Sudhir Singh vs State Of U.P.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. OF 2023 (@ SPECIAL LEAVE PETITION (CIVIL) NO.12441 OF 2022)

SUDHIR SINGH AND OTHERS … APPELLANTS A2: Ashok Kumar Tiwari A3: Raj Kumar Yadav VERSUS STATE OF U.P. AND OTHERS … RESPONDENTS

R2: Commissioner Rural Development, Lucknow R3: District Development Officer, Badaun R4: District Development Officer, Balrampur R5: Uttar Pradesh Subordinate Service Selection Commission through its Secretary R6: Union of India, Ministry of Defence R7: Directorate General of Resettlement through its Secretary

J U D G M E N T

AHSANUDDIN AMANULLAH, J.

Heard learned counsel for the parties. Signature Not Verified Digitally signed by GEETA AHUJA Date: 2023.10.30 18:50:52 IST

2. Leave granted.

Reason:

2

3. This appeal arises out of the Judgment and Order

passed by the High Court of Judicature at Allahabad

(hereinafter referred to as the “High Court”) in

Civil Misc. Writ (A) Petition No.4817 of 2020 dated

05.03.2022 (hereinafter referred to as the “Impugned

Judgment”) filed by the appellants by which their

claims for recruitment on the posts of Village

Development Officers have been rejected.

THE FACTUAL PRISM:

4. The appellants were serving in the Armed Forces

in various capacities, at the relevant time, when an

advertisement was issued by the Uttar Pradesh

Subordinate Service Selection Commission (hereinafter

referred to as the “Commission”) for recruitment to

the post of Village Development Officer. The

registration for applications commenced on 18.01.2016

and the last date of submission of the application

forms was 10.02.2016. The appellants applied in the

category of Ex-Servicemen after obtaining No-

Objection Certificate(s) (hereinafter referred to as 3

“NOC”) from the employer(s). Initially, their result

was withheld for various reasons but ultimately, they

were issued appointment letters on 29.05.2019

(appellants no.1 & 2) & on 27.05.2019 (appellant

no.3) respectively, on temporary basis. Worthwhile to

note is that this was after the appellants were asked

to appear before the Commission on 26.12.2018 with

necessary documents pertaining to their qualification

and more so with regard having equivalence to the

Course of Computer Concept (hereinafter referred to

as the “C.C.C. Certificate”). However, Show-Cause

Notice was issued by the respondent no.3/District

Development Officer, Badaun to the appellants no.1

and 2 on 19.02.2020 and to appellant no.3 on

12.02.2020, as to why, their appointment be not held

to be a nullity as on the last date of submission of

application form, they were employed with the Armed

Forces and could not be treated as Ex-Servicemen and

further that they did not possess the C.C.C.

Certificate issued by the DOEACC1, now NIELIT2.

1 Department of Electronics and Accreditation of Computer Courses. 2 National Institute of Electronics & Information Technology. 4

5. Subsequently, on 05.05.2020 (appellants no.1 &

2) and 28.04.2020 (appellant no.3) respectively,

orders declaring the appellants’ appointments to be

null and void were issued for the afore-mentioned

reasons, as indicated in the Show-Cause Notice.

SUBMISSIONS BY THE APPELLANTS:

6. Learned counsel for the appellants submitted

that on both the grounds, the Show-Cause Notice was

erroneous. It was submitted that the conduct of the

authorities, while giving them time to produce

documents and the same having been accepted, shows

that they possessed the basic and relevant

qualification for appointment to the concerned posts.

7. Learned counsel submitted that the date on which

the appellants can be deemed to be appointed is the

date on which the appointment letters were issued and

taking that into consideration in the present case,

when the appointment letters were actually issued in

May, 2019, prior thereto, the appellant no.1 stood 5

released on 31.07.2016, the appellant no.2 stood

released on 30.11.2016 and the appellant no.3 also

stood released on 29.02.2016, from the Armed Forces.

As far as non-possession of the C.C.C. Certificate is

concerned, the stand taken was that the appellants

having higher qualification than what was required as

also already having an equivalent qualification,

their case(s) were recommended by the Commission for

appointment.

SUBMISSIONS BY THE STATE & ITS FUNCTIONARIES:

8. Per contra, learned counsel for the State has

taken the stand of the appellants being ineligible

for appointment as they did not possess the requisite

qualification, the reason being that they were not

Ex-Servicemen as on the relevant date, when the post

was advertised.

9. Further, it was contended that none of the

appellants had the C.C.C. Certificate on the date of

the advertisement, which they had concealed, and 6

which was an essential qualification for being

appointed to the post advertised.

10. Learned counsel submitted that not having

disclosed the factual position at the time of filling

up the form amounted to grave misconduct. Moreover,

it was contended that even when the appellants were

directed to produce the educational testimonials and

documents on 26.12.2018 to demonstrate that they

possessed equivalent qualification to the C.C.C.

Certificate, they could not produce the same as

admittedly, the certificates produced by them were

not equivalent to C.C.C. Certificate.

11. It was further urged that the stance of the

appellants for consideration as Ex-Servicemen on the

date of appointment is clearly in teeth of the

settled principle of law where the advertisement

itself was very clear that only Ex-Servicemen were

eligible to even apply.

7

12. Learned counsel indicated that even in the NOC

issued to the appellant no.1, it was mentioned that

he was eligible to civil appointment after the

particular date specified which was beyond the last

date for submission of application forms, and further

that the NOC also mentioned that the Office/Employer

had no objection to the registration of the

appellant’s name with the Employment Exchange, which,

in no way, could confer on him a right to be

considered under the category of Ex-Servicemen. Thus,

learned counsel contended that the appellants, in any

view of the matter, could not have taken any civil

employment unless they were actually relieved,

superannuated or retired, which ultimately would be a

decision to be taken by the employer and mere

indication in the certificate ipso facto would not

mean that on the date indicated they would

automatically come within the category of Ex-

Servicemen.

8

13. Learned counsel went to the extent of arguing

that the appellants’ conduct indicates a fraud

committed by them. It was advanced that the

appellants had, in fact, attempted to take posts

which were meant for Ex-Servicemen who were actually

without employment, and not for persons who were

still employed in the Armed Forces.

ANALYSIS, REASONING AND CONCLUSION:

14. Having bestowed anxious thought and

consideration to the rival submissions at the Bar

combined with a careful perusal of the record, we are

unable to find any error in the Impugned Judgment

passed by the High Court, much less any illegality,

warranting our interference. It is well-settled that

the basic question on eligibility has to be

determined on the basis of the cut-off date/point of

time which stands crystalized by the date of the

advertisement itself, being the last date of

submission of application forms, unless extended by

the authority concerned. In the present scenario, 9

none of the appellants can be said to have been Ex-

Servicemen at the time of the advertisement in

question, as, undisputedly, they were still in

service. This Court has also examined the relevant

rules and even the clarification(s) to the

advertisement. We are afraid that they do not

indicate that the appellants can be deemed Ex-

Servicemen from a prospective date, despite being in

actual service on the relevant date. As such, in the

case at hand at least, there is no concept of serving

personnel being deemed Ex-Servicemen. It would not be

proper for this Court to hold or interpret otherwise.

Arguendo, if we were to venture down such a path, it

would be unjust to a large number of others similarly

placed as the appellants, who were not Ex-Servicemen

as on the date of advertisement but came under the

category later, but did not apply at the relevant

time. This concern has not emanated for the first

time. In Rakesh Kumar Sharma v State (NCT of Delhi),

(2013) 11 SCC 58, this Court observed: 10

‘22. It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement.’ (emphasis supplied)

15. This Court would pause to state that the

position discussed in the preceding paragraph is

logical on the simple premise that even if a

certification is given to a person indicating a

prospective date till when he would be in employment,

circumstances could intercede between the date of

such certificate and the prospective date of

retirement/resignation/relieving indicated therein.

Illustratively, if for any reason there is a

proceeding/charge pending against the person(s)

concerned and/or there are circumstances for which

the person cannot be relieved from his post till 11

conclusion of such proceedings or otherwise, such

date indicated in the certificate cannot be taken as

the date of being finally and actually relieved from

service. However, in the instant situation, such date

is also prospective and much later to the date on

which the applications were invited and even till the

last date of submission of the application forms.

Thus, on this count alone, the appellants’ claim of a

right to consideration under the Ex-Servicemen

category fails.

16. In Rakesh Kumar Sharma (supra), this Court, after

noticing, inter alia, Dr M V Nair v Union of India,

(1993) 2 SCC 429; Uttar Pradesh Public Service

Commission v Alpana, (1994) 2 SCC 723; Bhupinderpal

Singh v State of Punjab, (2000) 5 SCC 262, and; State

of Gujarat v Arvindkumar T Tiwari, (2012) 9 SCC 545

reiterated that basic qualification is to be adjudged

as on the last date of submission of application

forms, subject to any extension of such date by the

concerned authority. In Rekha Chaturvedi (Smt.) v 12

University of Rajasthan, 1993 Supp (3) SCC 1683, the

proposition was enunciated as under:

‘10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting

3 The Court though, opted not to disturb the appointments therein, on the ground that over 8 years of service had been put in by the concerned appointees.

13 applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. …’ (emphasis supplied)

17. The Court, vide its judgment in State of Bihar v

Madhu Kant Ranjan, 2021 SCC OnLine SC 1262, also took

the view that ' As per the settled proposition of law,

a candidate/applicant has to comply with all the

conditions/eligibility criteria as per the

advertisement before the cut-off date mentioned

therein unless extended by the recruiting authority.

18. In the above analysis, though the Court is not

required to go into the question of equivalence

apropos the C.C.C. Certificate, but since contentions

thereon were argued, we may reiterate that the

advertisement clearly specified the essential

qualification was a C.C.C. Certificate. The

appellants despite opportunity to appear to show such

equivalence, having failed to do so, nothing survives

on this count.

14

19. Having considered the matter in toto, the

appeal, being devoid of merit, stands dismissed. The

Impugned Judgment is upheld.

20. However, any payments made to the appellants for

the period they have actually worked as Village

Development Officers, shall not be recovered. If any

such recoveries have already been effected, the same

be returned to the appellants forthwith.

21. No order as to costs.

........................J. [VIKRAM NATH]

........................J. [AHSANUDDIN AMANULLAH]

NEW DELHI OCTOBER 30, 2023.