Divya vs Union Of India

2023INSC900 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 724 OF 2023

Divya …Petitioner (s)

Versus

Union of India & Ors. ...Respondent(s)

WITH

WRIT PETITION (C) NO. 705 OF 2023

WRIT PETITION (C) NO. 764 OF 2023

JUDGMENT

K.V. Viswanathan, J.

1. These writ petitions raise questions involving the

interpretation of the Office Memoranda [OM] dated

Signature Not Verified 19.01.2019 and 31.01.2019 prescribing the eligibility for the Digitally signed by Nidhi Ahuja Date: 2023.10.11 13:17:58 IST Reason: Economically Weaker Section [EWS] Category.

1 Additionally, they also involve the interpretation of the Civil

Services Examination Rules, 2022 [CSE-2022 Rules],

particularly, Rules 13, 27 and 28 thereof. The petitioners, for

diverse reasons, were denied the benefit of the EWS category

by the Union Public Service Commission [UPSC] for the Civil

Services Examination of the year 2022. Was the UPSC

justified in denying them the benefit of reservation under the

EWS category, is the main question involved. The three Writ

Petitions involve different sets of facts. The factual parts are

dealt with separately. The legal submissions broadly overlap.

Whereever they need to be separately discussed, the same has

been done at the appropriate place.

Writ Petition (C) No. 724 of 2023:

2. The petitioner – Ms. Divya was a candidate for the Civil

Services Examination, 2022 (CSE-2022). She had already

qualified for the Indian Police Service in the Civil Services

Examination, 2021 and was allotted the Manipur Cadre.

Wanting to fulfil her ambition of joining the Indian 2 Administrative Service (IAS), she applied for the CSE-2022.

The category in which she wanted to be considered was in the

Economically Weaker Section (EWS) category.

3. The CSE-2022 is governed by the Civil Services

Examination Rules, 2022. These Rules were promulgated on

02.02.2022. These Rules are crucial for the adjudication of the

case as the outcome of the case turns on the interpretation of

these Rules, particularly, Rules 13, 27 & 28 thereof.

Office Memoranda Dated 19.01.2019 & 31.01.2019:

4. By an Office Memorandum of 19.01.2019, the

Government of India, Ministry of Personnel, Public

Grievances and Pensions, Department of Personnel and

Training (DoPT) prescribed the criterion to be eligible to apply

under the EWS category. The prescription was that firstly, a)

the persons should not be covered under the existing scheme

of reservations for the SC/ST and the Socially and

Economically Backward Classes and b) their family gross

annual income must be below Rs.8 lakhs.

3 Secondly, the income was to include income from all

sources i.e. salary, agriculture, business, profession etc. and it

will be income for the Financial Year [FY] prior to the year of

application. Thirdly, the persons whose family owns or

possesses any of the following assets are to be excluded from

the category of EWS, irrespective of the family income:

i) 5 acres of Agricultural Land and above;

ii) Residential flat of 1000 sq. ft. and above;

iii) Residential plot of 100 sq. yards and above in the

notified municipalities;

iv) Residential plot of 200 sq. yards and above in areas

other than the notified municipalities.

Fourthly, the income and assets of the families as mentioned

above was to be certified by an Officer not below the rank of

a Tehsildar in the States/Union Territories (UTs). The Officer

was to issue the certificate after carefully verifying all relevant

documents following due process as prescribed by the

respective States/UTs.

4

5. This was followed up by another Office Memorandum

[OM] dated 31.01.2019 issued by the Department of Personnel

& Training, Government of India. Under this OM, issued in

continuation to the OM of 19.01.2019, in Clause 5 it is

provided as under:

5. INCOME AND ASSET CERTIFICATE ISSUING AUTHORITY AND VERIFICATION OF CERTIFICATE:

“5.1 The benefit of reservation under EWS can be availed upon production of an Income and Asset Certificate issued by a Competent Authority. The Income and Asset Certificate issued by any one of the following authorities in the prescribed format as given in Annexure-I shall only be accepted as proof of candidate's claim as belonging to EWS:-

(i) District Magistrate/Additional District Magistrate/ Collector/Deputy Commissioner/Additional Deputy Commissioner/ 1st Class Stipendary Magistrate/ Sub-

Divisional Magistrate/Taluka Magistrate/Executive Magistrate/Extra Assistant Commissioner.

(ii) Chief Presidency Magistrate/Additional Chief Presidency Magistrate/ Presidency Magistrate.

(iii) Revenue Officer not below the rank of Tehsildar and

(iv) Sub-Divisional Officer or the area where the candidate and/or his family normally resides.

5.2 The Officer who issues the certificate would do the same after carefully verifying all relevant documents

5 following due process as prescribed by the respective State/UT.

5.3 The crucial date for submitting income and asset certificate by the candidate may be treated as the closing date for receipt of application for the post, except in cases where crucial date is fixed otherwise.

5.4 The appointing authorities should, in the offer of appointment to the candidates claiming to be belonging to EWS, include the following clause:-

"The appointment is provisional and is subject to the Income and asset certificate being verified through the proper channels and if the verification reveals that the claim to belong to EWS is fake/false the services will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of the Indian Penal Code for production of fake/false certificate."

The appointing authority should verify the veracity of the Income and asset certificate submitted by the candidate through the certificate issuing authority.

5.5 Instructions referred to above should be strictly followed so that it may not be possible for an unscrupulous person to secure employment on the basis of a false claim and if any person gets an appointment on the basis of such false claim, her/his services shall be terminated invoking the conditions contained in the offer of appointment.”

Civil Services Examination Rules, 2022 :

6. For the sake of convenience, we set out herein below

Rules 13, 27 & 28 of the CSE-2022 Rules: -

6

“Detailed Application Forms-I:

13. For the Main Examination, a candidate shall be required to submit an on-line Detailed Application Form-I (DAF-I) along with scanned documents/ certificates in support of date of birth, category [viz.

SC/ST/OBC (without OBC Annexure)/EWS (without EWS Annexure)/PwBD/Ex-Servicemen] and educational qualification with required Examination Fee, within the prescribed time for the same. Any delay in submission of the DAF-1 or documents in support beyond the prescribed date will not be allowed and will lead to cancellation of the candidature for the CSE-2022.

Eligibility for Availing Reservation:

27.(1) A candidate will be eligible to get the benefit of community-based reservation only in case the particular community/caste to which the candidate belongs is included in the list of reserved communities issued by the Central Government.

(2) The OBC candidates applying for CSE-2022 must produce OBC (Non-Creamy Layer) certificate based on the income for the Financial Years (FYs) 2018- 2019, 2019-2020 and 2020-2021.

(3) A candidate at CSE-2022 will be eligible to get the benefit of the Economically Weaker Section reservation only in case the candidate meets the criteria issued by the Central Government and is in possession of requisite Income & Asset Certificate based on the income for Financial Year (FY) 2020- 2021.

28. Candidates seeking reservation/relaxation benefits available for SC/ST/OBC/EWS/ PwBD/ Ex-servicemen must ensure that they are entitled to such reservation/relaxation as per eligibility 7 prescribed in the Rules/Notice. They should also be in possession of all the requisite certificates in the prescribed format in support of their claim as stipulated in the Rules/Notice for such benefits by the closing date of the application for Civil Services (Preliminary) Examination-2022.”

7. A careful perusal of the Rules would disclose that, under

Rule 28, candidates seeking reservation under EWS for the

purpose of CSE-2022 must ensure that they are entitled to such

reservation as per the eligibility prescribed in the Rules. The

eligibility prescribed for EWS under Rule 27(3) is that the

candidate should meet the criteria issued by the Central

Government and should be in possession of requisite Income

& Asset Certificate (I&AC) based on the income for Financial

Year 2020-2021. Secondly, the candidates should also be in

possession of all the requisite certificates in the prescribed

format by the closing date of the application for Civil Services

(Preliminary) Examination - 2022.

It can be seen from the above-mentioned clauses that the

benefit of reservation can be availed on possession of Income 8 & Asset Certificate [I&AC] issued by a Competent Authority.

Under Clause 5.3 of the OM, the crucial date for submitting

I&AC may be treated as the closing date for receipt of

application for the post, except in cases where crucial date is

fixed otherwise.

8. As it would be clear from the Office Memoranda dated

19.01.2019 & 31.01.2019 r/w Rule 27 & 28 of the CSE-2022

Rules, for claiming reservation under EWS category, the

I&AC must be as per the prescribed norms and must be in

possession of the candidate on or before the cut-off date.

9. The applicable date for possession in this case is

22.02.2022. This is because after the promulgation of the

Rules, the third respondent – Union Public Service

Commission [UPSC] issued the examination notice on

02.02.2022 and the last date for submission of the application

was 22.02.2022 and the time of deadline was 6.00 p.m. on that

day.

9

10. As is clear from Rule 13 extracted above, the uploading

of the certificates happens only after the declaration of the

results of the Preliminary Examination and before the Main

Examination is held. For the Main Examination, a candidate

is required to submit an on-line Detailed Application Form–I

(DAF-I) along with scanned documents/certificates in support

of the claim for EWS category within the prescribed time.

11. Any delay in submission of the DAF-I or documents in

support beyond the prescribed date was not to be allowed and

would lead to cancellation of the candidature.

12. What is clear from the above is, before the closing date

of application, the candidate has to be in possession of the

requisite Certificate for the Financial Year 2020-2021 and

before the Main Examination, the candidate is expected to

upload the Certificate.

Case of the petitioner:

13. The petitioner claims that she had the EWS Certificate

for the year 2019-2020 since it was issued to her on 09.10.2020 10 by the Haryana Government. However, according to her, even

after making serious efforts to apply for the EWS Certificate

for the Financial Year 2020-2021, she could not apply or get

the same before 22.02.2022 due to COVID-19 Pandemic and

the lockdown in Haryana till 06.09.2021; and even thereafter

due to the COVID cases prevalent during the middle of 2022;

that the Office of the Revenue Authorities was not functional

for general administrative work and only COVID related work

was being undertaken; that the Certificate is issued by the

Village Tehsildar and there was no regular Tehsildar for

District Mahendragarh since 2020 and the Tehsildar from a

nearby place occasionally came to the Village only to perform

administrative functions.

14. For these reasons, the petitioner states that she was

unable to obtain the Certificate for the Financial Year 2020-

2021 before 22.02.2022. It is also admitted by her that, by

13.12.2022, she was able to obtain the EWS Certificate for the

11 Financial Year 2021-2022 but was not able to obtain the EWS

Certificate for 2020-2021 till 01.06.2023.

15. For the CSE-2022, the Preliminary Examination was

held on 05.06.2022 and the results were declared on

22.06.2022 and the petitioner qualified for the Main

Examination.

16. The petitioner submitted DAF-I for the CSE 2022

between 06.07.2022 and 15.07.2022 and uploaded the EWS

Certificate for the Financial Year 2019-20, as she did not have

the Certificate for any other year. The Main Examination was

held in September 2022 and the results were declared on

06.12.2022.

17. On 05.01.2023, the Under Secretary of the UPSC issued

an e-mail informing her that the EWS certificate uploaded by

her was not in the prescribed format and she was requested to

produce the Certificate in the prescribed format bearing date

prior to 22.02.2022.

12

18. On 10.02.2023, she attended and participated in the

interview and produced the Certificates of EWS for the

Financial Year 2019-2020 and Financial Year 2021-2022.

Thereafter, on 14.02.2023, she submitted a letter with the EWS

Certificates for the Financial Year 2019-2020 and Financial

Year 2021-2022 and, according to her, the same was received

by the UPSC. This is, however, controverted by the UPSC by

saying that mere delivery of the letter at the letter receiving

section (Dak section) will not amount to acceptance of the

same.

19. According to the petitioner, on 30.05.2023, she was

informed, vide e-mail, that her candidature has been converted

to General Category from EWS Category. Thereafter, the

petitioner states that, on 21.06.2023, she sent a representation

to the Department of Personnel and Training (DoPT) seeking

acceptance of her EWS Certificate for the Financial Year

2020-2021 received by her on 01.06.2023 and that she had not

received any reply. She claims that she also e-mailed to the 13 official e-mail ID of the Chairman, UPSC but received no

reply.

20. Being aggrieved, the petitioner has filed this Writ

Petition since she claims that she had secured All India Rank

[AIR] 105 and if she were to be considered in the EWS

Category, her cut-off would qualify her, for admission to the

CSE-2022 in the IAS Cadre. In the Writ Petition, she has

prayed for the following reliefs:

“(i) Issue a Writ, Order or Direction in the nature of Certiorari for quashing email dated 30.05.2023 issued by Respondent no. l;

(ii) Issue a Writ, Order or Direction in the nature of Mandamus directing the Respondents to retain the petitioner in the economically weaker section (EWS) category and accept the EWS certificate submitted by the petitioner for financial year 2020-2021, for the purpose of recruitment pursuant to Civil Services Examination 2022;

(iii) Issue a Writ, Order or Direction declaring Rule 13, Rule 27 (3) and Rule 28 of the Civil Service Examination Rules 2022, to the extent that it prescribes that candidates must be in possession of the EWS Certificate as on the closing date of the application for Preliminary Examination, to be ultra vires Article 14 of the Constitution of lndia as being arbitrary;”

14

21. The detailed facts pertaining to the petitioners in W.P.(C)

Nos. 705 and 764 have been set out in the later part of this

judgment. Insofar as the petitioners in W.P. (C) Nos. 705 and

764 are concerned, there is no dispute on one fact that with

regard to all of them, the documents submitted with DAF-I

were not the correct documents reflecting their eligibility.

Admittedly, there was some lacunae or the other which they

claim were rectified beyond the date of submission of DAF-I.

The UPSC, in its counter affidavit, has clearly urged that with

regard to the 298 EWS candidates, who were ultimately

shortlisted, the I&AC as uploaded by them in DAF-I was

scrutinized and they have rejected their candidature or

converted some of them to the General Category.

Stand of the UPSC:

22. The UPSC has filed a detailed counter affidavit and has

also filed an additional affidavit explaining their position.

23. According to the UPSC, every year they conduct

smoothly a number of structured examinations, including Civil 15 Services Examination and several recruitment tests involving

nearly thirty lakh candidates/applicants. It is averred that the

UPSC has elaborate methods/systems and procedures

developed over nine decades. That the Civil Services

Examination for recruitment to the IAS, IFS, IPS and other

various Central Services in Group ‘A’ and ‘B’ is held in

accordance with the CSE Rules framed and notified by the

Government of India in the DoPT.

24. According to the UPSC, all candidates seeking

reservation are bound by Rule 28 of the CSE-2022 Rules and

that they must meet the criterion prescribed by the Central

Government and be in possession of the requisite

documents/certificates in the prescribed format before the cut-

off date notified by the UPSC. That the petitioner was

informed on 10.02.2023 that her admission was provisional as

she had not submitted I&AC based on the income of F.Y.

2020-21 and that the petitioner signed an undertaking in that

regard. The UPSC contends that under Rule 27(3), candidates 16 applying under the EWS quota were eligible only if the

candidates meet the criteria issued by the Central Government

and the candidate must be and is in possession of I&AC based

on the income for the Financial Year 2020-2021. It is averred

that since the petitioner furnished I&AC based on the income

for F.Y. 2019-2020, she could not be treated under the EWS

Category, and she was duly intimated on 30.05.2023 that she

had to be considered under the General Category.

25. It is averred that the petitioner was not the only candidate

whose category was changed to General, due to non-

submission of I&AC based on the income of F.Y. 2020-2021

issued beyond the closing date i.e. 22.02.2022. It is averred

that, as many as 36 candidates, who had applied under the

EWS, were not treated as EWS as they failed to upload the

valid I&AC with their DAF-I. According to the UPSC, out of

the 36 candidates, the category of 22 candidates was changed

from EWS to General as they had qualified the CSE-2022 on

17 General Standards and with regard to 14 candidates, who

failed to qualify, their candidature was cancelled.

26. According to them, a similar exercise has been carried

out for CSE-2021 also. It is averred by the UPSC that the

mechanism employed by them regarding the filing of DAF

post pandemic has been online, removing any scope for

manual intervention and, as such, the submission of the

petitioner that no objection was raised during the filing of

DAF-I was without merit and substance. It is further averred

that even during the pandemic period, CSEs were conducted.

Most importantly, it is averred that in the CSE-2022, from the

State of Haryana 80 EWS candidates had submitted valid

I&AC issued on the basis of F.Y 2020-2021. It is averred that

the Rules being sacrosanct should not be relaxed as any

relaxation would amount to relaxing in favour of a ‘selected

few’. Finally, it is averred that any relaxation would pave the

way for others to demand for relaxing the Rules in their favour.

18

27. In the additional affidavit filed on 26.08.2023, the UPSC

has averred that the result of the Preliminary Examination was

prepared, keeping in view the relevant category of the

candidates, and declared on 22.06.2022. According to the

UPSC, as per the Rules of the Examination, the number of

candidates to be admitted to the Civil Services (Main)

Examination was to be about twelve to thirteen times the

number of vacancies to be filled through the Examination.

Accordingly, 13,090 candidates (12.8 times of 1,022

vacancies) were declared qualified for the next stage i.e. the

Main Examination. The cut-off marks for each Category were

applied and the Category wise number of candidates who

qualified for admission to the written part of the Main

Examination were set out. That it was averred that the

Category wise ‘cut-off’ at every stage was fixed by the UPSC,

keeping in view the number of vacancies in each Category, the

ratio required at that particular (intermediary) stage and the

number of candidates available on particular point of marks. 19 It is averred that, while determining the category wise cut-off

to be applied at every intermediate stage, only the data is taken

into consideration without the individual details of the

candidates. It is averred that once the cut-off is determined by

the UPSC on the basis of the details, all the candidates, who

have secured marks equally or more than the cut-off, are

shortlisted for the next stage of the Examination. It is averred

that if any ineligible candidate is allowed to remain in the fray,

an eligible candidate would be excluded from the zone of

consideration. It is averred that if the number of candidates is

changed to include extra candidates, the cut-off fixed by the

UPSC will be impacted and will result in inclusion of many

such candidates, who ought not to have been included

affecting the whole process of the Examination.

28. It is averred that out of 13,090 candidates, 13,051

candidates finally submitted their DAF-I. As per the result of

the CSE (Main) Examination, 2022 which was declared on

06.12.2022, 2,529 candidates (2.5 times of 1022 vacancies), as 20 per the Rules of the examination, were declared qualified for

the interview. That the documents of 2,529 candidates were

scrutinized and the candidates were notified of their deficiency

in the certificates; that 298 candidates qualified the interview

belonging to the EWS Category and the I&ACs of the 298

candidates were scrutinized; that 28 candidates were failed

either due to their not possessing I&AC by 22.02.2022 or for

failure to upload I&ACs issued on the basis of income for the

F.Y. 2020-2021; that 14 candidates who fulfilled the General

Standard were adjusted against the General quota and their

category was changed from EWS to General.

29. Strongly refuting the plea of the inability of the petitioner

due to COVID-19 to obtain the Certificate within time, it is

averred by the UPSC that the petitioner had availed the benefit

under EWS Category in the CSE 2021 by producing IA&C

dated 09.10.2020 during the peak of the pandemic and that the

plea of the petitioner, according to the UPSC, was highly

improbable and did not deserve to be sustained. 21 Response of the petitioner:

30. This affidavit has been countered by the petitioner by

contending that, in her application, she had communicated her

Category as EWS; that the petitioner was counted among the

1281 EWS candidates who qualified for the Preliminary

Examination and were admitted to the Main Examination; that

the petitioner was never excluded at any stage due to her

inability; that the UPSC itself admitted that the scrutiny of

documents uploaded with DAF-I does not happen between the

Preliminary Examination and the Main Examination; that the

petitioner was part of the 298 EWS candidates who had

qualified the Main Examination; that the I&AC was

scrutinized after the candidates were called for the interview

and at the time of the interview the petitioner had shown the

Certificate for the F.Y. 2019-2020 and 2021-2022 and before

allocation of service, she had also submitted the Certificate for

the F.Y. 2020-2021. In view of that, it is averred that the

petitioner should not be excluded since the delayed submission 22 had, in fact, not affected the Category wise selection process

at any stage.

Contentions:

31. We have considered the averments and the pleadings and

heard the learned counsel for the respective parties at great

length.

32. Ms. Preetika Dwivedi, learned counsel for the petitioner

(Ms. Divya), reiterated her case set out in the pleadings and

also sought to draw support from certain judgments of this

Court. Shri K. Parameshwar, learned Counsel, argued for the

petitioners in the other two writ petitions. Both the learned

counsel, brought to bear, considerable diligence in their

preparation and presentation of the case.

33. The primary contention of the learned counsel for the

petitioners is that, once their categorization as an EWS was not

in dispute, mere inability to have the Certificate as of

22.02.2022 should not operate to their prejudice. According

to them, the delayed submission did not affect the Category 23 wise allocation process at any stage and that there was no

rationale for insisting on the Certificate to be dated before the

cut-off i.e. 22.02.2022, namely, the last day for submission of

the application for Preliminary Examination. They relied on

Ram Kumar Gijroya vs. Delhi Subordinate Services

Selection Board & Anr. (2016) 4 SCC 754, Karn Singh Yadav

vs. Govt. of NCT of Delhi & Others 2020 SCC OnLine SC

1472 (two-Judges) and 2022 SCC OnLine SC 1341(three-

Judges), Charles K. Skaria & Others vs. Dr. C. Mathew &

Others, (1980) 2 SCC 752, Dolly Chhanda vs. Chairman,

JEE and Others, (2005) 9 SCC 779, Dheerender Singh

Paliwal vs. Union Public Service Commission, (2017) 11

SCC 276, Alok Kumar Singh and Others vs. State of Uttar

Pradesh and Others, (2018) 18 SCC 242 and Deepak Yadav

& Others vs. Union Public Service Commission and Another,

(2021) SCC OnLine SC 709. Additionally, and quite feebly, a

contention was also raised that CSE-Rules 2022 have no

statutory flavour and are not enforceable in law. 24

34. Ms. Aishwarya Bhati, learned ASG for the Union of

India and Mr. Naresh Kaushik, learned counsel for the

Respondent No.3-UPSC, thoroughly and painstakingly

countered the submissions of the petitioners. According to the

learned counsel, the present was a case where there was a clear

prescription in the form of rules. Learned counsel relied on

OM dated 19.01.2019, 31.01.2019 & Rule 13, 27 & 28 of the

CSE-2022 Rules to contend that eligibility is acquired as an

EWS candidate only after the candidate meets the criteria

issued by the Central Government and is in possession of the

requisite I&AC based on the income for F.Y. 2020-2021; that

under Rule 28, the candidates should be in possession of all the

requisite certificates in the prescribed format in support of their

claim by the closing date of the application viz. 22.02.2022;

that for the Main Examination, a candidate is required to

submit DAF-I along with scanned documents in support within

prescribed time for the same; any delay in submission of the

DAF-I or documents in support beyond the prescribed date 25 was not allowed and would lead to cancellation of the

candidature. Learned counsel distinguished the cases of

Charles K. Skaria (Supra), Dolly Chhanda (supra) and

Dheerender Singh Paliwal (supra) by stating that in those

cases the candidates, who were given relief, possessed the

eligibility before the cut-off date and the issue was only about

submission of proof. Learned counsel relied on Ashok Kumar

Sharma and Others vs. Chander Shekhar and Another

(1997) 4 SCC 18 and Union Public Service Commission vs.

Gaurav Singh & Ors. [C.A. No. 4152 of 2022 decided on

18.05.2022] to reinforce their submissions and distinguished

the case of Deepak Yadav (supra) as having been confined to

its special facts for the extraordinary COVID year. Learned

counsel submitted that Ram Kumar Gijroya (supra) case was

also clearly distinguishable and that the petitioners could not

derive any benefit from it.

26

35. Learned counsel contend that the petitioners should be

estopped from challenging the validity of the selection process

since they have participated in the selection.

36. Learned counsel contend that the explanation given for

not obtaining the certificate between 01.04.2021 and

21.02.2022 by the writ petitioner (Divya) in W.P. (C) No. 724

of 2023 is completely untenable. Learned counsel for the

UPSC drew our attention to the fact that the petitioner had,

during the heightened pandemic, obtained certificate for the

year 2019-2020 on 09.10.2020. Learned counsel reiterated his

submissions in the counter affidavit and in the additional

affidavit and submitted that the selection process being over,

the cadre being allocated and the personnel having been

deputed for training, to interfere at this stage would result in

administrative chaos.

37. Countering the submission of the petitioners in the other

two petitions, learned Counsel states that the case was squarely

covered by Gaurav Singh (supra) and if each candidate is 27 allowed to come with clarifications/corrigenda, there will be

no end to the selection process and the sanctity of the rule

would completely stand negated. Learned counsel contended

that any selective relaxation would cause enormous injustice

to the non-applicants, who in compliance with the rule would

not have applied for the reason that they did not possess the

eligibility certificate on the last date for submission. To

reinforce the submission, reliance was placed on Ashok

Kumar Sharma (supra) and Yogesh Kumar vs. GNCTD,

(2003) 3 SCC 548 wherein it was held that deviation from the

Rules allows entry to ineligible persons and deprives, among

others, who could have competed for the post. So, contending

they prayed for dismissal of the writ petitions.

Questions for Consideration:

38. In the light of the pleadings and the contentions set out

above, the following main questions arise for consideration:

28

a) What is the eligibility criterion for a candidate to stake a

valid claim under the EWS Category as per the CSE Rules,

2022 read with OM dated 19.01.2019 and 31.01.2019?

b) Was the UPSC justified in prescribing the cut-off date for

possession and for uploading of the I&AC certificates in the

prescribed format to stake a valid claim under the EWS

category, as done in the instant case?

c) Are the CSE-Rules 2022 enforceable in law?

d) Are Rules 13, 27(3) and 28 of the CSE-Rules 2022

constitutionally valid?

e) Was the UPSC justified in rejecting the claim of the

petitioners for consideration under the EWS category?

Reasons and Conclusion:

Eligibility for EWS Category Candidates for CSE-2022:

39. As is clear from the Office Memoranda issued by the

DoPT dated 19.01.2019 & 31.01.2019, the benefit of

reservation under EWS category can be availed only upon

possession of I&AC issued by a competent authority. The OM 29 also makes it clear that crucial date for submission of I&AC

by the candidate may be treated as the closing date of receipt

of applications except where the crucial date is fixed

otherwise. Insofar as the EWS candidates are concerned, Rule

27(3) of the CSE-Rules 2022 is very clear when it states that a

candidate will be eligible to get the benefit of the

Economically Weaker Section reservation only in case the

candidate meets the criteria issued by the Central Government

and is in possession of requisite I&AC based on the income for

the F.Y. 2020-2021. Further, Rule 28 states that a candidate

seeking reservation/relaxation benefits available for

SC/ST/OBC/EWS/PwBd/Ex-Servicemen must ensure that

they are entitled to such reservation/relaxation as per eligibility

prescribed in the Rules/Notice. The Rule further states that

they should also be in possession of all the requisite certificates

in the prescribed format in support of their claim as stipulated

in the Rules/Notice for such benefits by the closing date of the

application for Civil Services (Preliminary) Examination- 30 2022. It is not disputed that the closing date of the application

was 22.02.2022.

40. This takes us to Rule 13 which mentions about the

submission of on-line Detailed Application Form-I (DAF-I)

along with scanned documents/certificates in support of date

of birth, category [viz. SC/ST/OBC/(without OBC Annexure)/

EWS(without EWS Annexure)/PwBD/Ex-Servicemen] and

educational qualification with required Examination Fee,

within the prescribed time for the same. Any delay, according

to Rule 13, in submission of the DAF-I or documents in

support beyond the prescribed date was not allowed and will

lead to cancellation of the candidature for the CSE-2022.

41. It is very clear that an EWS candidate acquired eligibility

to be an EWS candidate for the purpose of CSE-2022 only if

the candidate met the criterion prescribed by the Central

Government and is in possession of the requisite I&AC based

on the income for the F.Y. 2020-2021. Read with Rule 28, the

candidate should also be in possession of the certificate as on 31 22.02.2022. So it is beyond cavil that one cannot decide for

oneself that the candidate is an EWS candidate and only on the

fulfilment of the criteria and the issuance of the certificate

before 22.02.2022 will the eligibility as an EWS candidate,

enure to the benefit of the candidate for the CSE-2022. The

argument of Shri K. Parameshwar, learned counsel, that being

from the “EWS” category is a status and the I&AC to be

produced is only a proof and as such the I&AC can be

produced at any stage cannot be accepted in the teeth of the

clear prescription in the Office Memoranda read with the CSE-

2022 Rules. Further, as required under Rule 13, at the stage of

DAF-I the document had to be submitted on-line before the

prescribed date (in the present case for CSE-2022 the date was

15.07.2022) and that any delay in submission of DAF-I or

document beyond the prescribed date was not allowed. These

clear stipulations run counter to the submissions of learned

counsel that on the rectification of a certificate it relates back

to the date of the certificate.

32

42. The entire burden of the song of the petitioners is that

they were eligible EWS candidates and that it was only a delay

caused in the production of proof thereof. They repeatedly

urge before us the dictum of Krishna Iyer, J., in Charles K.

Skaria (supra), namely:-

“….To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence.”

43. In Charles K. Skaria (supra), most candidates possessed

the eligibility viz. the diploma. Only the proof in the form of

certificate was awaited. The authorities had also accepted

them as eligible, expressly informing the selection committee

that for eligible candidates even if proof came later and before

the final selection, it should be considered as valid. This was 33 also equally the situation in Dolly Chhanda (supra), Alok

Kumar Singh (supra) and Dheerender Singh Paliwal (supra)

where the factual position about the eligibility was not in

dispute. Those cases and the cases of that ilk cannot support

the petitioners in this case for the purpose of claiming

eligibility in CSE-2022 as an EWS candidate.

44. The meaning of the word “eligible” as defined in

P. Ramanatha Aiyar’s Advanced Law Lexicon is set out

hereunder:-

“Applied to the selection of persons, the word has two meanings i.e. “legally qualified,” or “fit to be chosen.”

Applied to our context, a person can be found eligible as an

economically weaker section candidate and he can be

considered as a fit person to be chosen under that category only

if the requirement of the OM of 31.01.2019 and Rule 27(3)

read with Rule 28 are fulfilled. In Gaurav Singh’s case

(supra), it has been categorically held that assets for the

particular Financial Year, prior to the year of submission, goes 34 to the root of eligibility of the candidate in the EWS category.

It has been further held therein that the candidates whose

I&ACs are not in order did not have any legal right to be

considered. It has also been held that no candidate can claim

any legal right for reconsideration of the candidature by

submitting a fresh certificate and/or a rectified certificate.

45. That is the fundamental distinction between the Charles

J. Skaria (supra) line of cases and the cases at hand. As

pointed out earlier, the eligibility for being categorized as

EWS candidate crystallizes only when the I&AC is issued and,

in this case, as required under the rules, it was to be issued and

possessed by the candidate before 22.02.2022.

46. It is also very well settled that if there are relevant rules

which prescribe the date on which the eligibility should be

possessed, those rules will prevail. In the absence of rules or

any other date prescribed in the prospectus/advertisement for

determining the eligibility, there is a judicial chorus holding

that it would be the last date for submission of the application. 35 (See Rekha Chaturvedi v. University of Rajasthan [1993

Supp (3) SCC 168]; Bhupinderpal Singh v. State of Punjab

[(2000) 5 SCC 262]; Ashok Kumar Sonkar v. Union of India

[(2007) 4 SCC 54].

Legal Status of CSE-2022 Rules:

47. The contention of Ms. Preetika Dwivedi, learned counsel

for the petitioner, that CSE-2022 Rules has no statutory force

and hence it cannot be considered as a mandatorily enforceable

rule need not detain the Court very long.

48. The Union of India has explained the Source of Power

for the CSE Rules. Section 3 of the All India Services Act,

1951 states that the Central Government, after consultation

with the Governments of the States may make rules for the

regulation of recruitment and the conditions of service of

persons appointed to an All India Service. In exercise of this

power, the Central Government has framed the Indian

Administrative Service (Recruitment) Rules, 1954. Rule 7 of

the IAS (Recruitment) Rules, 1954 provides that a competitive 36 examination for recruitment to the Service shall be held at such

intervals as the Central Government may, in consultation with

the Commission, from time to time, determine and Rule 7(2)

states that the examination shall be conducted by the

Commission in accordance with such regulations as the

Central Government may from time to time in consultation

with the Commission and State Governments. In pursuance of

Rule 7 of these Rules, Central Government, in consultation

with the State Governments and the UPSC, has made the

Indian Administrative Service (Appointment by Competitive

Examination) Regulations, 1955. Rule 2(c) of the Regulations

provides as under:-

“examination’ means a combined competitive examination consisting of a preliminary examination and a main examination for recruitment to the Service held under sub-rule (1) of rule 7 of the Recruitment Rules and includes a combined competitive examination for recruitment to the Service and such other Service or Services as may be specified by the Central Government from time to time;”

49. It will be seen that the “examination” includes a

combined competitive examination for recruitment to the 37 Service and such other Service or Services as may be specified

by the Central Government from time to time. In Regulation

3, it is provided that the examination shall be conducted by the

Commission in the manner notified by the Central

Government from time to time and Regulation 4 mentions the

conditions of eligibility. These Regulations, having been

framed in 1955 and amended periodically do not mention

anything about the EWS Category since EWS category was

notified for the first time only in January, 2019. The CSE

Rules are clearly traceable to Regulation 3 of the 1955

Regulations since they deal with the manner of the conduct of

the examination by the Public Service Commission read with

Article 73 of the Constitution of India which deals with the

executive power of the Union. It is well settled that the

executive power under Article 73 is co-extensive with the

legislative power and that the CSE Rules are traceable to

Article 73 as held in Mohan Kumar Singhania and Others vs.

Union of India and Others 1992 Supp (1) SCC 594. The CSE 38 Rules do not in any manner supplant any of the provisions of

the All India Service Act or the IAS Recruitment Rules or the

IAS (Appointment by Competitive Examination) Regulations.

They only supplement them. While the manner of conduct of

examinations is clearly traceable to Regulation 3, it is

untenable to say that since Regulation 4 in the conditions of

eligibility does not prescribe EWS category and EWS

certification and hence they do not qualify as part of eligibility.

The EWS category itself came in 2019. If this contention was

to be right, then there could be no EWS category at all in CSE-

2022. That is not the scenario which even the petitioners want

to be in.

50. Hence, the contention that Rules 13, 27 and 28 of the

CSE-Rules, 2022 cannot be given a status of rules cannot be

countenanced. Additionally, these are rules traceable to the

executive power of the Union which are duly traceable to

Article 73. These rules are duly gazetted. These rules are set

out well before the selection process begins and candidates are 39 put to notice before the commencement of the process. Hence,

it is too late in the day to contend that these rules have no

sanctity or the force of an enforceable law.

Impermissibility of Selective Relaxation:

51. In this case, rules clearly exist in the form of CSE-2022.

It has also been settled that determination of eligibility cannot

be left uncertain till the final stages of selection, since that

would lead to uncertainty. [See A.P. Public Service

Commission v. B. Sarat Chandra (1990)2 SCC 669, para 7]

Further, it is well settled that if rules prescribe the last date on

which eligibility should be possessed, any relaxation would

prejudice non-applicants who for want of possession of

eligibility would not have applied. Relaxation would then be

selective, leading to discrimination [See Yogesh Kumar

(supra)]

52. As is clear from Rule 13, in the present case, by

15.07.2022, the certificates disclosing eligibility had to be

uploaded with DAF-I and it was expressly stipulated by the 40 rule that delayed submission of the DAF-I or documents in

support will not be allowed.

53. Quite apart from the above, much water has also flown

under the bridge. The UPSC has made the cadre allocations

and the EWS candidates against the 298 vacancies have also

been allotted their respective cadres. Today, it is legally not

permissible and administratively not feasible for the UPSC to

unscramble the egg. Accepting the contention of the

petitioners would also result in administrative chaos and will

prolong the selection process indefinitely.

54. The strong reliance placed on Ram Kumar Gijroya case

(supra) also does not impress us. Not only was there no rule,

like we have in the present case, it was only while declaring

the result, the requirement of submitting the OBC certificate

before the cut-off date was introduced by the Selection

Authority there. Moreover, unlike the present, there was no

contention or issue raised in that case that eligibility enures or

41 crystallizes only on the issuance of the certificate and on

possession of the certificate, before the prescribed cut-off date.

55. The judgment in Ram Kumar Gijroya case (supra) is

also directly in conflict with the judgment of three Hon’ble

Judges in Ashok Kumar Sharma and Others vs. Chander

Shekhar and Another (1997) 4 SCC 18 wherein in para 6, it

was held as under:-

“… So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr.T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. 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 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…..”

42

56. Apart from all of this, the correctness of Ram Kumar

Gijroya case (supra) was referred to a three-Judge Bench in

the case of Karn Singh Yadav (two-Judges). A perusal of para

six of the referral order clearly shows that the Bench was

echoing the ratio of the three-judge Bench in Ashok Kumar

Sharma’s case (supra) though there is no express reference to

the said case. However, when the matter came before a three-

Judge Bench, the reference was not answered and even after

noticing that Ram Kumar Gijroya case (supra) covered the

case of Karn Singh Yadav (two-Judges), the Court, however,

denied relief to Karn Singh Yadav, the petitioner by holding

that since the appellant was never appointed to the post at that

length of time it was not possible to grant any relief to the

appellant. Ram Kumar Gijorya (supra) is clearly

distinguishable.

57. Be that as it may, we are bound by the judgment of the

three-Judge Bench in Ashok Kumar Sharma (supra) and we

follow the said judgment and reiterate the principle laid down 43 thereon. It is also interesting to note that even in Deepak

Yadav (supra), a judgment, strongly relied upon by the learned

counsel for the petitioners, the principle in Ashok Kumar

Sharma (supra) has been reiterated. However, because of

what the Court called an abnormal and cataclysmal year, an

exception was made due to the ongoing pandemic, lockdown

and restrictions imposed thereof. In Alok Kumar Singh

(supra), no rules like the ones present in this case are shown

to have existed. In the present case, there are clear

prescriptions as to eligibility, as has been discussed herein

above.

58. In Gaurav Singh’s case (supra), this Court has held as

under:-

“A technical irregularity in a certificate issued by the competent authority in respect of the correct financial year cannot be equated with an Income and Asset Certificate in respect of a different financial year when the Income and Assets for the particular finan- cial year prior to the year of submission of the appli- cation, goes to the root of eligibility of a candidate to qualify in the EWS category.

44 The Respondent-Writ Petitioners were well aware that they had to furnish Income and Asset Certificates issued by the Competent Authority for the financial year prior to the year of application. If the applications were made pursuant to a notification published on 24th April 2019 with 20th May 2019 notified as the last date for submission of the applications, the financial year prior to the year of submission of application could not possibly be the financial year 2019-2020, to which the Certificates related. The observation in the impugned judgment and order of the High Court of the expediency of specifying the financial year in the notification for recruitment is in the nature of an advisory, which may be kept in mind when recruitment notifications are issued by the Appellant in future. The Respondent writ petitioner Nos. 2 and 4, in whose Income and Asset certificates were not in order, did not have any legal right to be considered EWS candidates.

The Respondent-Writ Petitioners were required to submit Certificates for the relevant financial year. The negligence of the Respondent-Writ Petitioners in not checking if the Certificate related to the correct financial year, cannot be lightly brushed aside as inadvertent lapses of the certifying authority. A candidate applying for a post pursuant to an advertisement, cannot afford to be negligent. Documents required to be submitted have to be carefully checked by the candidate concerned before submission. An appointing authority proceeds on the basis of what is stated in a certificate. When a certificate pertains to a different financial year, the same is liable to be outright rejected. No candidate can, in such case, claim any legal right to reconsideration of his/her candidature by submission of a fresh certificate and/or rectified certificate. …. … ….

45 In the case of Respondent-Writ Petitioner No.3, the Income and Asset certificate, which had initially been questioned as having been issued by an authority not competent, was later accepted as it was found that the authority issuing the certificate was in fact competent. The certificate of the Respondent-Writ Petitioner No.1 was also accepted as there was no discrepancy in either the date of issuance or the year. It was just that the seal had been stamped without the full name of the officer concerned and that was accepted as an error not attributable to the candidate concerned.”

(Emphasis is ours)

59. The attempt by Ms. Preetika Dwivedi and Shri K.

Parameshwar, learned counsels for the petitioners to get over

Gaurav Singh’s case (supra) by relying on the case of Deepak

Yadav (supra) does not also impress us. Deepak Yadav case

(supra) pertained to the Civil Services Examination for 2020.

It was during the middle of the peak pandemic in 2020. In that

scenario, the Court observed as follows:-

“7. Indeed, the last part of Note I of clause 7 clearly provides that proof of passing the requisite examination should be dated earlier than the due date (closing date) of Detailed Application Form-I of the Civil Services (Main) Examination. There is nothing wrong in UPSC strictly adhering to this stipulation, being in the nature of an eligibility criterion. The respondents are justified and right in urging that this stipulation is inviolable as expounded in Ashok 46 Kumar Sharma & Ors. vs. Chander Shekhar & Anr., (1997) 4 SCC 18 and subsequent decisions of this Court which need not be multiplied.

8. At the same time, it cannot, however, be denied that 2020 was an abnormal and cataclysmal year due to the ongoing pandemic, lockdowns and restrictions. UPSC had to postpone their examination like all other Universities/Boards. The results of the qualifying examination in the case of petitioners, thus, got delayed. This was entirely beyond control of the petitioners who were certainly eligible on the date they appeared in the preliminary examination and had qualified for the main examination, in which they had appeared. Admittedly, the petitioners had attained the qualifying eligibility criteria before the main examination was conducted by UPSC in January, 2021 (i.e., between 08.01.2021 and 17.01.2021). … …. ….

12. Accordingly, we issue direction to UPSC to per- mit the 5 candidates, as a special case, to participate in the personality test/interview in the respective cat- egories in which they have qualified. The addition of these 5 candidates would not be to the disadvantage of any already empanelled candidate in the published list for personality test/interview in the respective branches/categories. We also clarify that this order should not be treated as a precedent.”

60. This exceptional situation cannot be made a rule. In this

case, the petitioner (Ms. Divya) had an opportunity to obtain

I&AC from 01.04.2021 till 21.02.2022. In fact, admittedly she

obtained her EWS certificate for the F.Y. 2019-2020 on

09.10.2020 and obtained her I&AC for F.Y. 2021-2022 on 47 13.12.2022 but obtained her I&AC 2020-2021 only on

01.06.2023. If she was in a position to obtain a certificate for

F.Y. 2019-2020 on 09.10.2020 when the country was still

reeling under a heightened pandemic, there is no reason why

she could not have obtained her I&AC for the F.Y. 2021-2022

on any of the days between 01.04.2021 and 21.02.2022. We

are not satisfied with the explanation adduced by the

petitioner. Hence her claim challenging the e-mail cancelling

the candidature under the EWS category is also rejected.

Validity of CSE-2022 Rules – Validity of the Cut-off date:

61. The challenge made in the writ petition to declare Rules

13, 27(3) and 28 to the extent it prescribes that candidate must

be in possession of a EWS certificate as on the closing date of

the application for preliminary examination to be ultra vires

Article 14 is only to be stated to be rejected. There is no case

made out to show that the cut-off of 22.02.2022 was picked

out of the hat. That was the last date for submission of the

application and, according to us, it was a validly prescribed 48 cut-off. In fact, the law laid down by this Court as discussed

herein above is, where there is absence of any rule or absence

of any prescription, the last day for fulfilling the eligibility is

the last date of submission of the application. This is a

judicially recognized default date. In this case the last date for

filing of the application has been prescribed as the cut-off in

the Rules and we see absolutely no case for violation of Article

14.

62. In view of the above, we are not examining the other

argument raised by Mr. Kaushik that the petitioners should be

estopped from challenging since they have participated in the

selection.

Writ Petition (C) Nos. 705 of 2023 and 764 of 2023:

63. In these two Writ Petitions, the legal question involved

is identical, except that the factual scenario in which they arise

is slightly different from that in Writ Petition (C) No. 724 of

2023.

49 W.P. (C) No. 705/2023:

64. The petitioners call in question the communication dated

24.05.2023 issued by the UPSC to Petitioner No.1 - Vimlok

Tiwari and Petitioner No.2 Ashwani Dubey and

communication dated 30.05.2023 issued to Petitioner No.3 -

Kuber Suraj Laxman. By the said communications, the UPSC

converted the consideration of their candidature to the

“General Category” since, according to the UPSC, the I&AC

uploaded with their DAF-I mentions the Financial Year

wrongly as 2021-2022 instead of 2020-2021. In the

communication dated 30.05.2023 issued to Kuber Suraj

Laxman, it was mentioned that he had submitted the eligibility

Certificate for EWS instead of I&AC. Each of these

candidates have their own explanation. Petitioner No.1

Vimlok Tiwari states that, on 30.01.2023, a communication

was received from the UPSC stating that discrepancy was

found in the DAF-I submitted, inasmuch as the designation,

stamp, seal of the issuing authority and F.Y. 2020-2021 has 50 not been mentioned in the EWS Certificate submitted by him.

He was requested to make up the deficiencies and to submit

the original EWS Certificate with designation, stamp and seal

of the issuing authority with the mention of the F.Y. 2020-

2021, be produced on the date of the Personality Test.

According to the petitioner, he obtained the clarification dated

31.03.2023 from the authority which issued the I&AC

correcting the Financial Year to 2020-2021 and by a letter of

05.04.2023 submitted the clarification. The Personality Test

had already been held on 15.02.2023. He also submits that the

designation, stamp, seal of the issuing authority was already

available in the Certificate originally produced.

65. Insofar as Petition No.2 – Ashwani Dubey is concerned,

according to the petitioner, he was in possession of the I&AC

dated 25.01.2022 which mentioned the Financial Year as

2021-2022. He received an intimation dated 10.01.2023

advising him to make up the deficiencies and was requested

to produce original EWS Certificate for the F.Y. 2020-2021 in 51 the prescribed format issued on or before the cut-off date i.e.

22.02.2022, on the date of the Personality Test. According to

the petitioner, he obtained the Certificate from Tehsildar

Dindhori dated 16.01.2023 certifying that the Financial Year

mentioned as 2021-2022 was a mistake and it should be read

as 2020-2021 in the Certificate dated 25.01.2022. He

submitted the clarification on 09.02.2023 when the Personality

Test was held.

66. Insofar as Petitioner No. 3 – Kuber Suraj Laxman is

concerned, he was already in possession of Certificate dated

11.10.2021 in the prescribed format found but he had uploaded

the Certificate on the same day for F.Y. 2021-2022 by mistake.

He submits that on the day of the Personality Test dated

17.04.2023, he had furnished the I&AC dated 11.10.2021 for

the year 2020-2021.

67. The petitioner asserts that this is the Certificate for the

F.Y. 2020-2021, while the UPSC in their counter affidavit

assert that the F.Y. 2020-2021 is inserted. Considering what 52 we have held on the interpretation of the Rule, these facts need

not detain us any further. In any case, the Court is not to be

drawn into, to investigate these factual disputes.

W.P. (C) No. 764/2023:

68. Insofar as the Petitioner No.1 - Ved Prakash Singh is

concerned, his candidature was cancelled on the ground that

the Financial Year in the I&AC was wrongly mentioned as

2021. He did not qualify under the General Category too. In

the DAF-I, the candidate had uploaded a Certificate dated

19.03.2021 valid for the year 2021. By a communication of

23.01.2023, the UPSC informed him to make up the

deficiencies and the candidate was advised to produce original

EWS Certificate in the prescribed format (issued by the

competent authority on or before 22.02.2022) along with all

certified copies of documents uploaded with DAF-I.

According to the Petitioner No.1 - Ved Prakash Singh, he

produced I&AC dated 19.02.2022 on the date of the

Personality Test dated 22.03.2023. The UPSC has rejected the 53 Certificate and converted his case to that of General Category.

Also, on the date of the Personality Test, the Certificate was

returned citing that the designation of the issuing authority was

not mentioned. An undertaking was obtained that he was

being interviewed provisionally at his own risk. He submits

that he thereafter produced his Certificate with the designation

mentioned on 05.04.2023.

69. With regard to Petitioner No.2 - Mohd. Qasim is

concerned, his candidature was cancelled as he had not

qualified under the General Category also. By a

communication dated 24.05.2023, his candidature was

cancelled as his I&AC was for the F.Y. 2021-2022. According

to the petitioner, he was advised to make up the deficiencies

on the date of the Personality Test. According to the

petitioner, he produced a clarification dated 21.02.2023 stating

that in the Certificate dated 17.12.2021, the Financial Year

should be read as 2020-2021 instead of 2021-2022. He says

he submitted his Certificate on 21.03.2023. 54

70. Insofar as Petitioner No.3 - Agnivesh Mishra is

concerned, his candidature was also cancelled as in the I&AC,

the Financial Year mentioned is 2019-2020. According to

him, he was asked to produce the Certificate on the date of the

Personality Test and he states that he produced the Certificate

of 10.07.2021 for the year 2020-2021. He had in the DAF-I

uploaded the Certificate dated 18.11.2020 which in the body

mentioned the Financial Year as 2019-2020 though in the

heading it mentioned valid for the year 2020-2021. The

Certificate of 10.07.2021 produced on the date of the

Personality Test was not accepted.

71. Insofar as Petitioner No. 4 - Priyanshu Raj is concerned,

his candidature was also cancelled by an e-mail of 24.05.2023

since the F.Y. mentioned was 2019-2020. In the DAF he had

uploaded the Certificate dated 19.10.2020 which in the

heading mentioned that it was valid for the year 2020-2021 but

in the body it was mentioned F.Y. 2019-2020. According to

the petitioner, he was asked to make up the deficiencies on the 55 date of the Personality Test. He says that a Certificate of

16.10.2021 for 2020-2021 was submitted on the date of the

Personality Test. However, the same was not considered by

the UPSC.

72. Insofar as Petitioner No.5 - Kumari Ritika Tiwari is

concerned, her candidature was rejected by an e-mail of

24.05.2023 since F.Y. mentioned was 2019-2020 in the form

uploaded in the DAF-I. According to the petitioner, she was

informed that her candidature was kept provisional by a mail

of 01.05.2023. She claims that on 04.07.2023, she produced

the I&AC dated 24.02.2021 for the F.Y. 2020-2021.

73. Insofar as Petitioner No.6 - Shivam Agrawal is

concerned, by a communication of 31.05.2023, his candidature

was cancelled as in the I&AC uploaded in DAF-I, the F.Y.

mentioned was 2021-2022. According to the petitioner, by a

communication of 07.02.2023, he was informed that his

candidature is kept provisional/conditional because of non-

production of original B.Ed. Certificate. He states that on his 56 own, he obtained a clarification of 02.06.2023 from the

competent authority which issued the I&AC and the mistake

was corrected from 2021-2022 to 2020-2021 and he submitted

the same on 07.06.2023. However, the rectification has not

been considered.

Interference with the decision of the Selecting Body –

When permissible?

74. Could we fault this exercise of the UPSC in rejecting

their candidature under the EWS Category, is the question that

arises for consideration? We are constrained to conclude that

we cannot fault the method adopted by the UPSC. This is for

the reason that the UPSC has strictly acted in accordance with

the mandate of Rule 13 read with Rule 27 & 28. They had an

obligation to scrutinize the forms as uploaded with DAF-I.

Rules 13, 27 & 28 of the CSE-Rules 2022 are to be read with

the Office Memoranda of 19.01.2019 & 31.01.2019 especially

clause 5 of the Office Memorandum of 31.01.2019. The

examining body has not considered the defects as 57 insignificant. If this is so, then we have no option but to reject

the writ petitions of all the petitioners.

75. In our view, the case of the petitioners in Writ Petition

(C) Nos. 705 and 764 fails additionally, for being directly

covered by the judgment in Gaurav Singh’s case (supra).

76. In T. Jayakumar vs. A. Gopu and Another, (2008) 9

SCC 403, it has been held that the defect in the application

form which renders the candidate ineligible even if overlooked

in the initial screening and even if the candidate is called for

the interview, does not dis-entitle the examining body to hold

the candidate ineligible for selection at a later stage, once the

defect in the application comes to light.

77. Shri K. Parameshwar, learned counsel, who appeared for

the petitioners in W.P. (C) Nos. 705 and 764 has submitted that

the communications by the UPSC asking them to make up the

deficiencies and to produce the certificate on the date of the

Personality Test should be treated as waiver of the rules. He

58 submitted that the communications are a clear indicia to

construe Rules 13, 27 & 28 as directory. We are not impressed

with the submission. The communications do not guarantee

the petitioners’ that their candidature would be accepted as

valid. In any event, these communications cannot be

understood de hors the rules.

78. The rules clearly mandate and as has been held in the

case of Gaurav Singh (supra), any mistake/omission/

negligence cannot be condoned so as to extend the deadline for

production of the documents. Neither the Office

Memorandum nor the rules in question can be construed as

directory. They prescribe clearly the eligibility criterion and

the date before which the certificate should be possessed and

the date before which the certificate should be submitted.

They also prescribe the consequence for the omission. As the

old ditty goes for a want of a horseshoe nail, kingdoms have

been lost. Here we are dealing with crucial documents

59 determining eligibility. The petitioners who did not possess the

valid documentation determining their eligibility, before the

prescribed cut-off date, cannot complain, if their claim for

categorization as EWS was rejected.

79. Shri K. Parmeshwar, learned counsel, argued that with

regard to four other candidates there has been relaxation

inasmuch as they were allowed to rectify the defects in the

EWS and I&AC. We asked the UPSC to respond and the

response is extracted herein below :-

Sl. Roll No. Name Remarks No. Rank Allocated service under EWS 1. 5409703 Ayush Minor omission in I&AC Gupta w.r.t. stamp on the photo 180, IAS of the candidate. The candidate was kept provisional and the DoP&T cleared his candidature after the omission was made up. 2. 866859 Anunay The I&AC was issued Anand digitally. Subsequently, 185, IAS the candidate submitted

60 the same physically signed with the stamp of the issuing authority hence the candidature was cleared. 3. 834939 Sonam Her I&AC was signed by 237, IAS the Naib Tehsildar and issued by the Sewa Kendra of the DC office, who is the superior authority. 4. 807485 Deshmukh Minor error in the name Rrajshree of the father of the Shantaram, candidate in the I&AC 719, IRMS which indicated complete name including surname which was not mentioned in the DAF-I. Subsequently, the candidate submitted an affidavit clarifying the mistake and the candidature was cleared.

80. It will be noticed that UPSC has considered these

omissions as trivial and as not going to the root of the

eligibility, unlike in the case of the petitioners herein. In Ajay

Kumar Mishra vs. Union of India [2016] SCC OnLine Del

6563, Indira Banerjee, J. (as Her Ladyship then was) speaking

61 for the Division Bench of the Delhi High Court felicitously put

the issue about the examining body’s right to decide as to

which errors are material and which are inessential and trivial.

We do nothing more except to extract paras 6, 7 & 9 from the

said judgment :-

“6. There can be no doubt that a candidate applying for a government job, or for that matter, any job should fill in the application form carefully. No candidate can claim any vested right to rectification of arrears in an application. Union Public Service Commission and the State Public Service Commissions deal with lacs of applications, which are received pursuant to an advertisement. Such applications are required to be processed within a short time. A candidate, who is not short-listed and/or not allowed to participate in the selection process by reason of his own laches in making careless mistakes, cannot claim any right to be allowed to participate in the selection process.

7. It is for the body conducting the selection process to decide whether mistakes should be allowed to be rectified, if so, whether they should be rectified within any specific time and what are the mistakes which can be allowed to be rectified and other similar questions. However, in view of the mandate of Articles 14 to 16 of the Constitution of India, there should be no discrimination or arbitrariness in deciding these questions. All candidates applying for the particular post/posts should be treated equally.

62 9. It is true that whenever any material discrepancy is noticed in the application form and/or when any suppression and/ or mis-representation is detected, the candidature might be cancelled even after the application has been processed and the candidate has been allowed to participate in the selection process.

However, after a candidate has participated in the selection process and cleared all the stages successfully, his candidature can only be cancelled, after careful scrutiny of the gravity of the lapse, and not for trivial omissions or errors.”

81. In Gaurav Singh’s case (supra) also the distinction

between a defect that is material and not material and the right

of the examining body to condone has been noticed. We hold

that the UPSC was justified, in the case of the petitioners, in

denying the benefit of categorization as EWS candidates.

82. Shri K. Parameshwar, learned Counsel, made a valiant

attempt by drawing support from the letter of the UPSC dated

12.05.2023 by which the original EWS Certificate dated

19.02.2022 submitted by email dated 06.04.2023 by the

petitioner Ved Prakash Singh was returned. The UPSC has, in

their response, clarified that as a practice original documents

submitted after the Personality Test are returned, after scrutiny

63 and a standard format letter is used for the same. They have

also stated that since the Certificate produced by the candidate

was not as per Rules and conditions in the advertisement, the

same was returned and not accepted. In view of this, we find

no merit in that submission too.

83. In view of all of the above, the argument of Shri K.

Parameshwar, learned counsel, that there was a past practice

treating Rule 13 as directory has no merit.

84. Ms. Preetika Dwivedi, learned Counsel, made an

alternative submission. Her plea was that in the event of the

Court upholding the rule and the action of the UPSC, the Court

should exercise its power under Article 142 of the Constitution

of India. Her plea was that to do complete justice, her client

should be treated as an EWS category Candidate.

85. We refuse to grant the petitioners refuge under Article

142. In this case, by the rightful application of the OM and the

CSE-Rules 2022, complete justice has been done to all. Article

142 is, no doubt, a useful weapon in the armoury of the Court. 64 However, its exercise should be done with great caution and

circumspection. We do not find the present case as one,

warranting the invocation of that power.

Conclusion:

86. Based on the above discussion, our conclusions are as

under :-

i) The candidates claiming benefit of EWS Category for

the purpose of CSE-2022, acquire eligibility only if they

meet the criterion prescribed by the Central Government

in the O.M. dated 19.01.2019 and 31.01.2019 and are in

possession of the required Income and Asset Certificate

(I&AC), based on the income for the year 2020-21.

Further, as required under Rule 28 of the CSE Rules,

2022 read with the O.M. of 19.01.2019 and 31.01.2019

the candidate should have been in possession of the

Income and Asset Certificate (I&AC) as on 22.02.2022.

Any candidate not in possession of the I&AC in the

prescribed format as mentioned herein above cannot 65 claim the benefit of EWS Category. Equally, as required

under Rule 13 of the CSE Rules, 2022 at the stage of

DAF-I, the document in possession as on 22.02.2022 in

the prescribed format, had to be submitted online before

the prescribed date. The UPSC was justified in rejecting

the candidature of those candidates claiming benefit

under the EWS Category if they had submitted their

I&AC beyond the stipulated deadline. This conclusion

has to be read with the reasoning in the judgment,

particularly in paragraphs 39, 40 and 41 under the

heading "Eligibility for EWS category candidates for

CSE-2022".

ii) As a sequel to conclusion (i) above, we record that the

UPSC was justified in prescribing the cut-off date for

possession and for uploading of the I&AC in the

prescribed format for claimants claiming benefits under

the EWS Category. This flows from the O.M. dated

19.01.2019 & 31.01.2019 read with Rules 13, 27(3) and 66 28 of the CSE-Rules, 2022 and the long line of

judgments in which principles for prescription of cut-off

for eligibility are laid down.

iii) For the reasons set out in paragraphs 47 to 50 herein

above under the sub-heading “Legal Status of CSE-2022

Rules", we hold that the CSE-2022 Rules have the force

of an enforceable law. They are traceable to the All India

Services Act, 1951 read with the Indian Administrative

Service (Recruitment) Rules, 1954 read with the Indian

Administrative Service (Appointment by Competitive

Examination) Regulations, 1955 and all this read with

Article 73 of the Constitution of India.

iv) Rules 13, 27(3) and 28 of the CSE-Rules, 2022 are

constitutionally valid for the reasons set out in para 61

herein above under the sub-heading "Validity of CSE-

Rules, 2022 - Validity of the cut-off date".

67

v) The UPSC was justified in rejecting the claim of the

petitioners, for consideration under the EWS Category

in CSE-2022.

87. For the reasons stated above, all the writ petitions are

dismissed. No order as to costs.

…....…………………J. (J.K. Maheshwari)

..…..…………………J. (K.V. Viswanathan) New Delhi;

October 9, 2023.

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