Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. No. 5-8
IN
CIVIL APPEAL NOS. 8343-8344 OF 2011
[Arising out of S.L.P (C) No.20152-20153 of 2010]
Bedanga Talukdar ... Appellant
VERSUS
Saifudaullah Khan & Ors. …Respondents
O R D E R
1. Leave granted.
2. These appeals are directed against the impugned
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judgment and order dated 4 March, 2010 in
Writ Petition (C) No. 950 of 2010 and impugned judgment
nd
and order dated 2 July, 2010 in Writ Petition (C) No.3382
of 2010 passed by the High Court of Guwahati, allowing the
writ petitions filed by the respondent No.1 whereby Assam
Public Service Commission (hereinafter referred to as
“respondent No. 3”) was directed to examine the entitlement
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of respondent No.1 by taking into account the identity card
produced by him.
3. We may notice the bare essential facts necessary for
the determination of the controversy involved in these
appeals .
4. The respondent No. 3 issued an advertisement
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on 10 August, 2006 bearing advertisement No.6/2006,
announcing its intention to hold the preliminary
examination of the Combined Competitive Examination,
2006 for screening candidates for the Main Examination for
recruitment to various posts educated in the advertisement.
The last date for the receipt of the completed application
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forms was fixed as 11 September, 2006. In this
advertisement, although, posts had been reserved for
various categories such as OBC/MOBC, SC, ST(P) and
ST(H), but there was no reservation in favour of the
disabled candidates as required under the Persons with
Disabilities [Equal Opportunities, Protection of Rights and
Full Participation], Act,1995.
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5. Consequently, a Public Interest Litigation being P.I.L.
No.61/2006 was filed in the High Court by Order
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dated 13 March, 2007. The High Court by an interim
order directed respondent No.3 not to conduct any
examination during the pendency of the petition. By order
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dated 13 March, 2007, the High Court directed respondent
No.3 to make a fresh advertisement on the basis of the
requisitions to be received from the Government of Assam
(respondent No.2) incorporating reservation of 3% for
persons with disabilities.
6. In compliance with the orders of the High Court
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dated 13 March, 2007, respondent No. 3 issued a
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corrigendum on 5 June, 2007 reserving three per cent
vacancies for Physically Handicapped persons, in terms of
Persons with Disabilities [Equal Opportunities, Protection of
Rights and Full Participation], Act,1995. Applications were
invited for one post in the Assam Civil Service
Class-I (Jr. Grade) from persons suffering from Locomotor
Disability, in connection with the conduct of Combined
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Competitive (Preliminary) Examination, 2006 for screening
candidates for the Main examination for the posts already
mentioned in the earlier advertisement No. 6/2006. It is
evident that this corrigendum was issued in continuation of
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advertisement No. 6/2006 dated 10 August, 2006. It was
provided therein that candidates, who had applied earlier to
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the advertisement No. 6/2006 dated 10 August, 2006,
need not apply again but the candidates with Locomotor
Disability must produce supporting documents in the office
of the Assam Public Service Commission or in the
examination hall before the commencement of the
examination. The Last date for submission of the
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applications under the corrigendum was 6 July, 2007.
7. Respondent No.1 had applied in response to the
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advertisement dated 10 August, 2006. Since there was no
requirement for submission of any details with regard to
any disability, he had not submitted any disability
certificate. Although, in view of the corrigendum,
respondent No.1 was not required to make an application
afresh, he was required to produce necessary supporting
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documents in the office of the Commission or in the
examination hall before the commencement of the
preliminary examination. Respondent No.1 had been
certified by the District Medical Board, Dhubri, to be
st
physically disabled to the extent of 50% on 21 January,
2004. On the basis of this certificate, respondent No.1 was
issued an identity card by the District Social Welfare
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Officer, Dhubri on 18 February, 2004 which specified his
disability to be Locomotor Disability to the extent of 50%.
rd
The preliminary examination was held on 23 September,
2007.
8. We may notice here that respondent No.1 did not
submit the mandatory documents, to substantiate his
candidature in the seat reserved for candidates with
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“Locomotor Disability”, on or before 6 July, 2007, i.e., the
last date for submission of applications. He also did not
submit the mandatory documents even at the time when he
appeared in the preliminary examination. Therefore, he
appeared in the examination as a general category
candidate.
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9. Both the appellant and respondent No.1 successfully
participated in the preliminary examination. The
advertisement had clearly specified that “candidates who
are declared by the Commission to have qualified for
admission to the Main examination will have to apply again
in the prescribed application form, which will be supplied to
them.” It was the claim of respondent No.1, that he had
specifically indicated in Column No. 11 of his application in
the prescribed form for the Main examination that he
suffers from Locomotor Disability upto 50%. According to
st
him, he had submitted the certificate dated 21 January,
2004 issued by the District Medical Board, Dhubri. Being
satisfied Respondent No.3 had permitted him to appear in
the Main examination.
10. Having successfully completed the written
examination, both the candidates, i.e., appellant and
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respondent No.1, were called for interview on 1 December,
2008. It was the case of respondent No.1 that he had
produced the necessary documents in support of his claim
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of Locomotor Disability to the extent of 50%, along with the
other certificates and testimonials at the time of interview.
The Commission, respondent No. 3, published the list of
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selected candidates on 15 June, 2009. The name of
respondent No.1 did not appear in the said list. In fact, the
appellant was shown to have been selected for appointment
in the Assam Public Service Commission as a physically
handicapped candidate.
11.
Respondent No.1 made an application under the
provisions of Right to Information Act, 2005 before the
appropriate authority seeking the details of the marks
scored by him as well as the details of the marks obtained
by other physically handicapped candidates called for the
interview. From the information supplied to him,
respondent No. 1 came to know that he had scored 817
marks, whereas the appellant had scored 695 marks.
Respondent No. 1 thereafter made a representation dated
th
14 September, 2009 addressed to the Chairman of
respondent No.3 as well as the Secretary of the Commission
making a grievance that his candidature had been
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arbitrarily rejected, even though, he had scored more marks
than appellant in the examination. It appears that
respondent No. 1 had also reiterated that his claim for
being considered in the Locomotor Disability category, was
duly supported by the necessary documents, i.e., certificate
issued by the District Medical Board, Dhubri
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dated 21 January, 2004 and the identity card issued by
the District Social Welfare Officer.
12.
He had further stated that at the time of interview, he
had produced the necessary documents in support of his
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claim. According to respondent No. 1, on 4 December,
2009, the Deputy Secretary of the Commission (respondent
No.3) had informed him that the identity card showing
respondent No. 1 to be suffering from Locomotor Disability
was not submitted alongwith the application form for the
Main examination, though the same was a compulsory
document. Respondent No. 1 was accordingly asked to
submit the same to the Commission as early as possible on
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receipt of the communication dated 4 December, 2009.
Respondent No. 1 replied vide his letter
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dated 10 December, 2009 addressed to the
Deputy Secretary of the Commission, stating that all
necessary documents showing that he is a physically
handicapped person suffering from Locomotor Disability
were submitted alongwith the application form of the Main
examination. Respondent No. 1 also reiterated his claim
that all documents were verified by the Commission at the
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time of interview on 1 December, 2008. In the letter dated
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10 December, 2009, respondent No. 1 also mentioned that
as directed by the Deputy Secretary of the Commission, an
attested copy of the ID card issued to him by the District
Social Welfare Officer, Dhubri is being forwarded.
13.
It would be relevant to notice here that the select list
th
dated 15 June, 2009 was challenged in Writ Petition
No. 2755 of 2009 and other connected cases. The aforesaid
writ petition was disposed of by the High Court by remitting
the matter back to respondent No.3 to take a fresh decision
and publish a revised list. The reservation in the category
of Locomotor Disability was not the issue before the Court
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in the aforesaid writ petition. The procedural anomaly
related to women candidates.
14. Subsequently, respondent No. 1 filed Writ Petition
No. 67 of 2010 seeking a direction to include his name in
the fresh list to be issued by the respondent No.3,
Commission. This writ petition was dismissed by the High
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Court being premature on 7 January, 2010. Thereafter,
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on 5 February, 2010, the Commission published a revised
list, wherein name of respondent No. 1 was again not
included in the list of candidates selected for the
appointment.
15.
Respondent No. 1, therefore, challenged the select list
by Writ Petition No. 950 of 2010. The writ petition was filed
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on 8 February, 2010. The High Court granted an ex-parte
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order on 11 February, 2010 directing respondent No.3 not
to issue the appointment / posting orders to the appellant.
16. In the counter affidavit filed to this writ petition,
respondent No.3 specifically stated that the documents had
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not been submitted by the respondent No. 1 within the
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prescribed time. On 14 March, 2010, the writ petition
filed by respondent No. 1 was allowed. A direction was
issued to respondent No.3 to reconsider the matter afresh
th
based on the identity card submitted on 10 December,
2009. We may notice here that this direction had been
issued by the High Court in spite of the categoric assertion
made by the respondent No.3 that the candidature of the
respondent No. 1 had been rejected on the basis of the
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resolution dated 8 January, 2010. In its meeting dated
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8 January, 2010, respondent No.3 had resolved that
respondent No. 1 did not submit the identity card along
with the form. This was vital to support the claim of
respondent No.1 to be considered for the post reserved for
the candidates having Locomotor Disability. Therefore, his
candidature was rejected for non-fulfillment of an essential
condition. However, pursuant to the directions issued by
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the High Court in its order dated 4 March, 2010,
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respondent No.3 in its meeting held on 21 May, 2010
again thoroughly examined the matter relating to the
entitlement of respondent No. 1 for final selection as a
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physically handicapped (Locomotor Disability) candidate.
Upon a thorough scrutiny and re-examination of the facts
and the material on record, the claim of respondent No. 1
was not accepted. The name of appellant was duly
reiterated as the candidate selected for appointment.
A communication to that effect was sent to the appellant as
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well as respondent No. 1 on 31 May, 2010.
17. At this stage, respondent No. 1 filed Writ Petition
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No. 3382 of 2010 challenging the minutes dated 21 May,
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2010 and the communication dated 31 May, 2010. The
aforesaid writ petition has been allowed by the High Court
with observations that respondent No.3 was under a legal
obligation to examine the petitioner’s entitlement for
selection by taking into account his identity card. The High
Court notices that the resolution of the respondent No.3
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contained in the minutes of the meeting dated 21 May,
2010 would indicate that the Commission had resolved not
to consider the case of respondent No. 1 for selection for
appointment against the solitary post earmarked for
physically handicapped candidates on the ground that the
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identity card, which was required to be submitted by
respondent No. 1 at different stages. The High Court has
held that the aforesaid decision, is not rendered in the light
of the directions given by the High Court in Paragraph 13 of
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the order dated 4 March, 2010 passed in Writ
Petition (C) No. 950 of 2010. It has been observed by the
High Court that the question of belated submission of the
identity card having been already answered by the Court
and directions having been issued to take into account the
same, the Public Service Commission could not have acted
in the manner it has done. This writ petition was,
therefore, allowed with the following observations:-
“For the aforesaid reasons, we set aside the
resolution dated 21.5.2010 of the Commission as
well as the communication dated 31.5.2010 and
direct that the Public Service Commission will
now examine the entitlement of the petitioner by
taking into account the identity card produced by
him. For the purpose of clarification, we deem it
appropriate to add that while considering the case
of the petitioner the acceptability, veracity or
otherwise of the contents of the identity card and
the effect of the said contents, if found to be
acceptable, would be considered by the
Commission.”
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These directions are challenged by the appellant in these
appeals.
18. We have heard the counsel for the parties.
19. Mr. Jayant Bhushan, learned senior counsel,
appearing for the appellant herein submits that in the
th
advertisement dated 5 June, 2007, one post was reserved
for person suffering from Locomotor Disability only. The
advertisement also further provided that those who applied
earlier in response to advertisement No.6/2006 dated
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10 August, 2006 need not apply again, but the candidates
with Locomotor Disability must produce supporting
documents in the office of Assam Public Service
Commission or in the examination hall before
commencement of the examination. The advertisement
further provided that candidates who are declared by the
Commission to have qualified for admission to the main
examination will have to apply again in prescribed
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application form, which will be supplied to them. All
candidates applying in the category of persons with
Locomotor Disability upto 50% were required to send a
certificate of Locomotor Disability from the appropriate
authority. According to Mr. Bhushan, respondent No. 1 did
not submit the necessary certificate in the office of the
respondent No. 3 or in the examination hall before
commencement of the examination. In fact, he did not
submit even the ID card till after the interview. By the
time, he submitted the ID card, even the Select List of the
successful candidates had been published. Since
respondent No. 1 had not submitted the requisite disability
certificate within the stipulated period as provide in the
advertisement, respondent No. 3 rejected his candidature
th
for valid reasons in its resolution dated 8 January, 2010.
20. Mr. Bhushan submits that direction issued by the
High Court are contrary to the settled principle of law that
there can be no variation in the conditions of eligibility as
laid down in the advertisement, unless a specific stipulation
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is made about any particular condition being relaxable at
the discretion of the concerned authority. Learned senior
counsel submits that the High Court has erred in holding
that the rigour of Article 14 would not be automatically
applicable “to the domain of appointment in public office
where the employer must strive to pick the best talent
available. To achieve such result, the employer must be
conferred a wide discretion to act in relaxation of the rigour
of the terms of an advertisement. The requirements spelt
out in an advertisement for appointment in public service
must, therefore, not to be understood to be inflexible
leaving no room for elasticity”. Learned senior counsel
further submitted that the High Court failed to appreciate
that claim of respondent No. 1 had been rejected upon due
consideration by respondent No. 3 after according him an
th
adequate opportunity by resolution dated 8 January,
2010.
21.
According to the learned senior counsel, the High
Court has proceeded on the erroneous assumption that the
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Commission had itself treated candidature of many
candidates to be provisional on account of the fact that
requisite certificates of age or educational qualifications had
not been submitted along with the application form.
According to Mr. Bhushan, the High Court has wrongly
concluded that the Public Service Commission had itself
treated the condition about the submission of necessary
certificates to be not mandatory and inflexible
requirements. According to the learned senior counsel, the
aforesaid conclusion of the High Court is factually
incorrect.
22. The learned senior counsel submits that respondent
No.3 had in fact rejected the candidature of respondent
No.1 strictly in accordance with the instructions issued in
the “Information to the candidates on the Combined
Competitive (Main) Examination”. Instruction No. 13
clearly stipulates that “any application form received
without all or some of the enclosures is liable to be
summarily rejected. Any enclosure which was not sent
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along with the application earlier but sent subsequently by
the candidates will not be entertained. Thus candidates
must ensure that the application form is properly filled in
and is accompanied by all the relevant documents.”
Mr. Bhushan submits that in the case of respondent No. 1,
he was required to submit an attested copy of certificate of
Locomotor Disability. The High Court records that the
necessary certificate was not submitted by respondent
No. 1 before the last date of receipt of applications, which
th
was 11 September, 2006. Learned senior counsel has also
relied on a judgment of this Court in the case of Karnataka
Public Service Commission & Ors. Vs. B.M. Vijaya
1
Shankar & Ors.
23. On the other hand, Mr. V. Hazarika, learned senior
counsel submits that the respondent No.3 reconsidered the
entire issue after the High Court set aside the resolution
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passed by respondent No.3 on 8 January, 2010.
Respondent No. 1 had to file W.P. (C) No. 950 of 2010 as
1
(1992) 2 SCC 206
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respondent No.3 again illegally rejected his candidatures.
He, therefore, challenged the selection of the appellant.
24. In the aforesaid writ petition, it was stated that in the
application, respondent No.1 had specifically mentioned
against Column No. 11 of the application form that he
suffers from Locomotor Disability upto 50%. He had
submitted a certificate issued by the District Medical Board,
st
Dhubri dated 21 January, 2004 in support of his claim to
be a physically handicapped person along with the identity
card issued by the District Social Welfare officer. It was
further his claim in the writ petition that he had qualified in
the main examination and was called for interview by call
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letter dated 1 December, 2008. It was further the case of
the respondent No. 1 that he had produced the necessary
documents in support of his claim of Locomotor Disability
to the extent of 50% along with the other certificates and
testimonials at the time of interview. However, when the
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select list was published on 15 June, 2009, the name of
respondent No.1 was not included therein. It was in fact
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the appellant, who had been selected for appointment. It
was also the case of the respondent No. 1 that the appellant
had scored 695 marks whereas respondent No.1 had scored
817 marks in the examination. In spite of having scored
higher marks, he was illegally and arbitrarily not selected.
25. The respondent No.1 had, therefore, submitted a
th
representation on 14 September, 2009 to respondent No.
3, seeking to question the selection of the appellant, who
had scored lesser marks. In the representation, respondent
No.1 had specifically stated that he had submitted the
necessary supporting documents along with the application
form. The said documents were verified at the time of
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interview on 11 December, 2008. The documents were
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also enclosed with the representation dated 14 September,
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2009. Therefore, on 4 December, 2009, the Deputy
Secretary of the Commission had informed respondent No.
1 that the identity card showing him to be suffering from
Locomotor Disability was not submitted along with the
application form for the main examination. Though the
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same is a compulsory document. Respondent No.1 was,
therefore, asked to submit the same to the Commission as
early as possible. On receipt of the communication dated
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4 December, 2009, respondent No.1 through his letter
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dated 10 December, 2008 addressed to the Deputy
Secretary of the Commission reiterated that the documents
had already been submitted and verified by the
Commission. However, he again sent an attested copy of
the identity card issued to him by the District Social
Welfare Officer, Dhubri.
26.
Learned senior counsel submits that taking into
consideration the aforesaid facts, the High Court correctly
came to the conclusion that respondent No. 3 had not
specifically denied the claim of the appellant that he had
produced the identity card at the time of interview
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on 11 December, 2008. The High Court had also taken
into consideration that the candidature of three other
candidates, who had not submitted the necessary
documents was treated as provisional. These candidates
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were included in the select list. Therefore, the High Court
has rightly concluded that the condition with regard to
submission of certificates and testimonials along with the
application or before the preliminary examination was not
mandatory. The action of the respondent No.3 in rejecting
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the candidature in the resolutions dated 8 January, 2010
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and 21 May, 2010 were rightly quashed by the High Court.
27. Mr. Bhushan, in reply, submitted that upon a
thorough examination of the entire fact situation,
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respondent No.3 in its resolution dated 21 May, 2010 has
clearly observed that respondent No.1 was treated as a
general candidate all along in the examination process and
was not treated as physically handicapped with Locomotor
Disability. The respondent No.3 also looked into the
question whether any other candidate, who had not
furnished any essential document with the application or at
the time of interview but submitted them after the interview
were accepted or not. Upon examination of the issue,
respondent No.3 has observed that in fact the candidature
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of one applicant namely Smt. Anima Baishya was
specifically rejected as she had submitted the application
before the Chairperson of respondent No.3 on
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26 February, 2009, claiming herself to be a SC candidate
for the first time. In the case of respondent No. 1, the
identity card was submitted for the first time with the letter
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dated 10 December, 2009 much after the examination
process was over.
28.
We have considered the entire matter in detail. In our
opinion, it is too well settled to need any further reiteration
that all appointments to public office have to be made in
conformity with Article 14 of the Constitution of India. In
other words, there must be no arbitrariness resulting from
any undue favour being shown to any candidate. Therefore,
the selection process has to be conducted strictly in
accordance with the stipulated selection procedure.
Consequently, when a particular schedule is mentioned in
an advertisement, the same has to be scrupulously
maintained. There can not be any relaxation in the terms
and conditions of the advertisement unless such a power is
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specifically reserved. Such a power could be reserved in the
relevant Statutory Rules. Even if power of relaxation is
provided in the rules, it must still be mentioned in the
advertisement. In the absence of such power in the Rules,
it could still be provided in the advertisement. However, the
power of relaxation, if exercised has to be given due
publicity. This would be necessary to ensure that those
candidates who become eligible due to the relaxation, are
afforded an equal opportunity to apply and compete.
Relaxation of any condition in advertisement without due
publication would be contrary to the mandate of quality
contained in Articles 14 and 16 of the Constitution of India.
29.
A perusal of the advertisement in this case will clearly
show that there was no power of relaxation. In our opinion,
the High Court committed an error in directing that the
condition with regard to the submission of the disability
certificate either along with the application form or before
appearing in the preliminary examination could be relaxed
in the case of respondent No. 1. Such a course would not
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be permissible as it would violate the mandate of Articles 14
and 16 of the Constitution of India.
30. In our opinion, the High Court was in error in
concluding that the respondent No.3 had not treated the
condition with regard to the submission of the certificate
along with the application or before appearing in the
preliminary examination, as mandatory. The aforesaid
finding, in our opinion, is contrary to the record. In its
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resolution dated 21 May, 2010, the Commission has
recorded the following conclusions:-
“Though Shri S. Khan had mentioned in his letter
dated 10.12.2009 that he was resubmitting the
Identity Card with regard to Locomotor Disability he,
in fact, had submitted the documentary proof of his
Locomotor Disability for the first time to the office of
the A.P.S.C. through his above letter dated
10.12.2009. However, after receiving the Identity
Card the matter was placed before the full
Commission to decide whether the Commission can
act on an essential document not submitted earlier
as per terms of advertisement but submitted after
completion of entire process of selection.
The Commission while examining the matter in
details observed that Shri S. Khan was treated as
General candidate all along in the examination
process and was not treated as Physically
Handicapped with Locomotor Disability. Prior to
taking decision on Shri S. Khan it was also looked
into by the Commission, whether any other
candidate’s any essential document relating to
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right/benefits etc. not furnished with the application
or at the time of interview but submitted after
interview was accepted or not. From the record, it
was found that prior to Shri S. Khan’s case, one Smt.
Anima Baishya had submitted an application before
the Chairperson on 26.2.2009 claiming herself to be
a S.C. candidate for the first time. But her claim for
treating herself as a S.C. candidate was not
entertained on the grounds that she applied as a
General candidate and the caste certificate in
support of her claim as S.C. candidate was furnished
long after completion of examination process.”
31. In the face of such conclusions, we have little
hesitation in concluding that the conclusion recorded by
the High Court is contrary to the facts and materials on the
record. It is settled law that there can be no relaxation in
the terms and conditions contained in the advertisement
unless the power of relaxation is duly reserved in the
relevant rules and/or in the advertisement. Even if there is
a power of relaxation in the rules, the same would still have
to be specifically indicated in the advertisement. In the
present case, no such rule has been brought to our notice.
In such circumstances, the High Court could not have
issued the impugned direction to consider the claim of
respondent No.1 on the basis of identity card submitted
after the selection process was over, with the publication of
the select list.
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32. In view of the above, the appeals are allowed and the
th
impugned judgment and order dated 4 March, 2010
passed in W.P.(C) No.950 of 2010 and impugned judgment
nd
and order dated 2 July, 2010 passed in W.P.(C) No.3382
of 2010 of the High Court are set aside.
……………………………..J.
[Altamas Kabir]
……………………………..J.
[Surinder Singh Nijjar]
New Delhi;
September 28, 2011.
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