Prashant Kumar Pandey v. State of U.P. Thru. Prin. Secy. Minor Irrigation and 2 Others

Order.

¶15On the aspect of discrimination, it is admitted that thirteen persons who had applied under the EWS quota were granted provisional selection in view of certain discrepancies in the documents produced by them on 30.05.2023. Despite final select list having been issued on 22.08.2023, the said 13 persons have now been called for final document verification tomorrow i.e. on 29.11.2023.

¶16Learned counsel for opposite party no.2 has produced the original documents pertaining to selection of aforesaid thirteen person who were granted provisional selection under the EWS quota. This Court has carefully gone through the aforesaid documents which reveal that as on 30.05.2023 all the said thirteen persons had produced their certificate pertaining to EWS Quota which was issued prior to 04.09.2019(the last date of submission of Application). However, discrepancy noticed in almost all the certificates is that they pertained to Financial Year 2019-20 although they were required to be issued for the base year 2018-19. In such circumstances, it is evident that aforesaid thirteen persons did in fact produce a certificate which has been issued by competent authority prior to 04.09.2019 but were of a different base year but with Financial Year also being correctly indicated.

¶17In the case of petitioner however, even as on 30.05.2023, the EWS Certificate produced by petitioner, by his own admission, was dated 19.07.2022 with the Financial and Base years being 2022-23. Aforesaid facts make it quite evident that petitioner's case stood on a different footing from aforesaid thirteen persons and therefore his exclusion from the provisional select list cannot be said to be discriminatory. It is also on record that petitioner has thereafter submitted the certificate as per conditions of the advertisement and the Government Order but only on 13.09.2023 which is much after issuance of select list on 22.08.2023.

¶18So far as submission of learned counsel for petitioner is concerned that on the submission made by petitioner, he was provisionally allowed as a selectee on 30.05.2023 is concerned, it is a relevant fact that opposite parties adopting a humanitarian approach had provided provisional selection to petitioner on

30.05.2023 probably in order to enable petitioner to produce a certificate which would be in conformity with the conditions of advertisement read with the Government Order but despite passing of almost three months till notification of select list dated 22.08.2023, no such certificate was ever produced by petitioner for whatever reasons.

¶19In the considered opinion of this Court, once time had been granted by opposite parties to petitioner for providing a certificate which was in conformity with the terms and conditions of the advertisement read with the Government Order, such a certificate should have been supplied within a reasonable time and the subsequent submission of such certificate almost twenty days after notification of final select list cannot and should not have been taken into account. Even otherwise, it is trite that there is no estoppel against law and therefore once a specific condition had been indicated in the advertisement and the Government Order, all the parties to the same were required to adhere to it.

¶20On the aspect of non-submission of the relevant certificate within the cut off date mentioned in the advertisement, learned counsel for petitioner has placed reliance on judgment rendered by Hon'ble the Supreme Court in Ram Kumar Gijroya(supra) which in turn has placed reliance on decisions rendered in Pushpa v. Government (NCT of Delhi), 2009 SCC OnLine Del 281 as well as in Tej Pal Singh v. Government (NCT of Delhi), 1999 SCC OnLine Del 1092. A perusal of aforesaid judgment however makes it evident that it is inapplicable in the present facts and circumstances particularly since in the aforesaid case, Hon'ble the Supreme Court was dealing with a certificate pertaining to reservation under the Scheduled Caste category and has held that if a person is a scheduled caste, he is so by birth and not by acquisition of this category only on issuance of the certificate.

¶21Aforesaid Judgment of Ram Kumar Gijroya(supra) has thereafter been held to be per incurium in the subsequent judgment of Hon'ble the Supreme Court in Divya(supra) on the ground that it is directly in conflict with judgment rendered by a Bench of three Hon'ble Judges of the Supreme Court in Ashok Kumar Sharma v. Chander Sekhar, (1997) 4 SCC 18.

¶22In view of distinction having been drawn herein above, it is evident that even otherwise the judgment of Ram Kumar Gijroya(supra) would not be applicable in the present case which pertains to issuance of certificate under EWS quota which is not a birth right of any person and in fact keeps changing with financial status of a family as per subsequent events.

¶23In Divya(supra), the aspect of cut off date and its implications have been considered in detail in following manner:- "50. It is also very well settled that if there are relevant rules which prescribe the date on which the eligibility should be possessed, those rules will prevail. In the absence of rules or any other date prescribed in the prospectus/advertisement for determining the eligibility, there is a judicial chorus holding that it would be the last date for submission of the application. (See Rekha Chaturvedi v. University of Rajasthan [1993 Supp (3) SCC 168]; Bhupinderpal Singh v. State of Punjab [(2000) 5 SCC 262]; Ashok Kumar Sonkar v. Union of India [(2007) 4 SCC 54]." " 59. The judgment in Ram Kumar Gijroya case (supra) is also directly in conflict with the judgment of three Hon'ble Judges in Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18 wherein in para 6, it was held as under:— "… So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr. T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date, cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis….."

¶24The distinction between a technical irregularity in a certificate issued by the competent authority although for the correct Financial Year has also been drawn by Hon'ble the Supreme Court vis-a-vis a certificate which was not at all in conformity with the norms prescribed in the advertisement or Rules. Relevant portion of the judgment on the said aspect is as follows:- "61. Be that as it may, we are bound by the judgment of the three-Judge Bench in Ashok Kumar Sharma (supra) and we follow the said judgment and reiterate the principle laid down thereon. It is also interesting to note that even in Deepak Yadav (supra), a judgment, strongly relied upon by the learned counsel for the petitioners, the principle in Ashok Kumar Sharma (supra) has been reiterated. However, because of what the Court called an abnormal and cataclysmal year, an exception was made due to the ongoing pandemic, lockdown and restrictions imposed thereof. In Alok Kumar Singh (supra), no rules like the ones present in this case are shown to have existed. In the present case, there are clear prescriptions as to eligibility, as has been discussed herein above." "62. In Gaurav Singh's case (supra), this Court has held as under:— "A technical irregularity in a certificate issued by the competent authority in respect of the correct financial year cannot be equated with an Income and Asset Certificate in respect of a different financial year when the Income and Assets for the particular financial year prior to the year of submission of the application, goes to the root of eligibility of a candidate to qualify in the EWS category. The Respondent-Writ Petitioners were well aware that they had to furnish Income and Asset Certificates issued by the Competent Authority for the financial year prior to the year of application. If the applications were made pursuant to a notification published on 24th April 2019 with 20th May 2019 notified as the last date for submission of the applications, the financial year prior to the year of submission of application could not possibly be the financial year 2019-2020, to which the Certificates related. The observation in the impugned judgment and order of the High Court of the expediency of specifying the financial year in the notification for recruitment is in the nature of an advisory, which may be kept in mind when recruitment notifications are issued by the Appellant in future. The Respondent writ petitioner Nos. 2 and 4, in whose Income and Asset certificates were not in order, did not have any legal right to be considered EWS candidates. The Respondent-Writ Petitioners were required to submit Certificates for the relevant financial year. The negligence of the Respondent-Writ Petitioners in not checking if the Certificate related to the correct financial year, cannot be lightly brushed aside as inadvertent lapses of the certifying authority. A candidate applying for a post pursuant to an advertisement, cannot afford to be negligent. Documents required to be submitted have to be carefully checked by the candidate concerned before submission. An appointing authority proceeds on the basis of what is stated in a certificate. When a certificate pertains to a different financial year, the same is liable to be outright rejected. No candidate can, in such case, claim any legal right to reconsideration of his/her candidature by submission of a fresh certificate and/or rectified certificate. …. … …. In the case of Respondent-Writ Petitioner No. 3, the Income and Asset certificate, which had initially been questioned as having been issued by an authority not competent, was later accepted as it was found that the authority issuing the certificate was in fact competent. The certificate of the Respondent-Writ Petitioner No. 1 was also accepted as there was no discrepancy in either the date of issuance or the year. It was just that the seal had been stamped without the full name of the officer concerned and that was accepted as an error not attributable to the candidate concerned." (Emphasis is ours)

¶25Upon applicability of aforesaid judgments in the present facts and circumstances of the case, it transpires that the cut off date as indicated in an advertisement which is in conformity with the relevant rules and Government Orders is sacrosanct and no deviation therefrom can be permitted. In the present case, in exceptional circumstances, a deviation was taken by opposite parties pertaining to provisionally allowing petitioner to produce his documents on 30.05.2023 but the petitioner has failed to take advantage of that deviation for at least three months. Submission of certificate subsequent to issuance of the select list therefore cannot be taken into consideration. The aspect of discrimination as alleged by petitioner has also failed as indicated herein above.

¶26Consequently, the petition being devoid of merits is dismissed. The parties shall bear their own costs. Order Date :- 28.11.2023 kvg/- High Court of Judicature at Allahabad, Lucknow Bench High Court of Judicature at Allahabad, Lucknow Bench

Court No. - 20 Case :- WRIT - A No. - 7483 of 2023 Petitioner :- Prashant Kumar Pandey Respondent :- State Of U.P. Thru. Prin. Secy. Minor Irrigation And 2 Others Counsel for Petitioner :- Anand Dubey,Anupam Shukla Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Utsav Mishra Hon'ble Manish Mathur,J. 1. Heard Mr. Anand Dubey, learned counsel for petitioner, learned State Counsel for opposite parties 1 and 3 and Mr. Utsav Mishra, learned counsel for opposite party no.2. In view of order being passed, notices to opposite parties 4 to 52 stand dispensed with. 2. Petition has been filed seeking quashing of final select list dated 22.08.2023 pertaining to recruitment on the post of Assistant Boring Technician so far as it relates to Economically Weaker Section(EWS) category. Further prayer for considering petitioner's appointment on aforesaid post under the said quota has also been sought. 3. It has been submitted that an advertisement dated 14.08.2019 was issued for selection of 486 posts of Assistant Boring Technician in the Minor Irrigation Department whereunder 48 posts were reserved for the EWS. The last date of submission of forms was 04.09.2019. Petitioner being eligible applied for same and was declared successful in the written examination whereafter he was required to present himself for document verification on 30.05.2023. It is submitted that in the advertisement, it had been stipulated that a certificate issued by competent authority indicating an applicant to be under EWS was required to be furnished for Financial Year 2018-19 but petitioner although had been issued such a certificate but having lost the same, indicated the said fact on the date of document verification i.e. 30.05.2023 due to which he was granted provisional selection. It is submitted that subsequent thereto, petitioner applied for a duplicate copy of the said certificate which was issued to him after declaration of select list on 22.08.2023 and submitted the same on 13.09.2023. It has been submitted that perusal of duplicate certificate will make it evident that the said certificate is dated 25.07.2019 and was valid for year 2019-20 and therefore is in conformity with stipulations required under the advertisement. 4. Learned counsel for petitioner has also drawn attention to the fact that in the select list, thirteen persons have been indicated to have been granted provisional selection under the EWS category which clearly indicates that the said persons also did not have the relevant certification and were thereafter granted time to produce the same as in the case of petitioner. It is also submitted that document verification of said thirteen persons is due tomorrow, i.e. 29.11.2023. The said date being after the date of final select list dated 22.08.2023 is indicative of fact that no finality as such was attached to the inclusion of these thirteen persons with regard to selection being made. It is submitted that since petitioner has already submitted a certificate which is in conformity with conditions of the advertisement prior to next date of verification of documents, he has a right to be considered for the same and his exclusion in fact amounts to discrimination on part of opposite parties. Learned counsel has also submitted that one of the provisionally selected persons having Roll No.00012986 has joined another department as per best knowledge of petitioner and therefore petitioner can very well be adjusted in place of said person. 5. Mr. Utsav Misra, learned counsel for opposite party no.2 has refuted submissions advanced by learned counsel for petitioner with the submission that as per the terms and conditions indicated in the advertisement dated 14.08.2019, there is a clear stipulation that E.W.S. Certificate was required as having been issued prior to the last date of submission of application and was to be for Financial Year 2019-20 based on the income of Financial Year 2018-19. It is submitted that said stipulation was clearly indicated