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Gauhati High Court · body

2014 DIGILAW 872 (GAU)

Dene Mena v. State of Arunachal Pradesh & Ors.

2014-09-12

M.R.PATHAK

body2014
1. Heard Mr. Tony Pertin, learned counsel for the petitioner and Mr. Nani Tagia, learned senior counsel appearing on behalf of respondent Nos. 1 and 2. Arunachal Pradesh Public Service Commission (‘Commission’). 2. On 1.2.2013, the Commission made an advertisement seeking applications in prescribed forms for admission to Arunachal Pradesh Public Service Combined Competitive Examination (‘APPSCCE’) for recruitment to (i) 39 posts of APCS (EG). Group A, which includes 8 g unreserved posts and 2 reserved for PWD candidates and (ii) 12 APPS (EG), Group A, out of which 2 posts are un-reserved. 3. The said advertisement clarified that there would be two sets of examinations, namely, preliminary and mains examination for the aforesaid posts. As per said advertisement dated 1.2.2013. No supporting h document, except photograph, is to be submitted for admission to APPSCCE (Preliminary) 2013-14 and separate application form will be issued to the candidate who qualifies for the main examination and the application form for said APPSCCE (Preliminary) 2013-14 was in OMR format. 4. Petitioner is an Arunachal Pradesh Scheduled Tribe (‘APST’) candidate, being eligible for the said APPSCCE-2013, applied for the APPSCCE (Preliminary) 2013-14, that was field in the month of September 2013 and after clearing the Prelims, he filled up a computer generated form bearing No. 0023 for appearing in the APPSCCE (Mains) Examination, 2013-14 filling all the columns in it with necessary information and enclosing all the requisite documents including his ST certificate. 5. While petitioner was expecting his Admit Card for his appearance in the APPSCCE (Mains) Examination 2013-14, Commission rejected his candidature for non-submission of his Scheduled Tribe (ST) Certificate in the application form of Mains examination, which he came to know from the list of rejected candidate, published by Commission in its website in the first week of August 2014. 6. Petitioner submitted representations before the Secretary, Commission on 8.8.2014 and 11.8.2014 to consider his case and stated that he enclosed his ST certificate with the application form. However, the Commission on 19.8.2014 rejected the prayer of the petitioner for reconsideration of his application for APPSCC (Mains) Examination 2013-14, informed him that he did not enclose copy of the APST Certificate along with his application form, which is one of the essential requisite documents for eligibilities to appear in the Mains Examination. 7. However, the Commission on 19.8.2014 rejected the prayer of the petitioner for reconsideration of his application for APPSCC (Mains) Examination 2013-14, informed him that he did not enclose copy of the APST Certificate along with his application form, which is one of the essential requisite documents for eligibilities to appear in the Mains Examination. 7. Hence, this writ petition by the petitioner for setting aside and quash the rejection order of his candidature for APPSCC (Mains) Examination 2013-14 by the Commission and to allow him to participate/compete in the said examination to be commenced on 13. 9. 2014. 8. The petitioner stated that with his application form for APPSCCE (Mains), 2013-14. he not only enclosed his ST certificate, but as an abandoned caution, also enclosed his Permanent Residential Certificate ( ‘PRC ‘) issued by the Deputy Commissioner, Lower Dibang District, Roing on 29.5.2007, though it is required only for Non-APST candidate, wherein, it is clearly mentioned that the petitioner belongs to Idu/Adi (Padam) Tribe of the said District. 9. According to the petitioner, the respondent-Commission in absence of such ST certificate of the petitioner, it at all, could have verified from his PRC dated 29.5.2007 about his ST status during screening of his application. It is also argued that the respondent authorities did not deny about the non-availability of the PRC of the petitioner in the application submitted by him for APPSCCE (Mains), 2013-14. 10. Petitioner has submitted that since he has already passed the APPSCCE (Preliminary) 2013-14. the respondent Commission should consider his case and allow him to compete in the ensuing Main Examination and should not reject his candidature on such technical plea, as public employment do not occur frequently and if he is not allowed to participate in the present selection process he may not be eligible to participate in the future selection process due to age bar since such examinations are not conducted yearly or regularly. Petitioner’s main contention is that rejection of his candidature for APPSCCE (Main) 2013-14 by the Commission is solely on the ground of non-enclosing of ST certificate, is arbitrary, illegal and not sustainable, as his application for the same is proper in all other respects. 11. Placing reliance of a judgment of the hon’ble Supreme Court in the case of UPSC v. Gyan Prakash Srivastava, (2012) 1 SCC 537 , Mr. 11. Placing reliance of a judgment of the hon’ble Supreme Court in the case of UPSC v. Gyan Prakash Srivastava, (2012) 1 SCC 537 , Mr. Partin stated that in a similar case, the petitioner therein due to non-availability of the LL.B certificate, enclosed the enrolment certificate issued by the Bar Council in his application form for the post of Assistant Public Prosecutor, which the UPSC rejected: but the hon’ble Apex Court accepted said Bar Council enrolment certificate submitted by the petitioner as a sufficient requirement in place of his LL.B. Certificate, following the same. Mr. Partin stated that the petitioner’s PRC certificate is enough to consider his ST status which is available in his application form and as such the rejection of the petitioner’s candidature due to non-availability of his ST certificate is illegal on the part of the Commission. 12. On the other ‘hand. Commission contested the matter by filing an affidavit and Mr. Nani Tagia, learned senior counsel for the Commission submitted that the petitioner is a Graduate in Commerce and fully aware with the terms and conditions notified in the advertisement dated 1.2.2013 for admission to the APPSCCE 2013-14. Mr. Tagia, on records, submitted that the Screening Committee, constituted by the Commission, in its Minutes dated 27.6.2014 submitted that on 27.6.2014, while screening 27 numbers of applications for APPSCC (Main) Examination, 2013-14 to finalize the eligibility of candidates for the said examination, found a total of 26 numbers of applications to be accepted and rejected one application bearing Registered No. M/634 in the name of Dene Mina (petitioner herein) on the ground of non-submission of APST certificate (Annexure C at page 39 to the affidavit of the Commission). 13. Mr. Tagia, submitted that it is not only the petitioner whose candidature has been rejected for non-furnishing of ST certificate with the application form, but also there are others similar to the petitioner, who passed APPSCC (Preliminary) Examination. 2013; but due to non-enclosing of their ST certificates with their application forms for the Mains Examination their candidature has also been rejected. For that purpose, he brought to the notice of the court with the Minutes of the Screening Committee dated 12.12.2013, constituted by the Commission, wherein on such screening of applications for APPSCCE (Mains), 2013-14 on 10th, 11th and 12th December, 2013, the committee rejected two such candidates (Annexure C at pp. For that purpose, he brought to the notice of the court with the Minutes of the Screening Committee dated 12.12.2013, constituted by the Commission, wherein on such screening of applications for APPSCCE (Mains), 2013-14 on 10th, 11th and 12th December, 2013, the committee rejected two such candidates (Annexure C at pp. 40-41 to the affidavit of the Commission). 14. Mr. Tagia also submitted that as the petitioner in the Column No. 7 of his application claimed himself to be a ST candidate, the Screening Committee looked only for his ST certificate and not his PRC, which is not required. According to Mr. Tagia, by such rejection no fundamental right of the petitioner has been violated and as there is no arbitrariness in the action of the Commission and, therefore, the petition is to be dismissed. 15. Mr. Tagia, placed his reliance on the judgments decided in, State of Orissa v. Madan Gopal Rungia, AIR 1952 SC 12 (pp. 5 and 6); Dhananjay Malik and Others v. State of Uttaranchal and Others, (2008) 4 SCC 171 (Pr. 7 and 8); Pongdo Marak and Others v. State of Meghalaya and Others, 2013(4) GLT 105 (pr 13) and Esrafil All (MD) v. State of Assam and Others, 2014 (2) GLT 802 (Pr. 10). In addition to that the Commission in its affidavit annexed a copy of the judgment of this court passed in WP(C) No. 150 (AP) of 2010 Shri Tening Lingi and Others v. The State of Arunachal Pradesh decided on 3.11.2010 wherein this court upheld the rejection of candidature of candidates by the Commission for not enclosing ST (Caste) certificate in the application form in the previous APPSCCE, 2010. 16. In reply, Mr. Pertin, learned counsel for the petitioner submitted that from the Minutes of the Screening Committee dated 12.12.2013, it is clear that though the said Committee recommended the rejection of the candidature at SI. No. B(6), Regd. No. M/135 as Degree could not be established, but Commission accepted his candidature. Accordingly, petitioners candidature should be considered by the Commission on the basis of his PRC. 17. Perused the relevant records and materials of the case and considered the rival contentions. 18. The question now before the court as to whether rejection of the candidature of the petitioner for non-enclosing of the APST certificate in his application form for APPSCCE (Mains). 2013-14, is justified or not. 19. 17. Perused the relevant records and materials of the case and considered the rival contentions. 18. The question now before the court as to whether rejection of the candidature of the petitioner for non-enclosing of the APST certificate in his application form for APPSCCE (Mains). 2013-14, is justified or not. 19. In the Advertisement dated 1.2.2013 made by the Commission for said APPSCCE 2013-14, it is specifically notified under clause (A) that no supporting documents (except photograph) is to be submitted for admission to APPSCCE Preliminary) 2013 and under clause (J) that separate application form will be issued to the candidate who qualify for the main examination. In clause (H) under the heading ‘Reservation ‘ it is notified that the Government of Arunachal Pradesh Reservation Policy of 80:20 ratio will be enforced and under clause (M) of the said advertisement, eleven grounds for rejection of the application for APPSCCE (Mains), 2013 have been specifically mentioned, which includes - (i) mistake/error in filling up of forms, (ii) un-signed form, (iii) non-submission of documents, e.g., education qualification certificate, age proof certificate, ST certificate, disability certificate, requisite number of photograph, treasury challan/bank draft, PRC (in case of Non-APST, NOG from controlling officer in case of in service candidate, etc., amongst others. 20. The Commission in the application form for admission to the APPSCC (Mains) 2013-14, under the heading ‘Important Instructions’ in clause ‘A’ provided that candidates are required to submit all supporting documents as claimed and declared under column Nos. 7, 8, 9, 10, 11 and 12 of the said application and in clause ‘B’ it is provided that all the enclosed supporting documents/certificates should be tested by a Gazatted Officer bearing name of the attesting Officer with Official seal. Column No. 7 of the said application form relates to caste/tribe, wherein it was precisely written that attested certificate to be enclosed whether SC/ST/OBC/General. 21. Commission’s instructions to candidates in its advertisement of APPSCCE 2013 and application form for APPSCCE, (Main) 2013-14 are very clear, specific and are not disputed. Moreover, in the advertisement at clause (M), the Commission clearly laid down the eleven grounds for rejection of application of APPSCCE (Mains) 2013, which at clause (M)(iii) includes non-submission of ST Certificate. 22. 21. Commission’s instructions to candidates in its advertisement of APPSCCE 2013 and application form for APPSCCE, (Main) 2013-14 are very clear, specific and are not disputed. Moreover, in the advertisement at clause (M), the Commission clearly laid down the eleven grounds for rejection of application of APPSCCE (Mains) 2013, which at clause (M)(iii) includes non-submission of ST Certificate. 22. While perusing the application form of the petitioner (Annexure A to the affidavit of the Commission) it is seen that in the column No. 7 of his application, against caste/tribe, the petitioner has written ‘IDU MISISHMI ‘ but he did not enclose any certificate/attested certificate in that regard. On perusing his PRC which was enclosed with his application form, therein, it is written that he belongs to Idu/Adi (Padam) tribe of Lower Dibang galley District. But in his petition, the petitioner did not state anywhere that Idu tribe and IDU MISISHMI tribe is the same and one. Moreover, attested copy of PRC is required to be furnished only by Non-Arunachal ‘Pradesh Scheduled Tribe Candidates and not by any APST/ST candidates and as the petitioner claims to be an APST candidate in his application form. Commission is pot under compulsion to accept the said certificate of the petitioner. 23. Though Mr. Pertin has placed his reliance in the judgment of the hon’ble Supreme Court in the case of Cyan Prakash Srivastava (supra) the same is not applicable in the present case as in the said matter the post was for Assistant Public Prosecutor, the petitioner therein due to non-availability of the LL.B certificate, enclosed the enrolment certificate issued by the Bar Council and hon’ble Apex Court accepted the said enrolment certificate in place of LL.B certificate, since it is only after obtaining LL.B Degree, a person can enroll himself with a Bar Council to practice as an advocate. But with regard to PRC (Permanent Residential Certificate), both general and reserved (SC/ST/OBC) candidate can obtain the same and, therefore, it cannot be equated with a Caste/ST/OBC certificate. 24. In the judgments cited by Mr. But with regard to PRC (Permanent Residential Certificate), both general and reserved (SC/ST/OBC) candidate can obtain the same and, therefore, it cannot be equated with a Caste/ST/OBC certificate. 24. In the judgments cited by Mr. Tagia, it is seen that in the Madan Gopal Rungia (supra) the hon’ble Supreme Court has observed that the issuance of writs or directions by the court, is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) is infringed and it can issue writs or give similar directions for any oilier purpose and, therefore, the existence of the right is the foundation of the exercise of jurisdiction of the Court under the Article. Again in the case of Dhananjay Malik (supra) hon’ble Supreme Court has observed that a candidate who unsuccessfully participated in a process of selection without any demur, he is estopped from challenging the said selection criterion that the advertisement and selection are contrary to the Rules. In Pongdo Marak (supra) and Esrafil Ali (MD) (supra), this court observed that article 226 of the Constitution is an extraordinary jurisdiction which can only be invoked to enforce an established right and not to establish a legal right. 25. In Shri Tening Lingi (supra) with regard to a selection by the Public Service Commission, observed that the candidates were notified that they must furnish all supporting documents in support of their claims, therefore, a candidate who claims to be an APST category applicant, he is required to enclose the certificate in support of his ST status; but when ST certificates have not been furnished by said candidate; rejection of his candidature for non-furnishing of ST certificate cannot be said to be an arbitrary decision. 26. In Tashi Chottan v. State of Arunachal Pradesh, 2002 (1) GIT 495 (subsequently upheld in Division Bench) with regard to a selection by the Public Service Commission, where the petitioner responded to the advertisement, did not furnish certificate in support of his age for which his candidature rejected, this court observed that non-furnishing of such required document with the application within the stipulated time, petitioner failed to make out any ease and such rejection of candidature has been upheld. 27. 27. Hon’ble Supreme Court in the case of Randhir Singh v. State of Haryana and Others, (1977) 4 SCC 497, observed - “if they (School authority) wanted to adhere strictly to the “intimation” in paragraph 7 of the prospectus that the intimation regarding the medical test would be given one week before the date fixed for it, they should have themselves complied with it. As this was not done, we see ho reason why the career of a child should be allowed to suffer when he and his father were not to blame for his non-appearance before the Medical Board on May 12, 1977”. 28. In the present case advertisement has been issued by the Public Service Commission of the State, a statutory authority for recruitment to the public posts under the State Government. Therefore, instructions and terms and conditions of such advertisement made by the Commission cannot be relaxed, unless such power is specifically provided to a named authority in a clear language. Following the decisions cited above and the various observations made by the hon’ble Apex Court and this court it can be concluded that the terms and conditions in an advertisement for recruitment, regarding eligibility, reservation, age proof, allocation of seals, gradation certificate, etc., are mandatory and binding non-only on the candidates but also for the party issuing the same for the period in question and no modification and/or relaxation can be made by the court in exercising writ jurisdiction under the Constitution of India unless the terms and conditions and instructions are arbitrary and/or illegal. Since precise compliance of the instructions and the terms and conditions is must with regard to such advertisement, therefore, any application filed in violation and/or without compliance of the same is liable to be rejected. 29. In the present ease, petitioner has two fold of arguments; (i) he has submitted his ST certificate with the application form and (ii) in absence of the same with the application form, the Commission during screening, should have considered his PRC, where his ST status has been point out. On the other hand the Commission by producing the records have placed that the petitioner did not enclose his ST certificate with his application form and stated that Commission is not required to examine his PRC, which is required to be submitted by only Non APST candidates. On the other hand the Commission by producing the records have placed that the petitioner did not enclose his ST certificate with his application form and stated that Commission is not required to examine his PRC, which is required to be submitted by only Non APST candidates. Here, the disputes are with the factual matters and such issue cannot be decided by examining the documents produced by the parties in a writ jurisdiction. 30. Hence, this writ petition is dismissed. No order as to costs.