SAKSHI ARHA versus THE RAJASTHAN HIGH COURT AND OTHERS
[2023] 9 S.C.R. 583, Supreme Court of India, 2023
Outcome: Matter referred to larger bench
Segment: Facts
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SAKSHI ARHA
v.
THE RAJASTHAN HIGH COURT AND OTHERS
(Special Leave Petition (Civil) No. 16428 of 2022)
MAY 18, 2023
[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]
Judicial Service – Rajasthan Judicial Service Rules, 2010 – r.
10 – Selection for the post of Civil Judge – Submission of caste
certificate – Certificate not accepted – Benefit of Reservation not
given – An advertisement issued by respondent dated 22.07.2021,
selection process held for the post of Civil Judge – Appellants being
members of Other backward Classes (Non-creamy layer), More
Backward Class (NCL) and from the Economically weaker Section
(EWS), applied for the post in their respective reserved category –
Exam conducted – Appellants scored higher marks in their category,
however, their certificate relating to category was somewhere later
to 31.08.2021 i.e last date of application form, the benefit of
reservation not extended to appellant – Writ filed before the High
Court was dismissed – Held: (Per Ajay Rastogi, J.): In the given facts
and circumstances, when the rules are silent and there is no such
instruction that the certificate of the category has to be produced of
the period on or before the last date of the application under the
advertisement and each of the applicants has produced the certificate
relating to category on being demanded by the recruiting authority
when the list came to be published of the candidates who were
provisionally called for interview on 04.08.2022, each of the
applicants indisputedly has furnished their certificate of the category
to which they belong at the time of advertisement and had
participated in the process of selection – High Court had gone wrong
and was influenced with the condition of eligibility to be looked into
on the last date of application – Respondents directed to consider
candidature of each of the appellant for appointment with
consequential benefits – Held (Per Bela M. Trivedi, J.) (Dissenting)
: It is no more res integra that in absence of a fixed date indicated
in the advertisement inviting applications, with reference to which
the requisite eligibility is to be judged, and when the rules are silent,
[2023] 9 S.C.R. 583 : 2023 INSC 559
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the only certain date for the scrutiny of the eligibility of a candidate
would be the last date for making the applications – Hence, this
Court found no error having been committed by the High Court
while passing the impugned judgments and orders.
Placing the matter before Hon'ble CJI for constitution of
appropriate Bench, the Court
Per AJAY RASTOGI, J.
HELD : 1. It is true that the general rule is that while
participating in the recruitment process, the person must possess
the eligibility qualification on the last date fixed for such purpose
unless there is any express provision to the contrary and there
can be no relaxation in the matter of holding requisite eligibility
qualification by the date fixed and this has to be established by
producing necessary certificate or degree, as the case may be.
But, at the same time, in order to avail the benefit of reservation
or weightage, necessary certificates have to be produced but they
are in the nature of proof for the purpose of seeking entitlement
to claim the benefit of reservation, but it has no nexus with the
last date of the application and, it may not be proper to apply any
rigid principle in the absence of any rule to the contrary. As a
matter of caution, every infraction of the rule relating to submission
of proof in availing the benefit of reservation may not necessarily
result in rejection of the candidature.[Para 32][606-F-H; 607-A]
2. The reservation of
vacancies of various categories as
referred to in Rule 10 is not a condition of eligibility for the
candidate to participate in the selection process as the certificate
of category for the purpose of claiming reservation will arise not
at the stage when the application form is filled making self-
declaration by the individual candidate to participate in the
selection process but at the stage when the select list is to be
prepared of the candidates who have participated in the selection
process since the final select list has to be published category-
wise by giving the benefit of reservation to the candidates who
have participated in the process of selection and for no other
purpose and when the respondent has demanded from the applicant
to furnish their respective certificate of the category to which
one had participated in the selection process under its notice
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dated 04th August, 2022, indisputedly each of the applicant had
furnished the certificate of their category to which one belong at
the time of advertisement when demanded by the recruiting
authority in terms of Clause 6(i) & (iii) read with Clause 22(3) of
the advertisement dated 22nd July, 2021. [Para 34][607-E-H]
3. That apart, taking into consideration the Scheme of Rules,
2010, which is indisputedly, silent on the subject issue and the
advertisement dated 22nd July, 2021 nowhere indicates that the
caste certificate/certificate of category has to be produced of the
period prior to the last date of the application (31st August, 2021)
in the instant case. To the contrary, Clause 6(i) & (iii) read with
Clause 22(3) of the advertisement, such certificate of category
which one claimed for seeking the benefit of reservation, has to
be produced on demand by the recruiting authority. [Para 38][610-
B-C]
4. In the given facts and circumstances, when the rules are
silent and there is no such instruction that the certificate of the
category has to be produced of the period on or before the last
date of the application under the advertisement and each of the
applicants has produced the certificate relating to category on
being demanded by the recruiting authority when the list came
to be published of the candidates who were provisionally called
for interview on 04th August, 2022, each of the applicants
indisputedly has furnished their certificate of the category
to which
they belong at the time of advertisement and had participated in
the process of selection. At this stage, the High Court had gone
wrong and was influenced with the condition of eligibility to be
looked into on the last date of application, while examining the
production of certificate of the category to which the candidate
belong and participated in the selection process is in no manner
co-related with the conditions of eligibility and the judgments
relied upon to non-suite the claim of the appellants has no
application in the facts of the instant case. [Para 39][610-D-F]
5. The appeals succeed and are accordingly allowed. The
impugned judgment of the High Court is hereby quashed and set
SAKSHI ARHA v. THE RAJASTHAN HIGH COURT AND
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aside and the respondents are directed to consider candidature
of each of the appellant for appointment with consequential
benefits including seniority to the post of Civil Judge on their
participation in the selection process held pursuant to
advertisement dated 22nd July, 2021.[Para 43][612-C-D]
Ashok Kumar Sonkar v. Union of India and Others
(2007) 4 SCC 54 : [2007] 3 SCR 95; Jyoti Beniwal v.
The Rajasthan High Court, Jodhpur Through Its
Registrar General and Another (D.B. Civil Writ
Petition No.11784/2022); Rakesh Kumar Sharma v.
State (NCT of Delhi) and Others (2013) 11 SCC 58;
Rekha Chaturvedi (Smt.) v. University of Rajasthan and
Others (1993) 3 Supp SCC 168 : [1993] 1 SCR 186;
Bhupinderpal Singh and Others v. State of Punjab and
Others (2000) 5 SCC 262; Jasbir Rani and Others v.
State of Punjab and Another (2002) 1 SCC 124 : [2001]
4 Suppl. SCR 494; Shankar K. Mandal and Others v.
State of Bihar and Others (2003) 9 SCC 519 : [2003]
3 SCR 796; Dolly Chhanda v. Chairman, Jee & Others
(2005) 9 SCC 779 : [2004] 5 Suppl. SCR 79; Ram
Kumar Gijroya v. Delhi Subordinate Services Selection
Board and Another (2016) 4 SCC 754; Karn Singh
Yadav v. Govt. of NCT of Delhi and Others (2022) SCC
OnLine SC 1341 - referred to.
Case Law Reference
[2007] 3 SCR 95
referred to
para 14
(2013) 11 SCC 58
referred to
para 20
[1993] 1 SCR 186
referred to
para 26
(2000) 5 SCC 262
referred to
para 26
[2001] 4 Suppl. SCR 494
referred to
para 26
[2003] 3 SCR 796
referred to
para 26
[2004] 5 Suppl. SCR 79
referred to
para 35
(2016) 4 SCC 754
referred to
para 36
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Per BELA M. TRIVEDI, J. (Dissenting)
HELD : 1. At the outset, it deserves to be noted that the
certificates to the persons belonging to the reserved categories
like SC/ST/OBC-NCL/MBC-NCL/EWS are being issued by the
competent authorities of the respective State Governments
keeping in view the provisions contained in the Constitution of
India and the guidelines/principles laid down by this Court from
time to time. The status of a person whether he belongs to SC or
ST category depends on the caste which he belongs to by birth,
and such status would remain unchanged and would be static,
however, the status of a person whether he belongs to OBC-
NCL/MBC-NCL/EWS would depend upon his/her social and
economic status, and such status would keep on changing
depending on his/her income and therefore would be dynamic. It
is very well settled position of law that the persons belonging to
the Scheduled Castes and Scheduled Tribes were and are treated
as a separate category, and the principle of “creamy layer” does
not apply to the said categories. It applies only to the persons
belonging to the socially and the economically backward classes.
Ergo, the date of issuance of certificate to the persons belonging
to OBC-NCL/MBC-NCL/EWS categories assumes significance
for the purpose of ascertaining as to whether the candidate
claiming to belong to a particular reserved category on the date
when he/she applied for the post in question under such category,
in fact belonged to
the said category on the date on which such
application was made or on the date prescribed in the
advertisement. [Para 14][625-D-G]
2. Having regard to the said instructions contained in the
said advertisement dated 22.07.2021, there remains no shadow
of doubt that if a candidate had applied under any of the reserved
categories, he or she was expected to have a valid certificate
issued by the competent authority as per rules in the prescribed
format, to show his or her eligibility to apply under such category.
The time limit for making such application as stated in Clause 17
of the said advertisement was upto 5 PM on 31.08.2021. Under
the circumstances, the candidate was expected to have the
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requisite certificate to show that he or she belonged to the
concerned reserved category, on the date of making application
or on the last date fixed for the submission of applications i.e.
31.08.2021. Such certificate to be produced by the concerned
candidate had to be a valid certificate issued by the competent
authority in consonance with the circulars issued by the State
Government dated 09.09.2015 and as clarified in the Circular
dated 08.08.2019, which governed the issue with regard to the
validity of such certificates. [Para 22][630-C-E]
3. All the appellants had produced their respective
certificates which were obtained by them after the last date fixed
for the submission of the application i.e., 31.08.2021, and had also
not produced the documents/affidavits in support thereof, in
compliance with the circulars dated 09.09.2015 and 08.08.2019.
Therefore, the certificates produced by the appellants at the time
of interview could not said to be valid certificates as mandated in
the advertisement dated 22.07.2021 by the respondents. [Para
23][630-H; 631-A]
4. It was sought to be submitted by counsel for the
appellants that there was no specific date mentioned in the
advertisement dated 22.07.2021 as to the validity period of the
certificates to be furnished by the appellants, and subsequent
notice dated 04.08.2022 directing the appellants to produce the
certificates as mentioned therein was highly unreasonable,
and
tantamount to changing the rules of game after the process of
selection had started. The Court does not find any substance in
the said argument. As stated earlier, there were specific
instructions given in the advertisement that the candidates
applying under the reserved categories had to submit the valid
certificates issued by the competent authority, and therefore such
certificates had to be in consonance with the circulars of the State
Government dated 09.09.2015 and 08.08.2019 which governed
the validity period of such certificates. The subsequent notice
dated 04.08.2022 given by the respondent High Court requiring
the candidates belonging to OBC/MBC(NCL) to produce the
certificates issued not prior to one year from the last date fixed
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for the submission of application form i.e., 31.08.2021, was
absolutely in consonance with the said circulars issued by the State
Government. It was also mentioned in the said notice dated
04.08.2022 that in case the OBC/MBC(NCL) certificate was
issued between 31.08.2018 and 30.08.2020, an affidavit in
prescribed format along with the caste certificate had to be
produced. For the EWS category, it was stated that the Income
and Asset certificate required for seeking reservation in EWS
category must not have been issued prior to 01.04.2021 and in
case the Income and Asset certificate was issued between
01.04.2019 and 31.03.2021, then an affidavit in the prescribed
format along with the certificate had to be produced. It was
specifically mentioned therein that SC/ST/OBC/MBC/EWS
certificate, as the case may be, must not have been issued after
the last date of submission of the application form i.e., 31.08.2021.
Such instructions requiring the reserved category candidates to
produce the requisite certificates could neither be said to be
unreasonable nor could be construed as changing the rules of
game after selection process was started, they being in consonance
with the important instructions given in the advertisement dated
22.07.2021, and in consonance with the circulars issued by the
State Government with regard to the validity period of caste
certificates. [Para 24][631-B-H; 632-A]
5. It is needless to say that when a candidate applies under
a particular
reserved category, he or she is required to have the
certificate of that particular category on the date on which he or
she makes the application to show his or her eligibility to apply
under the said category. If such certificates are obtained
subsequent to date of their application or subsequent to the last
date of submission of the applications mentioned in the
advertisement, such certificates could not be said to be valid
certificates, more particularly in cases where the candidate applies
under OBC-NCL or EWS, which category is highly dynamic and
not static, as the economic status of the candidate would keep on
changing depending on the income of the candidate. [Para 25][632-
B-C]
6. It is no more res integra that in absence of a fixed date
indicated in the advertisement inviting applications, with reference
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to which the requisite eligibility is to be judged, and when the
rules are silent, the only certain date for the scrutiny of the
eligibility of a candidate would be the last date for making the
applications. It cannot be gain said that the date of interview or
selection would always be uncertain and the uncertainty of the
date may lead to an anomalous situation in as much as even those
candidates who were not eligible to apply under the reserved
category on the date of making application, may apply under the
reserved category and subsequently obtain the certificate by the
time the interviews are held. In such circumstance, the possibility
of playing mischief also cannot be ruled out. In the instant case,
the last date for the submission of applications was 31.08.2021
and the interviews were fixed in August 2022. So, there was a
gap of one full year between the last date for submission of the
applications and the date of interview, during which period the
economic status and resultant status of “creamy layer/non-creamy
layer/EWS” of the candidates might have also changed. Therefore,
the exposition of law settled by this Court is that in absence of a
fixed date indicated in the advertisement, and when the rules are
also silent, the last date fixed for submitting the applications would
be the date for the scrutiny of the eligibility of the candidates.
[Para 29][633-F-H; 634-A-B]
7. It is also pertinent to note that if
the appellants were
allowed to produce the certificates issued after the last date fixed
for the submission of applications mentioned in the advertisement
i.e. 31.08.2021, the other candidates similarly situated as the
appellants might raise a grievance for not giving them such
opportunity. The appellants who are the defaulters could not be
given preferential treatment by accepting the certificates
produced by them as valid, though the same were obtained by
them after the last date for the submission of applications fixed
in the advertisement. The said certificates were also not
supported by the requisite affidavits as per the Government
circulars dated 09.09.2015 and 08.08.2019. [Para 33][635-H; 636-
A-B]
8. In view of the afore-stated factual and legal aspects of
the matter, the Court does not find any error having been
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committed by the High Court while passing the impugned
judgments and orders. [Para 34][636-C]
Dr. M.V. Nair v. Union of India & Ors. (1993) 2 SCC
429; Ashok Kumar Sharma & Ors. v. Chander Shekhar
& Anr. (1997) 4 SCC 18 : [1997] 2 SCR 896 – relied
on.
Dolly Chhanda v. Chairman, JEE & Ors. (2005) 9 SCC
779 : [2004] 5 Suppl. SCR 79; Ram Kumar Gijroya v.
Delhi Subordinate Services Selection Board and Anr.
(2016) 4 SCC 754; Karn Singh Yadav v. Government
of NCT of Delhi & Ors. 2022 SCC OnLine SC 1341;
Ashok Kumar Sonkar v. Union of India & Ors. (2007)
4 SCC 54 : [2007] 3 SCR 95; Rakesh Kumar Sharma
v. State (NCT of Delhi) & Ors. (2013) 11 SCC 58; Indra
Sawhney & Ors. v. Union of India & Ors. 1992 Supp
(3) 217 : [1992] 2 Suppl. SCR 454; M. Nagaraj & Ors.
v. Union of India & Ors. (2006) 8 SCC 212 : [2006] 7
Suppl. SCR 336; Ashoka Kumar Thakur v. Union of
India & Ors. (2008) 6 SCC 1 : [2008] 4 SCR 1; Janhit
Abhiyan v. Union of India W.P. (C) 55/2019; Rekha
Chaturvedi v. University of Rajasthan and Others
(1993) 3 Supp SCC 168 : [1993] 1 SCR 186 - referred
to.
Case Law Reference
[2004] 5 Suppl. SCR 79
referred to
para 12
(2016) 4 SCC 754
referred to
para 12
[2007] 3 SCR 95
referred to
para 12
(2013) 11 SCC 58
referred to
para 12
[1992] 2 Suppl. SCR 454
referred to
para 15
[2006] 7 Suppl. SCR 336
referred to
para 16
[2008] 4 SCR 1
referred to
para 17
(1993) 2 SCC 429
relied on
para 30
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[1993] 1 SCR 186
referred to
para 31
[1997] 2 SCR 896
relied on
para 32
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3957
of 2023.
From the Judgment and Order dated 06.09.2022 of the High Court
of Judicature for Rajasthan at Jaipur in DBCWP No. 12374 of 2022.
With
Civil Appeal Nos. 3958-3961, 3963, 3962, 3908 and 3909 of 2023.
Rishabh Sancheti, Ms. Padma Priya, Anchit Bhandari, Suyash
Jain, Chirag Kalani, Zeeshan Ali, K. Paari Vendhan, Abhisar Bhanu,
Prince, Archit Upadhyay, Shubham Mishra, Vaibhav Shahi, Mrs. Prashita
Mishra, Anvesh Soni, Pallav Mongia, Ankush Mangal, Tushar Srivastava,
Advs. for the Appellant.
Gopal Jha, Ajay Choudhary, Advs. for the Respondents.
The Judgments of the Court were delivered by
RASTOGI, J.
1. Leave granted.
2. The present batch of appellants before us are the members of
Other Backward Classes (Non-Creamy Layer i.e., NCL); More
Backward Class (NCL) and from the category of Economically Weaker
Section (EWS), finally qualified in the selection process held for the post
of Civil Judge pursuant to an advertisement issued by the respondent
dated 22nd July, 2021 but they have not been considered in the category
to which they belong for the reason that the certificate of the category
which was furnished by each of the appellant is subsequent to the last
date indicated in the advertisement, i.e., 31st August, 2021 and each of
them unfortunately could not qualify in open category, filed writ
petition
under Article 226 of the Constitution that came to be dismissed by the
Division Bench of the High Court, which is the subject matter of challenge
before this Court.
3. The brief facts of the case emanate from the record are that
the post of Civil Judge to which we are concerned is included in the
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Schedule appended to Rajasthan Judicial Service Rules, 2010 (hereinafter
being referred to as the “Rules, 2010”) and is to be filled up only by
direct recruitment based on the result of competitive examination
conducted by the recruiting authority as provided under Part IV of the
Rules, 2010.
4. Apart from the method of recruitment, it may be noticed that
the reservation is being provided to the members of Scheduled Castes/
Schedule Tribes/Other Backward Classes/More Backward Classes/
Persons with Disabilities and Women Candidates under Rule 10 of the
Rules, 2010. With the stipulation under Rule 10(2) & (5) that in the event
of non-availability of suitable candidates amongst OBC/MBC in a
particular year of recruitment, the vacancies so reserved for them shall
be filled in accordance with the normal procedure and such of the unfilled
vacancies be carried forward to the subsequent recruitment year.
5. That as per the Scheme of examination referred to under Rule
20 of the Rules, 2010, the competitive examination for recruitment to the
post of Civil Judge shall be conducted by the recruiting authority in two
stages i.e. preliminary examination followed with Main examination as
per the Scheme specified in Part-IV of the Rules, 2010. With the
stipulation that the marks obtained in the preliminary examination by the
candidates who are declared qualified for admission to the Main
examination shall not be counted for determining their merit and those
who qualified
in the Main examination will be called for interview and
the marks secured in the Main examination and interview shall be the
governing factor in determining merit and those who finally placed in the
merit list, their names will be recommended by the recruiting authority
for appointment under Rule 24 and the appointments will be made by the
appointing authority in consultation with the Court in terms of Rule 26 of
Rules, 2010.
6. Around 120 vacancies of the year 2020-21 of Civil Judge came
to be advertised by the respondent pursuant to advertisement dated 22nd
July, 2021 and category-wise reservation was indicated in the tabulation
chart as referred to under Clause 4 of the advertisement, which is
reproduced as under:-
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*Out of 05 posts reserved for persons with Benchmark Disabilities, 01(one)
post is reserved for blindness and low vision, 01 (one) for deaf and hard of
hearing, 01 (one) for locomotor disability including cerebral palsy, leprosy
cured, dwarfism, acid attack victims and muscular dystrophy and 02 (two) for
autism, intellectual disability, specific learning disability and mental illness and
multiple disabilities from the amongst persons under Clauses (a) to (d) including
deaf-blindness in the posts identified for each disabilities.
7. Under Clause 5 of the advertisement, it is indicated that in the
absence of vacancies reserved of various categories remained unfilled,
what method has to be adopted in filling those unfilled vacancies with a
note appended thereto that the applicants who are from the State of
Rajasthan and members of Other Backward Class (Creamy Layer)/
More Backward Class (Creamy Layer) and applicants from other than
the State of Rajasthan and members of SC/ST/OBC (Creamy Layer/
Non-Creamy Layer) and More Backward Class (Creamy Layer/Non-
Creamy Layer) and Economically Weaker Sections (EWS) shall be
considered in general category and as referred to under Clause 6(i) and
(iii) of the advertisement, caste certificate issued as per Rules in the
prescribed format by the competent authority has to be produced for
seeking reservation and under Clause 22(3) (Other Important
Instructions), it was indicated that
the applicant has to produce on demand
of the recruiting authority all such documents/certificates while claiming
benefit of reservation required by the Rajasthan High Court or the
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concerned recruiting authority. The extract of Clause 6(i) and (iii) read
with Clause 22(3) of the advertisement are reproduced hereunder:
“6. In the context of Certificate of various categories
(i) Caste Certificate issued as per rules in the prescribed format
by the Competent Authority will have to be produced for
reservation in the Scheduled Caste, Scheduled Tribe, Other
Backward Class and Highly Backward Class.
(ii) ……
(iii) Certificate issued as per rules in the prescribed format by the
Competent Authority shall have to produce in the event of applicant
belongs to Economic Weaker Section.
….
“22. Other Important Instructions :-
(1)-(2)
……….
(3) It would be mandatory for the applicants to submit all concerning
original documents/certificates, on the basis of which they raise
any claim on being demanded by the Rajasthan High Court or
concerned Appointing authority.
(4) …….”
8. The instructions indicated that in terms of Clause 6(i) & (iii)
read with Clause 22(3), the applicants who claim the benefit of reservation,
such certificate/document has to be produced on demand by the High
Court or concerned Appointing authority. Thus, it is clear that there is no
requirement to furnish the caste certificate of the category claiming
benefit of reservation either at the stage of filling the application form or
at any lager stage, however, it has to be produced on demand by the
recruiting authority. It may be noticed that the reservation for MBC
(NCL) and EWC are
for the first time introduced in the instant selection
process held pursuant to an advertisement dated 22nd July, 2021.
9. The relevant requirement was notified by the respondent to be
furnished by the applicant claiming reservation against reserved vacancies
OBC-NCL, MBC-NCL or EWS category as the case may be, with the
stipulation that the certificate must be of the period not prior to one year
of the last date of submission of application i.e. 31st August, 2021 for the
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first time by its notice dated 04th August, 2022 of which reference has
been made. The extract of the documents demanded by the respondent
in reference to the certificate relating to category, is reproduced as under:-
“(iii) Certificate relating to category
a.
OBC/MBC (Non Creamy Layer) certificate issued not prior
to one year from the last date of submission of the application
form i.e. 31.08.2021.
b.
In case OBC/MBC (Non Creamy Layer) certificate is
issued between 31.08.2018 and 30.08.2020, an affidavit in
prescribed format along with caste certificate has to be
produced.
c.
In case of EWS category – Income & Asset required for
seeking reservation in EWS category must not be issued
prior to 01.04.2021.
In case Income & Asset Certificate issued between
01.04.2020 and 31.03.2021, an affidavit in prescribed format
along with certificate has to be produced.
d.
SC/ST/OBC/MBC/EWS certificate, as the case may be
must not have been issued after the last date of submission
of the application form i.e. 31.08.2021.”
(emphasis supplied)
10. It is not the case of the respondent that either of the appellant
does not belong to the respective reserved category i.e. OBC-NCL,
MBC-NCL or EWS but their certificate relating to category is of the
date later to the cut-off date i.e. 31st August, 2021 but each of the applicant
although was permitted to appear in the interview under the interim order
of the High Court but were not permitted
to claim the benefit of their
certificate relating to category which was furnished and were treated to
be in the open category.
11. When the result came to be finally published, indisputedly,
each of the applicant secured higher marks in their respective category
i.e. OBC-NCL, MBC-NCL or EWS as the case may be, and the
candidates lower in merit have been selected by the respondent but
since their certificate relating to category is somewhere later to the cut-
off date i.e. 31st August, 2021 (the last date of application form), the
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benefit of reservation has not been extended and since each of the
applicant failed to qualify in the open category, they were finally denied
from being considered for appointment to the post of Civil Judge and this
fact can be further supported from the result of recruitment of Civil
Judge Cadre 2021 published by respondent by notice dated 30th August,
2022 that indicates that the present appellants have secured higher marks
in their respective category qua those who have been finally
recommended for appointment in the category of OBC-NCL, MBC-
NCL or EWS category to which the present appellants are concerned
and for convenience, comparative statement prepared by the respondent,
in the tabulation form is reproduced as under:-
“OBC-NCL category - SLP(C) No.5654/2023, SLP(C) No.16428/
2022, SLP(C) Nos.18296-18299/2022
“MBC-NCL category – Sunil Gurjar SLP(C) No.19179/22 &
Kuldeep Bhatia SLP(C) No.21644/22
S.No.
Name 
of 
the 
Petitioner 
Marks 
Obtained
Cut 
off 
General  
Cut 
Off 
Marks 
MBC-NCL 
Date 
of 
MBC-NCL 
Certificates 
Date 
of 
MBC-NCL 
Certificate 
required 
as 
per 
Respondents 
1. 
Sunil 
Singh 
Gurjar 
172 
179.5 
141 
18.06.2018 
& 
16.06.2022 
31.08.2018 
to 
31.08.2021 
2. 
Kuldeep 
Bhatia 
141.5 
179.5 
141 
03.08.2012 
& 
09.03.2022 
“-do-“ 
“EWS category – Parul Jain SLP(C) Diary No.1581 of 2023
SAKSHI ARHA v. THE RAJASTHAN HIGH COURT AND
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12. It is not disputed by the respondent that each of the applicant
is holding the certificate of their respective category and it is of prior
date when demanded by the respondent under its notice dated 04th August,
2022.
13. This has come on record that circulars are issued by the State
of Rajasthan for the purpose of obtaining the certificate relating to
category in reference to seeking employment issued by the Department
of Social Justice and Empowerment, Jaipur dated 09th September, 2015
followed with 08th October, 2019 indicating the validity of certificate of
OBC-NCL, MBC-NCL or EBC and since there was a lot of confusion
and the circulars were not accessible to the people at large and litigation
was pending before the Courts, the State Government stepped in and in
furtherance thereof, issued its directive dated 17th October, 2022 and
came with the clarification that if for any reason, the candidate has not
produced a certificate issued till the last date of application form and
produces a certificate after the last date of filling up of application then
in that case, candidate should submit an affidavit that he was having the
eligibility of respective category and if the information is found incorrect,
then appointment can be cancelled. The extract of the clarification made
by the Government in meeting out the exigencies as demanded and to
streamline the on-going litigation, under its directive dated 17th
October,
2022 is reproduced as under:-
“If for any reason a candidate has not produced a certificate issued
till the last date of application form and produces a certificate
which is issued after the last date of filling application form then
in that case candidate should write an affidavit to this aspect that
he was having the qualification of respective class and if the
information is found incorrect then the appointment shall be
cancelled.”
14. For the sake of repetition, it may be noticed that it is not the
case of the respondent that either the appellant is not holding eligibility of
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the respective category of which he/she belongs in terms of advertisement
dated 22nd July, 2021 and their only fault is that their certificate relating
to category is of a date later to the last date of application (i.e. 31st
August, 2021) in terms of notice dated 04th October, 2022 demanding
for furnishing the certificate relating to category to which they were
provisionally called for interview.
15. On a writ petition being filed by the appellants assailing the
action of the respondent in not permitting them of claiming benefit of
reservation to which they belong and each of them have qualified after
securing more marks over the cut-off of respective category, the Division
Bench of the High Court has non-suited their claim on the premise that
each of them had failed to furnish certificate of their category as required
on the last date of application i.e. 31st August, 2021 by placing reliance
on the judgment of this Court in Ashok Kumar Sonkar vs. Union of
India and Others (2007) 4 SCC 54 held that the last date of application
is a touchstone for determining the eligibility and since each of them had
failed to furnish their respective certificate relating to category on or
before 31st August, 2021, they are held ineligible from being considered
in the respective category and since each of them had not been able to
qualify in the open category considered unsuitable for appointment to
the post of Civil Judge, under the impugned judgment dated 18th August,
2022 in the case of Jyoti Beniwal vs. The Rajasthan High Court,
Jodhpur Through Its Registrar General and Another (D.B. Civil
Writ Petition No.11784/2022) and that was referred to in the subsequent
writ petitions filed and all were disposed of placing reliance on the
judgment of Jyoti Beniwal (Supra) by subsequent impugned judgment
dated 06th September, 2022 and in the case of appellant Parul Jain,
separate judgment was passed on 18th November, 2022 relying on the
same judgment of High Court in Jyoti Beniwal (Supra) and that became
the subject matter of challenge in appeal before us.
16. Learned counsel for the appellants jointly submit that it was
nowhere indicated at any stage that certificate of the category upto
which date is to be furnished by the applicants/candidates while claiming
reservation and each of the appellant holds the certificate of their
respective category and accordingly, each of them mentioned in their
application form with regard to the category they intend to participate in
the selection process and although the permission granted to appear in
the preliminary examination was provisional but no one has examined at
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any stage that what is the requirement and since there is no reference
made either in the Scheme of Rules, 2010 or in the advertisement dated
22nd July, 2021 to the certificate of category to which the appellant claim
has to be furnished is of which date or year. Each of them had bona
fidely pleaded that the certificate of the category which is being obtained
is issued by the competent authority after due compliance for all practical
purposes and in the given facts and circumstances, the rigor which has
been put by the Division Bench of the High Court under the impugned
judgment taking 31st August, 2021 as a sacrosanct date for furnishing
the certificate relating to category is nowhere prescribed either under
the Rules of 2010 or in the advertisement to which we are concerned
hence, the premise on which the High Court has proceeded is completely
misconceived.
17. Learned counsel further submits that the judgment on which
reliance has been placed is not at all applicable on the facts of the instant
case for the reason that the judgments relied upon are related to the
minimum academic qualification and in the cases where rules are silent
or there is no administrative instruction issued by the competent authority/
recruiting authority before the selection process being initiated are in
place, this Court has stepped in and laid down a principle that in the
absence of rules indicating the requirement of holding academic
qualification, the last date of filling application is considered to be a
benchmark for the applicant to possess the minimum academic
qualification.
18. But we are not dealing in this case with minimum academic
qualification or the date of birth which is defined under the Scheme of
Rules, 2010. In the given facts and circumstances, the premise on which
the claim of the present appellants has been non-suited by the High
Court that they failed to furnish the certificate of category on or before
31st August, 2021 is completely without basis/foundation having no nexus
and they all have been put to surprise while it was notified to them
demanding to furnish the certificate relating to category on or before
31st August, 2021, which was the last date of submission of application
but it was, for the first time, notified when the provisional list of candidates
calling for interview was published on 04th August, 2022.
19. Learned counsel further submits that they all are coming from
rural background and belonging to a poor strata in society, having no
means to know the advanced technology which is available in the urban
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cities and with the minimal facilities available at their end, still they are
able to crack the competitive examination and when this is not the case
of the respondents that either of the appellant is not a member of a
category which was indicated by him/her in application form originally
filed to non-suite them at the stage when they finally qualified the
competitive test and as informed that vacancies are available because
of non-joining by the candidates, they can easily be adjusted against the
unfilled advertised vacancies without disturbing or taking away the rights
of the persons/candidates who have been appointed on being declared
successful by this authority.
20. Per contra, while supporting the finding recorded by the High
Court, learned counsel for the respondent submits that this being settled
by this Court in a catena of judgments that eligibility is to be looked into
on the last date of submission of application or the cut-off date indicated
in the relevant rules. In the instant case, when the rules are silent in such
circumstances, what being laid down by this Court is the law on the
subject and the eligibility of the applicant is to be looked into on the last
date of application which in the instant case is 31st August, 2021 and
admittedly, each of the applicant was not holding their certificate related
to category as demanded of the period prior to 31st August, 2021 and
accordingly, no error was committed by the respondent and have rightly
been treated in open category and it is not the case of the appellant that
any candidate who has been recommended and appointed in open
category is lower in the order of merit in the selection process held by
the respondent pursuant to advertisement dated 21st July, 2021 and in
support of his submission, learned counsel has placed reliance on the
judgment of this Court reported in Ashok Kumar Sonkar (Supra)
followed with Rakesh Kumar Sharma vs. State (NCT of Delhi) and
Others (2013) 11 SCC 58 and submits that this being a settled law held
by this Court and relied upon by the High Court, no error has been
committed by the High Court, which may called for interference of this
Court.
21. We have heard the learned counsel for the parties and with
their assistance perused the material available on record.
22. It is not disputed that the post of Civil Judge is included in the
Schedule appended to the Rules, 2010 and is to be filled up by direct
recruitment in terms of Part IV and the advertisement was notified by
the respondents on 22nd July, 2021 holding selection against 120 vacancies
of Civil Judge for the year 2020-2021.
SAKSHI ARHA v. THE RAJASTHAN HIGH COURT AND
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23. It is not disputed that the Rules of 2010 is a complete code
and silent in reference to the date when certificate of the category has
to be furnished and so far as the advertisement is concerned, it nowhere
indicates as to what should be the crucial date for the purpose of
furnishing the caste related certificate by the applicants who intended to
participate in the selection process and admittedly each of the appellant
holds the certificate of the category and the period prior to as have been
notified by the respondent while their provisional list of the candidates to
be called for interview has been published on 04th August, 2022.
24. It may be noticed that reservation to MBC (NCL) and EWS
category has been introduced for the first time and the candidates are
completely alien to the procedure and the format in which the certificate
of their category has to be furnished and so far as the candidates who
appeared in EWS quota is concerned, it has been submitted that father
of the appellant Parul Jain submitted the Income-Tax Returns of the
previous years and applied for EWS certificate on E-mitra kiosk on 16th
August, 2021 and the appellant was assured that she will receive EWS
certificate within 6-7 days but despite the appellant demanding her
certificate, it was issued by the E-mitra kiosk on 07th September, 2021
but it is not disputed by the respondent that the appellant belongs to
EWS category.
25. It is also
not disputed that either in the advertisement which
was initially notified on 22nd July, 2021 or at the stage of preliminary
examination held on 11th January, 2022 followed with Main examination
held on 30th April, 2022 to 01st May, 2022, it was nowhere notified that
the certificate of the category has to be furnished of the period prior to
31st August, 2021 and only when the list came to be published of the
candidates provisionally qualified for interview on 04th August, 2022, the
respondent came out with a defence that cut-off date for furnishing
caste related certificate should be prior to one year from the last date of
submission of application i.e. 31st August, 2021 and since each of the
applicant from OBC-NCL, MBC-NCL or EWS has furnished their
respective certificate of the category after it was brought to their notice
by the provisional list published on 04th August, 2022 and so far as the
candidate belonging to EWS category is concerned, appellant furnished
her caste certificate dated 07th September, 2021 with delay of seven
days.
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26. In the Scheme of rules, age has to be looked into as on the
first date of January following the last date fixed for receipt of application,
if one is not holding the age in terms of Rule 17, the applicant stands
disqualified provided relaxed by the appointing authority and Rule 18 of
the Scheme prescribes the academic qualification and it is nowhere
indicated as to when the academic qualification of the applicant is to be
looked into and here this Court has stepped in and the exposition of law
on the subject from Rekha Chaturvedi (Smt.) vs. University of
Rajasthan and Others 1993 Supp (3) SCC 168 is consistent and is
no more res integra that if the rules are silent and no date is being
notified on which the qualification/eligibility of the applicant is to be looked
into, the best course is to be taken care is the last date of application. To
take a judicial note, reference can be made of Rekha Chaturvedi (Supra)
which was further noticed in the case of Bhupinderpal Singh and
Others vs. State of Punjab and Others (2000) 5 SCC 262, Jasbir
Rani and Others vs. State of Punjab and Another (2002) 1 SCC
124, Shankar K. Mandal and Others vs. State of Bihar and Others
(2003) 9 SCC 519 followed with Ashok Kumar Sonkar (Supra) and
Rakesh Kumar Sharma (Supra).
27. This Court in Rekha Chaturvedi (Supra) held 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.
SAKSHI ARHA v. THE RAJASTHAN HIGH COURT AND
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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
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. We
have, therefore, no hesitation in holding that when the Selection
Committee in the present case, as argued by Shri Manoj Swarup,
took into consideration the requisite qualifications as on the date
of selection rather than on the last date of preferring applications,
it acted with patent illegality, and on this ground itself the selections
in question are liable to be quashed. Reference in this connection
may also be made to two recent decisions of this Court in 
A. P. Public Service Commission, Hyderabad  v. B. Sarat
Chandra [(1990) 2 SCC 669 : 1990 SCC (L&S) 377 : (1990) 4
SLR 235 : (1990) 13 ATC 708] and District Collector &
Chairman, Vizianagaram Social Welfare Residential School
Society, Vizianagaram v. M. Tripura Sundari Devi [(1990) 3
SCC 655 : 1990 SCC (L&S) 520 : (1990) 4 SLR 237 : (1990) 14
ATC 766].”
 (Emphasis supplied)
28. It was later followed in the case of Ashok Kumar Sonkar
(Supra), wherein this Court held as under:-
“17. In Bhupinderpal Singh v. State of Punjab [(2000) 5 SCC
262 : 2000 SCC (L&S) 639]
this Court moreover disapproved the
prevailing practice in the State of Punjab to determine the eligibility
with reference to the date of interview, inter alia, stating: (SCC
pp. 267-68, para 13)
“13. Placing reliance on the decisions of this Court in Ashok
Kumar Sharma v. Chander Shekhar [(1997) 4 SCC 18 : 1997
SCC (L&S) 913], A.P. Public Service Commission v. B. Sarat
Chandra [(1990) 2 SCC 669 : 1990 SCC (L&S) 377 : (1990)
13 ATC 708], Distt. Collector & Chairman, Vizianagaram
Social Welfare Residential School Society v. M. Tripura
Sundari Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 :
(1990) 14 ATC 766], Rekha Chaturvedi v. University of
Rajasthan [1993 Supp (3) SCC 168 : 1993 SCC (L&S) 951 :
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(1993) 25 ATC 234], M.V. Nair (Dr.) v. Union of India [(1993)
2 SCC 429 : 1993 SCC (L&S) 512 : (1993) 24 ATC 236]
and U.P. Public Service Commission v. Alpana [(1994) 2
SCC 723 : 1994 SCC (L&S) 742 : (1994) 27 ATC 101] the
High Court has held (i) that the cut-off date by reference to
which the eligibility requirement must be satisfied by the
candidate seeking a public employment is the date appointed
by the relevant service rules and if there be no cut-off date
appointed by the rules then such date as may be appointed for
the purpose in the advertisement calling for applications; (ii)
that if there be no such date appointed then the eligibility criteria
shall be applied by reference to the last date appointed by which
the applications have to be received by the competent authority.
The view taken by the High Court is supported by several
decisions of this Court and is therefore well settled and hence
cannot be found fault with. However, there are certain special
features of this case which need to be taken care of and justice
be done by invoking the jurisdiction under Article 142 of the
Constitution vested in this Court so as to advance the cause of
justice.”
29. It has been transpired and culled out from the aforementioned
decision that:-
(i) the cut-off date by reference to which the eligibility requirement
must be satisfied by the applicant seeking a public employment is
the date notified in the relevant service rules.
(ii) If there is no cut-off
appointed date indicated under the rules
then such date shall be as appointed for the purpose in the
advertisement calling for applications.
 (iii) If there is no such date appointed then the eligibility criteria
shall be applied by reference to the last date notified by which the
applications were to be received by the recruiting authority.
30. These principles have been settled by this Court and is no
more res integra for further discussion that when the rules are silent
and no date is notified to satisfy the eligibility requirement under the
advertisement, the eligibility criteria shall be applied by reference to the
last date of application by which applications are to be received by the
recruiting authority.
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31. Let us examine the Scheme of Rules, 2010 in other way and
Part IV in particular, which provides the method of recruitment in the
cadre of Civil Judge, Rule 19 postulates that the candidate has to submit
a character certificate while participating for direct recruitment which
may qualify him for employment in service, has to be not more than six
months prior to the date of application which the candidate has to enclose
while the application form is filled for participation in the selection process
and if we proceed on the principles as aforestated, the question arises
that if the candidate who has participated in the selection process after
furnishing the character certificate along with the application form in
terms of Rule 19, if at a later stage in the process of selection involves in
any act of moral turpitude before he is actually appointed whether the
appointing authority is under an obligation to give him appointment if his
name is finally placed in the order of merit, the answer indeed is in
negative and the reason is that the character certificate enclosed by the
applicant at the time of filling the application form in terms of Rule 19 is
only for the purpose of satisfaction in reference to the character of the
applicant/candidate who intends to participate in the process of recruitment
which may qualify him for employment in service, but if he later gets
himself involved in any act of moral turpitude,
although there is no
restriction/embargo, but the authority is always in its competence to take
into consideration the later developments and upto the date of appointment
if the candidate finally selected is found to be unsuitable for appointment
which indeed he did not carry at the time when the application form was
filled and that too on the last date of application, but that can always be
considered as material to adjudge the suitability of the candidate for
being considered for appointment and in the given situation the theory of
last date of application becomes completely otiose.
32. It is true that the general rule is that while participating in the
recruitment process, the person must possess the eligibility qualification
on the last date fixed for such purpose unless there is any express
provision to the contrary and there can be no relaxation in the matter of
holding requisite eligibility qualification by the date fixed and this has to
be established by producing necessary certificate or degree, as the case
may be. But, at the same time, in order to avail the benefit of reservation
or weightage, necessary certificates have to be produced but they are in
the nature of proof for the purpose of seeking entitlement to claim the
benefit of reservation, but it has no nexus with the last date of the
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application and, it may not be proper to apply any rigid principle in the
absence of any rule to the contrary. As a matter of caution, every
infraction of the rule relating to submission of proof in availing the benefit
of reservation may not necessarily result in rejection of the candidature.
33. In the similar circumstances, the vacancies are reserved for
various categories i.e. SC/ST/OBC/MBC/Persons with Disabilities and
women candidates under the Scheme of Rules, 2010 and that has been
notified category-wise under Clause 4 of the advertisement dated 22nd
July, 2021 with which we are concerned, and it goes without saying that
the candidate must be a member of the reserved category at the time
when the application form is filled pursuant to the advertisement in
question, but at the same time so far as the scheme of examination and
syllabus, as provided in Rule 20 of the Rules, 2010 is concerned, for
holding competitive examination for the post of Civil Judge conducted
by the recruiting authority is common for all and each of the candidate
regardless the category to which one belongs, has to undergo the same
process of qualifying the preliminary examination followed with main
examination and interview, except that the candidates are admitted to
the main examination followed with interview in terms of the total number
of vacancies category-wise.
34. The reservation of vacancies of various categories as referred
to in Rule 10 is not a condition of
eligibility for the candidate to participate
in the selection process as the certificate of category for the purpose of
claiming reservation will arise not at the stage when the application form
is filled making self-declaration by the individual candidate to participate
in the selection process but at the stage when the select list is to be
prepared of the candidates who have participated in the selection process
since the final select list has to be published category-wise by giving the
benefit of reservation to the candidates who have participated in the
process of selection and for no other purpose and when the respondent
has demanded from the applicant to furnish their respective certificate
of the category to which one had participated in the selection process
under its notice dated 04th August, 2022, indisputedly each of the applicant
had furnished the certificate of their category to which one belong at the
time of advertisement when demanded by the recruiting authority in
terms of Clause 6(i) & (iii) read with Clause 22(3) of the advertisement
dated 22nd July, 2021.
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35. This Court in Dolly Chhanda vs. Chairman, Jee & Others
(2005) 9 SCC 779, has considered the situation where the incumbent
has failed to furnish the certificate seeking benefit of reservation and
after examining the Scheme, this Court in the given circumstances, held
as under:
“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 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 to
benefit of reservation. Depending upon the facts of a case, there
can be some relaxation in the matter of submission of proof and it
will not be proper to apply any rigid principle as 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.”
36. Later, in Ram Kumar Gijroya vs.
Delhi Subordinate Services
Selection Board and Another (2016) 4 SCC 754, this Court has
examined the question as to whether a candidate who appears in an
examination under the OBC category and submits the certificate after
the last date mentioned in the advertisement is eligible for selection to
the post under OBC category and answered it in affirmative as under:-
“18. In our considered view, the decision rendered
in Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLine
Del 281] is in conformity with the position of law laid down by this
Court, which have been referred to supra. The Division Bench of
the High Court erred in reversing the judgment and order passed
by the learned Single Judge, without noticing the binding precedent
on the question laid down by the Constitution Benches of this
Court in Indra Sawhney [Indra Sawhney v. Union of India,
1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22
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ATC 385] and Valsamma Paul [Valsamma Paul v. Cochin
University, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33
ATC 713] wherein this Court after interpretation of Articles 14,
15, 16 and 39-A of the directive principles of State policy held that
the object of providing reservation to the SCs/STs and educationally
and socially backward classes of the society is to remove inequality
in public employment, as candidates belonging to these categories
are unable to compete with the candidates belonging to the general
category as a result of facing centuries of oppression and deprivation
of opportunity. The constitutional concept of reservation envisaged
in the Preamble of the Constitution as well as Articles 14, 15, 16
and 39-A of the directive principles of State policy is to achieve
the concept of giving equal opportunity to all sections of the society.
The Division Bench, thus, erred in reversing the judgment and
order passed by the learned Single Judge. Hence, the impugned
judgment and order passed by the Division Bench in Letters Patent
Appeal No. 562 of 2011 is not only erroneous but also suffers
from error in law as it has failed to follow the binding precedent
of the judgments of this Court in Indra Sawhney [Indra
Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC
(L&S) Supp 1 : (1992) 22 ATC 385] and Valsamma
Paul [Valsamma Paul v. Cochin University, (1996) 3 SCC 545
: 1996 SCC (L&S) 772 : (1996) 33 ATC 713]. Therefore, the
impugned
judgment and order [Delhi Subordinate Services
Selection Board v. Ram Kumar Gijroya, 2012 SCC OnLine Del
472 : (2012) 128 DRJ 124] passed by the Division Bench of the
High Court is liable to be set aside and accordingly set aside. The
judgment and order dated 24-11-2010 passed by the learned Single
Judge in Ram Kumar Gijroya v. Govt. (NCT of Delhi) [Ram
Kumar Gijroya v. Govt. (NCT of Delhi), WP (C) No. 382 of
2009, order dated 24-11-2010 (Del)] is hereby restored.”
37. This judgment came up for consideration later before two-
Judge Bench of this Court in Karn Singh Yadav vs. Govt. of NCT of
Delhi and Others (SLP(C) No.14948/2016) and the Court has some
reservations and referred the matter to be placed before three-Judge
Bench by order dated 24th January, 2020 and three-Judge Bench of this
Court while relying upon Ram Kumar Gijroya (Supra) disposed of the
appeal under its order dated 28th September, 2022, it appears that the
reference made by two-Judge Bench of this Court remained unnoticed.
SAKSHI ARHA v. THE RAJASTHAN HIGH COURT AND
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Be that as it may, the position as on today is that three-Judge Bench of
this Court under its order dated 28th September, 2022 has affirmed the
view expressed by two-Judge Bench of this Court in Ram Kumar
Gijroya (Supra).
38. That apart, taking into consideration the Scheme of Rules,
2010, which is indisputedly, silent on the subject issue and the
advertisement dated 22nd July, 2021 nowhere indicates that the caste
certificate/certificate of category has to be produced of the period prior
to the last date of the application (31st August, 2021) in the instant case.
To the contrary, Clause 6(i) & (iii) read with Clause 22(3) of the
advertisement, such certificate of category which one claimed for seeking
the benefit of reservation, has to be produced on demand by the recruiting
authority.
39. In the given facts and circumstances, when the rules are silent
and there is no such instruction that the certificate of the category has to
be produced of the period on or before the last date of the application
under the advertisement and each of the applicants has produced the
certificate relating to category on being demanded by the recruiting
authority when the list came to be published of the candidates who were
provisionally called for interview on 04th August, 2022, each of the
applicants indisputedly has furnished their certificate of the category to
which they belong at the time of advertisement and had participated in
the process of selection. At this stage, in our view, the High Court had
gone wrong and was influenced with the condition of eligibility to be
looked into on the last date of application, while examining the production
of certificate of the category to which the candidate belong and
participated in the selection process is in no manner co-related with the
conditions of eligibility and the judgments relied upon to non-suite the
claim of the appellants has no application in the facts of the instant case.
40. To understand the dynamics, the Government has come out
with the Circulars earlier dated 9th September, 2015 followed with
08th October, 2019 of which reference has been made, but it has always
to commensurate with the process of selection when the advertisement
has been published by the recruiting authorities for making open selection
and in every advertisement notified by the recruiting authority, the last
date of application is bound to differ and that may change the complete
dynamics of the certificate which the applicant holds and he is not
supposed to obtain the certificate of category in conformity with each
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advertisement and it is not being practically possible and that appears to
be the reason since there was no scheme or instructions in place which
may regulate and streamline as to what is the procedure the applicant
has to follow while participating in the selection process intending to
avail the benefit of reservation for various categories and to overcome
the on-going litigation, the State Government has stepped in and clarified
under its directives dated 17th October, 2022 indicating that if the applicant
has failed to furnish the certificate on the last date of application or
furnish the same of the date later to the last date of application, he has to
furnish an affidavit that if it is found to be incorrect or false, such
appointment will be cancelled. To our mind, it may be an ad-hoc situation
noticed to meet out the current exigency by the Government, but the
recruiting authority or the Government, as the case may be, has to examine
the issue in totality and take into consideration the grievances which are
being raised and considered by the Court at various stages and to issue
clear guidelines with wide circulation which the candidates have to follow
who wants to avail the benefit of reservation to avoid/overcome the
litigation.
41. To sum up further, as noticed by this Court, the final merit list
of 120 selected candidates was notified by the respondents as indicated
in the notice dated 30th August, 2022 and there is no provision under the
Scheme
of Rules, 2010 of having any waiting list/reserve list. Thus, no
further appointments could be made after the final select list of 120
candidates has been exhausted on account of non-joining or for any
other reason of the candidates.
42. It is informed to this Court that out of 120 candidates who
were recommended for appointment, appointment orders were issued
to 119 candidates on 09th March, 2023 and five candidates have not
joined and that apart in MBC (NCL) category, five vacancies were
reserved and only two candidates are appointed and three vacancies
are filled by open category. Taking the overall spectrum of the fact situation
that the candidates who might be lower in the order of merit vis-à-vis
the present appellants have joined and sent for training, but they were
never at fault, at the same time, the present appellants also need
indulgence of being considered for appointment after they are finally
selected and indisputedly have secured higher marks than cut-off in their
respective category and this fact has not been disputed by the respondents
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as well, few of the applicants can be adjusted against the available
advertised vacancies and without disturbing or taking away the rights of
the candidates who have been appointed by the recruiting authority, in
the peculiar facts and circumstances, in exercise of our power under
Article 142 of the Constitution, to do complete justice to the parties, it
may be appropriate to direct the respondents to consider each of the
appellants for appointment who could not be adjusted against the
advertised vacancies of Civil Judge against future vacancies, subject to
their suitability under the Scheme of Rules, 2010.
43. The appeals succeed and are accordingly allowed. The
impugned judgment of the High Court is hereby quashed and set aside
and the respondents are directed to consider candidature of each of the
appellant for appointment with consequential benefits including seniority
to the post of Civil Judge on their participation in the selection process
held pursuant to advertisement dated 22nd July, 2021. The order may be
passed subject to their suitability within two months. No costs.
44. Pending applications, if any, shall stand disposed of.
BELA M. TRIVEDI, J.
1. I have had the opportunity to go through the opinion expressed
by my esteemed brother Justice Ajay Rastogi, however I express my
inability to agree with the views expressed in the said opinion, and pen
down my opinion as under: -
2. Leave granted.
3. The common
adjudication is being made having regard to the
contextual semblance of facts and legal issues involved in all these appeals.
The appellants in all the appeals have challenged the impugned orders
passed by the High Court of Judicature for Rajasthan, whereby the High
Court has dismissed the writ petitions filed by them. In the writ petitions
before the High Court, the primary challenge was to the action of the
respondent-High Court in issuing the notice on 04.08.2022 requiring the
candidates, who had successfully qualified themselves in the main
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examination for the post of Civil Judges, to produce the certificates relating
to the categories like Other Backward Class / More Backward Class -
Non-Creamy Layer and Economically Weaker Section etc. issued within
one year from the last date of submission of the application form i.e.
31.08.2021 and not after the said date. The appellants having produced
the certificates showing their status in the respective reserved category,
which were issued after the said date 31.08.2021, they were not found
eligible for the said post by the respondent-High Court.
Factual Matrix
4. The short facts that emanate from the record of the present
batch of appeals are that the respondent-High Court issued an
advertisement on 22.07.2021 inviting applications for the recruitment of
Civil Judges against the vacancies in the year 2021 as per the Rajasthan
Judicial Service Rules, 2010 (hereinafter referred to as the Rules, 2010).
The relevant part of the said advertisement is produced hereunder for
the better appreciation of the issues involved:
“Rajasthan High Court, Jodhpur
Advertisement No.:- Rajasthan High Court, Jodhpur/Examination
Cell/ R.J.S./ Civil Judge Cadre/ 2021/ 780 dated 22.07.2021.
Competitive Examination for Direct Recruitment in Civil
Judge Cadre, 2021.
1. Online applications are invited by Rajasthan High Court,
Jodhpur for direct recruitment on total 120 vacant posts (89
posts of year 2020 and 31 posts of year 2021) of Civil Judge
and Judicial Magistrate on
probation in Civil judge Cadre in
grade pay 27700-770-33090-920-40450-1080-44770 under
Rajasthan Judicial Service Rules, 2010 (as amended).
2
to 3 ……….
4. Number of Vacant posts and Reservation.
SAKSHI ARHA v. THE RAJASTHAN HIGH COURT AND
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*Out of 05 posts reserved for persons with Benchmark
Disabilities, 01 (One) post is reserved for blindness and low vision,
01 (One) for deaf and hard of hearing, 01 (one) for locomotor
disability including cerebral palsy, leprosy cured, dwarfism, acid
attack victims and muscular dystrophy and 02 (two) for autism,
intellectual disability, specific learning disability and mental illness
and multiple disabilities from the amongst persons under clauses
(a) to (d) including deaf blindness in the posts identified for each
disabilities.
Note- The number of aforesaid vacant posts can be increased or
decreased as per rules for which no re-advertisement or
corrigendum will be published.
5. Regarding reservation of various categories-
i.
Reservation for posts reserved for women (including widow
and divorced women) shall be treated as horizontal against
category wise vacant posts meaning thereby women of which
category (Scheduled Castes/ Scheduled Tribes/ Other
Backward Classes/ More Backward Classes/ Economically
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Weaker Sections/ General Category) will be selected, such
woman candidate will be adjusted against the concerned
category of which she is an applicant.
ii. Reservation for posts reserved for Persons with Disabilities
shall be treated as horizontal against total vacant posts meaning
thereby persons with disabilities of which category (Scheduled
Castes/ Scheduled Tribes/ Other Backward Classes/ More
Backward Classes/ Economically Weaker Sections/ General
Category) will be selected, such candidates will be adjusted
against the concerned category of which they are applicant.
iii. In the event of non-availability of eligible and suitable
candidates against the posts reserved for Scheduled Castes/
Scheduled Tribes/ Other Backward Classes/ Most Backward
Classes /Economically Weaker Sections/ women (including
widow and divorced women) / Persons with Disabilities of
Rajasthan, these posts will be filled by the procedure and
manner prescribed in Rajasthan Judicial Service Rules, 2010
(as amended).
iv. For selection against posts meant for general category, it will
be essential for reserved category candidates to be eligible as
general category candidates.
Note- Applicants from creamy layer category of Other
Backward Class and More Backward Class of Rajasthan and
Scheduled Castes/ Scheduled Tribes/ Other Backward Class
(Creamy layer and non-creamy layer)/ More Backward Class
(Creamy layer and non-creamy layer)/ Economically Weaker
Sections of other states, shall be
treated as general category
candidates.
6. Regarding certificates of various categories-
i.
For reservation as Scheduled Castes/ Scheduled Tribes/ Other
Backward Classes and More Backward Class, certificate
issued by the Competent authority as per rules in the prescribed
format, will have to be furnished.
ii. For the applicants coming within Persons with Disability
category, such candidates will have to furnish Certificate of
Disability issued in the prescribed format by Authorized
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Certifying Authority authorized by appropriate Government,
as and when demanded by Rajasthan High Court. As per the
extant rules applicable in this regard, only Disability Certificate
Holder candidates shall be considered eligible for selection
and appointment against the posts reserved for the Persons
with Disabilities.
iii. In case of Economically Weaker Sections applicants, such
candidates will have to furnish the certificate duly issued as
per rules of the Competent Authority.
iv. For availing benefit of reservation meant for married women
candidates of Scheduled Castes and Scheduled Tribes, such
women candidates will have to furnish caste certificate based
on the name and address of father issued in the prescribed
format as per rules. The certificate based on the basis of name,
address and income of the husband shall not be applicable.
v. For availing benefit of reservation meant for married women
candidates of Other Backward Classes and More Backward
Classes, such women candidates will have to furnish caste
certificate based on the name and address of father issued in
the prescribed format as per rules. The certificate based on
the basis of name, address and income of the husband shall
not be applicable.
vi. In case of widow women candidate, she will have to furnish
death certificate of her husband issued by the Competent
authority and in case of Divorcee women candidate, she will
have to furnish proof of
Divorce.
7 to 9. ……
10.AGE: -
A candidate must have attained the age of 21 years on 01st
January 2022 however must not have attained the age of 40
years.
Provided that –
(i)
the upper age limit mentioned above shall be relaxed by
5 years in case of candidates belonging to the Scheduled
Castes/Scheduled Tribes, Other Backward Classes/More
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Backward Classes/ Economically Weaker Sections and
Women Candidates.
11 to 16. ……
17.Time Limit to Apply:-
18.Important Instructions to Apply:-
1. Any applicant under which category he is eligible to apply
should apply in the same category. The category filled in
the application will not be changed under any
circumstances on the request of the applicant.
2. Before applying online application, the applicant must ensure
that he/ she meets all the eligibility conditions as per the
conditions mentioned in the advertisement and all the
information required in the online application form is filled in
correctly and fully in the relevant column. The information
filled in the online application form will be considered as correct
and provisional admission will be given in the examination.
Therefore, the applicant himself/herself will be responsible
for the information filled in the online application form.
3. Only the applications filled by the last date of online application
will be accepted. In case all the entries are not complete and
correct, the application will be rejected by the Rajasthan High
Court.
4. No change can be made in the entries once finally entered in
the online application, nor will any application in this regard be
accepted for consideration.
19 to 21. …..
22.  Other Important Instructions:-
1….
2….
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3. The candidates will be required to produce all the relevant
original documents/certificates, on the basis of which they make
any claim, if required by the Rajasthan High Court or the
concerned appointing authority.
4 to 8……
9.  Only such applicants, who have successfully deposited the
examination fee by applying online till the last date, will be
provisionally allowed to appear in the examination by the
Rajasthan High Court. Merely issuing the admit card to an
applicant to appear in the examination would not mean that
his candidature has been finally accepted by the Rajasthan
High Court or that the entries made by the applicant in the
application form have been treated as correct and true. While
checking the eligibility of the applicant from the original
documents by the Rajasthan High Court and as per rule, if
his/her ineligibility is detected on the ground of non-fulfilment
of other essential conditions of eligibility on the basis of age,
educational qualification and SC/ST/OBC/More Backward
Class/EWS/PH/Women/ Widow/Abandoned (Divorced) etc.,
his/her candidature for this examination is liable to be cancelled
at any stage, the responsibility of which will be that of the
applicant himself.”
5. All the appellants claiming to be the members of OBC/MBC-
NCL/EWS, appeared in the main examinations conducted by the
respondent and successfully cleared the same. They having been
provisionally qualified to be called for
the interview, were invited by the
respondent for the interview between 20.08.2022 to 27.08.2022, vide
the notice dated 04.08.2022. In the said notice it was directed that the
candidates had to bring all the original documents along with the attested/
certified photocopies at the time of interview. The precise directions
contained in the said notice are reproduced as under:
“The candidates are required to remain present for Interview on
the date and reporting time mentioned above in the temporary
office of Registrar (Examination), at Rajasthan State Judicial
Academy, Jodhpur, Near Jhalamand Circle, Old Pall Road, Jodhpur
(Rajasthan) with their original documents/certificates for
verification. The candidates are directed to bring all the following
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original documents along with two attested/certified photo copies
of each document: -
i….
ii….
iii. Certificate relating to category:-
(a) OBC/MBC (Non Creamy layer) certificate issued not prior
to one year from the last date of submission of the application
form i.e. 31.08.2021.
(b) In case OBC/MBC (Non Creamy Layer) certificate is
issued between 31.08.2018 and 30.08.2020, an affidavit in
prescribed format along with caste certificate has to be
produced.
(c) In case of EWS category - Income & Asset Certificate
required for seeking reservation in EWS category must not be
issued prior to 01.04.2021. In case Income & Asset Certificate
issued between 01.04.2019 and 31.03.2021, an affidavit in
prescribed format along with certificate has to be produced.
(d) SC/ST/OBC/MBC/EWS certificate, as the case may be
must not have been issued after the last date of submission of
the application form i.e. 31.08.2021.”
6. The appellant Jyoti Beniwal (SLP (C) No. 5654/2023) who had
applied under the category OBC-NCL for the said post of Civil Judge,
filed the writ petition being No. 11784 of 2022 inter alia challenging the
conditions imposed in the said notice dated 04.08.2022 requiring the
candidates to furnish the OBC-NCL certificates issued between
31.08.2018 to 31.08.2021, and declaring that the certificates issued after
31.08.2021 would not be accepted. The Division Bench of the High
Court dismissed the said petition vide the judgment and order dated
18.08.2022, which
is impugned before this Court.
7. The appellant Kuldeep Bhatia (SLP (C) No. 21644 of 2022)
also filed writ petition being no. 12022 of 2022 before the High Court
challenging the said notice dated 04.08.2022 prescribing the requirement
of furnishing the OBC (NCL) certificate of the period not prior to one
year preceding the last date of submission of application form. The said
petition also came to be dismissed by the High Court vide the order
SAKSHI ARHA v. THE RAJASTHAN HIGH COURT AND
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dated 06.09.2022, which is also impugned before us in this batch of
appeals. Similar writ petitions filed by the other appellants-writ petitioners
came to be dismissed by the High Court by passing separate orders
relying upon the decisions in case of Jyoti Beniwal and Kuldeep Bhatia.
8. For the better understanding and for the sake of convenience,
a comparative statement showing the facts in case of each of the
appellants is produced hereunder:
I. OBC-NCL category SLP 5654/2023, SLP 16428/2022,
SLP 18296 – 18299/22
II. MBC-NCL category-Sunil Gurjar SLP(C) NO. 19179/
22 & Kuldeep Bhatia SLP(C) NO. 21644/22
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III. EWS Category-Parul Jain SLP (C) No. 9544 OF 2023
9. It is pertinent to note that as per Clause-6 read with the important
instructions mentioned in the advertisement dated 22.07.2021, the
candidates belonging to various reserved categories had to produce legally
valid certificates issued by the competent authority. It may be further
noted that the Department of Social Justice and Empowerment,
Government of Rajasthan keeps on issuing the guidelines and directions
from time to time for the issuance of caste certificates to the SCs, STs,
OBCs, MBCs and EWS. The circulars prevalent at the relevant time
were the circulars dated 09.09.2015 and 08.08.2019. The relevant
paragraph 4 of the Circular dated 09.09.2015 with regard to issuance of
caste certificates reads as under:
“4. Validity Period of Caste Certificate: -
1.
The validity of caste certificates issued for SC / ST will be
lifetime whereas the certificate for OBC will be issued only
once but the fact that the person is not in the creamy layer
will be recognised on the basis of a valid affidavit up to three
years.
SAKSHI ARHA v. THE RAJASTHAN HIGH COURT AND
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2.
The certificate of non-creamy layer will be valid for one year.
Once the certificate of non-creamy layer is obtained, if the
applicant is not in the creamy layer in the next year as well,
then in such a situation an affidavit (Appendix-D) will be
obtained from him, where the earlier issued non-creamy layer
certificate shall be deemed valid, this can be done for a
maximum period of three years.”
10. The relevant part of the Circular dated 08.08.2019 clarifying
the aforesaid direction contained in the circular dated 09.09.2015 reads
as under:
“Government of Rajasthan
Department of Social Justice and Empowerment
No. F-11/S.C.S.T.OBC/S.B.C
   Date: 08.08.2019
…Therefore, it is once again clarified in this regard that the caste
certificate of Other Backward Classes shall be valid for one year,
however, in a situation where the applicant has been issued a
certificate for not falling in the creamy layer category and if such
applicant does not fall within the creamy layer in the subsequent
year as well, in that situation, previously issued certificate of falling
within the non-creamy layer will be treated as valid after obtaining
an attested affidavit from the applicant, which can be done
maximum for a period of three years.”
11. The substance of the above circulars was that the certificate
of OBC-NCL issued to a person would be valid for one year, however in
the subsequent year also if he continues to remain in the
“non-creamy
layer” category, the previously issued certificate would be treated valid
after obtaining an attested affidavit from such person, and such procedure
could be followed for a maximum period of three years.
Submissions:
12. The Learned Counsels appearing for the appellants made
following submissions:
(i)
The appellants having complied with all requisites in form
as well as in substance have been wrongly not considered
for the post of Civil Judge and the lesser meritorious
candidates in the respective categories have been selected
for the said post.
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(ii)
In absence of any specification with regard to the date of
certificates to be produced by the candidates applying under
the reserved categories either in the recruitment
advertisement dated 22.07.2021 or in the said Rules of 2010,
the prescriptions contained in the notice dated 04.08.2022
requiring the candidates to produce the certificates as per
Clause 3 thereof tantamount to changing the rules of game
in the midst of the recruitment process, which is not
permissible in the eye of law.
(iii)
The impugned conditions introduced by the respondents in
the notice dated 04.08.2022 limiting the chances of the
appellants being selected were absolutely unreasonable and
arbitrary.
(iv)
For availing the benefit of reservation, the appellants were
required to produce the relevant certificates, however any
rigid principle with regard to the date of certificate as the
proof for the purpose of seeking entitlement to claim the
benefit of reservation, had no nexus with the last date of
submission of application.
(v)
Relying upon the decision of this Court in Dolly Chhanda
Vs. Chairman, JEE & Ors.1, it is submitted that there can
be some relaxation in the matter of submission of proof of
the certificates/documents and it would not be proper to
apply any rigid principle. Every infraction of rule relating to
submission of proof need not be necessarily result in rejection
of candidature.
(vi)
Reliance has been placed in case of Ram Kumar Gijroya
Vs. Delhi Subordinate
Services Selection Board & Anr.2,
to submit that the submission of certificate after the last
date mentioned in the advertisement was valid for the
selection of the candidate under the reserved category.
According to the appellants, the said view was affirmed by
Three-Judge Bench in case of Karn Singh Yadav Vs.
Government of NCT of Delhi & Ors.3 (SLP (C) 14948/
2016).
1 (2005) 9 SCC 779
2 (2016) 4 SCC 754
3 2022 SCC OnLine SC 1341
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(vii)
Distinguishing the judgment of Ashok Kumar Sonkar Vs.
Union of India & Ors.4, relied upon by the respondent, it
was submitted that the ratio laid down in the said judgment
had no relevance to the facts of the present appeals in as
much as the said case pertained to the qualification of
candidates at the time of selection, whereas in the instant
appeals the issue is with regard to the date of the issuance
of certificates which is only procedural matter.
13. The Learned Counsel for the Respondents made the following
submissions:
(i)
The appellants had failed to reproduce valid certificates as
mentioned in the advertisement dated 22.07.2021 and notice
dated 04.08.2022.
(ii)
The State Government had issued the circulars dated
09.09.2015 and 08.08.2019 in which it was clarified that
the OBC certificate shall be issued only once, and the
certificate regarding Non-Creamy Layer would also be valid
for one year only, however, if the applicant continues to
hold the position of  “Non-Creamy Layer” in the subsequent
year, then the certificate issued in previous year would be
treated valid with an affidavit of the candidate. In the instant
appeals the appellants claiming to be belonging to OBC-
NCL had not produced the requisite valid certificates nor
the affidavit in that regard.
(iii)
As held in Ashok Kumar Sonkar (supra), the last date for
filing application is required to be treated as the cut-off
date in absence of any
date specified in this behalf either in
the advertisement or in the rules.
(iv)
Relying upon Rakesh Kumar Sharma Vs. State (NCT of
Delhi) & Ors.5, it has been submitted that the eligibility
criteria/conditions should be examined as on the last date
of the receipt of the application. The appellants having
acquired the requisite certificates after the cut-off date of
last date of submission of applications, they were rightly
not considered for selection for the post in question.
4 (2007) 4 SCC 54
5 (2013) 11 SCC 58
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(v)
The reservation under the category of OBC-NCL and EWS
is on the basis of the current economic status of the
candidates, whereas the caste status of person i.e., a
candidate being SC, ST or OBC would be dependent on
the birth of the person which factor remains static. Hence,
considering the dynamic state of the category of OBC-NCL
and EWS, the Government had issued the circulars dated
08.08.2009 and 09.09.2015 for issuing the requisite
certificates by the competent authority, and the appellants
accordingly had to produce the valid certificates issued by
such competent authorities as per the said circulars, which
the appellants had failed to produce in the instant cases.
Analysis and Reasoning:
14. At the outset, it deserves to be noted that the certificates to
the persons belonging to the reserved categories like SC/ST/OBC-NCL/
MBC-NCL/EWS are being issued by the competent authorities of the
respective State Governments keeping in view the provisions contained
in the Constitution of India and the guidelines/principles laid down by this
Court from time to time. The status of a person whether he belongs to
SC or ST category depends on the caste which he belongs to by birth,
and such status would remain unchanged and would be static, however,
the status of a person whether he belongs to OBC-NCL/MBC-NCL/
EWS would depend upon his/her social and economic status, and such
status would keep on changing depending on his/her income and therefore
would be
dynamic. It is very well settled position of law that the persons
belonging to the Scheduled Castes and Scheduled Tribes were and are
treated as a separate category, and the principle of “creamy layer” does
not apply to the said categories. It applies only to the persons belonging
to the socially and the economically backward classes. Ergo, the date of
issuance of certificate to the persons belonging to OBC-NCL/MBC-
NCL/EWS categories assumes significance for the purpose of
ascertaining as to whether the candidate claiming to belong to a particular
reserved category on the date when he/she applied for the post in question
under such category, in fact belonged to the said category on the date on
which such application was made or on the date prescribed in the
advertisement.
15. In this regard, before adverting to the submissions made by
the learned counsels for the parties, let us peep into the brief history of
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reservations, more particularly for the category of “Other Backward
Classes” and “Economically Weaker Sections”, with which I am
concerned. The most landmark decision on the issue of reservations for
the “Other Backward Class” category is the Nine-Judge Bench decision
in case of Indra Sawhney & Ors. Vs. Union of India & Ors.6, in
which it was noticed that amongst the backward class, there is a section
of the backward class which belong to the affluent section of society
and they do not deserve any sort of reservation for further progress in
life. In the majority judgment opined by B.P. Jeevan Reddy, J., it was
observed while discussing the issue under the head “Means test” and
“creamy layer”, that “Means test’ signifies imposition of an income limit,
for the purpose of excluding persons from the backward class whose
income is above the said limit, (also referred as the persons belonging to
creamy layer). It was further opined that the exclusion of “creamy layer”
must be on the basis of social advancement and not on the basis of mere
economic criteria. At the same time, income to the extent of property
held by person can be taken as a measure of social advancement and on
that basis “creamy layer” of all given caste/community/occupational group
can be excluded to arrive at a true backward class. It was further opined
that it is not impermissible for the State to categorize backward classes
into backward and more
backward on the basis of their relative social
backwardness. It was finally concluded while answering various questions
dealt with by the majority inter alia that (i) ‘creamy layer’ can be, and
must be excluded; (ii) it is not necessary for class to be designated as a
backward class that it is situated similarly to the Scheduled Castes/
Scheduled Tribes; (iii) a backward class of citizens cannot be identified
only and exclusively with reference to economic criteria. It is of course
permissible for the Government or other authority to identify backward
class of citizen on the basis of occupation-cum-income, without reference
to caste, if it is so advised; (iv) there is no Constitutional bar to classify
backward classes of citizens into backward or more backward categories;
(v) the Government of India and the State Governments have the power
to, and ought to, create a permanent mechanism in the nature of
commission etc.
16. In another significant decision in case of M. Nagaraj & Ors.
Vs. Union of India & Ors.7, the Constitution Bench while propounding
6 1992 Supp (3) 217
7 (2006) 8 SCC 212
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the concepts of “formal equality” and “proportional equality”, as the
basis of distribution of benefits and burdens, referred the concept of
“creamy layer” evolved in case of Indra Sawhney (supra), and opined
as under:
“120. At this stage, one aspect needs to be mentioned. Social
justice is concerned with the distribution of benefits and burdens.
The basis of distribution is the area of conflict between rights,
needs and means. These three criteria can be put under two
concepts of equality, namely, “formal equality” and “proportional
equality”. Formal equality means that law treats everyone equal.
Concept of egalitarian equality is the concept of proportional
equality and it expects the States to take affirmative action in
favour of disadvantaged sections of society within the framework
of democratic polity. In Indra Sawhney [1992 Supp (3) SCC 217
: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] all the Judges
except Pandian, J. held that the “means test” should be adopted
to exclude the creamy layer from the protected group earmarked
for reservation. In Indra Sawhney [1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] this Court has,
therefore, accepted caste as a determinant of backwardness and
yet it has struck a balance with the principle of secularism which
is the basic feature of the Constitution by bringing in the concept
of creamy layer…......”
17. In another significant decision of the Constitution Bench in
case of Ashoka Kumar Thakur
Vs. Union of India & Ors.8, it was
opined, again referring to the principle of “creamy layer” introduced in
Indra Sawhney (supra) that: -
“168. As noticed earlier, determination of backward class cannot
be exclusively based on caste. Poverty, social backwardness,
economic backwardness, all are criteria for determination of
backwardness. It has been noticed in Indra Sawhney case [1992
Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC
385] that among the backward class, a section of the backward
class is a member of the affluent section of society. They do not
deserve any sort of reservation for further progress in life. They
are socially and educationally advanced enough to compete for
the general seats along with other candidates.
8 (2008) 6 SCC 1
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169……
170. It is to be understood that “creamy layer” principle is
introduced merely to exclude a section of a particular caste on
the ground that they are economically advanced or educationally
forward. They are excluded because unless this segment of caste
is excluded from that caste group, there cannot be proper
identification of the backward class. If the “creamy layer” principle
is not applied, it could easily be said that all the castes that have
been included among the socially and educationally backward
classes have been included exclusively on the basis of caste.
Identification of SEBC for the purpose of either Articles 15(4),
15(5) or 16(4) solely on the basis of caste is expressly prohibited
by various decisions of this Court and it is also against Article
15(1) and Article 16(1) of the Constitution. To fulfil the conditions
and to find out truly what is socially and educationally backward
class, the exclusion of “creamy layer” is essential.
171-185…….
- It was further held:
186. Moreover, right from the beginning, the Scheduled Castes
and Scheduled Tribes were treated as a separate category and
nobody ever disputed identification of such classes. So long as
“creamy layer” is not applied as one of the principles of equality,
it cannot be applied to the Scheduled Castes and Scheduled Tribes.
So far, it is applied only to identify the socially and educationally
backward classes. We make it clear that for the
purpose of
reservation, the principles of “creamy layer” are not applicable
for Scheduled Castes and Scheduled Tribes.”
18. So far as Economically Weaker Section category is concerned,
the Parliament by 103rd amendment had inserted Clause (6) in Article 15
and Clause (6) in Article 16 of the Constitution of India. In the statement
of objects and reasons of the said Amendment, it was stated that the
Economically weaker sections of the citizens were not eligible for the
benefit of reservation, and with a view to fulfil the mandate of Article 46
and to ensure that economically weaker sections of the citizens get a
fair chance of receiving higher education and participation in the
employment in the services of the State, it was decided to amend the
Constitution of India. The Constitutional validity of the said 103rd
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amendment was challenged before this Court in case of Janhit Abhiyan
Vs. Union of India9 and by 3:2 the validity of the said amendment was
upheld, vide the judgment dated 07.11.2022.
19. The reason for quoting the aforesaid judgments is only to
demonstrate that the status of the candidates claiming reservation under
the category SCs and STs would be static, whereas the status of the
candidates claiming reservation under the category OBC-NCL, MBC-
NCL and EWS would be fluid, dynamic and not static. Under the
circumstances, the State Governments are issuing the guidelines from
time to time laying down the eligibility criteria for deciding the economic
status of a person and the methodology or procedure to be followed for
issuing the certificates to the persons belonging to the OBC-NCL/EWS
categories.
20. In the instant case, the State of Rajasthan had issued the
Circular dated 09.09.2015 with regard to the validity period of caste
certificate, in which it was stated inter alia that the validity of caste
certificates issued for SC/ST will be lifetime whereas the certificate for
OBC will be issued only once, and that the certificate of non-creamy
layer will be valid for one year. However, once the certificate of “non-
creamy layer” is issued, and if the applicant remains in the category of
non-creamy layer in the subsequent year also, then in such a situation an
affidavit in the prescribed form will be furnished by him, in which case
the earlier issued
“non-creamy layer” certificate shall be deemed valid,
and such procedure could be followed for a maximum period of three
years. The said Circular 09.09.2015 was further clarified vide Circular
dated 08.08.2019 in which it was stated that the caste certificate of
other backward classes shall be valid for one year, however in a situation
where the applicant has been issued a certificate of “not falling in the
creamy layer” category, and if such applicant does not fall within “creamy
layer” in the subsequent year as well, in that situation, previously issued
certificate of falling within the “non-creamy layer” will be treated as
valid on his furnishing an attested affidavit, which could be followed for
maximum period of three years.
21. So far as the facts of the present case are concerned, as
stated in the Clause 6 of the advertisement dated 22.07.2021, the
candidates claiming reservation under the categories of SC/ST/OBC-
NCL/MBC-NCL/EWS had to furnish valid certificates duly issued by
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the competent authority as per the rules in the prescribed format. It was
also stated in the important instructions of the advertisement that the
category filled in the application will not be changed under any
circumstances, and that the candidates will be required to produce all
the original documents/certificates on the basis of which they made claim
of reservation, if required by the Rajasthan High Court or the concerned
appointing authority.
22. Having regard to the said instructions contained in the said
advertisement dated 22.07.2021, there remains no shadow of doubt that
if a candidate had applied under any of the reserved categories, he or
she was expected to have a valid certificate issued by the competent
authority as per rules in the prescribed format, to show his or her eligibility
to apply under such category. The time limit for making such application
as stated in Clause 17 of the said advertisement was upto 5 PM on
31.08.2021. Under the circumstances, the candidate was expected to
have the requisite certificate to show that he or she belonged to the
concerned reserved category, on the date of making application or on
the last date fixed for the submission of applications i.e. 31.08.2021.
Such certificate to be produced by the concerned candidate had to be a
valid certificate issued by the competent authority in consonance with
the circulars issued by the State Government dated 09.09.2015 and as
clarified in the Circular dated 08.08.2019, which governed the issue with
regard to the validity of such certificates.
23. Admittedly, all the appellants had the certificates issued after
the last date fixed for the submission of their applications i.e., 31.08.2021.
So far as OBC-NCL category was concerned the appellant Jyoti Beniwal
had furnished the OBC-NCL certificate dated 25.07.2022, appellant
Sakshi Arha had the certificate dated 12.08.2022, appellant Priyanka
had the certificate dated 20.06.2022, appellant Bhavya Kulhar had the
certificate dated 16.06.2022, appellant Neha Batar had the certificate
dated 21.06.2022 and appellant Nikhil Kataria had the certificate dated
09.06.2022. So far as MBC-NCL is concerned, the appellant Sunil Singh
Gurjar had the certificate dated 16.06.2022 and appellant Kuldeep Bhatia
had the certificate dated 09.03.2022. So far as EWS category is
concerned, the appellant Parul Jain had the certificate dated 07.09.2021.
Thus, all the appellants had produced their respective certificates which
were obtained by them after the last date fixed for the submission of the
application i.e., 31.08.2021, and had also not produced the documents/
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affidavits in support thereof, in compliance with the circulars dated
09.09.2015 and 08.08.2019. Therefore, the certificates produced by the
appellants at the time of interview could not said to be valid certificates
as mandated in the advertisement dated 22.07.2021 by the respondents.
24. It was sought to be submitted by learned counsel for the
appellants that there was no specific date mentioned in the advertisement
dated 22.07.2021 as to the validity period of the certificates to be furnished
by the appellants, and subsequent notice dated 04.08.2022 directing the
appellants to produce the certificates as mentioned therein was highly
unreasonable, and tantamount to changing the rules of game after the
process of selection had started. The Court does not find any substance
in the said argument. As stated earlier, there were specific instructions
given in the advertisement that the candidates applying under the reserved
categories had to submit the valid certificates issued by the competent
authority, and therefore such certificates had to be in consonance with
the circulars of the State Government dated 09.09.2015 and 08.08.2019
which governed the validity period of such certificates. The subsequent
notice dated 04.08.2022 given by the respondent-High Court requiring
the candidates belonging to OBC/MBC(NCL) to produce the certificates
issued not prior to one year from the last date fixed for the submission of
application form i.e., 31.08.2021, was
absolutely in consonance with the
said circulars issued by the State Government. It was also mentioned in
the said notice dated 04.08.2022 that in case the OBC/MBC(NCL)
certificate was issued between 31.08.2018 and 30.08.2020, an affidavit
in prescribed format along with the caste certificate had to be produced.
For the EWS category, it was stated that the Income and Asset certificate
required for seeking reservation in EWS category must not have been
issued prior to 01.04.2021 and in case the Income and Asset certificate
was issued between 01.04.2019 and 31.03.2021, then an affidavit in the
prescribed format along with the certificate had to be produced. It was
specifically mentioned therein that SC/ST/OBC/MBC/EWS certificate,
as the case may be, must not have been issued after the last date of
submission of the application form i.e., 31.08.2021. Such instructions
requiring the reserved category candidates to produce the requisite
certificates could neither be said to be unreasonable nor could be
construed as changing the rules of game after selection process was
started, they being in consonance with the important instructions given
in the advertisement dated 22.07.2021, and in consonance with the
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circulars issued by the State Government with regard to the validity
period of caste certificates.
25. It is needless to say that when a candidate applies under a
particular reserved category, he or she is required to have the certificate
of that particular category on the date on which he or she makes the
application to show his or her eligibility to apply under the said category.
If such certificates are obtained subsequent to date of their application
or subsequent to the last date of submission of the applications mentioned
in the advertisement, such certificates could not be said to be valid
certificates, more particularly in cases where the candidate applies under
OBC-NCL or EWS, which category is highly dynamic and not static, as
the economic status of the candidate would keep on changing depending
on the income of the candidate.
26. The submission made by the learned counsel for the appellants
that in absence of a fixed date specified in the advertisement and in
absence of any provision in the Rules, the certificates produced on the
date of interview should be treated as valid, cannot be accepted. Though,
reliance was sought to be placed by the learned counsel for the appellants
on Dolly Chhanda v. Chairman, JEE and Others (supra), Ram Kumar
Gijroya v. Delhi Subordinate Services Selection Board and Another
(supra) and Karn Singh Yadav vs. Govt. Of NCT Of Delhi & Ors.
(SLP (C) No. 14948 of 2016) they are hardly
of any help to the appellants.
In Dolly Chhanda (supra), this Court while observing that every infraction
of rule relating to submission of proof need not necessarily result in
rejection of candidature, had emphasized that:
“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 the application form as the case may be, unless there is an
expressed provision to the contrary. There can be no relaxation in
this regard i.e. in the matter of holding the eligibility qualification
by the date fixed. This has to be established by producing the
necessary certificates, degrees or marksheets. Similarly, in order
to avail the benefit of reservation or weightage etc. necessary
certificates have to be produced. These are the documents in the
nature of proof of holding of particular qualification or percentage
of marks secured or entitlement to benefit of reservation..”
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27. In Ram Kumar Gijroya (Supra), the two Judge Bench of this
Court had found the candidate eligible for selection to the concerned
post under the OBC category, though the certificate in that regard was
submitted after the last date mentioned in the advertisement, however
another two judge Bench of this Court in Karn Singh Yadav (supra) had
expressed reservation in that regard, and had referred the matter to the
Three-Judge Bench vide the order dated 24.01.2020. The Three-Judge
Bench in the said case of Karn Singh Yadav (supra) however relying
upon Ram Kumar Gijroya (supra) disposed of the appeal vide the order
dated 28.09.2022, without noticing the reference made by the two Judge
Bench in the said case. Be that as it may, in none of these two cases,
was there an issue whether the candidate could have produced the
requisite certificate showing his reserved category, issued after the last
date fixed for the submission of the applications mentioned in the
advertisement, as has been done in the instant appeals.
28. Further, none of the appellants had raised any such contention
in their writ petitions that they had applied on time and the delay in
issuing certificates was on the part of the competent authorities.
Admittedly, no such affidavits as contemplated in the circulars dated
09.09.2015 and 08.08.2019 were filed by the appellants either before
the competent authority issuing the certificates or before the respective
High Court at the time of interview,
though indicated in the notice dated
04.08.2022.
Conclusion:
29. It is no more res integra that in absence of a fixed date
indicated in the advertisement inviting applications, with reference to
which the requisite eligibility is to be judged, and when the rules are
silent, the only certain date for the scrutiny of the eligibility of a candidate
would be the last date for making the applications. It cannot be gain said
that the date of interview or selection would always be uncertain and
the uncertainty of the date may lead to an anomalous situation in as
much as even those candidates who were not eligible to apply under the
reserved category on the date of making application, may apply under
the reserved category and subsequently obtain the certificate by the
time the interviews are held. In such circumstance, the possibility of
playing mischief also cannot be ruled out. In the instant case, the last
date for the submission of applications was 31.08.2021 and the interviews
were fixed in August 2022. So, there was a gap of one full year between
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the last date for submission of the applications and the date of interview,
during which period the economic status and resultant status of “creamy
layer/non-creamy layer/EWS” of the candidates might have also
changed. Therefore, the exposition of law settled by this Court is that in
absence of a fixed date indicated in the advertisement, and when the
rules are also silent, the last date fixed for submitting the applications
would be the date for the scrutiny of the eligibility of the candidates.
30. A Three-Judge Bench of this Court in Dr. M.V. Nair Vs.
Union of India & Ors.10, had held inter alia that the qualification and
eligibility have to be considered with reference to the last date for receiving
the applications, unless the notification calling for applications itself
specifies a date.
31. In Rekha Chaturvedi v. University of Rajasthan and
Others11, this Court held 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
applications with reference to which the requisite qualifications
10 (1993) 2 SCC 429
11 1993 Supp (3) SCC 168
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should be judged, the only certain date for the scrutiny of the
qualifications will be the last date for making the applications. We
have, therefore, no hesitation in holding that when the Selection
Committee in the present case, as argued by Shri Manoj Swarup,
took into consideration the requisite qualifications as on the date
of selection rather than on the last date of preferring applications,
it acted with patent illegality, and on this ground itself the selections
in question are liable to be quashed. Reference in this connection
may also be made to two recent decisions of this Court in A.P.
Public Service Commission, Hyderabad v. B. Sarat
Chandra [(1990) 2 SCC 669 : 1990 SCC (L&S) 377 : (1990) 4
SLR 235 : (1990) 13 ATC 708] and District Collector &
Chairman, Vizianagaram Social Welfare Residential School
Society, Vizianagaram v. M. Tripura Sundari Devi [(1990) 3
SCC 655 : 1990 SCC (L&S) 520 : (1990) 4 SLR 237 : (1990) 14
ATC 766] .”
32. A Three-Judge Bench of this Court in Ashok Kumar Sharma
& Ors. Vs. Chander Shekhar & Anr.12, observed as under: -
“6. 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.”
33. It is also pertinent to note that if the appellants were allowed
to produce the certificates issued after the last date fixed for the
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submission of applications mentioned in the advertisement i.e. 31.08.2021,
the other candidates similarly situated as the appellants might raise a
grievance for not giving them such opportunity. The appellants who are
the defaulters could not be given preferential treatment by accepting the
certificates produced by them as valid, though the same were obtained
by them after the last date for the submission of applications fixed in the
advertisement. The said certificates were also not supported by the
requisite affidavits as per the Government circulars dated 09.09.2015
and 08.08.2019.
34. In view of the afore-stated factual and legal aspects of the
matter, I do not find any error having been committed by the High Court
while passing the impugned judgments and orders. In that view of the
matter, the appeals being devoid of merits are dismissed.
Ankit Gyan
Matter be placed before Hon'ble CJI
(Assisted by : Tamana, LCRA)
for constitution of appropriate Bench.