far as the caste category of the writ petitioner is concerned and on the date of scrutiny of the caste certificate, that is on the date of verification of the document, the certificate has been obtained in Form-I by the competent authority i.e., the SDO, Giridih which was produced and verified but her candidature in the Scheduled Caste Category has been rejected, which is absolutely illegal since the status of caste is not in change and only because the caste certificate has not been submitted in the online application as under Form-I as contained in the advertisement, that cannot be the ground to reject the candidature of the writ petitioner under the Scheduled Caste Category.

8. While on the other hand, the plea of the JPSC is that the condition stipulated under the advertisement of furnishing caste certificate in Form-I as contained in the advertisement since has not been followed, therefore, even though, initially the candidature of the writ petitioner was considered but on the date of scrutiny of the documents as also the caste certificate, it was found that caste certificate submitted by the writ petitioner at the time of submission of online application is different to that of caste certificate produced for its scrutiny after the interview and therefore, resorting to the condition no. 9(gha) of the advertisement, the candidature of the writ petitioner has decided not to be considered under the Scheduled Caste Category rather her candidature has been considered in the un-reserved category.

9. The learned Single Judge after taking into consideration the fact that the writ petitioner has not adhered to the condition stipulated in the advertisement to the effect of submission of caste certificate in Form-I as contained in the advertisement, has dismissed the writ petition, which is the subject matter of the instant intra-court appeal.

10. Mr. Krishna Murari, learned counsel appearing for the appellant writ petitioner has submitted that the learned Single Judge has not appreciated the fact that the status of the caste of the writ petitioner of ‘Dhobi’ caste is there even at the time of submission of online application but since it was not in the Form-I as stipulated in the terms and conditions of the advertisement rather it is under the format of the Central Government but that cannot be a ground to discard the candidature of the writ petitioner once the writ petitioner has been found to be qualified in the written examination as well as in the interview.

11. It is the further ground of the writ petitioner that she has also secured more marks than the candidate who has been selected and appointed but this aspect of the matter has not been appreciated by the learned Single Judge.

12. Learned counsel appearing of the appellant has relied upon the judgments rendered by the Hon'ble Apex Court in Dolly Chhanda v. Chairman, Jee, (2005) 9 SCC 779 and Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board, (2016) 4 SCC 754.

13. Per contra, Mr. Sanjay Piprawall, learned counsel appearing for the JPSC has submitted that there is no error in the order passed by the learned Single Judge as because the selection process since started on the basis of the advertisement which contains specific terms and conditions and one of the condition is that the caste certificate is to be produced in Form-I as contained in the advertisement but very surprisingly, the caste certificate has been submitted by the writ petitioner at the time of submission of online application not in Form-I rather in another form as would be evident from annexure-3 appended to the writ petition and therefore, the said application of the writ petitioner has been considered to be not under the Scheduled Caste Category rather it has been treated to be under the un-reserved category.

14. The case of the writ petitioner has been considered under the unreserved category, wherein, she has been found to have secured lesser marks than the last selected candidate under the un-reserved category and therefore, declared unsuccessful.

15. Learned Single Judge has taken into consideration these aspects of the matter about non-fulfilment of the specific condition stipulated in the advertisement and has dismissed the writ petition which cannot be said to suffer from an error.

16. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order.

17. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper to refer certain undisputed fact of this case which is important for proper adjudication of the lis i.e., on the basis of the requisition made by the State Government through the competent department, the writ petitioner had applied and has made an application for appointment to the post of Dental Surgeon being advertisement no. 02 of 2016.

18. The said advertisement contains a condition as under condition no. 9 under the caption head in reservation, under which, the specific condition has been stipulated as under condition no. 9(gha) which reads hereunder as:—

19. It is evident from the aforesaid condition that the candidate who is desirous to get the benefit of reservation was required to submit caste certificate issued by the Deputy Commissioner/Sub Divisional Officer in pursuant to the decision of the Personnel Administrative Reforms and Rajbhasa Department, Government of Jharkhand as contained in memo no. 5682 dated 22.10.2008 and memo no. 10007 dated 29.08.2012, under which, the Form-I or Form-II have been referred, the caste certificate is required to be submitted under the said Form-I or Form-II, failing which, the case of such candidates will not be considered under the reserved category, rather their candidature will be considered under the unreserved category.

20. It is, thus, evident from the condition stipulated under Clause 9(gha) that the condition to submit the caste certificate under Form-I or Form-II is mandatory for the reason that in case of non-observance of the said condition the benefit of reservation will not be granted rather the candidature of such candidate has been decided to be considered under the un-reserved category.

21. It is the settled position of Law that when any condition stipulated and in case of failure, if consequence has been stipulated therein, the said condition is to be treated mandatory, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd. [(2003) 2 SCC 111] in which at paragraph-42 and 43 it has been held:—

“42. We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative.

43. In Sutherland's Statutory Construction, 3rd Edn., Vol. 3, at p. 102 the law is stated as follows:

……… unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered a limitation of the power of the officer”

At p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow noncompliance with the provision. At p. 111 it is stated as follows:

“As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive.”

22. It is evident from the aforesaid proposition of law that the Hon'ble Apex Court has laid down that if any law has been formulated the same is ordinarily directory but if it is along with consequence for inaction, the same will be said to be mandatory.

23. The admitted fact in this case is that the writ petitioner while submitting the online application has submitted the caste certificate dated 10.10.2014 issued by the SDO, Giridih as would be evident from annexure-3 appended to the writ petition.

24. The candidature of the writ petitioner has been considered by allowing her to participate in the written examination and subsequent thereto on being successful in written examination, she has been allowed to participate in the interview but simultaneously the document has also been verified as also the caste certificate, the writ petitioner has produced the different caste certificate having been issued after the cut-off date of submission of online application which was to be submitted in between the period of 10.02.2016 to 29.02.2016, meaning thereby, the cut-off date as per the advertisement to submit online application along with the document was 29.02.2016, therefore, the caste certificate which has been submitted by the writ petitioner through online mode since was dated 10.10.2014, which was prior to the cut-off date of submission of online application i.e., prior to 29.02.2016.

25. The writ petitioner, at the time of interview has submitted the caste certificate as has been annexed as annexure-6/1 appended to the writ petition which was issued on 05.03.2018 by the SDO, Giridih.

26. This Court, has compared the caste certificate which was submitted by the writ petitioner through online mode as under annexure-3 and certificate produced by the writ petitioner at the time of interview for scrutiny of the document which is under annxure-6/1 and in comparative assessment of the same, it has been found that the caste certificate which was submitted through online mode dated 10.10.2014 which contains a reference of sentence as under para-2 i.e., “applicable in the case of Scheduled Castes/Scheduled Tribes persons who have migrated from one State/Union Territory Administration.” Further, it has been stipulated therein that the certificate is issued on the basis of the Scheduled Castes/Scheduled Tribes Certificate declaring the writ petitioner belonging to ‘Dhobi’ caste and has been issued on the basis of the certificate issued by the BDO, Giridih bearing no. 2127 dated 20.08.2014.

27. Thus, it is evident that the certificate, as appended as annexure-3 which, was submitted by the writ petitioner at the time of submission of application through online mode is under the format which is applicable in the case of Scheduled Castes/Scheduled Tribes persons who have migrated from one State/Union Territory Administration. But herein, the case of the writ petitioner is not of migration. Further, the said certificate was issued on the basis of the report of BDO, Giridih dated 20.08.2014.

28. The certificate which has been submitted by the writ petitioner at the time of its scrutiny i.e., at the time of interview as has been appended as annexure-6/1 dated 05.03.2018. The content of the said certificate is that the same has been issued on the basis of the report received from the Circle Officer of the concerned circle holding the writ petitioner to be a member of ‘Dhobi caste/Sub-Caste’ under Scheduled Caste which is approved as Scheduled Caste for the State of Jharkhand and professes Hinduism.

29. Thus, there is material difference in between the contents of Form-I/Form-II if assessed with the annexure-3 to the effect that annexure-3 is to be applicable in the case of migration of member of the reserved category from one State to another or Union Territory Administration and the said caste certificate is based upon the report of the BDO, Giridih while Form-I contains the content for issuance of caste certificate which is to be based upon the report of the Circle Officer.

30. The respondent JPSC at the time of scrutiny of the original document including the caste certificate has found that the caste certificate which was submitted through online mode at the time of submission of online application is different to that of the caste certificate issued at the time of scrutiny of the document including the caste certificate i.e., at the stage of the interview, therefore, the candidature of the writ petitioner has not been considered under Scheduled Caste category by taking into consideration the specific condition stipulated under condition no. 9(gha) to the effect that if the caste certificate duly been issued by the Deputy Commissioner/Sub Divisional Officer of the concerned district or Sub Division under form-I/form-II will not be produced, the candidature of such candidate is decided to be considered under the un-reserved category and accordingly, the candidature of the writ petitioner has been considered under the un-reserved category and on comparative assessment of marks taking the marks of the last selected candidate, the writ petitioner has found to be unsuccessful as she has obtained lesser marks in comparison to that of the marks of the last selected candidate under the un-reserved category.

31. The issue has been raised before this Court by invoking the jurisdiction under Article 226 of the Constitution of India by taking the plea that the approach of the appointing authority is too hyper technical and as such, the same requires consideration.

32. The question herein is that whether the condition stipulated in the advertisement if not been followed, what would be its consequence.

33. It is the settled position of Law that the condition stipulated in the advertisement is strictly to be adhered to, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 as also the judgment rendered by the Hon'ble Apex Court in Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617.

34. Similar view has been taken by the Hon'ble Apex Court in Bedanga Talukdar v. Saifudullah Khan, (2011) 12 SCC 85. Paragraph-29 from the aforesaid judgment is quoted as under:—

“29. 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 cannot 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 equality contained in Articles 14 and 16 of the Constitution of India.”

35. The learned Single Judge has considered these aspects of the matter and has refused to interfere taking into consideration the difference in the caste certificate which was submitted by the writ petitioner at the time of submission of online application form with the caste certificate produced at the stage of interview. Since the principle in the public employment is that the condition stipulated either under the Rule or advertisement is strictly to be adhered to and if such condition is there, basing upon which the candidature of the writ petitioner has been cancelled, it cannot be said to be unjustified action.

36. The obvious reason to insert certain condition in the advertisement is to follow the same and the same is to be followed uniformly to all the candidates and therefore, there cannot be any relaxation to one candidate in case of non-observance of any of the condition of the advertisement.

37. Learned counsel for the appellant writ petitioner has relied upon the judgment rendered by the Hon'ble Apex Court in Dolly Chhanda v. Chairman, Jee (supra). We, on its consideration has found that the factual aspect involved therein is quite different as in that case, the appellant, even though had secured rank at Serial No. 20 in the medical stream in JEE-2003, Medical in the reserved MI category but produced the certificate at the time of counseling on 07.07.2003, it was not mentioned that her father was a disabled personnel of the armed/paramilitary forces, on account of that, her candidature was rejected.

38. The Hon'ble Apex Court after taking into consideration the aforesaid factual aspect has taken the view after referring the judgment rendered in the case of Charles K. Skaria v. Dr. C. Mathew, (1980) 2 SCC 752 that if by way of mistake, any information has been furnished that does not mean that the appellant would be denied the benefit when she produced the correct certificate at the stage of second counseling.

39. In the case in hand, the fact is quite different as it is not the case of commission of mistake rather the action of the writ petitioner is intentional since she has submitted the online application form along with the caste certificate in the format of the Central Government and the said format contains a condition that it is applicable only in case of migration from State/Union Territory and further, the caste certificate has been issued by the SDO, Giridih on the basis of the report of the BDO, Giridih but at the time of submission of original caste certificate for its scrutiny at the stage of interview, the caste certificate was different having been issued much much after the cut-off date i.e., 29.02.2016 while the earlier certificate was issued on 05.03.2018 i.e., after the lapse of almost two years and as such, the condition stipulated in the advertisement for submission of application form within the due date stood violated failing which, the candidature of such candidates was to be rejected. Further, the caste certificate has not been issued in terms of the condition stipulated in condition no. 9(gha), therefore, according to our considered view, the judgment rendered by the Hon'ble Apex Court in Dolly Chhanda v. Chairman, Jee (supra) in the given facts of this case, is not applicable.

40. So far as the judgment relied upon by the appellant writ petitioner in Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board (supra) is concerned, the fact of this case is that the ground for declaring the application filed by the appellant was that the OBC certificate has been issued and submitted after cut-off date and therefore, they are not eligible for appointment to the aforesaid post. Thus, the fact of the said case is quite different to that of the present case, wherein, the issue involved is not like that of submission of caste certificate after the cut-off date rather the submission of two caste certificates at two different occasions but not in due format as prescribed under the advertisement based upon the decision of the Personnel Administrative Reforms and Rajbhasa Department, Govt. of Jharkhand, which is the nodal department to make out the Rules in the State and therefore, on the fact, the said judgment is not applicable.

41. This Court has further considered the judgment rendered by Coordinate Division Bench of this Court in LPA No. 610 of 2017 which was disposed of vide order dated 12.10.2018 wherein, it has been held that the benefit of reservation is only required to be provided subject to fulfilment of the condition stipulated in the advertisement. The Coordinate Division Bench has considered the fact of this case also considering the ratio laid down by the Hon'ble Apex Court in Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board (supra) and came to conclusion that there cannot be any shifting of cut-off date so far as it relates to submission of certificate because that would be deviation from the terms and conditions of the advertisement.

42. Further, this Court has passed an order in LPA No. 57 of 2018 which was disposed of 07.01.2020. In that case also, in the similar fact about relaxation in the cut-off date for submission of the document after the cutoff date fixed in the advertisement was involved. This Court has held that the candidature of such candidate is not required to be considered under the particular category if there is any deviation from the terms and conditions of the advertisement.

43. We have also considered the judgment rendered by the Hon'ble Apex Court in State of Tamil Nadu v. G. Hemalathaa Passed in Civil Appeal No. 6669 of 2019 on 28.08.2019, holding that in case of failure to adhere with the instruction of the advertisement, the candidature of the candidate is required to be rejected.

44. This Court, after taking into consideration the fact in entirety as discussed hereinabove and considering the judgments as referred above, is of the view that the order passed by the learned Single Judge requires no interference.

45. In the result, the instant appeal fails and is dismissed.

46. Pending Interlocutory Application(s), if any, stand disposed of.