# CASE DETAILS DIVYA v. UNION OF INDIA & ORS

- **Citation:** 2023 INSC 900
- **Court:** Supreme Court of India
- **Decided:** 2023-10-09
- **Bench:** J. K. Maheshwari, K. V. Viswanathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-divya-v-union-of-india-ors-36863
- **Pages:** 39

## Headnote

Issue for consideration: What is the eligibility criterion for a
candidate to stake a valid claim under the Economically Weaker Section
(EWS) Category as per the Civil Services Examination Rules, 2022 r/w
OM dtd.19.01.2019 and 31.01.2019; was the UPSC justifi ed in prescribing
the cut-off date for possession and for uploading of the I&AC certifi cates
in the prescribed format to stake a valid claim under the EWS category;
are the CSE-Rules 2022 enforceable in law; are rr. 13, 27(3) and 28 of the
CSE-Rules 2022 constitutionally valid; was the UPSC justifi ed in rejecting
the claim of the petitioners for consideration under the EWS category?
Civil Services Examination Rules, 2022 - rr.13, 27, 28 -
Prescriptions as to eligibility for Economically Weaker Section (EWS)
category candidates - Non-fulfi llment of - As per Offi ce Memoranda
dtd. 19.01.2019 & 31.01.2019 r/w rr.27, 28, CSE-2022 Rules, for claiming
reservation under EWS category, the Income & Asset Certifi cate
(I&AC) must be as per the prescribed norms and in possession of the
candidate on or before the cut-off date - Petitioners did not possess the
valid documentation determining their eligibility before the prescribed
cut-off date, were denied the benefi t of reservation of the EWS category
by the Union Public Service Commission (UPSC) for the 2022 Civil
Services Examination - Propriety:
Held: Candidates claiming benefi t of EWS Category for the purpose
of CSE-2022, acquired eligibility only if they met the criterion prescribed in
the O.M. dtd.19.01.19 and 31.01.19 and were in possession of the required
I&AC, based on the income for the year 2020-21 - Further, as required u/r.28
45
r/w the aforesaid O.Ms, the candidate should have been in possession of the
I&AC as on 22.02.2022 - Any candidate not in possession of the I&AC in
the prescribed format could not claim the benefi t of EWS Category - Equally,
as required u/r.13 at the stage of Detailed Application Form-I (DAF-I), the
document in possession as on 22.02.2022 in the prescribed format, had to
be submitted online before the prescribed date - UPSC strictly acted in
accordance with the mandate of r.13 r/w/ rr.27 & 28 - They had an obligation
to scrutinize the forms as uploaded with DAF-I - rr.13, 27 & 28 are to be
r/w the Offi ce Memoranda of 19.01.2019 & 31.01.2019 especially clause
5 of the Offi ce Memorandum of 31.01.2019 - UPSC justifi ed in rejecting
the candidature of the candidates who submitted their I&AC beyond the
stipulated deadline and rejecting their claim for consideration under the EWS
Category in CSE-2022 - Case of the Petitioners in Writ Petition (C) Nos.705
and 764 fails additionally, for being directly covered by the judgment of the
Supreme Court in Union Public Service Commission vs. Gaurav Singh &
Ors. in C.A. No.4152 of 2022. [Paras 74, 86 (i)]
Civil Services Examination Rules, 2022 - Benefi ts under the EWS
Category - Cut-off date for eligibility prescribed - Justifi cation:
Held: The UPSC was justifi ed in prescribing the cut-off date for
possession and for uploading of the I&AC in the prescribed format for
claimants claiming benefi ts under the EWS Category - This fl ows from the
O.M. dtd. 19.01.2019 & 31.01.2019 r/w rr.13, 27(3) and 28 of the CSE-Rules,
2022 and the long line of judgments in which principles for prescription of
cut-off for eligibility are laid down - Service Law. [Para 86 (ii)]
Civil Services Examination Rules, 2022 - Validity:
Held: The CSE-2022 Rules have the force of an enforceable law - They
are traceable to the All India Services Act, 1951 r/w the Indian Administrative
Service (Recruitment) Rules, 1954 r/w the Indian Administrative Service
(Appointment by Competitive Examination) Regulations, 1955 and all this
r/w Article 73 of the Constitution of India - The CSE Rules do not in any
manner supplant any of the provisions of the All India Service Act or the IAS
Recruitment Rules or the IAS (Appointment by Competitive Examination)
Regulations - They only supplem

## Text

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[2023] 15 S.C.R. 44 : 2023 INSC 900
44
CASE DETAILS
DIVYA
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 724 of 2023)
OCTOBER 09, 2023
[J. K. MAHESHWARI AND K. V. VISWANATHAN, JJ.]
HEADNOTES
Issue for consideration: What is the eligibility criterion for a
candidate to stake a valid claim under the Economically Weaker Section
(EWS) Category as per the Civil Services Examination Rules, 2022 r/w
OM dtd.19.01.2019 and 31.01.2019; was the UPSC justifi ed in prescribing
the cut-off date for possession and for uploading of the I&AC certifi cates
in the prescribed format to stake a valid claim under the EWS category;
are the CSE-Rules 2022 enforceable in law; are rr. 13, 27(3) and 28 of the
CSE-Rules 2022 constitutionally valid; was the UPSC justifi ed in rejecting
the claim of the petitioners for consideration under the EWS category?
Civil Services Examination Rules, 2022 - rr.13, 27, 28 -
Prescriptions as to eligibility for Economically Weaker Section (EWS)
category candidates - Non-fulfi llment of - As per Offi ce Memoranda
dtd. 19.01.2019 & 31.01.2019 r/w rr.27, 28, CSE-2022 Rules, for claiming
reservation under EWS category, the Income & Asset Certifi cate
(I&AC) must be as per the prescribed norms and in possession of the
candidate on or before the cut-off date - Petitioners did not possess the
valid documentation determining their eligibility before the prescribed
cut-off date, were denied the benefi t of reservation of the EWS category
by the Union Public Service Commission (UPSC) for the 2022 Civil
Services Examination - Propriety:
Held: Candidates claiming benefi t of EWS Category for the purpose
of CSE-2022, acquired eligibility only if they met the criterion prescribed in
the O.M. dtd.19.01.19 and 31.01.19 and were in possession of the required
I&AC, based on the income for the year 2020-21 - Further, as required u/r.28
45
r/w the aforesaid O.Ms, the candidate should have been in possession of the
I&AC as on 22.02.2022 - Any candidate not in possession of the I&AC in
the prescribed format could not claim the benefi t of EWS Category - Equally,
as required u/r.13 at the stage of Detailed Application Form-I (DAF-I), the
document in possession as on 22.02.2022 in the prescribed format, had to
be submitted online before the prescribed date - UPSC strictly acted in
accordance with the mandate of r.13 r/w/ rr.27 & 28 - They had an obligation
to scrutinize the forms as uploaded with DAF-I - rr.13, 27 & 28 are to be
r/w the Offi ce Memoranda of 19.01.2019 & 31.01.2019 especially clause
5 of the Offi ce Memorandum of 31.01.2019 - UPSC justifi ed in rejecting
the candidature of the candidates who submitted their I&AC beyond the
stipulated deadline and rejecting their claim for consideration under the EWS
Category in CSE-2022 - Case of the Petitioners in Writ Petition (C) Nos.705
and 764 fails additionally, for being directly covered by the judgment of the
Supreme Court in Union Public Service Commission vs. Gaurav Singh &
Ors. in C.A. No.4152 of 2022. [Paras 74, 86 (i)]
Civil Services Examination Rules, 2022 - Benefi ts under the EWS
Category - Cut-off date for eligibility prescribed - Justifi cation:
Held: The UPSC was justifi ed in prescribing the cut-off date for
possession and for uploading of the I&AC in the prescribed format for
claimants claiming benefi ts under the EWS Category - This fl ows from the
O.M. dtd. 19.01.2019 & 31.01.2019 r/w rr.13, 27(3) and 28 of the CSE-Rules,
2022 and the long line of judgments in which principles for prescription of
cut-off for eligibility are laid down - Service Law. [Para 86 (ii)]
Civil Services Examination Rules, 2022 - Validity:
Held: The CSE-2022 Rules have the force of an enforceable law - They
are traceable to the All India Services Act, 1951 r/w the Indian Administrative
Service (Recruitment) Rules, 1954 r/w the Indian Administrative Service
(Appointment by Competitive Examination) Regulations, 1955 and all this
r/w Article 73 of the Constitution of India - The CSE Rules do not in any
manner supplant any of the provisions of the All India Service Act or the IAS
Recruitment Rules or the IAS (Appointment by Competitive Examination)
Regulations - They only supplement them - While the manner of conduct
of examinations is clearly traceable to Regulation 3, it is untenable to say
that since Regulation 4 in the conditions of eligibility does not prescribe
DIVYA v. UNION OF INDIA & ORS.
46
SUPREME COURT REPORTS
[2023] 15 S.C.R.
EWS category and EWS certifi cation and hence they do not qualify as part
of eligibility - The EWS category itself came in 2019 - If this contention
was to be right, then there could be no EWS category at all in CSE-2022 -
Hence, the contention that rr.13, 27 and 28 of the CSE-Rules, 2022 cannot
be given a status of rules cannot be countenanced - Additionally, these are
rules traceable to the executive power of the Union which are duly traceable
to Article 73 - These rules are duly gazetted and are set out well before
the selection process begins and candidates are put to notice before the
commencement of the process - It is too late in the day to contend that these
rules have no sanctity or the force of an enforceable law- All India Services
Act, 1951 - Indian Administrative Service (Recruitment) Rules, 1954 -
Indian Administrative Service (Appointment by Competitive Examination)
Regulations, 1955 - Constitution of India - Article 73. [Paras 49, 50, 86(iii)]
Civil Services Examination Rules, 2022 - rr.13, 27(3) and 28 -
Plea to declare the said Rules to be ultra vires Article 14 to the extent
it prescribes that candidate must be in possession of a EWS certifi cate
as on the closing date of the application for preliminary examination:
Held: Rejected - There is no case made out to show that the cut-off of
22.02.2022 was picked out of the hat - That was the last date for submission
of the application and it was a validly prescribed cut-off - Where there is
absence of any rule or absence of any prescription, the last day for fulfi lling
the eligibility is the last date of submission of the application - This is a
judicially recognized default date - In this case the last date for fi ling of
the application was prescribed as the cut-off in the Rules - rr.13, 27(3) and
28 are constitutionally valid - Constitution of India - Article 14 - Service
Law. [Paras 61, 86(iv)]
Civil Services Examination Rules, 2022 - r.13 - Petitioners argued
that being from the "EWS" category is a status and thus, the Income
and Asset Certifi cate (I&AC) to be produced was only a proof and could
have been produced at any stage:
Held: Such argument cannot be accepted in the teeth of the clear
prescription in the Offi ce Memoranda r/w the CSE-2022 Rules - Further,
as required u/r.13, at the stage of Detailed Application Form-I (DAF-I),
the document had to be submitted on-line before the prescribed date (for
CSE-2022, the date was 15.07.2022) and that any delay in submission of
47
DIVYA v. UNION OF INDIA & ORS.
DAF-I or document beyond the prescribed date was not allowed - These
clear stipulations run counter to the submissions that on the rectifi cation of
a certifi cate it relates back to the date of the certifi cate. [Para 41]
Service Law - Appointment/Recruitment/Selection - Date on
which the eligibility should be possessed:
Held: If there are relevant rules which prescribe the date on which
the eligibility should be possessed, those rules will prevail - In the absence
of rules or any other date prescribed in the prospectus/advertisement for
determining the eligibility, there is a judicial chorus holding that it would be
the last date for submission of the application - Civil Services Examination
Rules, 2022. [Para 46]
Service Law - Appointment/Recruitment/Selection - Selective
Relaxation - Impermissibility:
Held: Determination of eligibility cannot be left uncertain till the
fi nal stages of selection, since that would lead to uncertainty - Further, if
rules prescribe the last date on which eligibility should be possessed, any
relaxation would prejudice non-applicants who for want of possession of
eligibility would not have applied - Relaxation would then be selective,
leading to discrimination - In the present case, rules clearly exist in the
form of CSE-2022 - As is clear from r.13, by 15.07.2022, the certifi cates
disclosing eligibility had to be uploaded with Detailed Application Form-I
(DAF-I) and it was expressly stipulated that delayed submission of the
DAF-I or documents in support will not be allowed - Further, much water
has also fl own under the bridge - The UPSC has made the cadre allocations
and the EWS candidates against the 298 vacancies have also been allotted
their respective cadres - Accepting the contention of the petitioners would
also result in administrative chaos and will prolong the selection process
indefi nitely - It is legally not permissible and administratively not feasible
for the UPSC - Civil Services Examination Rules, 2022 - r.13 . [Paras 51-53]
Service Law - Appointment/Recruitment/Selection - Decision of
the Selecting Body - Interference with - Impermissible - Petitioners
argued that with regard to four candidates there was relaxation
inasmuch as they were allowed to rectify the defects in the EWS and
I&AC:
48
SUPREME COURT REPORTS
[2023] 15 S.C.R.
Held: UPSC considered these omissions as trivial and as not going
to the root of the eligibility, unlike in the case of the petitioners herein - In
the present case, it did not consider the defects as insignifi cant - Thus, this
Court has no option but to reject the writ petitions of all the petitioners -
Neither the Offi ce Memorandum nor the rules in question can be construed
as directory - They clearly prescribe the eligibility criterion, the date
before which the certifi cate should be possessed and submitted - They also
prescribe the consequence for the omission - The petitioners who did not
possess the valid documentation determining their eligibility, before the
prescribed cut-off date, cannot complain, if their claim for categorization
as EWS was rejected - UPSC justifi ed in denying the petitioners the benefi t
of categorization as EWS candidates - Civil Services Examination Rules,
2022. [Paras 74, 78, 80 and 81]
Constitution of India - Article 142 - Power under - When not
to be exercised - Petitioners contended that in the event of this Court
upholding the Rules and the action of the UPSC, it should exercise its
power u/Article 142 and to do complete justice, the Petitioners should
be treated as an EWS category Candidate:
Held: Petitioners cannot be granted refuge u/Article 142 - In the
present case, by the rightful application of the OM and the CSE-Rules
2022, complete justice has been done to all - Exercise of power u/Article
142 should be done with great caution and circumspection - The present
case is not the one warranting the invocation of that power - Civil Services
Examination Rules, 2022. [Para 85]
Words and Phrases - "eligible" - Meaning - Discussed - Civil
Services Examination Rules, 2022. [Para 44]
LIST OF CITATIONS AND OTHER REFERENCES
Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board
& Anr. (2016) 4 SCC 754; Charles K. Skaria & Others vs. Dr. C. Mathew
& Others [1980] 3 SCR 71 : (1980) 2 SCC 752; Deepak Yadav & Others
vs. Union Public Service Commission and Another (2021) SCC OnLine SC
709; Dolly Chhanda vs. Chairman, JEE and Others [2004] 5 Suppl. SCR
79 : (2005) 9 SCC 779; Dheerender Singh Paliwal vs. Union Public Service
49
Commission (2017) 11 SCC 276; Alok Kumar Singh and Others vs. State of
Uttar Pradesh and Others (2018) 18 SCC 242 - distinguished.
Ashok Kumar Sharma and Others vs. Chander Shekhar and Another
[1997] 2 SCR 896 : (1997) 4 SCC 18; Union Public Service Commission vs.
Gaurav Singh & Ors. Decision of Supreme Court dtd.18.05.2022 in C.A.
No.4152 of 2022 - relied on.
Karn Singh Yadav vs. Govt. of NCT of Delhi & Others 2020 SCC
OnLine SC 1472 (two-Judges) and 2022 SCC OnLine SC 1341(three-
Judges); Rekha Chaturvedi v. University of Rajasthan [1993] 1 SCR 186
: 1993 Supp (3) SCC 168; Bhupinderpal Singh v. State of Punjab (2000)
5 SCC 262; Ashok Kumar Sonkar v. Union of India [2007] 3 SCR 95 :
(2007) 4 SCC 54; Mohan Kumar Singhania and Others vs. Union of India
and Others [1991] 1 Suppl. SCR 46 : 1992 Supp (1) SCC 594; A.P. Public
Service Commission v. B. Sarat Chandra [1990] 2 SCR 463 : (1990) 2 SCC
669; T. Jayakumar vs. A. Gopu and Another [2008] 13 SCR 791 : (2008) 9
SCC 403; Ajay Kumar Mishra vs. Union of India [2016] SCC OnLine Del
6563 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 724
of 2023.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
With
Writ petition (C) Nos.705 and 764 of 2023.
Appearances:
K. Parameshwar, Ms. Tanya Shree, Ms. Preetika Dwivedi, Abhisek
Mohanty, Advs. for the Petitioner.
Mrs. Aishwarya Bhati, A.S.G., Digvijay Dam, Mrs. Chitrangda
Rastaravara, Ishaan Sharma, Ms. B. L. N. Shivani, Shuyash Pandey, Arvind
Kumar Sharma, Naresh Kaushik, Vardhman Kaushik, Manoj Joshi, Ms.
DIVYA v. UNION OF INDIA & ORS.
50
SUPREME COURT REPORTS
[2023] 15 S.C.R.
Shikha John, Shubham Dwivedi, Anand Singh, Ajay Kanojiya, Advs. For
the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
K. V. VISWANATHAN, J.
1. These writ petitions raise questions involving the interpretation of
the Offi ce Memoranda [OM] dated 19.01.2019 and 31.01.2019 prescribing
the eligibility for the Economically Weaker Section [EWS] Category.
Additionally, they also involve the interpretation of the Civil Services
Examination Rules, 2022 [CSE-2022 Rules], particularly, Rules 13, 27 and
28 thereof. The petitioners, for diverse reasons, were denied the benefi t of
the EWS category by the Union Public Service Commission [UPSC] for
the Civil Services Examination of the year 2022. Was the UPSC justifi ed
in denying them the benefi t of reservation under the EWS category, is the
main question involved. The three Writ Petitions involve diff erent sets of
facts. The factual parts are dealt with separately. The legal submissions
broadly overlap. Whereever they need to be separately discussed, the same
has been done at the appropriate place.
Writ Petition (C) No. 724 of 2023:
2. The petitioner - Ms. Divya was a candidate for the Civil Services
Examination, 2022 (CSE-2022). She had already qualifi ed for the Indian
Police Service in the Civil Services Examination, 2021 and was allotted
the Manipur Cadre. Wanting to fulfi l her ambition of joining the Indian
Administrative Service (IAS), she applied for the CSE-2022. The category
in which she wanted to be considered was in the Economically Weaker
Section (EWS) category.
3. The CSE-2022 is governed by the Civil Services Examination
Rules, 2022. These Rules were promulgated on 02.02.2022. These Rules
are crucial for the adjudication of the case as the outcome of the case turns
on the interpretation of these Rules, particularly, Rules13, 27 &28 thereof.
Offi ce Memoranda Dated 19.01.2019 & 31.01.2019:
4. By an Offi ce Memorandum of 19.01.2019, the Government of
India, Ministry of Personnel, Public Grievances and Pensions, Department
of Personnel and Training (DoPT) prescribed the criterion to be eligible
51
to apply under the EWS category. The prescription was that fi rstly, a) the
persons should not be covered under the existing scheme of reservations
for the SC/ST and the Socially and Economically Backward Classes and b)
their family gross annual income must be below Rs.8 lakhs.
Secondly, the income was to include income from all sources i.e. salary,
agriculture, business, profession etc. and it will be income for the Financial
Year [FY] prior to the year of application. Thirdly, the persons whose family
owns or possesses any of the following assets are to be excluded from the
category of EWS, irrespective of the family income:
i)
5 acres of Agricultural Land and above;
ii)
Residential fl at of 1000 sq. ft. and above;
iii) Residential plot of 100 sq. yards and above in the notifi ed
municipalities;
iv)
Residential plot of 200 sq. yards and above in areas other than
the notifi ed municipalities.
Fourthly, the income and assets of the families as mentioned above
was to be certifi ed by an Offi cer not below the rank of a Tehsildar in the
States/Union Territories (UTs). The Offi cer was to issue the certifi cate
after carefully verifying all relevant documents following due process as
prescribed by the respective States/UTs.
5. This was followed up by another Offi ce Memorandum [OM] dated
31.01.2019 issued by the Department of Personnel &Training, Government
of India. Under this OM, issued in continuation to the OM of 19.01.2019,
in Clause 5 it is provided as under:
5. INCOME AND ASSET CERTIFICATE ISSUING AUTHORITY
AND VERIFICATION OF CERTIFICATE:
"5.1 The benefi t of reservation under EWS can be availed upon
production of an Income and Asset Certifi cate issued by a Competent
Authority. The Income and Asset Certifi cate issued by any one of the
following authorities in the prescribed format as given in Annexure-I
shall only be accepted as proof of candidate's claim as belonging to
EWS:-
DIVYA v. UNION OF INDIA & ORS.
[K. V. VISWANATHAN, J.]
52
SUPREME COURT REPORTS
[2023] 15 S.C.R.
(i) District Magistrate/Additional District Magistrate/ Collector/Deputy
Commissioner/Additional Deputy Commissioner/ 1st Class Stipendary
Magistrate/ Sub-Divisional Magistrate/Taluka Magistrate/Executive
Magistrate/Extra Assistant Commissioner.
(ii) Chief Presidency Magistrate/Additional Chief Presidency
Magistrate/ Presidency Magistrate.
(iii) Revenue Offi cer not below the rank of Tehsildar and
(iv) Sub-Divisional Offi cer or the area where the candidate and/or his
family normally resides.
5.2 The Offi cer who issues the certifi cate would do the same after
carefully verifying all relevant documents following due process as
prescribed by the respective State/UT.
5.3 The crucial date for submitting income and asset certifi cate by the
candidate may be treated as the closing date for receipt of application
for the post, except in cases where crucial date is fi xed otherwise.
5.4 The appointing authorities should, in the off er of appointment to
the candidates claiming to be belonging to EWS, include the following
clause:-
"The appointment is provisional and is subject to the Income and
asset certifi cate being verifi ed through the proper channels and if
the verifi cation reveals that the claim to belong to EWS is fake/
false the services will be terminated forthwith without assigning
any further reasons and without prejudice to such further action
as may be taken under the provisions of the Indian Penal Code
for production of fake/false certifi cate."
The appointing authority should verify the veracity of the Income
and asset certifi cate submitted by the candidate through the certifi cate
issuing authority.
5.5 Instructions referred to above should be strictly followed so that it
may not be possible for an unscrupulous person to secure employment
on the basis of a false claim and if any person gets an appointment
on the basis of such false claim, her/his services shall be terminated
invoking the conditions contained in the off er of appointment."
53
Civil Services Examination Rules, 2022 :
6. For the sake of convenience, we set out herein below Rules 13, 27
& 28 of the CSE-2022 Rules: -
"Detailed Application Forms-I.
13. For the Main Examination, a candidate shall be required to submit
an on-line Detailed Application Form-I (DAF-I) along with scanned
documents/certifi cates in support of date of birth,category [viz. SC/
ST/OBC (without OBC Annexure)/EWS (without EWS Annexure)/
PwBD/Ex-Servicemen]and educational qualifi cation with required
Examination Fee, within the prescribed time for the same. Any delay
in submission of the DAF-1 or documents in support beyond the
prescribed date will not be allowed and will lead to cancellation
of the candidature for the CSE-2022.
Eligibility for Availing Reservation:
27.(1) A candidate will be eligible to get the benefi t of communitybased reservation only in case the particular community/caste to which
the candidate belongs is included in the list of reserved communities
issued by the Central Government.
(2) The OBC candidates applying for CSE-2022 must produce OBC
(Non-Creamy Layer)certifi cate based on the income for the Financial
Years (FYs) 2018-2019, 2019-2020 and 2020-2021.
(3) A candidate at CSE-2022 will be eligible to get the benefi t of
the Economically Weaker Section reservation only in case the
candidate meets the criteria issued by the Central Government and
is in possession of requisite Income & Asset Certifi cate based on the
income for Financial Year (FY) 2020-2021.
28. Candidates seeking reservation/relaxation benefi ts available for
SC/ST/OBC/EWS/PwBD/Ex-servicemen must ensure that they are
entitled to such reservation/relaxation as per eligibility prescribed
in the Rules/Notice. They should also be in possession of all the
requisite certifi cates in the prescribed format in support of their claim
as stipulated in the Rules/Notice for such benefi ts by the closing date
of the application for Civil Services(Preliminary) Examination-2022."
DIVYA v. UNION OF INDIA & ORS.
[K. V. VISWANATHAN, J.]
54
SUPREME COURT REPORTS
[2023] 15 S.C.R.
7. A careful perusal of the Rules would disclose that, under Rule 28,
candidates seeking reservation under EWS for the purpose of CSE-2022
must ensure that they are entitled to such reservation as per the eligibility
prescribed in the Rules. The eligibility prescribed for EWS under Rule
27(3) is that the candidate should meet the criteria issued by the Central
Government and should be in possession of requisite Income &Asset
Certifi cate (I&AC) based on the income for Financial Year 2020-2021.
Secondly, the candidates should also be in possession of all the requisite
certifi cates in the prescribed format by the closing date of the application
for Civil Services (Preliminary) Examination - 2022.
It can be seen from the above-mentioned clauses that the benefi t of
reservation can be availed on possession of Income & Asset Certifi cate
[I&AC] issued by a Competent Authority. Under Clause 5.3 of the OM,
the crucial date for submitting I&AC may be treated as the closing date
for receipt of application for the post, except in cases where crucial date is
fi xed otherwise.
8. As it would be clear from the Offi ce Memoranda dated 19.01.2019
& 31.01.2019 r/w Rule 27 & 28 of the CSE-2022 Rules, for claiming
reservation under EWS category, the I&AC must be as per the prescribed
norms and must be in possession of the candidate on or before the cut-off
date.
9. The applicable date for possession in this case is 22.02.2022. This
is because after the promulgation of the Rules, the third respondent -
Union Public Service Commission [UPSC] issued the examination notice
on 02.02.2022 and the last date for submission of the application was
22.02.2022 and the time of deadline was 6.00 p.m. on that day.
10. As is clear from Rule 13 extracted above, the uploading of
the certifi cates happens only after the declaration of the results of the
Preliminary Examination and before the Main Examination is held. For the
Main Examination, a candidate is required to submit an on-line Detailed
Application Form-I (DAF-I) along with scanned documents/certifi cates in
support of the claim for EWS category within the prescribed time.
11. Any delay in submission of the DAF-I or documents in support
beyond the prescribed date was not to be allowed and would lead to
cancellation of the candidature.
55
12. What is clear from the above is, before the closing date of
application, the candidate has to be in possession of the requisite Certifi cate
for the Financial Year 2020-2021 and before the Main Examination, the
candidate is expected to upload the Certifi cate.
Case of the petitioner:
13. The petitioner claims that she had the EWS Certifi cate for the
year 2019-2020 since it was issued to her on 09.10.2020 by the Haryana
Government. However, according to her, even after making serious eff orts
to apply for the EWS Certifi cate for the Financial Year 2020-2021, she could
not apply or get the same before 22.02.2022 due to COVID-19 Pandemic
and the lockdown in Haryana till 06.09.2021; and even thereafter due to
the COVID cases prevalent during the middle of 2022; that the Offi ce of
the Revenue Authorities was not functional for general administrative work
and only COVID related work was being undertaken; that the Certifi cate
is issued by the Village Tehsildar and there was no regular Tehsildar for
District Mahendragarh since 2020 and the Tehsildar from a nearby place
occasionally came to the Village only to perform administrative functions.
14. For these reasons, the petitioner states that she was unable to obtain
the Certifi cate for the Financial Year 2020-2021 before 22.02.2022. It is
also admitted by her that, by 13.12.2022, she was able to obtain the EWS
Certifi cate for the Financial Year 2021-2022 but was not able to obtain the
EWS Certifi cate for 2020-2021 till 01.06.2023.
15. For the CSE-2022, the Preliminary Examination was held on
05.06.2022 and the results were declared on 22.06.2022 and the petitioner
qualifi ed for the Main Examination.
16. The petitioner submitted DAF-I for the CSE 2022 between
06.07.2022 and 15.07.2022 and uploaded the EWS Certifi cate for the
Financial Year 2019-20, as she did not have the Certifi cate for any other
year. The Main Examination was held in September 2022 and the results
were declared on 06.12.2022.
17. On 05.01.2023, the Under Secretary of the UPSC issued an e-mail
informing her that the EWS certifi cate uploaded by her was not in the
prescribed format and she was requested to produce the Certifi cate in the
prescribed format bearing date prior to 22.02.2022.
DIVYA v. UNION OF INDIA & ORS.
[K. V. VISWANATHAN, J.]
56
SUPREME COURT REPORTS
[2023] 15 S.C.R.
18. On 10.02.2023, she attended and participated in the interview and
produced the Certifi cates of EWS for the Financial Year 2019-2020 and
Financial Year 2021-2022. Thereafter, on 14.02.2023, she submitted a letter
with the EWS Certifi cates for the Financial Year 2019-2020 and Financial
Year 2021-2022 and, according to her, the same was received by the UPSC.
This is, however, controverted by the UPSC by saying that mere delivery
of the letter at the letter receiving section (Dak section) will not amount to
acceptance of the same.
19. According to the petitioner, on 30.05.2023, she was informed, vide
e-mail, that her candidature has been converted to General Category from
EWS Category. Thereafter, the petitioner states that, on 21.06.2023, she
sent a representation to the Department of Personnel and Training (DoPT)
seeking acceptance of her EWS Certifi cate for the Financial Year 2020-2021
received by her on 01.06.2023 and that she had not received any reply. She
claims that she also e-mailed to the offi cial e-mail ID of the Chairman,
UPSC but received no reply.
20. Being aggrieved, the petitioner has fi led this Writ Petition since
she claims that she had secured All India Rank [AIR] 105 and if she were
to be considered in the EWS Category, her cut-off would qualify her,for
admission to the CSE-2022 in the IAS Cadre. In the Writ Petition, she has
prayed for the following reliefs:
"(i) Issue a Writ, Order or Direction in the nature of Certiorari for
quashing email dated 30.05.2023 issued by Respondent no. l;
(ii) Issue a Writ, Order or Direction in the nature of Mandamus
directing the Respondents to retain the petitioner in the economically
weaker section (EWS) category and accept the EWS certificate
submitted by the petitioner for fi nancial year 2020-2021,for the purpose
of recruitment pursuant to Civil Services Examination 2022;
(iii) Issue a Writ, Order or Direction declaring Rule 13, Rule 27 (3)
and Rule 28 of the Civil Service Examination Rules 2022, to the extent
that it prescribes that candidates must be in possession of the EWS
Certifi cate as on the closing date of the application for Preliminary
Examination, to be ultra vires Article 14 of the Constitution of India
as being arbitrary;"
57
21. The detailed facts pertaining to the petitioners in W.P.(C) Nos.
705 and 764 have been set out in the later part of this judgment. Insofar
as the petitioners in W.P. (C) Nos. 705 and 764 are concerned, there is no
dispute on one fact that with regard to all of them, the documents submitted
with DAF-I were not the correct documents refl ecting their eligibility.
Admittedly, there was some lacunae or the other which they claim were
rectifi ed beyond the date of submission of DAF-I. The UPSC, in its counter
affi davit, has clearly urged that with regard to the 298 EWS candidates, who
were ultimately shortlisted, the I&AC as uploaded by them in DAF-I was
scrutinized and they have rejected their candidature or converted some of
them to the General Category.
Stand of the UPSC:
22. The UPSC has fi led a detailed counter affi davit and has also fi led
an additional affi davit explaining their position.
23. According to the UPSC, every year they conduct smoothly a
number of structured examinations, including Civil Services Examination
and several recruitment tests involving nearly thirty lakh candidates/
applicants. It is averred that the UPSC has elaborate methods/systems
and procedures developed over nine decades. That the Civil Services
Examination for recruitment to the IAS, IFS, IPS and other various Central
Services in Group 'A' and 'B' is held in accordance with the CSE Rules
framed and notifi ed by the Government of India in the DoPT.
24. According to the UPSC, all candidates seeking reservation are
bound by Rule 28 of the CSE-2022 Rules and that they must meet the
criterion prescribed by the Central Government and be in possession of the
requisite documents/certifi cates in the prescribed format before the cut-off
date notifi ed by the UPSC. That the petitioner was informed on 10.02.2023
that her admission was provisional as she had not submitted I&AC based on
the income of F.Y. 2020-21 and that the petitioner signed an undertaking in
that regard. The UPSC contends that under Rule 27(3), candidates applying
under the EWS quota were eligible only if the candidates meet the criteria
issued by the Central Government and the candidate must be and is in
possession of I&AC based on the income for the Financial Year 2020-2021.
It is averred that since the petitioner furnished I&AC based on the income
for F.Y. 2019-2020, she could not be treated under the EWS Category, and
DIVYA v. UNION OF INDIA & ORS.
[K. V. VISWANATHAN, J.]
58
SUPREME COURT REPORTS
[2023] 15 S.C.R.
she was duly intimated on 30.05.2023 that she had to be considered under
the General Category.
25. It is averred that the petitioner was not the only candidate whose
category was changed to General, due to non-submission of I&AC based on
the income of F.Y. 2020-2021 issued beyond the closing date i.e. 22.02.2022.
It is averred that, as many as 36 candidates, who had applied under the EWS,
were not treated as EWS as they failed to upload the valid I&AC with their
DAF-I. According to the UPSC, out of the 36 candidates, the category of
22 candidates was changed from EWS to General as they had qualifi ed the
CSE-2022 on General Standards and with regard to14 candidates, who failed
to qualify, their candidature was cancelled.
26. According to them, a similar exercise has been carried out for
CSE-2021 also. It is averred by the UPSC that the mechanism employed
by them regarding the fi ling of DAF post pandemic has been online,
removing any scope for manual intervention and, as such, the submission
of the petitioner that no objection was raised during the fi ling of DAF-I
was without merit and substance. It is further averred that even during the
pandemic period, CSEs were conducted. Most importantly, it is averred
that in the CSE-2022, from the State of Haryana 80 EWS candidates had
submitted valid I&AC issued on the basis of F.Y 2020-2021. It is averred
that the Rules being sacrosanct should not be relaxed as any relaxation
would amount to relaxing in favour of a 'selected few'. Finally, it is averred
that any relaxation would pave the way for others to demand for relaxing
the Rules in their favour.
27. In the additional affi davit fi led on 26.08.2023, the UPSC has averred
that the result of the Preliminary Examination was prepared, keeping in
view the relevant category of the candidates, and declared on 22.06.2022.
According to the UPSC, as per the Rules of the Examination, the number
of candidates to be admitted to the Civil Services(Main) Examination was
to be about twelve to thirteen times the number of vacancies to be fi lled
through the Examination. Accordingly, 13,090 candidates (12.8 times of
1,022 vacancies) were declared qualifi ed for the next stage i.e. the Main
Examination. The cut-off marks for each Category were applied and the
Category wise number of candidates who qualifi ed for admission to the
written part of the Main Examination were set out. That it was averred that
59
the Category wise 'cut-off ' at every stage was fi xed by the UPSC, keeping
in view the number of vacancies in each Category, the ratio required at that
particular (intermediary) stage and the number of candidates available on
particular point of marks. It is averred that, while determining the category
wise cut-off to be applied at every intermediate stage, only the data is taken
into consideration without the individual details of the candidates. It is
averred that once the cut-off is determined by the UPSC on the basis of the
details,all the candidates, who have secured marks equally or more than the
cut-off , are shortlisted for the next stage of the Examination. It is averred
that if any ineligible candidate is allowed to remain in the fray,an eligible
candidate would be excluded from the zone of consideration. It is averred
that if the number of candidates is changed to include extra candidates, the
cut-off fi xed by the UPSC will be impacted and will result in inclusion of
many such candidates, who ought not to have been included aff ecting the
whole process of the Examination.
28. It is averred that out of 13,090 candidates, 13,051 candidates
fi nally submitted their DAF-I. As per the result of the CSE (Main)
Examination, 2022 which was declared on 06.12.2022, 2,529 candidates
(2.5 times of 1022 vacancies), as per the Rules of the examination,
were declared qualifi ed for the interview. That the documents of 2,529
candidates were scrutinized and the candidates were notifi ed of their
defi ciency in the certifi cates; that 298 candidates qualifi ed the interview
belonging to the EWS Category and the I&ACs of the 298 candidates
were scrutinized; that 28 candidates were failed either due to their not
possessing I&AC by 22.02.2022 or for failure to upload I&ACs issued on
the basis of income for the F.Y. 2020-2021;that 14 candidates who fulfi lled
the General Standard were adjusted against the General quota and their
category was changed from EWS to General.
29. Strongly refuting the plea of the inability of the petitioner due to
COVID-19 to obtain the Certifi cate within time, it is averred by the UPSC
that the petitioner had availed the benefi t under EWS Category in the CSE
2021 by producing IA&C dated 09.10.2020 during the peak of the pandemic
and that the plea of the petitioner, according to the UPSC, was highly
improbable and did not deserve to be sustained.
DIVYA v. UNION OF INDIA & ORS.
[K. V. VISWANATHAN, J.]
60
SUPREME COURT REPORTS
[2023] 15 S.C.R.
Response of the petitioner:
30. This affi davit has been countered by the petitioner by contending
that, in her application,she had communicated her Category as EWS;
that the petitioner was counted among the 1281 EWS candidates who
qualifi ed for the Preliminary Examination and were admitted to the
Main Examination; that the petitioner was never excluded at any stage
due to her inability; that the UPSC itself admitted that the scrutiny of
documents uploaded with DAF-I does not happen between the Preliminary
Examination and the Main Examination; that the petitioner was part of the
298 EWS candidates who had qualifi ed the Main Examination; that the
I&AC was scrutinized after the candidates were called for the interview
and at the time of the interview the petitioner had shown the Certifi cate
for the F.Y. 2019-2020 and 2021-2022 and before allocation of service,
she had also submitted the Certifi cate for the F.Y. 2020-2021. In view
of that, it is averred that the petitioner should not be excluded since the
delayed submission had, in fact,not aff ected the Category wise selection
process at any stage.
Contentions:
31. We have considered the averments and the pleadings and heard
the learned counsel for the respective parties at great length.
32. Ms. Preetika Dwivedi, learned counsel for the petitioner (Ms.
Divya), reiterated her case set out in the pleadings and also sought to draw
support from certain judgments of this Court. Shri K. Parameshwar, learned
Counsel, argued for the petitioners in the other two writ petitions. Both the
learned counsel, brought to bear, considerable diligence in their preparation
and presentation of the case.
33. The primary contention of the learned counsel for the petitioners is
that, once their categorization as an EWS was not in dispute, mere inability
to have the Certifi cate as of 22.02.2022 should not operate to their prejudice.
According to them, the delayed submission did not aff ect the Category wise
allocation process at any stage and that there was no rationale for insisting
on the Certifi cate to be dated before the cut-off i.e. 22.02.2022, namely, the
last day for submission of the application for Preliminary Examination. They
61
relied on Ram Kumar Gijroya vs. Delhi Subordinate Services Selection
Board & Anr. (2016) 4 SCC 754, Karn Singh Yadav vs. Govt. of NCT of
Delhi& Others 2020 SCC OnLine SC 1472 (two-Judges) and 2022 SCC
OnLine SC 1341(three-Judges), Charles K. Skaria& Others vs. Dr. C.
Mathew& Others, (1980) 2 SCC 752, Dolly Chhanda vs. Chairman, JEE
and Others, (2005) 9 SCC 779, Dheerender Singh Paliwal vs. Union Public
Service Commission, (2017) 11 SCC 276, Alok Kumar Singh and Others
vs. State of Uttar Pradesh and Others, (2018) 18 SCC 242 and Deepak
Yadav & Others vs. Union Public Service Commission and Another,
(2021) SCC OnLine SC 709.Additionally, and quite feebly, a contention
was also raised that CSE-Rules 2022 have no statutory fl avour and are not
enforceable in law.
34. Ms. Aishwarya Bhati, learned ASG for the Union of India and
Mr. Naresh Kaushik, learned counsel for the Respondent No.3-UPSC,
thoroughly and painstakingly countered the submissions of the petitioners.
According to the learned counsel, the present was a case where there was
a clear prescription in the form of rules. Learned counsel relied on OM
dated 19.01.2019, 31.01.2019 & Rule 13, 27 & 28of the CSE-2022 Rules
to contend that eligibility is acquired as an EWS candidate only after the
candidate meets the criteria issued by the Central Government and is in
possession of the requisite I&AC based on the income for F.Y. 2020-2021;
that under Rule 28, the candidates should be in possession of all the requisite
certifi cates in the prescribed format in support of their claim by the closing
date of the application viz. 22.02.2022; that for the Main Examination, a
candidate is required to submit DAF-I along with scanned documents in
support within prescribed time for the same; any delay in submission of
the DAF-I or documents in support beyond the prescribed date was not
allowed and would lead to cancellation of the candidature. Learned counsel
distinguished the cases of Charles K.