Bedanga Talukdar vs Saifudaullah Khan & Ors

Bedanga Talukdar ... Appellant

VERSUS

Saifudaullah Khan & Ors. ...Respondents

O R D E R

1. Leave granted.

2. These appeals are directed against the impugned

judgment and order dated 4th March, 2010 in

Writ Petition (C) No. 950 of 2010 and impugned judgment

and order dated 2nd 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

on 10th 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

forms was fixed as 11th 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

dated 13th 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

dated 13th 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

dated 13th March, 2007, respondent No. 3 issued a

corrigendum on 5th 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

advertisement No. 6/2006 dated 10th August, 2006. It was

provided therein that candidates, who had applied earlier to

the advertisement No. 6/2006 dated 10th 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

applications under the corrigendum was 6th July, 2007.

7. Respondent No.1 had applied in response to the

advertisement dated 10th 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

physically disabled to the extent of 50% on 21st January,

2004. On the basis of this certificate, respondent No.1 was

issued an identity card by the District Social Welfare

Officer, Dhubri on 18th February, 2004 which specified his

disability to be Locomotor Disability to the extent of 50%.

The preliminary examination was held on 23rd 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

"Locomotor Disability", on or before 6th 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

him, he had submitted the certificate dated 21st 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

respondent No.1, were called for interview on 1st 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

selected candidates on 15th 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

14th 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

dated 21st 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

claim. According to respondent No. 1, on 4th 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

receipt of the communication dated 4th December, 2009.

Respondent No. 1 replied vide his letter

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dated 10th 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

time of interview on 1st December, 2008. In the letter dated

10th 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

dated 15th 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

Court being premature on 7th January, 2010. Thereafter,

on 5th 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

on 8th February, 2010. The High Court granted an ex-parte

order on 11th 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

prescribed time. On 14th 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

based on the identity card submitted on 10th 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

resolution dated 8th January, 2010. In its meeting dated

8th 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

the High Court in its order dated 4th March, 2010,

respondent No.3 in its meeting held on 21st 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

well as respondent No. 1 on 31st May, 2010.

17. At this stage, respondent No. 1 filed Writ Petition

No. 3382 of 2010 challenging the minutes dated 21st May,

2010 and the communication dated 31st 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

contained in the minutes of the meeting dated 21st 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

the order dated 4th 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

advertisement dated 5th 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

10th 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

for valid reasons in its resolution dated 8th 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

adequate opportunity by resolution dated 8th 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

was 11th 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

S hankar & Ors. 1

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

passed by respondent No.3 on 8th 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,

Dhubri dated 21st 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

letter dated 1st 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

select list was published on 15th 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

representation on 14th 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

interview on 11th December, 2008. The documents were

also enclosed with the representation dated 14th September,

2009. Therefore, on 4th 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

4th December, 2009, respondent No.1 through his letter

dated 10th 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

on 11th 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

the candidature in the resolutions dated 8th January, 2010

and 21st 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,

respondent No.3 in its resolution dated 21st 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

26th 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

dated 10th 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

resolution dated 21st 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

impugned judgment and order dated 4th March, 2010

passed in W.P.(C) No.950 of 2010 and impugned judgment

and order dated 2nd 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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