Full Judgment Text
REPORTABLE
2023INSC853
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6072 OF 2023
[ARISING OUT OF S.L.P. (C) NO. 9964 OF 2022]
SWEETY KUMARI …APPELLANT(S)
VERSUS
THE STATE OF BIHAR AND OTHERS ...RESPONDENTS
WITH
CIVIL APPEAL NO. 6073 OF 2023
[ARISING OUT OF S.L.P. (C) NO. 12637 OF 2022
WITH
CIVIL APPEAL NO. 6074 OF 2023
[ARISING OUT OF S.L.P. (C) NO. 16749 OF 2023]
J U D G M E N T
J. K. MAHESHWARI, J.
1. Leave granted.
2. In the instant three appeals, the judgments passed by the
Signature Not Verified
High Court of Judicature at Patna (hereinafter referred to as “ High
Digitally signed by
Nidhi Ahuja
Date: 2023.09.22
17:36:15 IST
Reason:
Court ”) in Sweety Kumari v. State of Bihar and Others (CWJC No.
1
18038/2021) dated 03.11.2021; Vikramaditya Mishra v. State of
Bihar and Others (CWJC No. 3707/2020) dated 04.09.2021; and
Aditi v. Bihar Public Service Commission Patna and Others. (CWJC
No. 15325/2022) dated 19.04.2023 are under challenge. By the said
judgments, the High Court upheld the decision of the official
Respondents. The candidature of appellants was rejected by the
official respondents on account of non-furnishing of original
character certificates (in case of Sweety Kumari and Vikramaditya
Mishra) and law degree (in case of Aditi) respectively.
3. The High Court in the first two cases dismissed the writ
petitions relying upon the order passed in the case of a similarly
situated candidate titled as Aarav Jain v. The Bihar Public Service
Commission and Ors. (CWJC No. 24282/2019) decided on
04.05.2021. Whereas in the third case, the High Court while dealing
with the case of the appellant Aditi and one similarly placed
candidate named Ankita, through a common order found that
though the appellant Aditi has her case on merits at par with Ankita,
but due to non-availability of the vacancy in EWS category the relief
as granted to Ankita cannot be extended to appellant Aditi.
4. The appellants Sweety Kumari, a candidate of Scheduled
Caste (SC) category and Vikramaditya Mishra, unreserved category
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th
candidate, appeared in 30 Bihar Judicial Service Competitive
th
Examination (hereinafter referred to as “ 30 Examination ”)
conducted for selection of Civil Judge (Junior Division) pursuant to
an Advertisement No. 6 of 2018 dated 21.08.2018/23.08.2018. Both
the candidates have been declared successful in the preliminary
examination vide the results declared on 07.01.2019 and main
examination vide result declared on 05.10.2019 after obtaining more
marks than the cut-off for their respective category. Pursuant to this,
they were called for interview vide letter dated 15.12.2019.
5. The candidature of the appellants Sweety Kumari and
Vikramaditya Mishra was rejected on account of not producing the
original character certificates at the time of interview. True
photocopies were produced. However, while declaring the result on
27.11.2019/29.11.2019, the candidature of the present two
appellants as well as of one, Aarav Jain were rejected by a common
communication.
6. On other hand, appellant Aditi applied in the Economically
st
Weaker Section (EWS) category in furtherance to the 31 Bihar
Judicial Service Competitive Examination (hereinafter referred to as
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“ 31 Examination ”). She secured 501 marks, whereas cut-off was
499. Her candidature was rejected on the ground of not having the
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law degree certificate on the date of interview. The candidature of
the similarly situated candidate Ankita was also cancelled on the
same ground. However, on the filing of separate writ petitions which
was disposed of by a common order, Ankita was granted relief by the
High Court due to availability of vacancy in SC category, but Aditi
was denied relief due to non-availability of the vacancy in the EWS
category.
7. In view of the foregoing factual scenario, the questions that
fall for consideration before us are as under:
i) Whether the rejection of the candidatures of the
appellants due to non-production of the original
certificate at the time of interview by the Bihar Public
Service Commission (hereinafter referred to as “ BPSC ”)
is justified?
ii) In the facts and circumstances of the case, what relief
can be granted to the appellants?
8. Undisputed facts of the case succinctly put are that the
appellants Sweety Kumari and Vikramaditya Mishra appeared in
th
30 Examination in furtherance to the advertisement No. 6 of 2018
published on 21.08.2018/23.08.2018 by the BPSC to fill up the 349
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vacancies. The said advertisement was issued in furtherance of the
Bihar Civil Service (Judicial Branch) Recruitment Rules, 1955
(hereinafter referred to as “ the Rules ”). Appellant Sweety Kumari
applied in SC category while appellant Vikramaditya Mishra applied
in the un-reserved category. Aarav Jain along with seven other
candidates also applied in the unreserved, SC, EBC and BC
categories respectively. Their candidature had also been rejected on
similar grounds. On challenging the said rejection, the High Court
passed a detailed order in CWJC No. 24282 of 2019 titled as ‘Aarav
Jain v. The Bihar Public Service Commission and others’ and
dismissed the said petition by upholding the rejection by the BPSC.
9. By the impugned orders dated 03.11.2021 and 04.09.2021,
the writ petitions filed by Sweety Kumari and Vikramaditya Mishra
respectively, have been rejected relying upon judgment dated
04.05.2021 passed in the case of Aarav Jain.
10. Aarav Jain and seven others similarly placed candidates filed
their respective petitions before this Court in Civil Appeal No. 4242
of 2022 titled Aarav Jain v. The Bihar Public Service Commission
and Ors. as the leading matter which were decided by a common
judgment dated 23.05.2022. By the said judgment this Court
repelled the contention of BPSC regarding cancellation of the
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candidature due to non-submission of the originals at the time of the
interview as their true photocopies were on record and subsequently,
the originals were also submitted before BPSC. This Court was of the
opinion that the plea of non-submission of the originals at the time
of interview is neither related to the qualification nor eligibility and a
verification and vigilance report is anyway obtained by the State
during probation. Therefore, the production of the original was not
a mandatory condition. The stand of the BPSC had materially
resulted in the dis-qualification of candidates who were otherwise in
the merit list. Therefore, in the facts and circumstances of the case,
this Court directed that the rejection of candidature was improper,
unjustified and not warranted.
11. This Court granted relief to the eight candidates in the civil
appeal of Aarav Jain (supra) by adjusting the available five
vacancies in the unreserved category and for the other three
candidates belonging to EBC, SC and BC category, it was directed to
the State to either adjust them against future vacancies which were
stated to be available at that time or the State was permitted to
borrow three posts from future vacancies, one each in respective
categories. It was also held that the power to vary the vacancies of
the said advertisement always vests in the employer under the
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wisdom and discretion of the State. This Court gave weight to the
fact that all the candidates secured marks more than the cut-off and,
therefore, such meritorious candidates would only be an asset for
the institution helping in disposal of cases. This Court further
directed to allow to all these eight candidates the benefits of
increment and other notional benefits at par to other selected
candidates as per their merits without arrears of salary.
12. In the said appeal, one Jyoti Joshi filed an application for
intervention seeking directions for her appointment in
implementation of judgment dated 09.02.2022 passed in CWJC No.
7751 of 2020 by the High Court and also sought clarification to the
effect that the interim order dated 23.07.2021 passed in Aarav Jain
(supra) has not interfered with her appointment. This Court
dismissed the said intervention application vide the judgment passed
in Aarav Jain (supra) and denied her the benefit because she was
in the waiting list and not in the merit list. More so, the interim
orders dated 23.02.2021, 08.10.2021 and 07.02.2022 passed in
Aarav Jain (supra) , keeping the posts vacant, being prior in time,
have also not been brought to the notice of the High Court, before
passing of the final order dated 09.02.2022. It is apparent that the
civil appeals filed in the case of Aarav Jain (supra) have been
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decided in favour of the candidates and against the employer and the
said order was already implemented.
13. We have heard learned counsel for the parties and have
perused the Bihar Civil Service (Judicial Branch) (Recruitment),
Rules, 1955 (hereinafter referred to as the ‘ Rules ’) and the
Advertisement No. 6 of 2018. Rule 7(b) of the Rules contemplates
that a candidate must satisfy BPSC that his character is such as to
qualify him for appointment to the service. Rule 9 prescribes that
the candidate should submit evidence as to educational
qualifications; certificate of character from the Heads of the Colleges,
where he/she has studied; the reference of two known persons;
certificate of medical practitioner in prescribed form; and the
certificate of the duration of practice from the respective authorities.
The second note to Rule 9 indicates that the certificates and other
documents required should be true copies of the originals and each
of them should be certified by a gazetted officer, specifying that after
seeing the original, he certified the true copy of the same. The
candidate may be required to produce the original before BPSC at
the time of viva voce test.
14. In view of this position in the rules it can safely be perceived
that the candidate must be of good character so as to satisfy BPSC
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in this regard by submitting true photocopies and upon requirement
by BPSC, the original may be produced at the time of viva voce test.
Therefore, it is clear that the candidate should possess the character
certificate and if required, it may be made available at the time of
interview. The said language makes it clear that the production of
the original certificates at the time of interview is not mandatory but
directory. This is apparent from the language of second note to Rule
9 which uses the word “may be required to produce the originals
before commission at the time of viva-voce test”.
15. In furtherance to the Rules, the advertisement No. 6 of 2018
was issued. Clause 7(ii) of the said advertisement is regarding online
applications which prescribes that for any defects in entry made by
candidate in the course of filling the online application, the
commission shall not be responsible, and correction and change in
this regard shall not be permissible. As per Clause 8(1) of the
advertisement, the documents attached to the online application
form may be produced when the commission demands at the time of
the interview or at any point of time. As per Clause 9, the certificates
regarding qualification is required to be possessed prior to the last
date. As per Clause 10, all the certificates and marksheets are
required to be submitted at the time of interview and the commission
9
shall have discretion to take a decision regarding eligibility of
candidates not complying with the said directions. Clause 11 of the
advertisement relates to the fact that the candidate shall ensure that
he has all the required certificate in original at the time of filling of
application form.
16. In view of the various clauses, as referred to hereinabove,
even going by the advertisement, the certificates of educational
qualification and other required documents on the date of the
submission of the online application form must be necessarily
possessed but its production is not mandatory. In clause 3 of the
interview letter sent to the candidates, indeed it was mentioned that
they shall be present with the certificates, mark-sheet and other
documents including character certificate, in original form and its
self-attested photocopies in two numbers. Appellant Sweety Kumari
has averred in the writ petition and the Special Leave Petition that
her original character certificate was submitted in the State Bar
Council and the same was not made available to her within the
stipulated deadline despite her best attempts. On the other hand,
appellant Vikramaditya Mishra has averred that the department of
his Law College has sent the original character certificate to the
Controller of Examination, BPSC by post which was dispatched on
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25.11.2019 and delivered to BPSC on 27.11.2019. Despite, the same,
their candidature was rejected for want of original copies of the
character certificate.
17. In the case of Aarav Jain (supra) , this Court has not
accepted the plea taken by BPSC that production of original
certificate was mandatory because the candidates possessed such
certificates on the date of submission of the application form. This
Court was of the opinion that once such a condition is not
mandatory, then non-production of original copies at the time of
interview would not be sufficient to reject the candidature of a
candidate who was placed in the merit.
18. The view taken by this Court is fortified by the analogy drawn
in the case of Charles K. Skaria and Others vs. Dr. C. Mathew
and Others (1980) 2 SCC 752 whereby Justice Krishna Iyer
speaking for the Court held that the factum of eligibility is different
from factum of proof thereof. This Court held that if a person
possesses eligibility before the date of actual selection, he cannot be
denied benefit because its proof is produced later.
19. In the present case, the proof is available and true
photocopies were on record. The appellants’ candidature could not
11
have been rejected merely because the original was not produced
before the Commission at the time of interview in particular when
such requirement was not mandatory, in view of the manner in
which the Rules are couched.
20. Now, coming to the case of appellant Aditi in SLP (Civil) No.
16749/2023, she has passed the final examination but the
certificate of law degree was not issued to her. The High Court in the
impugned order dated 19.04.2023 has relied upon the judgment of
Charles K. Skaria (supra) to support her contention and observed
that when the candidate possesses the required essential
qualification on the date on which it was required, then there cannot
be any justification in not accepting the late arrival of the certificate
because of the pandemic. However, the High Court has declined to
grant the relief on the pretext that she had applied under EWS
category for which 23 posts were earmarked and those posts have
already been filled up. The High Court also observed that though she
has secured 501 marks which was 2 marks more than the cut off
for the EWS category, but it was not known as to who may be the
last successful candidate in the EWS category. Also at the time of
passing of impugned order those posts had already been filled. Thus
due to non-availability of posts, the relief was denied.
12
21. As per the directions issued by this Court vide order dated
14.8.2023, the Registrar General of the High Court of Judicature at
Patna filed an affidavit after perusing the documents produced before
him by the State of Bihar and the BPSC. In the said affidavit, it is
admitted that the case of the appellants Sweety Kumari and
Vikramaditya Mishra is similar to the case of Aarav Jain (supra).
As per the information furnished by the High Court, appellant
Sweety Kumari in SC category secured 414 marks when the cut-off
was 405 marks and the appellant Vikramaditya who applied under
unreserved category secured 543 marks whereas the cut off under
the unreserved category was 517. It is also fairly stated that in the
th
30 Examination, the total vacancies were 349 but after issuing of
the directions by this Court, the State appointed 351 candidates
deducting one post each of EWS and SC category from the future
nd
vacancies which were to be advertised under the 32 Examination.
22. Learned counsel for the appellant Sweety Kumari has fairly
st
stated before this Court that she got selected in the 31 Examination
under the SC category and joined the service. In view of the
discussion made hereinabove and the affidavit filed by the Registrar
General, it is clear that the case of appellant Sweety Kumari and
appellant Vikramaditya Mishra are at par with the case of Aarav Jain
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and other seven candidates who were appointed in furtherance of the
judgment of this Court dated 23.05.2022 in Aarav Jain (supra) .
23. Appellants in Aarav Jain (supra) have been appointed by the
State Government extending the number of vacancies advertised in
th
the 30 Examination by borrowing those extra vacancies from the
nd nd
32 Examination. The vacancies notified for the 32 Examination
are in process of being filled. The case of appellants Sweety Kumari
and Vikramaditya Mishra were dismissed by the High Court relying
upon its earlier judgment dated 04.05.2021 in Aarav Jain v. The
Bihar Public Service Commission (CWJC No. 24282/2019). The said
judgment dated 04.05.2021 was challenged by Aarav Jain and seven
other candidates by filing special leave petitions. The said special
leave petitions were converted into civil appeals and this Court vide
judgment dated 23.05.2022 set-aside the judgment dated
04.05.2021 of the High Court.
24. Therefore, there cannot be any reason to deny similar benefits
to the present two appellants at par with Aarav Jain and seven other
candidates as ordered by this Court in Aarav Jain (supra) . We are
of the considered view that present aforesaid two appellants (Sweety
Kumari, Vikramaditya Mishra) cannot be discriminated by not
granting relief merely because of non-availability of vacancies in the
14
th
30 Examination.
25. Reverting to the case of appellant Aditi, which is related to
st
the 31 Examination, as per the affidavit submitted by the Registrar
General, it is apparent that out of 221 vacancies advertised, only 214
candidates were recommended for appointment and seven vacancies
nd
have been carried forward to the 32 Examination. Thus, there are
nd
vacancies, which are yet to be filled up for the 32 Examination. The
process of selection is not yet complete. Learned counsel appearing
on behalf of the State of Bihar and BPSC, in the peculiar facts of the
case, have fairly stated that because of the directions issued by this
Court in the case of Aarav Jain (supra) , the other candidates who
secured more marks than the cut-off in the merit of the respective
categories, can be accommodated. However, upon issuance of
directions by this Court, the State Government is ready to
accommodate all the three candidates (namely Sweety Kumari,
Vikramaditya Mishra and Aditi) who have also secured more marks
than cut-off for their respective categories.
26. In view of the discussion made hereinabove, because Sweety
Kumari secured 414 marks though cut off in SC category was 405
and Vikramaditya Mishra secured 543 marks, though cut off was
th
517 in the unreserved category in the 30 examination and they were
15
candidates of merit, they be extended the benefit at par with the
Aarav Jain (supra) and others.
st
27. The appellant Aditi appeared in 31 Examination, and
secured 501 marks, whereas cut off was 499 in EWS category.
Therefore, the respondents are directed to adjust one vacancy of
EWS for the same examination or from the next examination and
extend similar benefits to Aditi, in view of the ratio of Aarav Jain
(supra).
28. Accordingly, we set-aside the impugned judgments dated
03.11.2021, 04.09.2021 and 19.04.2023 passed by the High Court.
The appellants Sweety Kumari and Vikramaditya Mishra be
th
accommodated being successful candidate in the 30 Examination
and appellant Aditi be accommodated being a successful candidate
st
in the 31 Examination.
29. We clarify that this judgment is passed in the peculiar facts
of the case to mitigate the plea of discrimination to candidates who
are before us and who knocked the door of the court well within time.
It is made clear here that similarly situated candidates would not be
entitled to claim the same benefit further, because they have not
come before this Court within a reasonable time.
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30. In view of above, the appeals are allowed. Pending
application, if any, stands disposed of. No order as to costs.
..……..……..........…......J.
(J.K. MAHESHWARI)
……….……...................J.
(K.V. VISWANATHAN)
NEW DELHI;
nd
SEPTEMBER 22 , 2023.
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