Supreme Court: In a batch of civil appeals filed by members of OBC, EWS, qualifying the selection process held for the post of Civil Judge challenged the order of Rajasthan High Court, wherein the petition filed by the appellants to consider their respective categories to which they belonged was dismissed. The Division Bench of Ajay Rastogi and Bela M. Trivedi, JJ., delivered a spilt verdict, and thus, the matter was placed before the Chief Justice of India (‘CJI’) to refer the matter to another Bench.
An advertisement was published 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 (‘the Rules, 2010’). Around 120 vacancies for Civil Judge for the year 2020-21 were advertised by the respondent pursuant to the advertisement dated 22-07-2021 and category wise reservation under Clause 4 of the advertisement was indicated.
The members of Other Backward Classes (Non-Creamy Layer i.e., NCL), More Backward Class(‘MBC’) (NCL) and Economically Weaker Section (‘EWS’) (‘appellants’), had qualified the selection process for the post of Civil Judge, but they were not 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 was subsequent to the last date indicated in the advertisement, i.e., 31-08-2021 and each of them unfortunately could not qualify in the open category.
Therefore, the appellants filed a writ petition under Article 226 of the Constitution that came to be dismissed by the Division Bench of the High Court.
Justice Ajay Rastogi’s Opinion-
Justice Rastogi noted that the Rules, 2010 is a complete code, however, it is silent in reference to the date when certificate of the category has to be furnished and so far as the advertisement was concerned, it nowhere indicated 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.
Justice Rastogi also noted that reservation to MBC (NCL) and EWS category was introduced for the first time and the candidates were completely alien to the procedure and the format in which the certificate of their category had to be furnished. Rekha Chaturvedi v. University of Rajasthan, 1993 Supp (3) SCC 168, was referred, wherein it was held that if the rules are silent and no date is notified based on which the qualification/ eligibility of the applicant is to be looked into, the best course is to consider the last date of the application.
It was said that the principles have been settled by the Court and is no more res integra, relating to the silence of rules and when no date is notified to satisfy the eligibility requirement under the advertisement, the eligibility criteria shall be applied by the reference to the last date of application.
Further, it was said 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. But, at the same time, to avail the benefit of reservation or weightage, necessary certificates must be produced, 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.
Justice Rastogi said that the reservation of vacancies of various categories as referred to in the Rule 10 was 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 would not arise at the stage when the application form is filled, but at the stage when the select list was to be prepared of the candidates.
The final select list has to 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 had demanded from the applicant to furnish their respective certificate of the category, under its notice dated 04-08-2022, undisputedly each of the applicant had furnished the certificate of their category to which they belonged at the same time of advertisement when demanded by the recruiting authority.
Thus, Justice Rastogi was of the view that 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 the certificate of the category to which the candidate belonged and participated in the selection process was is no manner co-related with the conditions of eligibility.
Justice Rastogi considered the overall spectrum of the situation and said that the candidates who might be lower in the order of merit vis-a-vis the present appellants have already joined and were sent on training, and they were never at fault. However, at the same time, the present appellants also needed indulgence of being considered for appointment after they were finally selected and had undisputedly scored higher marks than cut-off in their respective category. Further, it was said that a few applicants can be adjusted against the available advertised vacancies and without disturbing or taking away the rights of the candidates who have already been appointed.
Exercising the power under Article 142 of the Constitution, to do complete justice to the appellants, the respondents were directed to consider the candidature of 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.
Thus, Justice Rastogi considered it appropriate to quash and set aside the impugned judgment of the High Court.
Justice Bela M. Trivedi’s Opinion-
Justice Trivedi did not agree with the view taken by Justice Rastogi.
It was noted that the certificates to the persons belonging to the reserved categories like SC/ST/OBC-NCL/MBC-NCL/EWS are issued by the competent authorities of the respective State Governments keeping in view the provisions contained in the Constitution of India and the principles laid down by the Court from time to time. It was said that 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.
Further, Justice Trivedi examined the history of reservations in the Country, particularly relating to the OBC and EWS categories. The landmark judgments of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, M. Nagaraj v. Union of India, (2006) 8 SCC 212, Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, were quoted to demonstrate the status of the candidates claiming the 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.
It was noted that, the State of Rajasthan had issued the circular dated 09-09-2015, regarding the validity period of caste certificate, stating 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. Subsequently, another circular was notified on 08-08-2019, wherein 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, for maximum period of three years.
Further, Justice Trivedi said that as stated in the Clause 6 of the advertisement, the candidates claiming reservation under the categories of SC/ST/OBC-NCL/MBC-NCL/EWS had to furnish valid certificates duly issued by 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 High Court or the concerned appointing authority.
Therefore, referring to the said instructions in the advertisement, Justice Trivedi said that there was 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. 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.
The time limit for making such application as stated in Clause 17 of the 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. Further, it was said that 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 regarding the validity of such certificates.
It was said that 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.
It was said that it was 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.
Further, it was said 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.
Therefore, Justice Trivedi did not find any error in the High Court’s impugned judgment and orders.
Keeping in view the split verdict, the matter was placed before the CJI to place the matter before the appropriate Bench.
[Sakshi Arha v. The Rajasthan High Court, 2023 SCC OnLine SC 662, Decided on 18-05-2023]