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2023 DIGILAW 1823 (ALL)

Renu v. State Of U. P.

2023-07-31

SARAL SRIVASTAVA

body2023
JUDGMENT : 1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, learned counsel for the petitioner and Sri G.K. Singh, learned Senior Counsel assisted by Sri Nisheeth Yadav, learned counsel for the respondents and learned Standing Counsel for the State. 2. The petitioner through the present writ petition has prayed for a writ of certiorari quashing the revised result dated 23.08.2022 for the post of Staff Nurse/Sister Grade-II in so far as it excludes the petitioner therefrom, and order dated 16.11.2022 passed by the Secretary, Public Service Commission, U.P. Pryagaraj (hereinafter referred to as 'Commission') rejecting the representation of the petitioner dated 27.08.2022. The petitioner has further prayed for a writ of mandamus directing the respondents to grant appointment to the petitioner as Staff Nurse/Sister Grade-II and pay regular monthly salary on the said post. 3. The facts, in brief, are that under Advertisement No.A-4/E-1/2021 issued by the Commission notifying the selection for the post of Staff Nurse/Sister Grade-II (Male/Female), the petitioner applied for consideration in the aforesaid selection. The aforesaid selection consisted of total 100 marks, out of which 85 marks stood allocated for the written examination and 15 marks for the experience of working as a Staff Nurse on a contractual basis. Marks for the experience to be awarded in a manner that three marks were to be allocated for the first completed year of service on a contract basis followed by three additional marks for each succeeding year subject to a maximum of 15 marks. The petitioner in support of experience filed an experience certificate dated 09.11.2021 issued by the Chief Medical Officer, Rampur. 4. The petitioner appeared in the written examination held on 01.10.2021. The result thereof was published on 04.01.2022. In the result so published, the petitioner was shown to be selected in the aforesaid examination. The petitioner got the marks sheet downloaded from the official website of the Commission in which the petitioner was shown to have secured 28.50 marks in the written examination, 12 marks based on experience. Thus, the petitioner secured 40.50 marks in aggregate. 5. It appears that after the declaration of the result, Writ-A No.1815 of 2022 (Preeti Patel & Another Vs. State of U.P. and Others) was filed challenging the result on the ground that there were certain discrepancies in scrutinizing the experience certificates of the candidates. Thus, the petitioner secured 40.50 marks in aggregate. 5. It appears that after the declaration of the result, Writ-A No.1815 of 2022 (Preeti Patel & Another Vs. State of U.P. and Others) was filed challenging the result on the ground that there were certain discrepancies in scrutinizing the experience certificates of the candidates. In the said petition, counsel for the Commission made a statement that the Commission had decided to re-scrutinize the experience certificate of 814 selected candidates whose recommendations were not sent till date to the State Government as well as other candidates. 6. Thereafter, Commission proceeded to re-scrutinize the experience certificate and issued a notification dated 23.08.2022 declaring a revised result in which the name of the petitioner did not appear. 7. Aggrieved by her non-selection, the petitioner submitted a representation to the Commission on 05.09.2022 enclosing therewith a certificate dated 24.08.2022 issued by the Chief Medical Officer certifying that the petitioner had worked as 'Staff Nurse' from 01.04.2015 to 18.10.2019 on contract basis. The petitioner also enclosed another certificate dated 30.08.2022 issued by the Chief Medical Officer certifying that inadvertently 'Nurse Mentor' has been mentioned in the certificate dated 09.11.2021 whereas the petitioner has worked as 'Staff Nurse (contractual) in Community Health Centre, Tanda, Rampur from 01.04.2015 to 18.10.2019. 8. The Commission did not pay any heed to the representation of the petitioner which led the petitioner to file Writ-A No.15147 of 2022 which was disposed off by this Court by order dated 18.10.2022 directing the Commission to consider and decide the representation of the petitioner. 9. Pursuant to the direction of this Court dated 18.10.2022 in Writ-A No.15147 of 2022, Commission vide order dated 16.11.2022 rejected the candidature of the petitioner on the ground that the petitioner submitted a working experience certificate of 'Staff Mentor' and not of 'Staff Nurse', therefore, she was not selected. 10. The respondent-Commission has placed an instruction on record. According to instructions, a complete procedure for selection was specified in the advertisement. The instruction further states that Rule 15(3) (appears to have been wrongly typed as 'Rule 10(3)' in the instruction) of Uttar Pradesh State Subordinate Nursing (Non-Gazetted) Service (Fourth Amendment), Rules, 2016 (hereinafter referred to as 'Rules, 2016') provides the procedure for selection. According to instructions, a complete procedure for selection was specified in the advertisement. The instruction further states that Rule 15(3) (appears to have been wrongly typed as 'Rule 10(3)' in the instruction) of Uttar Pradesh State Subordinate Nursing (Non-Gazetted) Service (Fourth Amendment), Rules, 2016 (hereinafter referred to as 'Rules, 2016') provides the procedure for selection. Rule 15(3) is reproduced below:- ^^p;u ,d lkS vdksa dk gksxkA vH;fFkZ;ksa dh ;ksX;rk lwph fuEufyf[kr jhfr esa rS;kj dh tk;sxh%& ¼d½ fyf[kr ijh{kk iPphl vadks dh gksxhA ¼[k½ fpfdRlk ,oa LokLFk; lsok,a foHkkx mŸkjizns'k esa lafonk ds vk/kkj ij dk;Zjr fdlh O;fDr dks vf/kdre iUnzg vadks ds v/;/khu fuEufyf[kr jhfr esa vad iznku fd;s tk;saxs %& ¼,d½ lafonk ds vk/kkj ij lsok esa izFke iw.kZ o"kZ ds fy, ------- rhu vadA ¼nks½ lafonk ds vk/kkj ij lsok ds vxys ,oa izR;sd iw.kZ o"kZ ds fy, ----------- rhu vad izfr o"kZ ds fy,A ¼Xk½ [k.M ¼d½ ds v/khu izR;sd vH;FkhZ }kjk izkIr vadks dks] tgkW ykxw gks] [k.M ¼[k½ ds v/khu izkIr vadks ds lkFk tksM fn;k tk;sxkA rnuqlkj mijksDr laxr lsok fu;ekoyh ds v/khu lafonk ds vuqHko ds fy, vf/kdre 15 vad fu/kkZfjr gSA^^ 11. The instruction further states that after the written examination, a notification dated 03.11.2021 was published inviting online applications in respect of preference of the candidate from 20,181 candidates. The cut-off marks for the General, E.W.S. & O.B.C. category was 25 marks out of 85 marks whereas the cut-off marks for Scheduled Caste and Scheduled Tribes was 20 marks out of 85 marks. The said application was to be uploaded by a candidate along with the photocopy of all relevant documents on the website of the Commission by 18.11.2021. 12. The Commission further stated that the last date of submitting online application mentioned in the advertisement no.807/07/ ,l -6/2019-20 VhŒlhŒ ,dated 03.11.2021 was 18.11.2021 which was further extended till 22.11.2021 by amended notification no.815/ ,l -6/2019-20 VhŒlhŒ dated 15.11.2021. 13. In response to the said notification, 18693 candidates logged in to the website of the Commission for uploading online applications, out of which only 15830 candidates completed all stages of uploading with educational certificates and experience certificates within the time prescribed in the notification. 14. 13. In response to the said notification, 18693 candidates logged in to the website of the Commission for uploading online applications, out of which only 15830 candidates completed all stages of uploading with educational certificates and experience certificates within the time prescribed in the notification. 14. The instructions further stated that the petitioner submitted a hard copy of the experience certificate ¼ifjf'k"V&6½ of 'Nurse Mentor' as a contractual employee due to which the benefit of experience was not extended to the petitioner. However, the petitioner after the declaration of result dated 23.08.2022, submitted representation dated 27.08.2022 informing that the Chief Medical Officer, Rampur inadvertently mentioned 'Nurse Mentor' in place of 'Staff Nurse' in the experience certificate, but since the said representation was submitted by the petitioner after declaration of result dated 23.08.2022, therefore, representation of the petitioner dated 27.08.2022 being not maintainable was rejected. 15. It is stated that since the petitioner has not submitted the experience certificate within the time prescribed in the notification dated 03.11.2021 and amended notification dated 15.11.2021, therefore, she could not be extended the benefit of the experience certificate. 16. Challenging the aforesaid order, Sri Ashok Khare, learned Senior Counsel for the petitioner has invited the attention of this Court to Clause 4 of the General Instruction of advertisement which states that the candidate must possess all the requisite qualifications till the last date of submission of application. It is submitted that the respondent Commission is not denying the fact that the petitioner possessed essential qualifications on the last date of submission of application, but has refused to grant the benefit of working experience to the petitioner as 'Staff Nurse' on a contractual basis on the ground that said experience certificate was not presented within the time prescribed in the notification dated 03.11.2021 and amended notification dated 15.11.2021. 17. He submits that possession of essential qualification before the last date of submitting the application form and proof/mode of proof thereof is two separate things. Accordingly, he submits that if it is not disputed that the petitioner possessed essential qualifications before the last date of submission of the application form, the petitioner's candidature cannot be cancelled on the ground of non-production of requisite experience certificate which can be said to be a mere irregularity. Accordingly, he submits that if it is not disputed that the petitioner possessed essential qualifications before the last date of submission of the application form, the petitioner's candidature cannot be cancelled on the ground of non-production of requisite experience certificate which can be said to be a mere irregularity. He submits that possession of essential qualification before the last date/cut-off date as mentioned in the notification dated 03.11.2021 and amended notification dated 15.11.2021 is a mandatory requirement, whereas the submission of proof in support thereof cannot be treated to be mandatory for invalidating the candidature of the petitioner. Accordingly, it is submitted that the action of the respondent Commission in rejecting the candidature of the petitioner is arbitrary and cannot be sustained in law. 18. In support of the aforesaid contention, learned Senior Counsel has placed reliance upon the judgments of Apex Court in the case of Food Corporation of India Vs. Rimjhim (2019) 5 SCC 793 ; Dolly Chhanda Vs. Chairman JEE and Others (2005) 9 SCC 779 and Charles K. Skaria and Others Vs. Dr. C. Mathew and Others (1980) 2 SCC 752 . 19. Countering the aforesaid submission, learned counsel for the respondent-Commission has submitted that the last date for submitting the application form along with all requisite documents was 22.11.2021 as per amended notification dated 15.11.2021, and if the application of the candidate was not complete in all respect, the Commission reserved its right to cancel the candidature of a candidate. He has placed Clause 10 of the important instructions of the advertisement and contended that the right of the Commission to cancel the candidature emanates from the said clause which stipulates that the Commission may admit the candidates provisionally after summarily checking the applications, but if it is found at any stage that candidate was not eligible or that his/her application should have been rejected or was not entertainable initially, his/her candidature will be rejected, and if the candidate is selected, the recommendation of the Commission for the appointment shall be withdrawn. Accordingly, it is submitted that admittedly, the petitioner has not submitted the experience certificate before the last date of submission of the application form, therefore, she could not be granted the benefit of experience as a 'Staff Nurse'. It is submitted that since the petitioner could not secure minimum cut-off marks, therefore, her candidature has rightly been rejected by the Commission. 20. It is submitted that since the petitioner could not secure minimum cut-off marks, therefore, her candidature has rightly been rejected by the Commission. 20. In support of his aforesaid submission, he has placed reliance upon the Full Bench judgment of this Court in the case of Gaurav Sharma Vs. State of U.P. and Others 2017 SCC Online All. 1286 and Rajendra Patel Vs. State of U.P. and Another 2015(8) ADJ 219 (Full Bench). 21. I have considered the rival submissions of the parties and perused the record. 22. The undisputed facts which emanate from the record are that the petitioner under an advertisement dated 16.07.2021 submitted an application for consideration for appointment on the post of 'Staff Nurse/Sister Grade II. The petitioner uploaded her application form along with all required documents within the time prescribed in the notification dated 03.11.2021 and amended notification dated 15.11.2021. The petitioner appeared in the written examination held on 01.10.2021 and was declared successful in the result published on 04.01.2022. However, the name of the petitioner stood excluded in the revised result dated 23.08.2022 which was published after re-scrutiny of the experience certificate of the candidates in compliance with the order of this Court dated 26.04.2022 passed in Writ-A No.1815 of 2022. 23. The petitioner claims that the exclusion of her name from the select list is arbitrary inasmuch as she possessed essential qualifications for the post of 'Staff Nurse' on the last date of submission of the application form and is entitled to award of marks for experience as 'Staff Nurse', as discrepancy occurred in the experience certificate dated 09.11.2021 issued by the Chief Medical Officer, Rampur was an inadvertent error on the part of the Chief Medical Officer, Rampur which had been corrected by him by issuing another certificate dated 24.08.2022 and 30.08.2022, and petitioner cannot be penalised for the fault of Chief Medical Officer, Rampur. 24. According to the petitioner, the mistake which had crept in issuing the experience certificate dated 09.11.2021 by the Chief Medical Officer, Rampur is only an irregularity, and therefore, cancellation of the candidature of the petitioner in the instant case is an arbitrary exercise of power by the Commission. 25. 24. According to the petitioner, the mistake which had crept in issuing the experience certificate dated 09.11.2021 by the Chief Medical Officer, Rampur is only an irregularity, and therefore, cancellation of the candidature of the petitioner in the instant case is an arbitrary exercise of power by the Commission. 25. Now, this Court proceeds to analyse whether the action of the Commission in excluding the name of the petitioner from the select list is arbitrary and whether the petitioner is entitled to marks for experience certificate as 'Staff Nurse' on a contractual basis. 26. In the case of Food Corporation of India (supra), the Apex Court considered a case where the respondent (Rimjhim) was not selected as she did not produce any experience certificate to show that she had one year of experience in translation from English to Hindi and vice versa. The facts as stated in the said case reveal that the original writ petitioner (respondent before Apex Court) produced her experience certificate issued by her erstwhile employer certifying that she had one year of experience in translation from English to Hindi and vice versa before the learned Single Judge. However, the learned Single Judge dismissed the writ petition holding that as the original writ petitioner did not have the requisite experience certificate of one year of translation from English to Hindi and vice versa, the Food Corporation of India was justified in denying the employment to her. The letters patent appeal preferred by the original writ petitioner was allowed by the Division Bench on the basis of certificates produced by the original writ petitioner dated 14.01.2015 and 18.07.2016 before the learned Single Judge holding that since the original writ petitioner possessed requisite experience before the last date prescribed in the advertisement, therefore, she possessed essential qualification as prescribed in the advertisement. Consequently, Division Bench held that the Food Corporation of India was not justified in denying appointment to the original writ petitioner. 27. In the Special Leave Petition preferred by the Food Corporation of India against the judgment of the Division Bench, it was argued that as per the advertisement, one of the essential qualifications was that a candidate must have one year experience in translation from English to Hindi and vice versa which the candidate was required to submit at the time of submitting the application form. It was argued that admittedly, the original writ petitioner did not produce any experience certificate, and therefore, the candidature of the original writ petitioner has rightly been rejected. The said contention has been dealt with by the Apex Court in paragraph 13 of the judgment which reads as under:- “13. Now so far as the submission on behalf of the FCI that a candidate must and/or ought to have produced the experience certificate along with the application is concerned, at this stage, a decision of this Court in Charles K. Skaria Vs. Dr. C. Mathew (1980) 2 SCC 752 and the subsequent decision of this Court in Dolly Chhanda v. Chairman, Jee and others (2005) 9 SCC 779 are required to be referred to. In Charles K. Skaria, this Court had an occasion to consider the distinction between the essential requirements and the proof/mode of proof. In the aforesaid case, this Court had an occasion to consider the distinction between a fact and its proof. In the aforesaid case before this Court, a candidate/student was entitled to extra 10% marks for holders of a diploma and the diploma must be obtained on or before the last date of the application, not later. In the aforesaid case, a candidate secured diploma before the final date of application, but did not produce the evidence of diploma along with the application. Therefore, he was not allowed extra 10% marks and therefore denied the admission. Dealing with such a situation, this Court observed and held that what was essential requirement was that a candidate must have obtained the diploma on or before the last date of application but not later, and that is the primary requirement and to submit the proof that the diploma is obtained on or before a particular date as per the essential requirement is secondary. This Court specifically observed and held that “What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification”. This Court specifically observed and held that “To confuse between a fact and its proof is blurred perspicacity”. This Court further observed...” 28. This Court specifically observed and held that “What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification”. This Court specifically observed and held that “To confuse between a fact and its proof is blurred perspicacity”. This Court further observed...” 28. In the said judgment, the Apex Court followed the ratio laid down in the two earlier judgments namely, Charles K. Skaria (supra) and Dolly Chhanda (supra), and held that the original writ petitioner had acquired one year experience in translation from English to Hindi and vice versa before the cut-off date prescribed in the advertisement, therefore, Division Bench rightly set aside the action of the Food Corporation of India in rejecting the candidature of the original writ petitioner and directing the Food Corporation of India to consider the case of the original writ petitioner for appointment on merit, if other conditions are satisfied. 29. In the case of Dolly Chhanda (supra), the appellant-Dolly Chhanda submitted the application for appearing in the Joint Entrance Examination-2003 (hereinafter referred to as 'J.E.E-2003') under the reservation of M.I. category being the daughter of Ex-Service Man, who was discharged from Armed Forces on the ground of permanent disability. A certain percentage of seats were reserved for children or widows of personnel of armed/paramilitary forces of Orissa killed/disabled in action during war or peacetime operation under clause 2.1.4 of the information brochure of J.E.E-2003. The appellant's rank in the reserved M.I category in the medical stream was 20, and she was called for counselling for admission to a medical college. During scrutiny, it was found that in column no.3 in the certificate given to her father by Zilla Sainik Board which pertained to "disabled/killed in war/hostilities", the words "not eligible" were written. Since the said certificate did not satisfy the requirement of the M.I. category, the appellant's candidature was rejected. Subsequently, on the request of the appellant's father, a fresh certificate dated 16.07.2003 was issued by the Zila Sainik Board rectifying the mistake in the certificate dated 29.06.2003. The appellant on coming to know that another round of counselling was fixed due to an increase in the seat approached the concerned center and requested for grant of admission on the basis of the fresh certificate issued by the Zilla Sainik Board. However, she was denied admission. The appellant on coming to know that another round of counselling was fixed due to an increase in the seat approached the concerned center and requested for grant of admission on the basis of the fresh certificate issued by the Zilla Sainik Board. However, she was denied admission. The appellant's case as noted by the Apex Court in paragraph 3 of the judgment was that it was the mistake of Zila Sainik Board in not issuing the correct certificate and said mistake having been rectified in the second certificate issued on 16.07.2003, she was entitled to admission in a medical college. The Apex Court in paragraph 7 of the judgment has observed 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.” 30. The Apex Court in the aforesaid case noted in paragraph 9 of the judgment that as the appellant came from a very humble background as her father was only a Naik in the armed forces, he might not have noticed the mistake committed by the Zila Sainik Board while issuing the first certificate dated 29.06.2003. Accordingly, it held that it cannot be a ground to deny admission to the appellant, more so when the candidates, who have secured less marks than the appellant have been given admission. 31. Accordingly, it held that it cannot be a ground to deny admission to the appellant, more so when the candidates, who have secured less marks than the appellant have been given admission. 31. In the case of Charles K. Skaria (supra), a notification inviting the application for admission to postgraduate in various streams including ophthalmology was published. Under the advertisement, a weightage of 10% marks was to be given to the candidates who possessed a 'Diploma' in the relevant stream in the selection of candidates in M.S. and M.D. courses. The appellants possessed a diploma in ophthalmology but were denied the benefit of 10% marks on the ground that they did not produce diploma certificate along with the application form. The High Court refused to grant relief to the appellant. The Apex Court did not agree with the opinion of the High Court and held that possession of essential qualification on or before the last date of submission of the application form is mandatory, but proof thereof is secondary, as the purpose of production of such certificate is to have instant proof of qualification. Paragraphs 20 to 23 are reproduced herein below:- “20. There is nothing unreasonable or arbitrary in adding 10 marks for holders of a diploma. But to earn these extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course? That is the primary question. It is prudent to produce evidence of the diploma alongwith the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra marks is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor. The prospectus does say: (4)(b) 10% to diploma holders in the selection of candidates to M.S., and M.D. courses in the respective subjects or subspecialties. 13. Certificate to be produced :-In all cases true copies of the following documents have to be produced:- (k). The prospectus does say: (4)(b) 10% to diploma holders in the selection of candidates to M.S., and M.D. courses in the respective subjects or subspecialties. 13. Certificate to be produced :-In all cases true copies of the following documents have to be produced:- (k). Any other certificates required alongwith the application. This composite statement cannot be read formalistic fashion. Mode of proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence. 21. Before the selection committee adds special marks to a candidate based on a prescribed ground it asks itself the primary question: has he the requisite qualification? If he has, the marks must be added. The manner of proving the qualification is indicated and should ordinarily be adopted. But, if the candidate convincingly establishes the ground, though through a method different from the specified one, he cannot be denied the benefit. The end cannot be undermined by the means. Actual excellence cannot be obliterated by the choice of an incontestable but unorthodox probative process. Equity shall overpower technicality where human justice is at stake. 22. The present case is a capital illustration of nominalism battling with realism for judicial success. Both sides admit that the appellants before us had secured diplomas. The end cannot be undermined by the means. Actual excellence cannot be obliterated by the choice of an incontestable but unorthodox probative process. Equity shall overpower technicality where human justice is at stake. 22. The present case is a capital illustration of nominalism battling with realism for judicial success. Both sides admit that the appellants before us had secured diplomas. They further admit (ignoring for a moment the submission on 2% for outsiders) that if the diploma scores were added, the applicants, by the measure of marks, deserve to be selected, provided the diploma obtained in the examination held in 1979 is within time. Then, why did the High Court upset their selection? Because the certificates of diploma were not attached to the applications and communication by the Registrar of the University to the selection committee was an unauthorised mode of proof, deviating from the prospectus, though authentic in fact. Two flaws vitiate this verbally virtuous approach. True, the prospectus directs that certificates shall be produced along with the applications for admission. The purpose obviously is to have instant proof of the qualification. 23. We are aware that when a statute vests a public power and conditions the manner of exercise of that power than the law insists on that mode of exercise alone. We are here unconcerned with that rule. A method of convenience for proving possession of a qualification is merely directory. Moreover, the prospectus itself permits government to modify the method, as the learned Single Judge has pointed out. In this view, we see nothing objectionable with the government directive to the selection committee, nor in the communication to the selection committee by the university, nor even in their taking into consideration and giving credit for diplomas although the authentic copies of the diplomas were not attached to the application for admission. A hundred examples of absurd consequences can be given if the substance of the matter were to be sacrificed for mere form and prescriptions regarding procedures.” 32. In the aforesaid cases, the Apex Court held that possession of essential qualification by a candidate on or before the last date of submission of the application form or cut-off date provided in the brochure or the advertisement is a must, and there cannot be any deviation from the same. In the aforesaid cases, the Apex Court held that possession of essential qualification by a candidate on or before the last date of submission of the application form or cut-off date provided in the brochure or the advertisement is a must, and there cannot be any deviation from the same. However, for the ends of justice, it would not be apposite to apply rigid principles in the matter of submission of proof of possession of qualification before the cut-off date in the advertisement as it pertains in the domain of procedure and equity shall overpower technicalities where human justice is at stake. 33. Now in the instant case, the Commission does not dispute the fact that the petitioner possessed requisite experience for receiving additional marks for experience, however, the said benefit has been denied to her only on the ground that she did not produce correct experience certificate along with application form before the last date of submission of the application form. The experience certificate dated 09.11.2021 was issued by the Chief Medical Officer, Rampur. The mistake which had crept in the certificate dated 09.11.2021 was solely due to the fault of the Chief Medical Officer, Rampur which was later on corrected by him by issuing a fresh certificate dated 30.08.2022. 34. The Commission also did not notice the said mistake while declaring the first select list on 04.01.2022 in which the petitioner was shown selected. It is only on re-scrutiny of the experience certificate in compliance with the order of this Court dated 26.04.2022 passed in Writ-A No.1815 of 2022, the experience certificate of the petitioner was found defective resulting in the exclusion of the petitioner from the select list published on 23.08.2022. The petitioner, thereafter, submitted the correct experience certificate issued by the Chief Medical Officer, Rampur along with the representation, but her representation was rejected on the ground of non-production of the experience certificate in time. 35. At this stage, it would also be apt to refer to the condition no.4 of the general instructions which reads as under:- “4. The Commission do not advise to candidates about their eligibility. Therefore, they should carefully read the advertisement and when satisfied about their eligibility as per conditions of the advertisement, only then apply. The candidates must possess all the requisite qualifications till the last date for submitting the applications.” 36. The Commission do not advise to candidates about their eligibility. Therefore, they should carefully read the advertisement and when satisfied about their eligibility as per conditions of the advertisement, only then apply. The candidates must possess all the requisite qualifications till the last date for submitting the applications.” 36. Thus, as per condition no.4 of general instructions, a candidate must possess essential qualifications till the last date for submitting the application form. In the present case, it is not disputed that the petitioner possessed the required essential qualification before the last date of submitting the application form. 37. It is submitted by the learned Senior Counsel for the Commission that the Commission under clause 10 of the important instructions of the advertisement reserved its right to cancel the candidature of a candidate at any stage of selection in case it is found that the candidate is not eligible. Clause 10 of the important instructions of the advertisement reads as under:- “10. The Commission may admit the candidates provisionally after summarily checking of the applications but if it is found at any stage that applicant was not eligible or that his/her application should have been rejected or was entertainable initially, his/her candidature will be rejected and if the candidate is selected, the recommendation of the Commission for the appointment shall be withdrawn.” 38. Thus, it is contended that there is no illegality in cancelling the selection of the petitioner. 39. It is no doubt true that under clause 10 of the important instructions of the advertisement, the Commission has the power to cancel or reject the candidature or selection of a candidate at any stage of selection and if the candidate has been selected and appointed, the Commission can withdraw the recommendation, but such power should be exercised by the Commission judicially, reasonably and on sound principles of law and not in arbitrary manner. 40. Now, coming to the Full Bench judgment of this Court in the case of Gaurav Sharma (supra) on which reliance has been placed by the learned counsel for the respondents, this Court was considering a case where the petitioner (Gaurav Sharma) submitted altogether different caste certificate than what was required under the advertisement. Subsequently, he submitted a certificate as per the requirement under the advertisement. Subsequently, he submitted a certificate as per the requirement under the advertisement. His candidature was rejected on the ground that he had submitted a caste certificate after the last date of submission of the application form. The Full Bench of this Court noticed paragraph 5.4(10) of the advertisement and found that there is a negative stipulation in the advertisement which in unequivocal terms placed all candidates seeking the benefit of reservation to notice that in case the original caste certificate is not produced, it would be presumed that they do not claim the benefit of reservation and their claim for reservation shall consequently be rejected. The said clause also provided that no further opportunity will be provided to any candidate to seek any amendment or modification. The Full Bench further noticed that the date of issuance of such a certificate is crucial in case a candidate is claiming the benefit of reservation under the O.B.C. quota because an O.B.C. candidate necessarily must establish twin conditions; that he belongs to the O.B.C. group recognised by the State, and also that he does not fall within the creamy layer. These requirements are liable to be judged with reference to the date prescribed in the advertisement. 41. Apart from the aforesaid, the Full Bench further proceeded to distinguish the Apex Court judgment in the case of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board & Another 2016 (4) SCC 754 on the ground that in the said case, the advertisement did not prescribe the cut-off date at all. In such factual backdrop and after interpreting a negative stipulation contained in clause 5.4(10) in the advertisement, this Court laid down that the caste certificate submitted after the date prescribed in the advertisement cannot be accepted, and the candidature of a candidate is liable to be rejected. 42. The facts of the case of Gaurav Sharma (supra) are not akin to the facts of the present case. One further fact that distinguishes the case of Gaurav Sharma (supra) from the present case is that in the instant case, a notification dated 03.11.2021 was published asking the candidates belonging to General, E.W.S., O.B.C. quota, who have secured 25 marks in written examination and the candidates belonging to Scheduled Castes and Scheduled Tribes, who have secured 20 marks in written examination, to submit their complete application form by 5:00 P.M. on 18.11.2021. The notification dated 03.11.2021 reads as under:- ^^dk;kZy; mŒizŒ yksd lsok vk;ksx la[;k&807¼1½@07@,l&6@2019&20 VhŒlhŒ iz;kxjkt] fnuakd&03 uoEcaj] 2021 foKfIr mŒizŒ yksd lsok vk;ksx] iz;kxjkt }kjk foKkiu la[;k&,&4@bZ&1@2021 ds varxZr fnukad 03-10-2021 dks vk;ksftr LVkQ ulZ@flLVj xzsM&2¼iq:"k@efgyk½ ijh{kk&2021 esa lfEefyr lkekU;] bZŒMCY;wŒ,lŒ o vU; fiNM+k oxZ ds ,sls vH;FkhZ ftUgksus mDr fyf[kr ijh{kk ¼dqy&85 vad½ esa 25 vad o mlls vf/kd ,oa vuqlwfpr tkfr o vuwlwfpr tutkfr Js.kh ds ,sls vH;FkhZ ftUgksus 20 vad o mlls vf/kd vad izkIr fd, gS fd lwph vk;ksx ds osclkbZ& http://uppsc.up.nic.in ij miyC/k gSA 2& lwph esa lfEefyr leLr vH;fFkZ;ksa dks funsaZf'kr fd;k tkrk gS fd os vkosnu i= iw.kZ:is.k ls Hkjdj leLr vfHkys[kks lfgr vfare frfFk fnukad 18 uoEcj] 2021 vijkgu 5%00 cts rd vk;ksx dk;kZy; esa tek djuk lqfuf'pr djsA vafre frfFk ds ckn izkIr vkosnu i= fdlh Hkh n'kk es Lohdkj ugha fd;s tk;saxsA bl laca/k esa dksbZ izR;kosnu fopkj.kh; ugh gksxkA^^ 43. Later on, an amended notification dated 15.11.2021 was issued extending the period of submission of the application form till 22.11.2021. The relevant extract of the notification dated 15.11.2021 as noted in the instruction is reproduced herein below:- ^^,sls vH;FkhZ ftUgksus izFke pj.k ¼vkWuykbUk izfØ;k½ iw.kZ fd;s fcuk dsoy leLr vfHkys[k vk;ksx dk;kZy; esa izsf"kr fd;s gS] ,sls izdj.kks ij dksbZ Hkh dk;Zokgh ugha dh tk;sxhA mijksDr of.kZr la'kksf/kr frfFk;ka vfare :i ls cढ+kbZ tk jgh gSA la'kksf/kr vafre frfFk ds i'pkr izkIr fdlh Hkh vkosnu ij dksbZ Hkh dk;Zokgh ugha dh tk,xhA^^ 44. Reading of aforesaid two notifications suggests that a candidate has to submit his/her complete application form within the time prescribed in the aforesaid notifications dated 03.11.2021 and 15.11.2021. Learned counsel for the Commission could not place any negative stipulation in the advertisement as was in the case of Gaurav Sharma to justify the rejection of candidature of the petitioner. Thus, the said judgment is of no help to the respondent-Commission. 45. It is also pertinent to note that the principle of law elucidated in the judgment of Apex Court in the case of Ram Kumar Gijroya (supra), which was distinguished by the Full Bench in the case of Gaurav Sharma (supra), has again been reiterated by the three Judges of Apex Court in the case of Karan Singh Yadav Vs. Government of NCT of Delhi and Others 2022 SCC Online SC 1341. 46. Government of NCT of Delhi and Others 2022 SCC Online SC 1341. 46. Similarly, the case of Rajendra Patel (supra) is also of no help to the respondents since it was a case where the controversy was whether the submission of a hard copy of the online application form was mandatory or not. The Full Bench after noticing the stipulations in the advertisement and further noticing the fact that if a candidate is allowed to submit a hard copy at any time, that would dislocate the selection process and would render the process conducted by the Commission in a peripheral stage of uncertainty. Consequently, it was held that such a requirement is mandatory. 47. Applying the principles of law enunciated by the Apex Court in the judgment referred above, that possession of essential qualification before the last date prescribed in the advertisement is a must, and proof of qualification is ancillary, and that the facts of the present case are almost akin to the facts in the case of Food Corporation of India (supra) where original writ petitioner did not file experience certificate along with the application, but presented before the High Court, and the Division Bench having found that original writ petitioner possessed essential qualification before the last date of submission of the application form set aside the action of the Food Corporation of India in rejecting the candidature of the original writ petitioner, this Court for the reasons given above is of the view that rejection of the candidature of the petitioner is arbitrary exercise of power by the respondent in the facts of the present case. Consequently, the argument of learned counsel for the Commission based on clause 10 of the important instructions of the advertisement which gives power to the Commission to cancel the candidature of a candidate or withdraw the recommendation for appointment in the facts of the present case is not sustainable since this Court has held that action of the Commission in rejecting the representation of the petitioner is an arbitrary exercise of power. 48. Thus, for the reasons given above, this Court is of the view that the impugned order dated 16.11.2022 passed by the Secretary, Public Service Commission, Prayagraj cannot be sustained in law and is hereby set aside. 48. Thus, for the reasons given above, this Court is of the view that the impugned order dated 16.11.2022 passed by the Secretary, Public Service Commission, Prayagraj cannot be sustained in law and is hereby set aside. Further, a direction is issued to respondent no.4 to grant the benefit of experience certificate and consider the candidature of the petitioner for appointment on merit, if all other conditions stand satisfied. 49. Consequently, the writ petition is allowed. There shall be no order as to costs.