£ ^ ^r ^. IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR ,'^^ WRIT PBTITON (Sl No. ^^ ' /of 2010 PBTITONER °^- '^ ctl^y ^' :^7.-^'^ 5<^yv ^^ y^ f^¥^^. 1!'^ aS.^<8^sNs!<| ^ -^^z^^ /.^ ^>- ^T^t RESPONDENTS Shweta Pandey D/o Shri Gopal Pandey aged about 26 year, R/o Gali No.2, Jabda para road, New Sarkanda, Bilaspur (C.G.) VERSUS 1. State of Chhattisgarh through- Secretary, Higher Education Department, DKS Bhawan, Raipur (C.G.) 2. Chhattisgarh Public Service Commission, Raipur through- its Secretary. PETITON UNDBR ARTICLE 226 OF CONSTITUTION OF INDIA - ^s 'A.-f^ (^ ^ -. HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr.JustiGePritinker Diwaker) WritPetJtion (S) No. 5297 of 2010 PETITIONER ShwetaPandey VERSUS RESPONDENTS State of Chhattisgarh and another Shri Vivek Sharma counsel for the petitioner. Smt. Smitha Ghai PL for the respondenVState. Shri Y.C. Sharma counsel for the r^pondenVPSC. WRIT PETITION UNDER ARTICLES 226 OF THE CONSTITUTION OF INDIA ORDER (20.11.2010) Grievance of the petitioner in this petition is that though she has been permitted to appear in the written examination conducted by respondent No.2/ Chhattisgarh Public Service Commission (for short the "PSC") held in the month of November, 2009 for the post of Assistant Professor (Bio Technology), she has not been issued the call letter to appear in the interview and has been shown as ineligible vide Annexure P- 2 on the ground that she has passed the NETexamination after the due date i.e. 22.6.2009. 2. Facts of the case in brief are that an advertisement (Annexure P-1) was issued by the PSC for the post of Assistant Professor for 32 subjects including that of Bio Technology, pursuant to which the petitioner had filled in the form before the last date fixed for it i.e. 22.6.2009. However, while the result being declared by the PSC, name of the petitioner has been included in the list of ineligible candidates with miscellaneous reasons vide Annexure P-2. In the said document name of the petitioner finds place at Sl. No. 16 and it has also been mentioned in the same that she has acquired the certificate of NET examination after the due date i.e. 22.6.2009. 3. Counsel for the petitioner submits that the petitioner had appeared in the NET examination conducted by the Council for Scientific and Industrial Research (CSIR) on 21.11.2008 and result of the same was declared on ^—:. ^J^^ \v4 -2-- 17.3.2009 and thus she has passed the said examination before the cut off date i.e. 22.6.2009. He further submits that in the OMR sheet the petitioner had mentioned that she was having the requisite qualification as per clause 7.6 of the advertisement and that she was not required to file any document along with the OMR sheet. According to him, as per clause 8 of the advertisement the petitioner was required to show the relevant document at the time of interview. He submits that though the petitioner had passed the NET examination on 17.3.2009, certificate was issued by the CSIR on 3.7.2009 vide Annexure P-4. According to the counsel for the petitioner when name of the petitioner was included in the list of ineligible candidates she had obtained the certificate dated 6.9.2010 (Annexure P-3) clearly mentioning in it that the NET examination was held on 21.12.2008 and its result was declared on 17.3.2009. He submits that on 6.9.2010 the petitioner had made a representation to the PSC apprising it of the facts of the case but unfortunately the respondent /PSC has not considered the same. He submits that having qualification and having proof of the qualification are two different things and once the petitioner is having qualification, she cannot be deprived of her legitimate right. According to him, once it is an admitted position that the petitioner possessed the requisite qualification before the last date of submission of form, technicality should not come in the way of the petitioner and she should not be deprived of participating in the interview. 4. Opposing the submissions of the counsel for the petitioner it has been argued by the counsel for the respondents that once the petitioner was not having the relevant document showing that she had passed the NET examination before 22.6.2009, PSC is fully justified in including the name of the petitioner in the list of ineligible candidates. He submits that in the month of February PSC had further asked the petitioner about her passing the NET/SET examination and while furnishing the information vide Annexure R/2-1 on 15.2.2010 the petitioner has though mentioned that she has passed the NET examination but date of passing the same has been given as 21.12.2008. Replying to this argument of the counsel for the respondents, it has been submitted by the counsel for the petitioner that 21.12.2008 was the date of examination and inadvertently the petitioner has mentioned the said date in column 7 of Annexure R/2-1. However, the mistake if any has to be ignored because the petitioner does possess the qualification of NET andmoreover the related document of f- ^ -"2>- qualification is required to be seen at the time of interview. Counsel for the petitioner further submits that the candidature of the petitioner has not been rejected on the ground that shehad given some incorrect information but it has been rejected on the ground that she did not possess the qualification before the cut off date. Counsel for the respondent No.2 submits that if the petitioner is permitted to appear in the interview, PSC would have great difficulty because number of persons who had filled in their form but the same has been rejected for one reason or the other, would approach this Court. According to the counsel for the respondents, as the petitioner was not vigilant at the time of submission of form, none other than her can be blamed for that. 5. Counsel for the respondent/State also supports the stand taken by the counsel for the PSC. 6. Heard counsel for the parties and perused the material available on record. 7. From the advertisement dated 20.5.2009 it is apparent that last date for submission offorms was 22.6.2009. Clause 3 ofthe said advertisement contains the requisite qualification prescribed by the PSC, which reads as under: (3) 3t|c|^44? ^t^W 3T^TP? :~ 3-1 (^) 3^ ^STf^ fe^ ^ ^^ ^^TFT 55 % 3T^ ^ W^ 3T8Tc[T tf^ W^T ^ ^ —^^ ^T^ w^ ^rg^ ^rf^ wrt^T ^WT ^ >Mldchla1^ ^t ^jqrfSr ^PTSTT f^t^ft ITR^N fSRcif^irazr -^t ^s^rr f^r^ft fq^qtq^ioi^ ^?r w^sr "^Trf^" l "'TTe : ^^ft.^ft. ^ L|Rc|d-l dlf^cbl •^ ST^W? uRl^ld 3Wf ^ MRc|R^d f^TT vll^ll ^jTt Pi^rifoiRC<a t :— Grade o A B c D E F Grade point 5.50- 6.00 4.50- 5.49 3.50- 4.49 2.50- 3.49 1.50- 2.49 0.50- 1.49 0.00- 0.49 % Equivale nt 75-100 65-74 55-64 45-54 35-44 25-34 0-24 fi~i~I m iiti ^^^^^^^^^ ^ i|^^^.^^i^c(c^^]o^ (^ ^^^ ^ ^|:|yj'>H^I^::^I^^^ jl^ll^ll^ll^^ ,'i^^'||^^<xT||t|^i^ |XT^^^.I^^;||J|^J^ ^lsN^^^N^if^^'^i^ i|Kj|rl|^t:-|^ ;;'|^31'^1ffltt:ij^Jlll<MJI^ ^3JJ<t4<4?)|^ ^N^j'^'^llilllllljNf^^ .^jri^t'WII^^^^ ^^•^•%..'^^^.'^.^ @iiaus<e7<^tKfis^id^v6i^^n^^ ^^4:lli;^^;^^-t.-:i^^ ,7^'^:^|^'iaTlt||t^^|lT^^^^ 1^1^1^1^411-11^^^ ^4^1 'nt^^:f^^^.'t;i.1 !'.'.:.^ ^G^.^'-Tei^^i^^i^^j^TT^ 5^3^i^li^[^ <Sl^u^^^fth®sa;iciiad\Wi^rrtiniti"eact^^^^t^ '^:. :.. '^ ^•.'.•:i'w':^ :w^'-y. ^X^' ,'^ ':•'-.^— ^^ ^eil^^^T^'^ ^;3H[f^l^^l|ll^<:^^1^^^ ii.l;:^8.^^^||'^^l|<|9^^ '!:';^l^i:::".?:"'"^!:Jl^::^:^'.^^i^^^^ ^6:2;itlR'^1°^^";iE^^^^ 83l^n1^X^ ^i^^^i^ii^i^^^^^^^ ^^;:8^1|;n^l^i:l||@i|i^^^|t^ ;:^'^^l^f^^1^1li'^ :Y.'t:^^ ^^ ^rai^^i^^f^ |^^;;^|).,^;':'y^^,.rl^;l^;i ?l^i^^r^|i^:^G||^|^Iaiove-nilntiQ^ !(^d|lite^iw^|rei||i||i|?ic&s|^^ ^tert:If1lin|lin|t&e|lf(5|i||^tmJi||'|E^^ ii^^illiliiet.Etlie :J6alrTcli|iteti|lrl|||||||||||||fl ,.;toyuliit.^rry^ll|t||:il|ci^ :iH::.:-!.,..;' -;/:;:^i^.ll.l..'l;::1';..-.:•.;•' -'^;^ ^^ -s- the application form. Clause 8 makes it clear that the candidate is required to submit the relevant document at the time of interview. 8. In the case in hand undisputedly the petitioner has passed her NET examination on 17.3.2009 and the relevant information was disclosed about having the qualification in the OMR sheet. The only technical mistake which has been committed by the petitioner is that in the document Annexure R/2-1 she has shown the date of passing of NET examination as 21.12.2008 though in fact she has passed the said examination on 17.3.2009. Even if in the document ofAnnexure R/2-1 the petitioner has disclosed that she possessed the NET/SET qualification, said inadvertent mistake should not come in the way of her career. If only on that ground candidature of the petitioner is rejected, that would be hyper technical and this Court is of the view that the said mistake deserves to be ignored especially when the said information was sought by the PSC from the petitioner contrary to the advertisement and it is not the case of the PSC that the candidature of the petitioner has been rejected on account of furnishing any incorrect information. Case of the petitioner is further strengthened on the ground that as per the advertisement she was required to submit all the documents at the time of interview only and therefore, oncethe petitioner has declared herself to have passed the NET examination, she ought to have been called for the interview and at the time of interview the PSC could have examined the documents submitted by the petitioner including the acquisition of NET qualification by her. From the documents of Annexure P-3 dated 6.9.2010 and P-4 dated 3.7.2009 issued by the CSIR it is clear that the petitioner had appeared in the NET examination on 21.12.2008 and passed the same on 17.3.2009. Expounding the legal position in somewhat similar matter in Dolly Chhanda v. Chairman, JEE and others reported in 2004 AIR SCW 5699 it has been held by the Apex Court as under: Para 7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary ^-:^ ^ ' ^:^:^^^!^ • i8 ''%^"^y ^a^!s'y:' ^v -^ certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a cas6, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle a6 it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature. Para 8: This principle was explained and applied in Charles K. Skaria & Ors. V.Dr. C. Mathew & Ors. 1980 (2) SCC 752. The controversy here related to admission to a post graduate course in medicine. The relevant rule provided for addition of 10% markds if a candidate possessed a diploma in the relevant subject or sub- specialty and this benefit could be given only if the candidate's success in the diploma course was brought to the knowledge of the Selection committee before completion of selection in a an authentic or acceptable manner. The Prospectus provided that the attested copies of statement of marks and other documents should be attached with every application. Three such candidates were given admission who had not attached the certificate of having passed the diploma along with their application. Their admission to post graduate course was set aside by the High Court on the ground that their application, wherein they claimed the benefit or diploma, were liable to be rejected as the requisite certificates had not been attached. This Court speaking through Krishna lyer, J. reversed the judgment of the High Court and held that the admission to the candidates had rightly been given as they had in fact passed the diploma before the date fixed. The relevant parts of paras 20 and 24 of the judgment, where this principle was highlighted are being reproduced below: "20. there is nothing unreasonable or arbitrary in adding 10 marks for holder of a diploma. But to earn these extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different form the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course? That is the primary question. It is prudent to produce evidence of the diploma along with app!ication, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selaction. The -/y-^., 1;%', i>:iA»|| %:^^7/: '^-. • ^rr..;" M -7- emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is notan independent factor ......................Mbde of proof is geared to the goal of the qualification in question.It is subVersive of sourid interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in pointoftime. What is ancillary is the safe mode ofproof ofthe qualification. To confuse between a fact and its proof is blurred perspiGacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if itis unshakably shown that the qualification has beenacquired 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 theselection or in a manner not mentjoned in the prospectus, but still above- board, is to make procedurenot the handmaid but the mistress and form not as subservient to substance but as superiorto theessence. "24 It is notorious that this formalistic, ritualistic, approach is unrealistic and isunwittingly traumatic, unjustandsubversive ofthe purpose ofthe exercise, This way of viewing problems dehumanizes the admjnistrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from over-emphasis on the external rather than the essential. We think the Government and theselection committee rightly treated as directory (not mandatory) the mode of proving the holding Ofdiplomasand as mandatory the actual possession of the diploma. In actual life, we know how exaspefatinglydilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like mark-lists from universities, why, even bail orders from Courts and Government orders from publicoffices. 9. This Court does notfind force in the argument ofthe counsel forthe PSC that ifthe petitioneris permitted to participate in the interview, number of candidates whose application forms have been rejected by the PSC for one reason or the other^would approach this Court. Present is entirely a different case from the persons whose application forms have been rejected. Presentis a case where form of the petitioner has not been 1 • . . • ' • .. ' . • • . . : ' rejected rather she has passed her written examination but she has not been issued the interviewcall letter solely on the ground that relevant certificate of NETexamination was furnished subsequently. ^-1. &- 10. Thusconsidering theaforesaid factual and legal position this Court is of the considered view that the petition deserves to be allowed. It is accordingly allowed. It has been informed that the PSC is still holding the interview for the post of Assistant Professor in various subjects and thereforeit is directed that respondent Nb.2/PSC will issue call lettertothe petitioner after comparing the marks secured by her in the written examination with the persons who have qualified the same, before declaring theresultof Bio Technology subjectand after interviewing the petitioner her candidature shall beconsidered in accordancewith law. 11. Petition is thus allowed. Sd/- pritinker Diwaker Judge ^-