As per the case facts, applicants who qualified for Civil Judge positions under reserved categories were not considered because their caste certificates were issued after the deadline stated in the ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No.16428 of 2022)
SAKSHI ARHA ….APPELLANT(S)
VERSUS
THE RAJASTHAN HIGH
COURT & OTHERS ….RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No.1829618299 of 2022)
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No.21644 of 2022)
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No.19179 of 2022)
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No. 9544 of 2023)
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No.5654 of 2023)
1
J U D G M E N T
Rastogi, J.
1.Leave granted.
2.The present batch of appellants before us are the members of
Other Backward Classes (NonCreamy Layer i.e., NCL); More
Backward Class (NCL) and from the category of Economically
Weaker Section (EWS), finally qualified in the selection process held
for the post of Civil Judge pursuant to an advertisement issued by
the respondent dated 22
nd
July, 2021 but they have not been
considered in the category to which they belong for the reason that
the certificate of the category which was furnished by each of the
appellant is subsequent to the last date indicated in the
advertisement, i.e., 31
st
August, 2021 and each of them
unfortunately could not qualify in open category, filed writ petition
under Article 226 of the Constitution that came to be dismissed by
the Division Bench of the High Court, which is the subject matter of
challenge before this Court.
2
3.The brief facts of the case emanate from the record are that
the post of Civil Judge to which we are concerned is included in the
Schedule appended to Rajasthan Judicial Service Rules, 2010
(hereinafter being referred to as the “Rules, 2010”) and is to be filled
up only by direct recruitment based on the result of competitive
examination conducted by the recruiting authority as provided
under Part IV of the Rules, 2010.
4.Apart from the method of recruitment, it may be noticed that
the reservation is being provided to the members of Scheduled
Castes/Schedule Tribes/Other Backward Classes/More Backward
Classes/Persons with Disabilities and Women Candidates under
Rule 10 of the Rules, 2010. With the stipulation under Rule 10(2) &
(5) that in the event of nonavailability of suitable candidates
amongst OBC/MBC in a particular year of recruitment, the
vacancies so reserved for them shall be filled in accordance with the
normal procedure and such of the unfilled vacancies be carried
forward to the subsequent recruitment year.
5.That as per the Scheme of examination referred to under Rule
20 of the Rules, 2010, the competitive examination for recruitment
3
to the post of Civil Judge shall be conducted by the recruiting
authority in two stages i.e. preliminary examination followed with
Main examination as per the Scheme specified in PartIV of the
Rules, 2010. With the stipulation that the marks obtained in the
preliminary examination by the candidates who are declared
qualified for admission to the Main examination shall not be
counted for determining their merit and those who qualified in the
Main examination will be called for interview and the marks
secured in the Main examination and interview shall be the
governing factor in determining merit and those who finally placed
in the merit list, their names will be recommended by the recruiting
authority for appointment under Rule 24 and the appointments will
be made by the appointing authority in consultation with the Court
in terms of Rule 26 of Rules, 2010.
6.Around 120 vacancies of the year 202021 of Civil Judge came
to be advertised by the respondent pursuant to advertisement dated
22
nd
July, 2021 and categorywise reservation was indicated in the
tabulation chart as referred to under Clause 4 of the advertisement,
which is reproduced as under:
4
Total
number of
vacancies
YearGeneral Reserved Persons with
Benchmarks
Disabilities
SC ST OBC EWS MBC
89 2020
(up to
Dec.,
2020)
35
Out of
which, 10
posts for
women
Out of 10
posts 02
posts
reserved
for widow
14
Out of
which,
04 posts
for
women
Out of
04 posts
01 post
for
widow
10
Out of
which
03
posts
for
women
18
Out of
which
05
posts
for
women
Out of
05
posts
01
post
for
widow
08
Out of
which
02
posts
for
women
04
Out of
which
01
post
for
woman
Out of 89
vacancies, 04
posts for
persons with
Benchmark
Disabilities*
31 2021
(up to
Dec.,
2021)
14
Out of
which, 04
posts for
women
Out of 4
posts 01
post
reserved
for widow
04
Out of
which
01 post
for
woman
03 06
Out of
which
01
post
for
woman
03 01 Out of 31
vacancies, 01
post for
persons with
Benchmark
Disabilities*
*Out of 05 posts reserved for persons with Benchmark Disabilities, 01(one) post is reserved for
blindness and low vision, 01 (one) for deaf and hard of hearing, 01 (one) for locomotor disability
including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy and
02 (two) for autism, intellectual disability, specific learning disability and mental illness and
multiple disabilities from the amongst persons under Clauses (a) to (d) including deafblindness in
the posts identified for each disabilities.
7.Under Clause 5 of the advertisement, it is indicated that in the
absence of vacancies reserved of various categories remained
unfilled, what method has to be adopted in filling those unfilled
vacancies with a note appended thereto that the applicants who are
from the State of Rajasthan and members of Other Backward Class
(Creamy Layer)/More Backward Class (Creamy Layer) and
5
applicants from other than the State of Rajasthan and members of
SC/ST/OBC (Creamy Layer/NonCreamy Layer) and More
Backward Class (Creamy Layer/NonCreamy Layer) and
Economically Weaker Sections (EWS) shall be considered in general
category and as referred to under Clause 6(i) and (iii) of the
advertisement, caste certificate issued as per Rules in the
prescribed format by the competent authority has to be produced
for seeking reservation and under Clause 22(3) (Other Important
Instructions), it was indicated that the applicant has to produce on
demand of the recruiting authority all such documents/certificates
while claiming benefit of reservation required by the Rajasthan High
Court or the concerned recruiting authority. The extract of Clause
6(i) and (iii) read with Clause 22(3) of the advertisement are
reproduced hereunder:
“6. In the context of Certificate of various categories
(i)Caste Certificate issued as per rules in the prescribed format
by the Competent Authority will have to be produced for
reservation in the Scheduled Caste, Scheduled Tribe, Other
Backward Class and Highly Backward Class.
(ii)……
6
(iii)Certificate issued as per rules in the prescribed format by
the Competent Authority shall have to produce in the event of
applicant belongs to Economic Weaker Section.
….
“22. Other Important Instructions :
(1)(2)……….
(3)It would be mandatory for the applicants to submit all
concerning original documents/certificates, on the basis of which
they raise any claim on being demanded by the Rajasthan High
Court or concerned Appointing authority.
(4)…….”
8.The instructions indicated that in terms of Clause 6(i) & (iii)
read with Clause 22(3), the applicants who claim the benefit of
reservation, such certificate/document has to be produced on
demand by the High Court or concerned Appointing authority.
Thus, it is clear that there is no requirement to furnish the caste
certificate of the category claiming benefit of reservation either at
the stage of filling the application form or at any lager stage,
however, it has to be produced on demand by the recruiting
authority. It may be noticed that the reservation for MBC (NCL) and
EWC are for the first time introduced in the instant selection
process held pursuant to an advertisement dated 22
nd
July, 2021.
7
9. The relevant requirement was notified by the respondent to be
furnished by the applicant claiming reservation against reserved
vacancies OBCNCL, MBCNCL or EWS category as the case may
be, with the stipulation that the certificate must be of the period not
prior to one year of the last date of submission of application i.e.
31
st
August, 2021 for the first time by its notice dated 04
th
August,
2022 of which reference has been made. The extract of the
documents demanded by the respondent in reference to the
certificate relating to category, is reproduced as under:
“(iii) Certificate relating to category
a.OBC/MBC (Non Creamy Layer) certificate issued not prior to
one year from the last date of submission of the application
form i.e. 31.08.2021.
b.In case OBC/MBC (Non Creamy Layer) certificate is issued
between 31.08.2018 and 30.08.2020, an affidavit in
prescribed format along with caste certificate has to be
produced.
c.In case of EWS category – Income & Asset required for seeking
reservation in EWS category must not be issued prior to
01.04.2021.
In case Income & Asset Certificate issued between 01.04.2020
and 31.03.2021, an affidavit in prescribed format along with
certificate has to be produced.
d.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.”
(emphasis
supplied)
8
10.It is not the case of the respondent that either of the appellant
does not belong to the respective reserved category i.e. OBCNCL,
MBCNCL or EWS but their certificate relating to category is of the
date later to the cutoff date i.e. 31
st
August, 2021 but each of the
applicant although was permitted to appear in the interview under
the interim order of the High Court but were not permitted to claim
the benefit of their certificate relating to category which was
furnished and were treated to be in the open category.
11. When the result came to be finally published, indisputedly,
each of the applicant secured higher marks in their respective
category i.e. OBCNCL, MBCNCL or EWS as the case may be, and
the candidates lower in merit have been selected by the respondent
but since their certificate relating to category is somewhere later to
the cutoff date i.e. 31
st
August, 2021 (the last date of application
form), the benefit of reservation has not been extended and since
each of the applicant failed to qualify in the open category, they
were finally denied from being considered for appointment to the
post of Civil Judge and this fact can be further supported from the
result of recruitment of Civil Judge Cadre 2021 published by
9
respondent by notice dated 30
th
August, 2022 that indicates that
the present appellants have secured higher marks in their
respective category qua those who have been finally recommended
for appointment in the category of OBCNCL, MBCNCL or EWS
category to which the present appellants are concerned and for
convenience, comparative statement prepared by the respondent, in
the tabulation form is reproduced as under:
“OBCNCL category SLP(C) No.5654/2023, SLP(C) No.16428/2022, SLP(C)
Nos.1829618299/2022
S.No.Name Marks Cut off
General
Cut Off
Marks
OBCNCL
Date of OBC
NCL
Certificates
of the
Petitioner
Date of OBC
NCL
Certificate
required as
per
Respondents
1.Jyoti
Beniwal
176 179.5 163.5 22.06.2016
& 25.07.2022
31.08.2018 to
31.08.2021
2.Sakshi
Arha
166.5 179.5 163.5 27.07.2016
17.06.2022 &
12.08.2022
“do“
3.Priyanka 170 179.5 163.5 23.04.2018 &
20.06.2022
“do“
4.Bhavya
Kulhar
165.5 179.5 163.5 19.09.2016 &
16.06.2022
“do“
5.Neha Batar 165 179.5 163.5 28.06.2018 &
21.06.2022
“do“
6.Nikhil
Kataria
171.5 179.5 163.5 16.07.2018 &
09.06.2022
“do“
“MBCNCL category – Sunil Gurjar SLP(C) No.19179/22 & Kuldeep Bhatia SLP(C)
No.21644/22
10
S.No.Name of
the
Petitioner
Marks
Obtained
Cut off
General
Cut Off
Marks
MBCNCL
Date of
MBCNCL
Certificates
Date of
MBCNCL
Certificate
required as
per
Responden
ts
1.Sunil
Singh
Gurjar
172 179.5 141 18.06.2018
&
16.06.2022
31.08.2018
to
31.08.2021
2.Kuldeep
Bhatia
141.5 179.5 141 03.08.2012
&
09.03.2022
“do“
“EWS category – Parul Jain SLP(C) Diary No.1581 of 2023
S.No.Name of
the
Petitioner
Marks
Obtained
Cut off
General
Cut Off
Marks
EWS
Date of EWS
Certificates
Date of EWS
Certificate
required as
per
Respondents
1.Parul Jain 174.5 179.5 167.5 07.09.2021 31.08.2021
(01.04.2021
31.03.2022
valid AY
202122)
12.It is not disputed by the respondent that each of the applicant
is holding the certificate of their respective category and it is of prior
date when demanded by the respondent under its notice dated 04
th
August, 2022.
13.This has come on record that circulars are issued by the State
of Rajasthan for the purpose of obtaining the certificate relating to
category in reference to seeking employment issued by the
Department of Social Justice and Empowerment, Jaipur dated
11
09
th
September, 2015 followed with 08
th
October, 2019 indicating
the validity of certificate of OBCNCL, MBCNCL or EBC and since
there was a lot of confusion and the circulars were not accessible to
the people at large and litigation was pending before the Courts, the
State Government stepped in and in furtherance thereof, issued its
directive dated 17
th
October, 2022 and came with the clarification
that if for any reason, the candidate has not produced a certificate
issued till the last date of application form and produces a
certificate after the last date of filling up of application then in that
case, candidate should submit an affidavit that he was having the
eligibility of respective category and if the information is found
incorrect, then appointment can be cancelled. The extract of the
clarification made by the Government in meeting out the exigencies
as demanded and to streamline the ongoing litigation, under its
directive dated 17
th
October, 2022 is reproduced as under:
“If for any reason a candidate has not produced a certificate issued
till the last date of application form and produces a certificate
which is issued after the last date of filling application form then in
that case candidate should write an affidavit to this aspect that he
was having the qualification of respective class and if the
information is found incorrect then the appointment shall be
cancelled.”
12
14.For the sake of repetition, it may be noticed that it is not the
case of the respondent that either the appellant is not holding
eligibility of the respective category of which he/she belongs in
terms of advertisement dated 22
nd
July, 2021 and their only fault is
that their certificate relating to category is of a date later to the last
date of application (i.e. 31
st
August, 2021) in terms of notice dated
04
th
October, 2022 demanding for furnishing the certificate relating
to category to which they were provisionally called for interview.
15.On a writ petition being filed by the appellants assailing the
action of the respondent in not permitting them of claiming benefit
of reservation to which they belong and each of them have qualified
after securing more marks over the cutoff of respective category,
the Division Bench of the High Court has nonsuited their claim on
the premise that each of them had failed to furnish certificate of
their category as required on the last date of application i.e. 31
st
August, 2021 by placing reliance on the judgment of this Court in
Ashok Kumar Sonkar vs. Union of India and Others (2007) 4
SCC 54 held that the last date of application is a touchstone for
determining the eligibility and since each of them had failed to
13
furnish their respective certificate relating to category on or before
31
st
August, 2021, they are held ineligible from being considered in
the respective category and since each of them had not been able to
qualify in the open category considered unsuitable for appointment
to the post of Civil Judge, under the impugned judgment dated 18
th
August, 2022 in the case of Jyoti Beniwal vs. The Rajasthan
High Court, Jodhpur Through Its Registrar General and
Another (D.B. Civil Writ Petition No.11784/2022) and that was
referred to in the subsequent writ petitions filed and all were
disposed of placing reliance on the judgment of Jyoti Beniwal
(Supra) by subsequent impugned judgment dated 06
th
September,
2022 and in the case of appellant Parul Jain, separate judgment
was passed on 18
th
November, 2022 relying on the
same judgment of High Court in Jyoti Beniwal (Supra) and that
became the subject matter of challenge in appeal before us.
16.Learned counsel for the appellants jointly submit that it was
nowhere indicated at any stage that certificate of the category upto
which date is to be furnished by the applicants/candidates while
14
claiming reservation and each of the appellant holds the certificate
of their respective category and accordingly, each of them
mentioned in their application form with regard to the category they
intend to participate in the selection process and although the
permission granted to appear in the preliminary examination was
provisional but no one has examined at any stage that what is the
requirement and since there is no reference made either in the
Scheme of Rules, 2010 or in the advertisement dated 22
nd
July,
2021 to the certificate of category to which the appellant claim has
to be furnished is of which date or year. Each of them had bona
fidely pleaded that the certificate of the category which is being
obtained is issued by the competent authority after due compliance
for all practical purposes and in the given facts and circumstances,
the rigor which has been put by the Division Bench of the High
Court under the impugned judgment taking 31
st
August, 2021 as a
sacrosanct date for furnishing the certificate relating to category is
nowhere prescribed either under the Rules of 2010 or in the
advertisement to which we are concerned hence, the premise on
which the High Court has proceeded is completely misconceived.
15
17.Learned counsel further submits that the judgment on which
reliance has been placed is not at all applicable on the facts of the
instant case for the reason that the judgments relied upon are
related to the minimum academic qualification and in the cases
where rules are silent or there is no administrative instruction
issued by the competent authority/recruiting authority before the
selection process being initiated are in place, this Court has
stepped in and laid down a principle that in the absence of rules
indicating the requirement of holding academic qualification, the
last date of filling application is considered to be a benchmark for
the applicant to possess the minimum academic qualification.
18.But we are not dealing in this case with minimum academic
qualification or the date of birth which is defined under the Scheme
of Rules, 2010. In the given facts and circumstances, the premise
on which the claim of the present appellants has been nonsuited
by the High Court that they failed to furnish the certificate of
category on or before 31
st
August, 2021 is completely without
basis/foundation having no nexus and they all have been put to
surprise while it was notified to them demanding to furnish the
16
certificate relating to category on or before 31
st
August, 2021, which
was the last date of submission of application but it was, for the
first time, notified when the provisional list of candidates calling for
interview was published on 04
th
August, 2022.
19.Learned counsel further submits that they all are coming from
rural background and belonging to a poor strata in society, having
no means to know the advanced technology which is available in
the urban cities and with the minimal facilities available at their
end, still they are able to crack the competitive examination and
when this is not the case of the respondents that either of the
appellant is not a member of a category which was indicated by
him/her in application form originally filed to nonsuite them at the
stage when they finally qualified the competitive test and as
informed that vacancies are available because of nonjoining by the
candidates, they can easily be adjusted against the unfilled
advertised vacancies without disturbing or taking away the rights of
the persons/candidates who have been appointed on being declared
successful by this authority.
17
20.Per contra, while supporting the finding recorded by the High
Court, learned counsel for the respondent submits that this being
settled by this Court in a catena of judgments that eligibility is to be
looked into on the last date of submission of application or the
cutoff date indicated in the relevant rules. In the instant case,
when the rules are silent in such circumstances, what being laid
down by this Court is the law on the subject and the eligibility of
the applicant is to be looked into on the last date of application
which in the instant case is 31
st
August, 2021 and admittedly, each
of the applicant was not holding their certificate related to category
as demanded of the period prior to 31
st
August, 2021 and
accordingly, no error was committed by the respondent and have
rightly been treated in open category and it is not the case of the
appellant that any candidate who has been recommended and
appointed in open category is lower in the order of merit in the
selection process held by the respondent pursuant to advertisement
dated 21
st
July, 2021 and in support of his submission, learned
counsel has placed reliance on the judgment of this Court reported
in Ashok Kumar Sonkar (Supra) followed with Rakesh Kumar
18
Sharma vs. State (NCT of Delhi) and Others (2013) 11 SCC 58
and submits that this being a settled law held by this Court and
relied upon by the High Court, no error has been committed by the
High Court, which may called for interference of this Court.
21.We have heard the learned counsel for the parties and with
their assistance perused the material available on record.
22.It is not disputed that the post of Civil Judge is included in the
Schedule appended to the Rules, 2010 and is to be filled up by
direct recruitment in terms of Part IV and the advertisement was
notified by the respondents on 22
nd
July, 2021 holding selection
against 120 vacancies of Civil Judge for the year 20202021.
23.It is not disputed that the Rules of 2010 is a complete code
and silent in reference to the date when certificate of the category
has to be furnished and so far as the advertisement is concerned, it
nowhere indicates as to what should be the crucial date for the
purpose of furnishing the caste related certificate by the applicants
who intended to participate in the selection process and admittedly
each of the appellant holds the certificate of the category and the
19
period prior to as have been notified by the respondent while their
provisional list of the candidates to be called for interview has been
published on 04
th
August, 2022.
24.It may be noticed that reservation to MBC (NCL) and EWS
category has been introduced for the first time and the candidates
are completely alien to the procedure and the format in which the
certificate of their category has to be furnished and so far as the
candidates who appeared in EWS quota is concerned, it has been
submitted that father of the appellant Parul Jain submitted the
IncomeTax Returns of the previous years and applied for EWS
certificate on Emitra kiosk on 16
th
August, 2021 and the appellant
was assured that she will receive EWS certificate within 67 days
but despite the appellant demanding her certificate, it was issued
by the Emitra kiosk on 07
th
September, 2021 but it is not disputed
by the respondent that the appellant belongs to EWS category.
25.It is also not disputed that either in the advertisement which
was initially notified on 22
nd
July, 2021 or at the stage of
preliminary examination held on 11
th
January, 2022 followed with
Main examination held on 30
th
April, 2022 to 01
st
May, 2022, it was
20
nowhere notified that the certificate of the category has to be
furnished of the period prior to 31
st
August, 2021 and only when
the list came to be published of the candidates provisionally
qualified for interview on 04
th
August, 2022, the respondent came
out with a defence that cutoff date for furnishing caste related
certificate should be prior to one year from the last date of
submission of application i.e. 31
st
August, 2021 and since each of
the applicant from OBCNCL, MBCNCL or EWS has furnished their
respective certificate of the category after it was brought to their
notice by the provisional list published on 04
th
August, 2022 and
so far as the candidate belonging to EWS category is concerned,
appellant furnished her caste certificate dated 07
th
September, 2021
with delay of seven days.
26.In the Scheme of rules, age has to be looked into as on the
first date of January following the last date fixed for receipt of
application, if one is not holding the age in terms of Rule 17, the
applicant stands disqualified provided relaxed by the appointing
authority and Rule 18 of the Scheme prescribes the academic
qualification and it is nowhere indicated as to when the academic
21
qualification of the applicant is to be looked into and here this
Court has stepped in and the exposition of law on the subject from
Rekha Chaturvedi (Smt.) vs. University of Rajasthan and
Others 1993 Supp (3) SCC 168 is consistent and is no more res
integra that if the rules are silent and no date is being notified on
which the qualification/eligibility of the applicant is to be looked
into, the best course is to be taken care is the last date of
application. To take a judicial note, reference can be made of
Rekha Chaturvedi (Supra) which was further noticed in the case
of Bhupinderpal Singh and Others vs. State of Punjab and
Others (2000) 5 SCC 262, Jasbir Rani and Others vs. State of
Punjab and Another (2002) 1 SCC 124, Shankar K. Mandal
and Others vs. State of Bihar and Others (2003) 9 SCC 519
followed with Ashok Kumar Sonkar (Supra) and Rakesh Kumar
Sharma (Supra).
27.This Court in Rekha Chaturvedi (Supra) 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
22
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. 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 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 & 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].”
(Emphasis supplied)
28.It was later followed in the case of Ashok Kumar Sonkar
(Supra), wherein this Court held as under:
23
“17. In Bhupinderpal Singh v. State of Punjab [(2000) 5 SCC 262 :
2000 SCC (L&S) 639] this Court moreover disapproved the
prevailing practice in the State of Punjab to determine the
eligibility with reference to the date of interview, inter alia, stating:
(SCC pp. 26768, para 13)
“13. Placing reliance on the decisions of this Court in Ashok
Kumar Sharma v. Chander Shekhar [(1997) 4 SCC 18 : 1997
SCC (L&S) 913] , A.P. Public Service Commission v. B. Sarat
Chandra [(1990) 2 SCC 669 : 1990 SCC (L&S) 377 : (1990) 13
ATC 708] , Distt. Collector & Chairman, Vizianagaram Social
Welfare Residential School Society v. M. Tripura Sundari
Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14
ATC 766] , Rekha Chaturvedi v. University of Rajasthan [1993
Supp (3) SCC 168 : 1993 SCC (L&S) 951 : (1993) 25 ATC 234]
, M.V. Nair (Dr.) v. Union of India [(1993) 2 SCC 429 : 1993
SCC (L&S) 512 : (1993) 24 ATC 236] and U.P. Public Service
Commission v. Alpana [(1994) 2 SCC 723 : 1994 SCC (L&S)
742 : (1994) 27 ATC 101] the High Court has held (i) that the
cutoff date by reference to which the eligibility requirement
must be satisfied by the candidate seeking a public
employment is the date appointed by the relevant service
rules and if there be no cutoff date appointed by the rules
then such date as may be appointed for the purpose in the
advertisement calling for applications; (ii) that if there be no
such date appointed then the eligibility criteria shall be
applied by reference to the last date appointed by which the
applications have to be received by the competent authority.
The view taken by the High Court is supported by several
decisions of this Court and is therefore well settled and hence
cannot be found fault with. However, there are certain special
features of this case which need to be taken care of and
justice be done by invoking the jurisdiction under Article 142
of the Constitution vested in this Court so as to advance the
cause of justice.”
29.It has been transpired and culled out from the aforementioned
decision that:
(i) the cutoff date by reference to which the eligibility
requirement must be satisfied by the applicant seeking a
24
public employment is the date notified in the relevant
service rules.
(ii) If there is no cutoff appointed date indicated under the
rules then such date shall be as appointed for the purpose
in the advertisement calling for applications.
(iii) If there is no such date appointed then the eligibility
criteria shall be applied by reference to the last date
notified by which the applications were to be received by
the recruiting authority.
30.These principles have been settled by this Court and is no
more res integra for further discussion that when the rules are
silent and no date is notified to satisfy the eligibility requirement
under the advertisement, the eligibility criteria shall be applied by
reference to the last date of application by which applications are to
be received by the recruiting authority.
31.Let us examine the Scheme of Rules, 2010 in other way and
Part IV in particular, which provides the method of recruitment in
the cadre of Civil Judge, Rule 19 postulates that the candidate has
to submit a character certificate while participating for direct
recruitment which may qualify him for employment in service, has
25
to be not more than six months prior to the date of application
which the candidate has to enclose while the application form is
filled for participation in the selection process and if we proceed on
the principles as aforestated, the question arises that if the
candidate who has participated in the selection process after
furnishing the character certificate along with the application form
in terms of Rule 19, if at a later stage in the process of selection
involves in any act of moral turpitude before he is actually
appointed whether the appointing authority is under an obligation
to give him appointment if his name is finally placed in the order of
merit, the answer indeed is in negative and the reason is that the
character certificate enclosed by the applicant at the time of filling
the application form in terms of Rule 19 is only for the purpose of
satisfaction in reference to the character of the
applicant/candidate who intends to participate in the process of
recruitment which may qualify him for employment in service, but if
he later gets himself involved in any act of moral turpitude,
although there is no restriction/embargo, but the authority is
always in its competence to take into consideration the later
26
developments and upto the date of appointment if the candidate
finally selected is found to be unsuitable for appointment which
indeed he did not carry at the time when the application form was
filled and that too on the last date of application, but that can
always be considered as material to adjudge the suitability of the
candidate for being considered for appointment and in the given
situation the theory of last date of application becomes completely
otiose.
32.It is true that the general rule is that while participating in the
recruitment process, the person must possess the eligibility
qualification on the last date fixed for such purpose unless there is
any express provision to the contrary and there can be no
relaxation in the matter of holding requisite eligibility qualification
by the date fixed and this has to be established by producing
necessary certificate or degree, as the case may be. But, at the
same time, in order to avail the benefit of reservation or weightage,
necessary certificates have to be produced but they are in the
nature of proof for the purpose of seeking entitlement to claim the
benefit of reservation, but it has no nexus with the last date of the
27
application and, it may not be proper to apply any rigid principle in
the absence of any rule to the contrary. As a matter of caution,
every infraction of the rule relating to submission of proof in
availing the benefit of reservation may not necessarily result in
rejection of the candidature.
33.In the similar circumstances, the vacancies are reserved for
various categories i.e. SC/ST/OBC/MBC/Persons with Disabilities
and women candidates under the Scheme of Rules, 2010 and that
has been notified categorywise under Clause 4 of the
advertisement dated 22
nd
July, 2021 with which we are concerned,
and it goes without saying that the candidate must be a member of
the reserved category at the time when the application form is filled
pursuant to the advertisement in question, but at the same time so
far as the scheme of examination and syllabus, as provided in Rule
20 of the Rules, 2010 is concerned, for holding competitive
examination for the post of Civil Judge conducted by the recruiting
authority is common for all and each of the candidate regardless
the category to which one belongs, has to undergo the same process
of qualifying the preliminary examination followed with main
28
examination and interview, except that the candidates are admitted
to the main examination followed with interview in terms of the
total number of vacancies categorywise.
34.The reservation of vacancies of various categories as referred
to in Rule 10 is not a condition of eligibility for the candidate to
participate in the selection process as the certificate of category for
the purpose of claiming reservation will arise not at the stage when
the application form is filled making selfdeclaration by the
individual candidate to participate in the selection process but at
the stage when the select list is to be prepared of the candidates
who have participated in the selection process since the final select
list has to be published categorywise by giving the benefit of
reservation to the candidates who have participated in the process
of selection and for no other purpose and when the respondent has
demanded from the applicant to furnish their respective certificate
of the category to which one had participated in the selection
process under its notice dated 04
th
August, 2022, indisputedly each
of the applicant had furnished the certificate of their category to
which one belong at the time of advertisement when demanded by
29
the recruiting authority in terms of Clause 6(i) & (iii) read with
Clause 22(3) of the advertisement dated 22
nd
July, 2021.
35.This Court in Dolly Chhanda vs. Chairman, Jee & Others
(2005) 9 SCC 779, has considered the situation where the
incumbent has failed to furnish the certificate seeking benefit of
reservation and after examining the Scheme, this Court in the given
circumstances, held as under:
“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 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 to
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
domain of procedure. Every infraction of the rule relating to
submission of proof need not necessarily result in rejection of
candidature.”
36.Later, in Ram Kumar Gijroya vs. Delhi Subordinate
Services Selection Board and Another (2016) 4 SCC 754, this
Court has examined the question as to whether a candidate who
30
appears in an examination under the OBC category and submits
the certificate after the last date mentioned in the advertisement is
eligible for selection to the post under OBC category and answered
it in affirmative as under:
“18. In our considered view, the decision rendered
in Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine Del
281] is in conformity with the position of law laid down by this
Court, which have been referred to supra. The Division Bench of
the High Court erred in reversing the judgment and order passed
by the learned Single Judge, without noticing the binding
precedent on the question laid down by the Constitution Benches
of this Court in Indra Sawhney [Indra Sawhney v. Union of India,
1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC
385] and Valsamma Paul [Valsamma Paul v. Cochin University,
(1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713]
wherein this Court after interpretation of Articles 14, 15, 16 and
39A of the directive principles of State policy held that the object
of providing reservation to the SCs/STs and educationally and
socially backward classes of the society is to remove inequality in
public employment, as candidates belonging to these categories are
unable to compete with the candidates belonging to the general
category as a result of facing centuries of oppression and
deprivation of opportunity. The constitutional concept of
reservation envisaged in the Preamble of the Constitution as well
as Articles 14, 15, 16 and 39A of the directive principles of State
policy is to achieve the concept of giving equal opportunity to all
sections of the society. The Division Bench, thus, erred in reversing
the judgment and order passed by the learned Single Judge.
Hence, the impugned judgment and order passed by the Division
Bench in Letters Patent Appeal No. 562 of 2011 is not only
erroneous but also suffers from error in law as it has failed to
follow the binding precedent of the judgments of this Court
in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3)
SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385]
and Valsamma Paul [Valsamma Paul v. Cochin University, (1996) 3
SCC 545 : 1996 SCC (L&S) 772 : (1996) 33 ATC 713] . Therefore,
the impugned judgment and order [Delhi Subordinate Services
Selection Board v. Ram Kumar Gijroya, 2012 SCC OnLine Del 472 :
(2012) 128 DRJ 124] passed by the Division Bench of the High
31
Court is liable to be set aside and accordingly set aside. The
judgment and order dated 24112010 passed by the learned
Single Judge in Ram Kumar Gijroya v. Govt. (NCT of Delhi) [Ram
Kumar Gijroya v. Govt. (NCT of Delhi), WP (C) No. 382 of 2009,
order dated 24112010 (Del)] is hereby restored.”
37.This judgment came up for consideration later before two
Judge Bench of this Court in Karn Singh Yadav vs. Govt. of NCT
of Delhi and Others (SLP(C) No.14948/2016) and the Court has
some reservations and referred the matter to be placed before three
Judge Bench by order dated 24
th
January, 2020 and threeJudge
Bench of this Court while relying upon Ram Kumar Gijroya
(Supra) disposed of the appeal under its order dated 28
th
September, 2022, it appears that the reference made by twoJudge
Bench of this Court remained unnoticed. Be that as it may, the
position as on today is that threeJudge Bench of this Court under
its order dated 28
th
September, 2022 has affirmed the view
expressed by twoJudge Bench of this Court in Ram Kumar
Gijroya (Supra).
38.That apart, taking into consideration the Scheme of Rules,
2010, which is indisputedly, silent on the subject issue and the
advertisement dated 22
nd
July, 2021 nowhere indicates that the
32
caste certificate/certificate of category has to be produced of the
period prior to the last date of the application (31
st
August, 2021) in
the instant case. To the contrary, Clause 6(i) & (iii) read with
Clause 22(3) of the advertisement, such certificate of category which
one claimed for seeking the benefit of reservation, has to be
produced on demand by the recruiting authority.
39.In the given facts and circumstances, when the rules are silent
and there is no such instruction that the certificate of the category
has to be produced of the period on or before the last date of the
application under the advertisement and each of the applicants has
produced the certificate relating to category on being demanded by
the recruiting authority when the list came to be published of the
candidates who were provisionally called for interview on 04
th
August, 2022, each of the applicants indisputedly has furnished
their certificate of the category to which they belong at the time of
advertisement and had participated in the process of selection. At
this stage, in our view, the High Court had gone wrong and was
influenced with the condition of eligibility to be looked into on the
last date of application, while examining the production of
33
certificate of the category to which the candidate belong and
participated in the selection process is in no manner corelated with
the conditions of eligibility and the judgments relied upon to non
suite the claim of the appellants has no application in the facts of
the instant case.
40.To understand the dynamics, the Government has come out
with the Circulars earlier dated 9
th
September, 2015 followed with
08
th
October, 2019 of which reference has been made, but it has
always to commensurate with the process of selection when the
advertisement has been published by the recruiting authorities for
making open selection and in every advertisement notified by the
recruiting authority, the last date of application is bound to differ
and that may change the complete dynamics of the certificate which
the applicant holds and he is not supposed to obtain the certificate
of category in conformity with each advertisement and it is not
being practically possible and that appears to be the reason since
there was no scheme or instructions in place which may regulate
and streamline as to what is the procedure the applicant has to
follow while participating in the selection process intending to avail
34
the benefit of reservation for various categories and to overcome the
ongoing litigation, the State Government has stepped in and
clarified under its directives dated 17
th
October, 2022 indicating
that if the applicant has failed to furnish the certificate on the last
date of application or furnish the same of the date later to the last
date of application, he has to furnish an affidavit that if it is found
to be incorrect or false, such appointment will be cancelled. To our
mind, it may be an adhoc situation noticed to meet out the current
exigency by the Government, but the recruiting authority or the
Government, as the case may be, has to examine the issue in
totality and take into consideration the grievances which are being
raised and considered by the Court at various stages and to issue
clear guidelines with wide circulation which the candidates have to
follow who wants to avail the benefit of reservation to
avoid/overcome the litigation.
41.To sum up further, as noticed by this Court, the final merit list
of 120 selected candidates was notified by the respondents as
indicated in the notice dated 30
th
August, 2022 and there is no
provision under the Scheme of Rules, 2010 of having any waiting
35
list/reserve list. Thus, no further appointments could be made after
the final select list of 120 candidates has been exhausted on
account of nonjoining or for any other reason of the candidates.
42.It is informed to this Court that out of 120 candidates who
were recommended for appointment, appointment orders were
issued to 119 candidates on 09
th
March, 2023 and five candidates
have not joined and that apart in MBC (NCL) category, five
vacancies were reserved and only two candidates are appointed and
three vacancies are filled by open category. Taking the overall
spectrum of the fact situation that the candidates who might be
lower in the order of merit vis
àvis the present appellants have
joined and sent for training, but they were never at fault, at the
same time, the present appellants also need indulgence of being
considered for appointment after they are finally selected and
indisputedly have secured higher marks than cutoff in their
respective category and this fact has not been disputed by the
respondents as well, few of the applicants can be adjusted against
the available advertised vacancies and without disturbing or taking
away the rights of the candidates who have been appointed by the
36
recruiting authority, in the peculiar facts and circumstances, in
exercise of our power under Article 142 of the Constitution, to do
complete justice to the parties, it may be appropriate to direct the
respondents to consider each of the appellants for appointment who
could not be adjusted against the advertised vacancies of Civil
Judge against future vacancies, subject to their suitability under
the Scheme of Rules, 2010.
43.The appeals succeed and are accordingly allowed. The
impugned judgment of the High Court is hereby quashed and set
aside and the respondents are directed to consider candidature of
each of the appellant for appointment with consequential benefits
including seniority to the post of Civil Judge on their participation
in the selection process held pursuant to advertisement dated 22
nd
July, 2021. The order may be passed subject to their suitability
within two months. No costs.
44.Pending applications, if any, shall stand disposed of.
………………………J.
(AJAY RASTOGI)
NEW DELHI;
MAY 18, 2023.
37
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. …..... OF 2023
(@ SPECIAL LEAVE PETITION (C) No. 16428 OF 2022)
SAKSHI ARHA .....APPELLANT(S)
VERSUS
THE RAJASTHAN HIGH COURT
& ORS. .....RESPONDENT(S)
WITH
CIVIL APPEAL NO. ....…. OF 2023
(@SPECIAL LEAVE PETITION (C) NO. 18296-18299 OF 2022)
PRIYANKA ETC. …. APPELLANT(S)
VERSUS
THE REGISTRAR EXAMINATION ETC. …. RESPONDENT(S)
WITH
CIVIL APPEAL NO. …..... OF 2023
(@SPECIAL LEAVE PETITION (C) NO. 21644 OF 2022)
KULDEEP BHATIA …. APPELLANT(S)
VERSUS
REGISTRAR EXAMINATION, RAJASTHAN
HIGH COURT, JODHPUR …. RESPONDENT(S)
WITH
1
CIVIL APPEAL NO. ...…. OF 2023
(@SPECIAL LEAVE PETITION (C) NO. 19179 OF 2022)
SUNIL SINGH GURJAR …APPELLANT(S)
VERSUS
REGISTRAR EXAMINATION,
RAJASTHAN HIGH COURT, JODHPUR ….RESPONDENT(S)
WITH
CIVIL APPEAL NO. ….... OF 2023
(@SPECIAL LEAVE PETITION (C) NO. 9544 OF 2023)
PARUL JAIN … APPELLANT(S)
VERSUS
THE RAJASTHAN HIGH COURT & ANR. …. RESPONDENT(S)
WITH
CIVIL APPEAL NO. ….... OF 2023
(@SPECIAL LEAVEL PETITION (C) NO. 5654 OF 2023)
JYOTI BENIWAL …. APPELLANT(S)
VERSUS
THE RAJASTHAN HIGH COURT & ANR. ….RESPONDENT(S)
2
J U D G M E N T
BELA M. TRIVEDI, J.
1.I have had the opportunity to go through the opinion expressed
by my esteemed brother Justice Ajay Rastogi, however I
express my inability to agree with the views expressed in the
said opinion, and pen down my opinion as under: -
2.Leave granted.
3.The common adjudication is being made having regard to the
contextual semblance of facts and legal issues involved in all
these appeals. The appellants in all the appeals have
challenged the impugned orders passed by the High Court of
Judicature for Rajasthan, whereby the High Court has
dismissed the writ petitions filed by them. In the writ petitions
before the High Court, the primary challenge was to the action
of the respondent-High Court in issuing the notice on
04.08.2022 requiring the candidates, who had successfully
qualified themselves in the main examination for the post of
Civil Judges, to produce the certificates relating to the
categories like Other Backward Class / More Backward Class -
Non-Creamy Layer and Economically Weaker Section etc.
issued within one year from the last date of submission of the
application form i.e. 31.08.2021 and not after the said date. The
3
appellants having produced the certificates showing their status
in the respective reserved category, which were issued after the
said date 31.08.2021, they were not found eligible for the said
post by the respondent-High Court.
Factual Matrix
4.The short facts that emanate from the record of the present
batch of appeals are that the respondent-High Court issued an
advertisement on 22.07.2021 inviting applications for the
recruitment of Civil Judges against the vacancies in the year
2021 as per the Rajasthan Judicial Service Rules, 2010
(hereinafter referred to as the Rules, 2010). The relevant part of
the said advertisement is produced hereunder for the better
appreciation of the issues involved:
“Rajasthan High Court, Jodhpur
Advertisement No.:- Rajasthan High Court, Jodhpur/Examination
Cell/ R.J.S./ Civil Judge Cadre/ 2021/ 780 dated 22.07.2021.
Competitive Examination for Direct Recruitment in Civil
Judge Cadre, 2021.
1.Online applications are invited by Rajasthan High Court,
Jodhpur for direct recruitment on total 120 vacant posts (89
posts of year 2020 and 31 posts of year 2021) of Civil Judge
and Judicial Magistrate on probation in Civil judge Cadre in
grade pay 27700-770-33090-920-40450-1080-44770 under
Rajasthan Judicial Service Rules, 2010 (as amended).
2to 3 ……….
4. Number of Vacant posts and Reservation.
Total No.
of
Vacancies
YearGeneral Reserved Persons
with
BenchmarkSC ST OBC EWS MBC
4
Disabilities
89 2020
(upto
Dec.
2020)
35
Out of
which,
10 posts
for
women
Out of
10 posts
02 posts
reserved
for
Widow
14
Out of
which,
04
posts
for
women
Out of
04
posts
01 post
for
Widow
10
Out of
which,
03
posts
for
women
18
Out of
which,
05
posts
for
women
Out of
05
posts
01 post
for
widow
08
Out of
which,
02
posts
for
women
04
Out of
which,
01 post
for
women
Out of 9
vacancies,
04 posts for
persons
with
Benchmark
Disabilities*
31 2021
(upto
Dec.
2021)
14
Out of
which,
04 posts
for
women
Out of
04 posts
01 post
reserved
for
Widow
04
Out of
which,
01 post
for
women
03 06
Out of
which,
01 post
for
women
03 01 Out of 31
vacancies,
01 post for
persons
with
Benchmark
Disabilities*
*Out of 05 posts reserved for persons with Benchmark Disabilities,
01 (One) post is reserved for blindness and low vision, 01 (One)
for deaf and hard of hearing, 01 (one) for locomotor disability
including cerebral palsy, leprosy cured, dwarfism, acid attack
victims and muscular dystrophy and 02 (two) for autism,
intellectual disability, specific learning disability and mental illness
and multiple disabilities from the amongst persons under clauses
(a) to (d) including deaf blindness in the posts identified for each
disabilities.
Note- The number of aforesaid vacant posts can be increased or
decreased as per rules for which no re-advertisement or
corrigendum will be published.
5. Regarding reservation of various categories-
i.Reservation for posts reserved for women
(including widow and divorced women) shall be
treated as horizontal against category wise
vacant posts meaning thereby women of which
category (Scheduled Castes/ Scheduled Tribes/
Other Backward Classes/ More Backward
Classes/ Economically Weaker Sections/ General
Category) will be selected, such woman
candidate will be adjusted against the concerned
category of which she is an applicant.
ii.Reservation for posts reserved for Persons
with Disabilities shall be treated as horizontal
against total vacant posts meaning thereby
persons with disabilities of which category
(Scheduled Castes/ Scheduled Tribes/ Other
Backward Classes/ More Backward Classes/
5
Economically Weaker Sections/ General
Category) will be selected, such candidates will
be adjusted against the concerned category of
which they are applicant.
iii.In the event of non-availability of eligible and
suitable candidates against the posts reserved
for Scheduled Castes/ Scheduled Tribes/ Other
Backward Classes/ Most Backward Classes
/Economically Weaker Sections/ women
(including widow and divorced women) / Persons
with Disabilities of Rajasthan, these posts will be
filled by the procedure and manner prescribed in
Rajasthan Judicial Service Rules, 2010 (as
amended).
iv.For selection against posts meant for general
category, it will be essential for reserved category
candidates to be eligible as general category
candidates.
Note- Applicants from creamy layer category of
Other Backward Class and More Backward Class
of Rajasthan and Scheduled Castes/ Scheduled
Tribes/ Other Backward Class (Creamy layer and
non-creamy layer)/ More Backward Class
(Creamy layer and non-creamy layer)/
Economically Weaker Sections of other states,
shall be treated as general category candidates.
6. Regarding certificates of various categories-
i.For reservation as Scheduled Castes/ Scheduled
Tribes/ Other Backward Classes and More
Backward Class, certificate issued by the
Competent authority as per rules in the
prescribed format, will have to be furnished.
ii.For the applicants coming within Persons with
Disability category, such candidates will have to
furnish Certificate of Disability issued in the
prescribed format by Authorized Certifying
Authority authorized by appropriate Government,
as and when demanded by Rajasthan High
Court. As per the extant rules applicable in this
regard, only Disability Certificate Holder
candidates shall be considered eligible for
selection and appointment against the posts
reserved for the Persons with Disabilities.
iii.In case of Economically Weaker Sections
applicants, such candidates will have to furnish
the certificate duly issued as per rules of the
Competent Authority.
6
iv.For availing benefit of reservation meant for
married women candidates of Scheduled Castes
and Scheduled Tribes, such women candidates
will have to furnish caste certificate based on the
name and address of father issued in the
prescribed format as per rules. The certificate
based on the basis of name, address and income
of the husband shall not be applicable.
v.For availing benefit of reservation meant for
married women candidates of Other Backward
Classes and More Backward Classes, such
women candidates will have to furnish caste
certificate based on the name and address of
father issued in the prescribed format as per
rules. The certificate based on the basis of name,
address and income of the husband shall not be
applicable.
vi. In case of widow women candidate, she will have
to furnish death certificate of her husband issued
by the Competent authority and in case of
Divorcee women candidate, she will have to
furnish proof of Divorce.
7 to 9. ……
10. AGE: -
A candidate must have attained the age of 21 years
on 01
st
January 2022 however must not have attained
the age of 40 years.
Provided that –
(i)the upper age limit mentioned above shall be
relaxed by 5 years in case of candidates
belonging to the Scheduled Castes/Scheduled
Tribes, Other Backward Classes/More
Backward Classes/ Economically Weaker
Sections and Women Candidates.
11 to 16. ……
17. Time Limit to Apply:-
Sr.No. Description Date
1. Time limit for
applying online
From 1:00 pm
on 30.07.2021
(Friday) to
5.00 PM on
31.08.2021
(Tuesday)
18. Important Instructions to Apply:-
7
1.Any applicant under which category he is eligible
to apply should apply in the same category. The
category filled in the application will not be
changed under any circumstances on the
request of the applicant.
2.Before applying online application, the applicant
must ensure that he/ she meets all the eligibility
conditions as per the conditions mentioned in the
advertisement and all the information required in
the online application form is filled in correctly and
fully in the relevant column. The information filled
in the online application form will be considered as
correct and provisional admission will be given in
the examination. Therefore, the applicant
himself/herself will be responsible for the
information filled in the online application form.
3. Only the applications filled by the last date of
online application will be accepted. In case all the
entries are not complete and correct, the
application will be rejected by the Rajasthan High
Court.
4.No change can be made in the entries once finally
entered in the online application, nor will any
application in this regard be accepted for
consideration.
19 to 21. …..
22. Other Important Instructions:-
1….
2….
3. The candidates will be required to produce all the
relevant original documents/certificates, on the
basis of which they make any claim, if required by
the Rajasthan High Court or the concerned
appointing authority.
4 to 8……
9. Only such applicants, who have successfully
deposited the examination fee by applying online
till the last date, will be provisionally allowed to
appear in the examination by the Rajasthan High
Court. Merely issuing the admit card to an
applicant to appear in the examination would not
mean that his candidature has been finally
accepted by the Rajasthan High Court or that the
entries made by the applicant in the application
form have been treated as correct and true. While
checking the eligibility of the applicant from the
8
original documents by the Rajasthan High Court
and as per rule, if his/her ineligibility is detected on
the ground of non-fulfilment of other essential
conditions of eligibility on the basis of age,
educational qualification and SC/ST/OBC/More
Backward Class/EWS/PH/Women/
Widow/Abandoned (Divorced) etc., his/her
candidature for this examination is liable to be
cancelled at any stage, the responsibility of which
will be that of the applicant himself.”
5.All the appellants claiming to be the members of OBC/MBC-
NCL/EWS, appeared in the main examinations conducted by
the respondent and successfully cleared the same. They
having been provisionally qualified to be called for the interview,
were invited by the respondent for the interview between
20.08.2022 to 27.08.2022, vide the notice dated 04.08.2022. In
the said notice it was directed that the candidates had to bring
all the original documents along with the attested/certified
photocopies at the time of interview. The precise directions
contained in the said notice are reproduced as under:
“The candidates are required to remain present for
Interview on the date and reporting time mentioned above
in the temporary office of Registrar (Examination), at
Rajasthan State Judicial Academy, Jodhpur, Near
Jhalamand Circle, Old Pall Road, Jodhpur (Rajasthan) with
their original documents/certificates for verification. The
candidates are directed to bring all the following original
documents along with two attested/certified photo copies
of each document: -
i….
ii….
iii. Certificate relating to category:-
(a) OBC/MBC (Non Creamy layer) certificate
issued not prior to one year from the last date
of submission of the application form i.e.
31.08.2021.
(b) In case OBC/MBC (Non Creamy Layer)
certificate is issued between 31.08.2018 and
9
30.08.2020, an affidavit in prescribed format
along with caste certificate has to be
produced.
(c) In case of EWS category - Income & Asset
Certificate required for seeking reservation in
EWS category must not be issued prior to
01.04.2021. In case Income & Asset
Certificate issued between 01.04.2019 and
31.03.2021, an affidavit in prescribed format
along with certificate has to be produced.
(d) 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.”
6.The appellant Jyoti Beniwal (SLP (C) No. 5654/2023) who had
applied under the category OBC-NCL for the said post of Civil
Judge, filed the writ petition being No. 11784 of 2022 inter alia
challenging the conditions imposed in the said notice dated
04.08.2022 requiring the candidates to furnish the OBC-NCL
certificates issued between 31.08.2018 to 31.08.2021, and
declaring that the certificates issued after 31.08.2021 would not
be accepted. The Division Bench of the High Court dismissed
the said petition vide the judgment and order dated 18.08.2022,
which is impugned before this Court.
7.The appellant Kuldeep Bhatia (SLP (C) No. 21644 of 2022)
also filed writ petition being no. 12022 of 2022 before the High
Court challenging the said notice dated 04.08.2022 prescribing
the requirement of furnishing the OBC (NCL) certificate of the
period not prior to one year preceding the last date of
submission of application form. The said petition also came to
10
be dismissed by the High Court vide the order dated
06.09.2022, which is also impugned before us in this batch of
appeals. Similar writ petitions filed by the other appellants-writ
petitioners came to be dismissed by the High Court by passing
separate orders relying upon the decisions in case of Jyoti
Beniwal and Kuldeep Bhatia.
8.For the better understanding and for the sake of convenience, a
comparative statement showing the facts in case of each of the
appellants is produced hereunder:
I.OBC-NCL category SLP 5654/2023, SLP 16428/2022,
SLP 18296 – 18299/22
S.
No.
Name MarksCut off
General
Cut off
marks
OBC-
NCL
Date of
OBC-NCL
Certificates
of the
Petitioner
Date of OBC-
NCL Certificate
required as per
Respondents
SLP 5654/2023
1.Jyoti
Beniwal
176 179.5 163.522.06.2016
&
25.07.2022
31.08.2018 to
31.08.2021
SLP 16428/2022
2.Sakshi Arha166.5179.5 163.527.07.2016
17.06.2022
&
12.08.2022
“-do- “
SLP 18296-18299/2022
3.Priyanka 170 179.5 163.523.04.2018
&
20.06.2022
“-do-“
4.Bhavya
Kulhar
165.5179.5 163.519.09.2016
&
16.06.2022
“-do-“
5.Neha Batar165 179.5 163.528.06.2018
&
21.06.2022
“-do-“
6.Nikhil
Kataria
171.5179.5 163.516.07.2018
&
09.06.2022
“-do-“
11
II.MBC-NCL category-Sunil Gurjar SLP(C) NO. 19179/22 &
Kuldeep Bhatia SLP(C) NO. 21644/22
S.
No.
Name of the
petitioner
Marks
Obtained
Cut off
General
Cut off
marks
MBC-
NCL
Date of
MBC-NCL
Certificates
Date of MBC-
NCL
Certificate
required as
per
Respondents
SLP(C) NO. 19179/22
1.Sunil Singh
Gurjar
172 179.5 141 18.06.2018
&
16.06.2022
31.08.2018 to
31.08.2021
SLP(C) NO. 21644/22
2.Kuldeep
Bhatia
141.5 179.5 141 03.08.2012
&
09.03.2022
“-do-“
III.EWS Category-Parul Jain SLP (C) No. 9544 OF 2023
S.
No.
Name of
the
petitioner
Marks
Obtained
Cut off in
General
Category
Cut
off-
EWS
Date of
EWS
Certificates
of the
Petitioner
Date of EWS
Certificate
required as per
Respondents
1.Parul Jain 174.5 179.5 167.507.09.202131.08.2021
(01.04.2021-31.03.2022
valid AY 2021-
22)
9.It is pertinent to note that as per Clause-6 read with the
important instructions mentioned in the advertisement dated
22.07.2021, the candidates belonging to various reserved
categories had to produce legally valid certificates issued by the
competent authority. It may be further noted that the
Department of Social Justice and Empowerment, Government
of Rajasthan keeps on issuing the guidelines and directions
12
from time to time for the issuance of caste certificates to the
SCs, STs, OBCs, MBCs and EWS. The circulars prevalent at
the relevant time were the circulars dated 09.09.2015 and
08.08.2019. The relevant paragraph 4 of the Circular dated
09.09.2015 with regard to issuance of caste certificates reads
as under:
“4. Validity Period of Caste Certificate: -
1. The validity of caste certificates issued for SC / ST
will be lifetime whereas the certificate for OBC will be
issued only once but the fact that the person is not in
the creamy layer will be recognised on the basis of a
valid affidavit up to three years.
2.The certificate of non-creamy layer will be valid for
one year. Once the certificate of non-creamy layer is
obtained, if the applicant is not in the creamy layer in
the next year as well, then in such a situation an
affidavit (Appendix-D) will be obtained from him,
where the earlier issued non-creamy layer certificate
shall be deemed valid, this can be done for a
maximum period of three years.”
10.The relevant part of the Circular dated 08.08.2019 clarifying the
aforesaid direction contained in the circular dated 09.09.2015
reads as under:
“Government of Rajasthan
Department of Social Justice and Empowerment
No. F-11/S.C.S.T.OBC/S.B.C Date: 08.08.2019
…Therefore, it is once again clarified in this regard that the
caste certificate of Other Backward Classes shall be valid
for one year, however, in a situation where the applicant
has been issued a certificate for not falling in the creamy
layer category and if such applicant does not fall within the
creamy layer in the subsequent year as well, in that
situation, previously issued certificate of falling within the
non-creamy layer will be treated as valid after obtaining an
attested affidavit from the applicant, which can be done
maximum for a period of three years.”
13
11.The substance of the above circulars was that the certificate of
OBC-NCL issued to a person would be valid for one year,
however in the subsequent year also if he continues to remain
in the “non-creamy layer” category, the previously issued
certificate would be treated valid after obtaining an attested
affidavit from such person, and such procedure could be
followed for a maximum period of three years.
Submissions:
12.The Learned Counsels appearing for the appellants made
following submissions:
(i)The appellants having complied with all requisites in
form as well as in substance have been wrongly not
considered for the post of Civil Judge and the lesser
meritorious candidates in the respective categories
have been selected for the said post.
(ii)In absence of any specification with regard to the
date of certificates to be produced by the
candidates applying under the reserved categories
either in the recruitment advertisement dated
22.07.2021 or in the said Rules of 2010, the
prescriptions contained in the notice dated
14
04.08.2022 requiring the candidates to produce the
certificates as per Clause 3 thereof tantamount to
changing the rules of game in the midst of the
recruitment process, which is not permissible in the
eye of law.
(iii)The impugned conditions introduced by the
respondents in the notice dated 04.08.2022 limiting
the chances of the appellants being selected were
absolutely unreasonable and arbitrary.
(iv)For availing the benefit of reservation, the
appellants were required to produce the relevant
certificates, however any rigid principle with regard
to the date of certificate as the proof for the purpose
of seeking entitlement to claim the benefit of
reservation, had no nexus with the last date of
submission of application.
(v)Relying upon the decision of this Court in Dolly
Chhanda Vs. Chairman, JEE & Ors.
1
, it is
submitted that there can be some relaxation in the
matter of submission of proof of the
certificates/documents and it would not be proper to
1 (2005) 9 SCC 779
15
apply any rigid principle. Every infraction of rule
relating to submission of proof need not be
necessarily result in rejection of candidature.
(vi)Reliance has been placed in case of Ram Kumar
Gijroya Vs. Delhi Subordinate Services
Selection Board & Anr.
2
, to submit that the
submission of certificate after the last date
mentioned in the advertisement was valid for the
selection of the candidate under the reserved
category. According to the appellants, the said view
was affirmed by Three-Judge Bench in case of
Karn Singh Yadav Vs. Government of NCT of
Delhi & Ors.
3
(SLP (C) 14948/2016).
(vii)Distinguishing the judgment of Ashok Kumar
Sonkar Vs. Union of India & Ors.
4
, relied upon by
the respondent, it was submitted that the ratio laid
down in the said judgment had no relevance to the
facts of the present appeals in as much as the said
case pertained to the qualification of candidates at
the time of selection, whereas in the instant appeals
2 (2016) 4 SCC 754
3 2022 SCC OnLine SC 1341
4 (2007) 4 SCC 54
16
the issue is with regard to the date of the issuance
of certificates which is only procedural matter.
13.The Learned Counsel for the Respondents made the following
submissions:
(i)The appellants had failed to reproduce valid
certificates as mentioned in the advertisement dated
22.07.2021 and notice dated 04.08.2022.
(ii)The State Government had issued the circulars
dated 09.09.2015 and 08.08.2019 in which it was
clarified that the OBC certificate shall be issued only
once, and the certificate regarding Non-Creamy
Layer would also be valid for one year only,
however, if the applicant continues to hold the
position of “Non-Creamy Layer” in the subsequent
year, then the certificate issued in previous year
would be treated valid with an affidavit of the
candidate. In the instant appeals the appellants
claiming to be belonging to OBC-NCL had not
produced the requisite valid certificates nor the
affidavit in that regard.
(iii)As held in Ashok Kumar Sonkar (supra), the last
date for filing application is required to be treated as
17
the cut-off date in absence of any date specified in
this behalf either in the advertisement or in the
rules.
(iv)Relying upon Rakesh Kumar Sharma Vs. State
(NCT of Delhi) & Ors.
5
, it has been submitted that
the eligibility criteria/conditions should be examined
as on the last date of the receipt of the application.
The appellants having acquired the requisite
certificates after the cut-off date of last date of
submission of applications, they were rightly not
considered for selection for the post in question.
(v)The reservation under the category of OBC-NCL
and EWS is on the basis of the current economic
status of the candidates, whereas the caste status
of person i.e., a candidate being SC, ST or OBC
would be dependent on the birth of the person
which factor remains static. Hence, considering the
dynamic state of the category of OBC-NCL and
EWS, the Government had issued the circulars
dated 08.08.2009 and 09.09.2015 for issuing the
requisite certificates by the competent authority, and
5 (2013) 11 SCC 58
18
the appellants accordingly had to produce the valid
certificates issued by such competent authorities as
per the said circulars, which the appellants had
failed to produce in the instant cases.
Analysis and Reasoning:
14.At the outset, it deserves to be noted that the certificates to the
persons belonging to the reserved categories like SC/ST/OBC-
NCL/MBC-NCL/EWS are being issued by the competent
authorities of the respective State Governments keeping in view
the provisions contained in the Constitution of India and the
guidelines/principles laid down by this Court from time to time.
The status of a person whether he belongs to SC or ST
category depends on the caste which he belongs to by birth,
and such status would remain unchanged and would be static,
however, the status of a person whether he belongs to OBC-
NCL/MBC-NCL/EWS would depend upon his/her social and
economic status, and such status would keep on changing
depending on his/her income and therefore would be dynamic.
It is very well settled position of law that the persons belonging
to the Scheduled Castes and Scheduled Tribes were and are
treated as a separate category, and the principle of “creamy
layer” does not apply to the said categories. It applies only to
19
the persons belonging to the socially and the economically
backward classes. Ergo, the date of issuance of certificate to
the persons belonging to OBC-NCL/MBC-NCL/EWS categories
assumes significance for the purpose of ascertaining as to
whether the candidate claiming to belong to a particular
reserved category on the date when he/she applied for the post
in question under such category, in fact belonged to the said
category on the date on which such application was made or on
the date prescribed in the advertisement.
15.In this regard, before adverting to the submissions made by the
learned counsels for the parties, let us peep into the brief
history of reservations, more particularly for the category of
“Other Backward Classes” and “Economically Weaker
Sections”, with which I am concerned. The most landmark
decision on the issue of reservations for the “Other Backward
Class” category is the Nine-Judge Bench decision in case of
Indra Sawhney & Ors. Vs. Union of India & Ors.
6
, in which it
was noticed that amongst the backward class, there is a section
of the backward class which belong to the affluent section of
society and they do not deserve any sort of reservation for
further progress in life. In the majority judgment opined by B.P.
6 1992 Supp (3) 217
20
Jeevan Reddy, J., it was observed while discussing the issue
under the head “Means test” and “creamy layer”, that “Means
test’ signifies imposition of an income limit, for the purpose of
excluding persons from the backward class whose income is
above the said limit, (also referred as the persons belonging to
creamy layer). It was further opined that the exclusion of
“creamy layer” must be on the basis of social advancement and
not on the basis of mere economic criteria. At the same time,
income to the extent of property held by person can be taken as
a measure of social advancement and on that basis “creamy
layer” of all given caste/community/occupational group can be
excluded to arrive at a true backward class. It was further
opined that it is not impermissible for the State to categorize
backward classes into backward and more backward on the
basis of their relative social backwardness. It was finally
concluded while answering various questions dealt with by the
majority inter alia that (i) ‘creamy layer’ can be, and must be
excluded; (ii) it is not necessary for class to be designated as a
backward class that it is situated similarly to the Scheduled
Castes/Scheduled Tribes; (iii) a backward class of citizens
cannot be identified only and exclusively with reference to
economic criteria. It is of course permissible for the Government
21
or other authority to identify backward class of citizen on the
basis of occupation-cum-income, without reference to caste, if it
is so advised; (iv) there is no Constitutional bar to classify
backward classes of citizens into backward or more backward
categories; (v) the Government of India and the State
Governments have the power to, and ought to, create a
permanent mechanism in the nature of commission etc.
16.In another significant decision in case of M. Nagaraj & Ors. Vs.
Union of India & Ors.
7
, the Constitution Bench while
propounding the concepts of “formal equality” and “proportional
equality”, as the basis of distribution of benefits and burdens,
referred the concept of “creamy layer” evolved in case of Indra
Sawhney (supra), and opined as under:
“120. At this stage, one aspect needs to be mentioned.
Social justice is concerned with the distribution of benefits
and burdens. The basis of distribution is the area of conflict
between rights, needs and means. These three criteria can
be put under two concepts of equality, namely, “formal
equality” and “proportional equality”. Formal equality
means that law treats everyone equal. Concept of
egalitarian equality is the concept of proportional equality
and it expects the States to take affirmative action in favour
of disadvantaged sections of society within the framework
of democratic polity. In Indra Sawhney [1992 Supp (3) SCC
217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] all the
Judges except Pandian, J. held that the “means test”
should be adopted to exclude the creamy layer from the
protected group earmarked for reservation. In Indra
Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S)
Supp 1 : (1992) 22 ATC 385] this Court has, therefore,
accepted caste as a determinant of backwardness and yet
it has struck a balance with the principle of secularism
7 (2006) 8 SCC 212
22
which is the basic feature of the Constitution by bringing in
the concept of creamy layer…......”
17.In another significant decision of the Constitution Bench in case
of Ashoka Kumar Thakur Vs. Union of India & Ors .
8
, it was
opined, again referring to the principle of “creamy layer”
introduced in Indra Sawhney (supra) that: -
“168. As noticed earlier, determination of backward class
cannot be exclusively based on caste. Poverty, social
backwardness, economic backwardness, all are criteria for
determination of backwardness. It has been noticed
in Indra Sawhney case [1992 Supp (3) SCC 217 : 1992
SCC (L&S) Supp 1 : (1992) 22 ATC 385] that among the
backward class, a section of the backward class is a
member of the affluent section of society. They do not
deserve any sort of reservation for further progress in life.
They are socially and educationally advanced enough to
compete for the general seats along with other candidates.
169……
170. It is to be understood that “creamy layer” principle is
introduced merely to exclude a section of a particular caste
on the ground that they are economically advanced or
educationally forward. They are excluded because unless
this segment of caste is excluded from that caste group,
there cannot be proper identification of the backward class.
If the “creamy layer” principle is not applied, it could easily
be said that all the castes that have been included among
the socially and educationally backward classes have been
included exclusively on the basis of caste. Identification of
SEBC for the purpose of either Articles 15(4), 15(5) or
16(4) solely on the basis of caste is expressly prohibited by
various decisions of this Court and it is also against Article
15(1) and Article 16(1) of the Constitution. To fulfil the
conditions and to find out truly what is socially and
educationally backward class, the exclusion of “creamy
layer” is essential.
171-185…….
-It was further held:
186. Moreover, right from the beginning, the Scheduled
Castes and Scheduled Tribes were treated as a separate
category and nobody ever disputed identification of such
classes. So long as “creamy layer” is not applied as one of
8 (2008) 6 SCC 1
23
the principles of equality, it cannot be applied to the
Scheduled Castes and Scheduled Tribes. So far, it is
applied only to identify the socially and educationally
backward classes. We make it clear that for the purpose of
reservation, the principles of “creamy layer” are not
applicable for Scheduled Castes and Scheduled Tribes.”
18.So far as Economically Weaker Section category is concerned,
the Parliament by 103
rd
amendment had inserted Clause (6) in
Article 15 and Clause (6) in Article 16 of the Constitution of
India. In the statement of objects and reasons of the said
Amendment, it was stated that the Economically weaker
sections of the citizens were not eligible for the benefit of
reservation, and with a view to fulfil the mandate of Article 46
and to ensure that economically weaker sections of the citizens
get a fair chance of receiving higher education and participation
in the employment in the services of the State, it was decided to
amend the Constitution of India. The Constitutional validity of
the said 103
rd
amendment was challenged before this Court in
case of Janhit Abhiyan Vs. Union of India
9
and by 3:2 the
validity of the said amendment was upheld, vide the judgment
dated 07.11.2022.
19.The reason for quoting the aforesaid judgments is only to
demonstrate that the status of the candidates claiming
reservation under the category SCs and STs would be static,
9 W.P. (C) 55/2019
24
whereas the status of the candidates claiming reservation
under the category OBC-NCL, MBC-NCL and EWS would be
fluid, dynamic and not static. Under the circumstances, the
State Governments are issuing the guidelines from time to time
laying down the eligibility criteria for deciding the economic
status of a person and the methodology or procedure to be
followed for issuing the certificates to the persons belonging to
the OBC-NCL/EWS categories.
20. In the instant case, the State of Rajasthan had issued the
Circular dated 09.09.2015 with regard to the validity period of
caste certificate, in which it was stated inter alia that the validity
of caste certificates issued for SC/ST will be lifetime whereas
the certificate for OBC will be issued only once, and that the
certificate of non-creamy layer will be valid for one year.
However, once the certificate of “non-creamy layer” is issued,
and if the applicant remains in the category of non-creamy layer
in the subsequent year also, then in such a situation an affidavit
in the prescribed form will be furnished by him, in which case
the earlier issued “non-creamy layer” certificate shall be
deemed valid, and such procedure could be followed for a
maximum period of three years. The said Circular 09.09.2015
was further clarified vide Circular dated 08.08.2019 in which it
25
was stated that the caste certificate of other backward classes
shall be valid for one year, however in a situation where the
applicant has been issued a certificate of “not falling in the
creamy layer” category, and if such applicant does not fall within
“creamy layer” in the subsequent year as well, in that situation,
previously issued certificate of falling within the “non-creamy
layer” will be treated as valid on his furnishing an attested
affidavit, which could be followed for maximum period of three
years.
21.So far as the facts of the present case are concerned, as stated
in the Clause 6 of the advertisement dated 22.07.2021, the
candidates claiming reservation under the categories of
SC/ST/OBC-NCL/MBC-NCL/EWS had to furnish valid
certificates duly issued by 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.
26
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
27
dated 25.07.2022, appellant 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 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/affidavits in support thereof, in
compliance with the circulars dated 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
28
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) 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
29
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 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
30
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. (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:
31
“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..”
27.In Ram Kumar Gijroya (Supra), the two Judge Bench of this
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 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
32
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.
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
33
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 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
Others
11
, this Court held as under: -
10 (1993) 2 SCC 429
11 1993 Supp (3) SCC 168
34
“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. 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 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 & 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 &
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,
12 (1997) 4 SCC 18
35
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
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 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 while passing the impugned judgments and orders.
36
In that view of the matter, the appeals being devoid of merits
are dismissed.
…..................................J.
[BELA M. TRIVEDI]
NEW DELHI;
18.05.2023
37
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No.16428 of 2022)
SAKSHI ARHA ….APPELLANT(S)
VERSUS
THE RAJASTHAN HIGH COURT
& OTHERS ….RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No.1829618299 of 2022)
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No.21644 of 2022)
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No.19179 of 2022)
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No. 9544 of 2023)
CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(C) No.5654 of 2023)
O R D E R
In view of the split view expressed by us in the instant
appeals, let the matter be placed before Hon’ble The Chief Justice of
India to place the matter before an appropriate Bench. We hope
that looking to the urgency of the matter, hearing of the appeals
may be expedited.
.......................J.
[ AJAY RASTOGI ]
.......................J.
[ BELA M. TRIVEDI ]
New Delhi;
MAY 18, 2023.
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