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2022 DIGILAW 868 (SC)

Union Public Service Commission v. Gaurav Singh

2022-05-18

C.T.RAVIKUMAR, INDIRA BANERJEE

body2022
ORDER : 1. Leave granted. 2. This appeal is against a judgment and order dated 12th November 2020 passed by a Division Bench of the High Court of Delhi allowing the Writ Petition being W.P.(C) No.8938 of 2020 filed by the Respondents-Writ Petitioners. The said Writ Petition was filed seeking the following reliefs: “(a) Issue a writ of mandamus thereby directing the Respondents to permit the Petitioners to appear for their interview and consider their candidature in Economically Weaker Section Category; (b) Direct the Respondent authorities to allow the Petitioners to submit their corrected EWS certificates within a span of 6 weeks from the date of their interview. (c) Issue or pass any writ, direction or order, which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.” 3. On 8th January 2019, the Constitution (124th) Amendment Bill was introduced in Parliament to provide for reservation for Economically Weaker Sections (EWS). 4. The Constitution (103rd) Amendment Act 2019 was enacted inserting Clause (6) in Article 15 and Clause (6) in Article 16 of the Constitution of India with effect from 14th January 2019. 5. Articles 15(6) and 16(6) inserted in the Constitution by the Constitution (103rd) Amendment Act are set out hereinbelow:- “15(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category. Explanation —For the purposes of this article and Article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. Explanation —For the purposes of this article and Article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. 16(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.” 6. Pursuant to the insertion of Articles 15(6) and 16(6), the Government of India, Ministry of Social Justice and Empowerment, issued an Office Memorandum F. No. 20013/01/2018-BC-II dated 17th January 2019 reserving 10% of recruitments to Civil Posts and admissions to educational institutions for the EWS. 7. By a notification bearing No.36039/1/2019-E dated 31st January 2019, the Department of Personnel & Training, under the Ministry of Personnel, Public Grievances & Pensions of the Government of India, laid down the criteria of reservation for the EWS for direct recruitment to civil posts under the Government of India. The said notification provides: “4. CRITERIA OF INCOME & ASSETS 4.1 Persons who are not covered under the scheme of reservation for SCs, STs, and OBCs and whose family has gross annual income below Rs. 8.00 lakh (Rupees eight lakh only) are to be identified as EWSs for benefit of reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc. for the financial year prior to the year of application. Also persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income:- i. 5 acres of agricultural land and above; ii. Residential flat of 1000 sq. ft. and above; iii. Residential plot of 100 sq. yards and above in notified municipalities; iv. Residential plot of 200 sq. yards and above in areas other than the notified municipalities. 4.2 The property held by a “Family” in different locations or different places/cities would be clubbed while applying the land or property holding test to determine EWS status. ft. and above; iii. Residential plot of 100 sq. yards and above in notified municipalities; iv. Residential plot of 200 sq. yards and above in areas other than the notified municipalities. 4.2 The property held by a “Family” in different locations or different places/cities would be clubbed while applying the land or property holding test to determine EWS status. 4.3 The term “Family” for this purpose will include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/her spouse and children below the age of 18 years. 5. INCOME AND ASSET CERTIFICATE ISSUING AUTHORITY AND VERIFICATION OF CERTIFICATE: 5.1 The benefit of reservation under EWS can be availed upon production of an Income and Asset Certificate issued by a Competent Authority. The Income and Asset Certificate issued by any one of the following authorities in the prescribed format as given in Annexure-I shall only be accepted as proof of candidate’s claim as belonging to EWS :- (i) District Magistrate/Additional District Magistrate/Collector/Deputy Commissioner/Additional Deputy Commissioner/1st Class Stipendary Magistrate/Sub-Divisional Magistrate/Taluka Magistrate/Executive Magistrate/Extra Assistant Commissioner (ii) Chief Presidency Magistrate/Additional Chief Presidency Magistrate/Presidency Magistrate (iii) Revenue Officer not below the rank of Tehsildar and (iv) Sub-Divisional Officer or the area where the candidate and/or his family normally resides. 5.2 The Officer who issues the certificate would do the same after carefully verifying all relevant documents following due process as prescribed by the respective State/UT. 5.3 The crucial date for submitting income and asset certificate by the candidate may be treated as the closing date for receipt of application for the post, except in cases where crucial date is fixed otherwise. 5.4 The appointing authorities should, in the offer of appointment to the candidates claiming to be belonging to EWS, include the following clause :- “The appointment is provisional and is subject to the Income and asset certificate being verified through the proper channels and if the verification reveals that the claim to belong to EWS is fake/false the services will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of the Indian Penal Code for production of fake/false certificate.” The appointing authority should verify the veracity of the Income and asset certificate submitted by the candidate through the certificate issuing authority. 5.5 Instructions referred to above should be strictly followed so that it may not be possible for an unscrupulous person to secure employment on the basis of a false claim and if any person gets an appointment on the basis of such false claim, her/his services shall be terminated invoking the conditions contained in the offer of appointment.” 8. In terms of the Notification dated 31st January 2019, referred to above, the benefit of reservation under EWS category could be availed upon submission of an ‘Income and Asset Certificate’ issued by the Competent Authority for the financial year prior to the year of application and the closing date for receipt of applications for the post was to be treated as the crucial date for submission of ‘Income and Asset Certificate’ except in cases where a different crucial date was fixed. 9. By a notification dated 24th April 2019, the Union Public Service Commission invited applications for recruitment to posts of Assistant Commandant (Group A) in the Central Armed Police Forces (CAPF) viz. Border Security Force (BSF), Central Reserve Police Force (CRPF), Central Industrial Security Force (CISF), Indo-Tibetan Border Police (ITBP) and Sashastra Seema Bal (SSB). The last date for submission of applications was 20th May 2019. 10. The Respondent-Writ Petitioners, who claim the benefit of reservation for the EWS, applied pursuant to the said Notification. The Respondent-Writ Petitioners were required to submit an Income and Asset Certificate in respect of the financial year 2018-2019 issued by the Competent Authority for which the crucial date should have been the closing date for receipt of application, that is, 20th May 2019. The crucial date was extended and finally stood at 16th August 2019. 11. The selection process for the posts of Assistant Commandant in the CAPF, BSF, CRPF, CISF, IBP and SSB, inter alia, comprised a Written Examination followed by a Physical Standards Test/Physical Efficiency Test and a Medical Standards Test. 12. The Respondent-Writ Petitioners qualified in the Written Examination and were called for the Physical Standards Test/Physical Efficiency Test and Medical Standards Test on diverse dates between 18th December 2019 and 28th December 2019. 13. In October 2020, the Respondent-Writ Petitioners were issued email messages informing them that their candidature as EWS candidates had been cancelled for the reason that their Income and Asset Certificates were not in order. 13. In October 2020, the Respondent-Writ Petitioners were issued email messages informing them that their candidature as EWS candidates had been cancelled for the reason that their Income and Asset Certificates were not in order. The Respondent-Writ Petitioners were permitted to appear for the Interview, but as candidates of the General Category. 14. Being aggrieved, the Respondent-Writ Petitioners filed the Writ Petition being W.P.(C) No. 8938 of 2020 in the High Court of Delhi. The Writ Petition has been allowed by the judgment and order impugned in this appeal, and the Appellant has been directed to permit the Respondent-Writ Petitioners to “appear in their interviews considering them candidates in the category of EWS …… and to grant opportunity to them to produce corrected Certificates”. 15. The Appellant later accepted the Income and Asset Certificates as submitted/re-submitted by the Respondent-Writ Petitioner Nos. 1 and 3 and some other candidates and considered them as EWS candidates, as the omissions and/or defects in the Certificates were of a technical nature. For example, in some cases the seal stamped in the Income and Asset Certificates did not indicate the full name of the person issuing the Certificate. In one or two cases, Certificates had been rejected erroneously on the ground of want of competence of the Authority issuing the Certificates as there were discrepancies in the nomenclature of the designation of the issuing authority. The Certificates were later found to have been issued by a Competent Authority. In the case of the Respondent-Writ Petitioner Nos.2 and 4, the Income and Asset Certificates are in respect of the financial year 2019-2020 and not for the financial year 2018-2019. 16. The High Court inter alia found: “22. With regard to the other two Certificates relating to petitioner No.2 and 4 objections raised relate to the financial year whether improperly mentioned or not mentioned at all. This is a rectifiable error particularly when the Certificates were issued on 27th June 2019 and 12th April 2019 respectively. Once again, in our opinion, while the OM dated 31st January, 2019 requires the Certificate to relate to the “financial year prior to the year of application” it would be useful to spell out the relevant financial year in the advertisement/notification itself to avoid any inadvertent lapses including by the certifying authority. The economic status of people could change from year to year, unlike a caste certificate. The economic status of people could change from year to year, unlike a caste certificate. The necessity of certification and verification of a current status being essential, stating in clear terms the relevant financial year would indeed be helpful to all concerned and remove all confusion. 23. It is no doubt true that all these issues have cropped up only because this is a new reservation that has been introduced and probably even the issuing authorities are not very clear about the filling up of the certificates. Therefore, the need for a consistent approach throughout the country is essential as every citizen of this country has a right to seek employment by participating in a fair and transparent recruitment process.” 17. In this case, as recorded by the High Court, the Appellant had rejected the certificates on account of discrepancies. The High Court, however, took exception to differential treatment of the Respondent-Writ Petitioners vis-à-vis some other candidates, who had been allowed to submit proper certificates even though their certificates had also been found defective. The High Court did not however, address the question of whether any candidate with the same kind of defect in his/her Income and Asset Certificate as the Respondent-Writ Petitioners had been allowed to resubmit his/her Income and Asset Certificate. The Appellants contend that the Respondent-Writ Petitioners were not similarly circumstanced as those candidates, whose certificates had later been accepted. 18. By directing the Appellant to permit the Respondent-Writ Petitioners to appear in their interviews, considering them as Candidates in the category of EWS, the High Court, in effect, held that the Respondent-Writ Petitioners fulfilled the eligibility criteria of reservation for the EWS. Moreover, by directing that the Writ Petitioners be given the opportunity to produce corrected Certificates, within a reasonable time after the interview, the High Court purported to extend the crucial date for the Income and Asset Certificates well over a year beyond 16th August 2019. 19. 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. 20. 20. 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. 21. 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. 22. Where appointments are made to a large number of vacancies from amongst lakhs of candidates and there are errors which go to the root of eligibility, the Courts ought not to interfere, particularly in an age of computerization where documents are scanned, compared, classified and stored electronically. It may be pertinent to note that certificates are necessarily issued on the basis of the data furnished by the applicant after enquiry. The appointing authority could not have proceeded on the presumption of an inadvertent error in the certificates. It may be pertinent to note that certificates are necessarily issued on the basis of the data furnished by the applicant after enquiry. The appointing authority could not have proceeded on the presumption of an inadvertent error in the certificates. The possibility that the Income and Assets Certificates might have reflected income for a part of the financial year mentioned in the Certificate could not have been ruled out. 23. 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. However, in the case of the Respondent-Writ Petitioner Nos.2 and 4 the certificates are in respect of the subsequent financial year as observed above. 24. In our considered opinion, the High Court fell in error in directing that all the Respondent-Writ Petitioners be treated as EWS candidates, even though the Writ Petitioners/Respondent Nos. 2 and 4 were ineligible in terms of the notification in that they had filed certificates relating to a later financial year. The High Court ought not to have extended the time to submit the certificate. 25. The appeal is allowed in part and the order is set aside insofar it relates to the Respondent-Writ Petitioner No.2 and Respondent-Writ Petitioner No.4. 26. It is made clear that the Respondent-Writ Petitioner No.1 and the Respondent-Writ Petitioner No.3 shall be treated as EWS candidates.