HIGH COURT OF UTTARAKHAND AT NAINITAL v. State Of Uttarakhand

Judgment

1. Uttarakhand Public Service Commission (in short “Commission”) issued an advertisement on

04.12.2021 inviting applications for the appointment against 455 vacancies on the post of Assistant Professor in different Government Degree and Post Graduate Colleges. As per condition mentioned in Clause 13 of the said advertisement, only such candidates, who possessed Ph.D. Degree awarded as per UGC Regulations, 2009 or 2016, would be eligible, subject to the condition that they will have to submit a certificate issued by the concerned University in the prescribed format, as given in Appendix 3 to the advertisement. 1

2. Petitioner, who possesses Ph.D. Degree from Devi Ahiliya Vishawvidyalaya, Indore, Madhya Pradesh, also responded to the said advertisement, however, he could not submit the certificate, issued by the University in terms of Clause 13 of the advertisement, within the deadline for that purpose, i.e.

04.05.2022 and the certificate was submitted by him with the Selecting Body on 02.06.2022.

3. Due to non-submission of certificate in the prescribed format from the concerned University, petitioner’s name was included in the list of candidates, who were held to be ineligible. Such list was published on 01.11.2023. In the bottom of the list of ineligible candidates, published by the Secretary, Uttarakhand Public Service Commission, it was mentioned that any candidate, who wishes file objection against inclusion of his name in the said list, may file a representation to the Secretary along with supporting documents/evidence, on or before 16.11.2023.

4. It is not in dispute that petitioner made a representation, pursuant to the aforesaid list issued on

01.11.2023, enclosing therewith photocopy of the certificate issued by Devi Ahiliya Vishawvidyalaya, Indore. In his representation, petitioner mentioned that original copy of the certificate was furnished by him in the Office of Commission on 02.06.2022.

5. The representation made by petitioner was rejected by Commission vide order dated 15.02.2024 2 the ground that petitioner did not make representation within the deadline fixed in the list of ineligible candidates, issued on 01.11.2023. Thus, feeling aggrieved, petitioner has filed this writ petition challenging the order dated 15.02.2022, whereby his representation was rejected. He has also sought a direction to the Selecting Body to treat the petitioner as “eligible” for the post of “Assistant Professor (Zoology)”.

6. Heard learned counsel for the parties and perused the record.

7. It is contended by learned counsel for the petitioner that petitioner had submitted the certificate of having passed a Ph.D., as per UGC Regulations, 2009 with the Selecting Body on 02.06.2022 and he had also submitted a representation, when he was given an opportunity by the Selecting Body on 01.11.2023, therefore, the rejection of candidature of petitioner is unjust and illegal. He further submits that Ph.D. Degree possessed by petitioner is not under cloud and the Selecting Body is also not disputing the claim of the petitioner that he possessed Ph.D. Degree in the relevant discipline, therefore, petitioner’s candidature has to be considered for appointment and denial of this valuable right to the petitioner is unsustainable.

8. Per contra, learned counsel for the Selecting Body/Commission submits that petitioner failed to submit the certificate of possessing Ph.D. Degree, which was awarded as per UGC Regulations, within the time given for the purpose. 3

9. He further submits that the result of short- listing was declared on 13.04.2022, and by a separate notification issued on 13.04.2022, all candidates, declared successful in the short-listing, were told to submit all documents in support of their claim, as made in the online application on or before 16.05.2022.

10. It was further mentioned the said notification that the candidate found eligible, after scrutiny of the documents, alone shall be called for interview. In para 4 of the said notification, it was mentioned that the envelope, containing the documents in support of the claim made by the candidates, should the Office of Uttarakhand Public Service Commission till 6.00 pm on 04.05.2022 and envelope received after the deadline indicated in the notification will not be entertained and the Commission shall not be responsible for the Postal delay.

11. Thus, learned counsel for the Commission submits that petitioner failed to submit the required certificate from the concerned University within the deadline fixed by the Commission, as was clearly indicated in the notification dated 13.04.2022.

12. He further submits that, while including petitioner’s name in the list of ineligible candidates, another opportunity was given to the petitioner to make representation to furnish the documents in support of his candidature, however, the petitioner failed to do so within fixed deadline i.e. 4

16.11.2023. The petitioner submitted representation along with certificate, issued by the University, in the Office of Commission on 20.11.2023.

13. Thus, he submits that petitioner himself is responsible for the situation he is in, as he missed both the opportunities of submitting the certificate, within the given time.

14. Learned counsel for the petitioner submits that petitioner could not submit the certificate issued by the University in time due to delay on the part of the University in issuing such certificate; thus, he submits that petitioner cannot be blamed for non-furnishing of the certificate within the stipulated time.

15. This Court is not impressed by

submission made by learned counsel for the petitioner, Since submission of certificate regarding Ph.D. Degree issued by the concerned University was an essential condition of eligibility, as such certificate was to be submitted up to a particular date and petitioner failed to submit the certificate within the deadline indicated by the Commission in its notification dated 13.04.2022, therefore, the rejection of petitioner’s candidature cannot be faulted.

16. Learned counsel the petitioner has referred to the judgment rendered by Hon’ble Supreme Court in the case of Charles K. Skaria & others v. Dr. C. Mathew & others, reported in (1980) 2 SCC 752. Relevant paragraphs, relied by learned counsel for the 5 petitioner, are extracted 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 along with 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 mark 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 sub-specialities.

13. Certificates to be produced: In all cases true copies of the following documents have to be produced: (k) Any other certificates required along with 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.

26. Even so, there is a snag. Who are the diploma holders eligible for 10 extra marks? Only those who, at least by the final date for making applications the diploma. Acquisition of a diploma later may qualify him later, not this year. Otherwise, the date-line makes no sense. So, the short question for admissions possess 6 is when can a candidate claim to have got a diploma? When he has done all that he has to do and the result of it is officially made known by the concerned authority. An examinee for a degree or diploma must complete his examination — written, oral or practical — before he can tell the selection committee or the court that he has done his part. Even this is not enough. If all goes well after that, he cannot be credited with the title to the degree if the results are announced only after the last date for applications but before selection. The second condition precedent must also be fulfilled viz. the official communication of the result before the selection and its being brought to the ken of the committee in an authentic manner. Maybe, the examination is cancelled or the marks of the candidates are withheld. He acquires the degree or diploma only when the results are officially made known. Until then his qualification is inchoate. But once these events happen his qualification can be taken into account in evaluation of equal opportunity provided the selection committee has the result before it at the time of — not after — the selection is over. To sum up, the applicant for post-graduate degree course earns the right to the added advantage of diploma only if (a) he has completed the diploma examination on or before the last date for the application, (b) the result of the examination is also published before that date, and (c) the candidate's success in the diploma course is brought to the knowledge of the selection committee before completion of selection in an authentic or acceptable manner. The prescription in the prospectus that a certificate of the diploma shall be attached to the application for admission is directory, not mandatory; a sure mode, not the sole means. The delays in many departments have become so exasperatingly common that realism and justice forbid the iniquitous consequence of defeating the applicant if, otherwise than by a certified copy, he satisfies the committee about his diploma. There is nothing improper even in a selection committee requesting the concerned universities to inform them of the factum and get the proof straight by communication therefrom — unless, of course, this facility is arbitrarily confined only to a few or there is otherwise some capricious or unveracious touch about the process.” in getting certified copies

17. He has also relied upon a judgment rendered by Hon’ble Supreme Court in the case on of Haryana Staff Selection Commission vs. Priyanka & others, reported in (2022) 18 SCC 136. Para 6 of the said judgment is extracted below:- “6. The short question which was raised before the High Court and also before us is as to whether the provisional/confidential result declared by the universities would be a validly declared result or not. The question has been considered by the High Court in detail and it has been held in favour of the candidates. In our view also, as long as the authenticity of the provisional/confidential result declared by the universities is not in doubt, which in the present case has been confirmed by the universities on the request made by the appellant Commission, the view taken by the High Court is perfectly justified. It cannot be said that the respondents were not qualified as on the cut-off date, which was 12-10-2015, as the provisional/confidential 7 result had been declared by the respective universities in favour of the candidates prior to the said date and the applications were filed by the respondents well within time, along with such provisional/confidential result. As such, to this extent, we are not inclined to interfere with the order impugned in these appeals.”

18. On perusal the aforesaid judgments. It appears that the facts of the present case are totally different from the aforesaid cases relied by learned counsel for the petitioner. In the present case, petitioner himself admitted this fact that he had filed his certificate on 20.11.2023 i.e. after the deadline date, i.e. 16.11.2023. The said judgments are distinguishable on facts, therefore, the legal preposition laid down in the aforesaid judgments, do not help the petitioner.

19. Accordingly, the writ petition is dismissed. No order as to costs.

20. Reportedly, petitioner provisionally participated in the interview pursuant to the interim order dated 13.03.2024 of this Court. Since this Court does not find any infirmity in the rejection of candidature of the petitioner by the Selecting Body, therefore, the interim order also stands vacated. (Ashish Naithani, J.) (Manoj Kumar Tiwari, J) Aswal 8