# Renu v. State of U.P. & Ors. 338 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 8 ILRA 337
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-31
- **Case number:** Writ A No. 21430 of 2022
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/renu-v-state-of-u-p-ors-338-indian-law-reports-allahabad-series-50632
- **Pages:** 14

## Headnote

C.S.C., Sri M.N. Singh, Sri Nisheeth Yadav,
Sri G.K. Singh (Sr. Advocate)

Held:
The petitioner challenged the revised result
dated 23.08.2022 excluding her from selection
for the post of Staff Nurse/Sister Grade-II and
the order dated 16.11.2022 rejecting her
representation,
on
the
ground
that
the
experience
certificate
submitted
incorrectly
mentioned 'Nurse Mentor' instead of 'Staff
Nurse' due to an error by the issuing authority.

Possession of essential qualifications by the last
date of application is mandatory, but submission
of proof is procedural and ancillary. Relying on
Food Corporation of India Vs Rimjhim (2019) 5
SCC 793, Dolly Chhanda Vs Chairman JEE
(2005) 9 SCC 779, and Charles K. Skaria Vs Dr.
C. Mathew (1980) 2 SCC 752, the Court held
that technicalities should not override equity
where justice is at stake.

The error in the experience certificate dated
09.11.2021, issued by the Chief Medical Officer,
Rampur, was corrected by certificates dated
24.08.2022 and 30.08.2022, confirming the
petitioner's contractual service as Staff Nurse
from
01.04.2015
to
18.10.2019.
The
Commission's rejection of candidature for late
submission of the corrected certificate was
arbitrary.

Clause 10 of the advertisement, empowering
the Commission to cancel candidature, must be
exercised judicially. The absence of a negative
stipulation, unlike Gaurav Sharma Vs St. of U.P.
(2017 SCC Online All. 1286), distinguished the
case.

The impugned order dated 16.11.2022 was
quashed, and the Commission was directed to
grant the benefit of the experience certificate
and consider the petitioner's candidature for
appointment
on
merit,
subject
to
other
conditions.

Case Law Discussed:

## Text

_Characters 0–39,986 of 48,330. This is a partial read: ask again with offset=39986 for what follows._

8 All. Renu Vs. State of U.P. & Ors.
337
absence of 26 days, however the same was
not considered favorably by the department
in a very pedantic manner. As seen from the
record, the explanation of the petitioner for
his absence from duty for 26 days justifies
his case. Hence, in the light of the
explanation submitted by the petitioner, the
punishment imposed on him appears to be
disproportionate to the charges leveled
against him.

(26) As to what kind of relief can be
granted by this Court in the present matter,
the Apex court at paragraph No. 18 of the
judgment in B.C. Chaturvedi V/s Union
of India: (1995) 6 SCC 749 has held that

"18. A review of the above legal
position would establish that the disciplinary
authority, and on appeal the appellate authority,
being fact-finding authorities have exclusive
power to consider the evidence with a view to
maintain discipline. They are invested with the
discretion to impose appropriate punishment
keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while
exercising the power of judicial review, cannot
normally substitute its own conclusion on penalty
and impose some other penalty. If the punishment
imposed by the disciplinary authority or the
appellate authority shocks the conscience of the
High Court/Tribunal, it would appropriately
mould
the
relief,
either
directing
the
disciplinary/appellate authority to reconsider the
penalty imposed, or to shorten the litigation, it
may itself, in exceptional and rare cases. impose
appropriate punishment with cogent reasons in
support thereof."

(27) Having regard to the aforesaid
judgment passed by the Apex Court and in the
peculiar facts of the present case, this Court
cannot be oblivious of the fact that the present
litigation is more than 15 years old and as such
any direction to the disciplinary/appellate
authority to reconsider the punishment imposed
to the petitioner would be a travesty of justice.
Thus, for the cogent reasons as explained herein
above, we are of the view that the punishment
imposed is wholly unfounded and is a serious
error of law, therefore, the restitution of financial
benefit of which the petitioner was deprived,
deserved to be restored. The learned Tribunal
having been approached to adjudicate the matter
in its right perspective has failed to provide any
solace to the petitioner. Therefore, the judgment
of the Tribunal confirming the orders of the
disciplinary and appellate authority calls for
interference.

(28) We, accordingly, allow this writ
petition by setting aside the judgment and
order passed by the learned Tribunal dated
09.10.2015 in Claim Petition No. 754 of 2014
and consequent punishment order passed by
the disciplinary authority dated 27.06.2008 as
well as appellate authority dated 28.06.2013.
The petitioner shall be entitled for all
consequential reliefs as per the rules.

(29) It is clarified that the present order
shall not be treated as precedent as the same
has been rendered in the peculiar facts of the
present case.

(30) There shall be no orders as to cost.
----------
(2023) 8 ILRA 337
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J

Writ A No. 21430 of 2022

Renu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
338 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Shantanu Khare, Sri Siddharth Khare,
Sri Ashok Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri M.N. Singh, Sri Nisheeth Yadav,
Sri G.K. Singh (Sr. Advocate)

Held:
The petitioner challenged the revised result
dated 23.08.2022 excluding her from selection
for the post of Staff Nurse/Sister Grade-II and
the order dated 16.11.2022 rejecting her
representation,
on
the
ground
that
the
experience
certificate
submitted
incorrectly
mentioned 'Nurse Mentor' instead of 'Staff
Nurse' due to an error by the issuing authority.

Possession of essential qualifications by the last
date of application is mandatory, but submission
of proof is procedural and ancillary. Relying on
Food Corporation of India Vs Rimjhim (2019) 5
SCC 793, Dolly Chhanda Vs Chairman JEE
(2005) 9 SCC 779, and Charles K. Skaria Vs Dr.
C. Mathew (1980) 2 SCC 752, the Court held
that technicalities should not override equity
where justice is at stake.

The error in the experience certificate dated
09.11.2021, issued by the Chief Medical Officer,
Rampur, was corrected by certificates dated
24.08.2022 and 30.08.2022, confirming the
petitioner's contractual service as Staff Nurse
from
01.04.2015
to
18.10.2019.
The
Commission's rejection of candidature for late
submission of the corrected certificate was
arbitrary.

Clause 10 of the advertisement, empowering
the Commission to cancel candidature, must be
exercised judicially. The absence of a negative
stipulation, unlike Gaurav Sharma Vs St. of U.P.
(2017 SCC Online All. 1286), distinguished the
case.

The impugned order dated 16.11.2022 was
quashed, and the Commission was directed to
grant the benefit of the experience certificate
and consider the petitioner's candidature for
appointment
on
merit,
subject
to
other
conditions.

Case Law Discussed:
1. F.C.I. Vs Rimjhim (2019) 5 SCC 793
2. Dolly Chhanda Vs Chairman JEE (2005) 9 SCC
779
3. Charles K. Skaria Vs Dr. C. Mathew (1980) 2
SCC 752
4. Gaurav Sharma Vs St. of U.P. (2017 SCC
Online All. 1286)
5. Rajendra Patel Vs St. of U.P. (2015) 8 ADJ
219 (FB)
6. Ram Kumar Gijroya Vs Delhi Subordinate
Services Selection Board (2016) 4 SCC 754
7. Karan Singh Yadav Vs Government of NCT of
Delhi (2022 SCC Online SC 1341)
Result: Writ petition allowed. No order as to
costs.

(Delivered by Hon'ble Saral Srivastava, J.)

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
8 All. Renu Vs. State of U.P. & Ors.
339
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. 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
340 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Rule
15(3) is reproduced below:-

"चयन एक सौ अंकों का होगा। अभ्यत्रथायों की
योग्यता सूची त्रनम्नत्रलत्रखत रीत्रत में तैयार की जायेगीः-

(क) त्रलत्रखत परीक्षा पच्चीस अंकों की होगी।

(ख) त्रचत्रकत्सा एवं स्वास््य सेवाएं त्रवभाग उत्तर
प्रदेश में संत्रवदा के आधार पर कायारत त्रकसी व्यत्रक्त को अधिकतम
पन्द्रह अंकों के अध्यधीन त्रनम्नत्रलत्रखत रीत्रत में अंक प्रदान त्रकये
जायेगेः-

(एक) संत्रवदा के आधार पर सेवा में प्रथम पूणा वर्ा
के त्रलए ... तीन अंक।

(दो) संत्रवदा के आधार पर सेवा के अगले एवं
प्रत्येक पूणा वर्ा के त्रलए .... तीन अंक प्रत्रत वर्ा के त्रलए।

(ग) खण्ड (क) के अधीन प्रत्येक अभ्यथी द्वारा प्राप्त
अंकों को, जहाूँ लागू हो, खण्ड (ख) के अधीन प्राप्त अंकों के साथ
जोड़ त्रदया जायेगा।

तद्नुसार उपरोक्त संगत सेवा त्रनयमावली के अधीन
संत्रवदा के अनुभव के त्रलए अत्रधकतम 15 अंक त्रनधााररत हैं।"

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/एस-6/2019-20
टीoसीo,
dated
03.11.2021 was 18.11.2021 which was
further
extended
till
22.11.2021
by
amended notification no.815/एस-6/2019-20
टीoसीo 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. The instructions further stated that
the petitioner submitted a hard copy of the
experience certificate (पररकशष्ट-6) 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.
8 All. Renu Vs. State of U.P. & Ors.
341

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. 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
342 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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. 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
8 All. Renu Vs. State of U.P. & Ors.
343
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
344 INDIAN LAW REPORTS ALLAHABAD SERIES
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'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 judgement 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
8 All. Renu Vs. State of U.P. & Ors.
345
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. 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
sub-specialties.

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
346 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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. 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
8 All. Renu Vs. State of U.P. & Ors.
347
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. 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.
348 INDIAN LAW REPORTS ALLAHABAD SERIES

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.
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.