SAKSHI ARHA versus THE RAJASTHAN HIGH COURT AND OTHERS on 18 May 2023

[2023] 9 S.C.R. 583 : 2023 INSC 559

SAKSHI ARHA

v.

THE RAJASTHAN HIGH COURT AND OTHERS

(Special Leave Petition (Civil) No. 16428 of 2022)

MAY 18, 2023

[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]

Judicial Service – Rajasthan Judicial Service Rules, 2010 – r.10 – Selection for the post of Civil Judge – Submission of castecertificate – Certificate not accepted – Benefit of Reservation notgiven – An advertisement issued by respondent dated 22.07.2021,selection process held for the post of Civil Judge – Appellants beingmembers of Other backward Classes (Non-creamy layer), MoreBackward Class (NCL) and from the Economically weaker Section(EWS), applied for the post in their respective reserved category –Exam conducted – Appellants scored higher marks in their category,however, their certificate relating to category was somewhere laterto 31.08.2021 i.e last date of application form, the benefit ofreservation not extended to appellant – Writ filed before the HighCourt was dismissed – Held: (Per Ajay Rastogi, J.): In the given factsand circumstances, when the rules are silent and there is no suchinstruction that the certificate of the category has to be produced ofthe period on or before the last date of the application under theadvertisement and each of the applicants has produced the certificaterelating to category on being demanded by the recruiting authoritywhen the list came to be published of the candidates who wereprovisionally called for interview on 04.08.2022, each of theapplicants indisputedly has furnished their certificate of the categoryto which they belong at the time of advertisement and hadparticipated in the process of selection – High Court had gone wrongand was influenced with the condition of eligibility to be looked intoon the last date of application – Respondents directed to considercandidature of each of the appellant for appointment withconsequential benefits – Held (Per Bela M. Trivedi, J.) (Dissenting): It is no more res integra that in absence of a fixed date indicatedin the advertisement inviting applications, with reference to whichthe requisite eligibility is to be judged, and when the rules are silent,

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Athe only certain date for the scrutiny of the eligibility of a candidatewould be the last date for making the applications – Hence, thisCourt found no error having been committed by the High Courtwhile passing the impugned judgments and orders.

Placing the matter before Hon'ble CJI for constitution ofBappropriate Bench, the Court Per AJAY RASTOGI, J.

HELD : 1. It is true that the general rule is that whileparticipating in the recruitment process, the person must possessthe eligibility qualification on the last date fixed for such purposeCunless there is any express provision to the contrary and therecan be no relaxation in the matter of holding requisite eligibilityqualification by the date fixed and this has to be established byproducing necessary certificate or degree, as the case may be.But, at the same time, in order to avail the benefit of reservationDor weightage, necessary certificates have to be produced but theyare in the nature of proof for the purpose of seeking entitlementto claim the benefit of reservation, but it has no nexus with thelast date of the application and, it may not be proper to apply anyrigid principle in the absence of any rule to the contrary. As amatter of caution, every infraction of the rule relating to submissionEof proof in availing the benefit of reservation may not necessarilyresult in rejection of the candidature.[Para 32][606-F-H; 607-A]

2. The reservation of vacancies of various categories asreferred to in Rule 10 is not a condition of eligibility for thecandidate to participate in the selection process as the certificateFof category for the purpose of claiming reservation will arise notat the stage when the application form is filled making self-declaration by the individual candidate to participate in theselection process but at the stage when the select list is to beprepared of the candidates who have participated in the selectionGprocess since the final select list has to be published category-wise by giving the benefit of reservation to the candidates whohave participated in the process of selection and for no otherpurpose and when the respondent has demanded from the applicantto furnish their respective certificate of the category to whichone had participated in the selection process under its noticeH

dated 04th August, 2022, indisputedly each of the applicant hadfurnished the certificate of their category to which one belong atthe time of advertisement when demanded by the recruitingauthority in terms of Clause 6(i) & (iii) read with Clause 22(3) ofthe advertisement dated 22nd July, 2021. [Para 34][607-E-H]

3. That apart, taking into consideration the Scheme of Rules,2010, which is indisputedly, silent on the subject issue and theadvertisement dated 22nd July, 2021 nowhere indicates that thecaste certificate/certificate of category has to be produced of theperiod prior to the last date of the application (31st August, 2021)in the instant case. To the contrary, Clause 6(i) & (iii) read withClause 22(3) of the advertisement, such certificate of categorywhich one claimed for seeking the benefit of reservation, has tobe produced on demand by the recruiting authority. [Para 38][610-B-C]

4. In the given facts and circumstances, when the rules aresilent and there is no such instruction that the certificate of thecategory has to be produced of the period on or before the lastdate of the application under the advertisement and each of theapplicants has produced the certificate relating to category onbeing demanded by the recruiting authority when the list cameto be published of the candidates who were provisionally calledfor interview on 04[th] August, 2022, each of the applicantsindisputedly has furnished their certificate of the category to whichthey belong at the time of advertisement and had participated inthe process of selection. At this stage, the High Court had gonewrong and was influenced with the condition of eligibility to belooked into on the last date of application, while examining theproduction of certificate of the category to which the candidatebelong and participated in the selection process is in no mannerco-related with the conditions of eligibility and the judgmentsrelied upon to non-suite the claim of the appellants has noapplication in the facts of the instant case. [Para 39][610-D-F]

5. The appeals succeed and are accordingly allowed. Theimpugned judgment of the High Court is hereby quashed and set A

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Aaside and the respondents are directed to consider candidatureof each of the appellant for appointment with consequentialbenefits including seniority to the post of Civil Judge on theirparticipation in the selection process held pursuant toadvertisement dated 22[nd] July, 2021.[Para 43][612-C-D]

BAshok Kumar Sonkar v. Union of India and Others(2007) 4 SCC 54 : [2007] 3 SCR 95; Jyoti Beniwal v.The Rajasthan High Court, Jodhpur Through ItsRegistrar General and Another (D.B. Civil WritPetition No.11784/2022); Rakesh Kumar Sharma v.State (NCT of Delhi) and Others (2013) 11 SCC 58;CRekha Chaturvedi (Smt.) v. University of Rajasthan andOthers (1993) 3 Supp SCC 168 : [1993] 1 SCR 186;Bhupinderpal Singh and Others v. State of Punjab andOthers (2000) 5 SCC 262; Jasbir Rani and Others v.State of Punjab and Another (2002) 1 SCC 124 : [2001]D4 Suppl. SCR 494; Shankar K. Mandal and Others v.State of Bihar and Others (2003) 9 SCC 519 : [2003]3 SCR 796; Dolly Chhanda v. Chairman, Jee & Others(2005) 9 SCC 779 : [2004] 5 Suppl. SCR 79; RamKumar Gijroya v. Delhi Subordinate Services SelectionBoard and Another (2016) 4 SCC 754; Karn SinghEYadav v. Govt. of NCT of Delhi and Others (2022) SCCOnLine SC 1341 - referred to.

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PerBELAM.TRIVEDI,J.(Dissenting)

HELD : 1. At the outset, it deserves to be noted that thecertificates to the persons belonging to the reserved categorieslike SC/ST/OBC-NCL/MBC-NCL/EWS are being issued by thecompetent authorities of the respective State Governmentskeeping in view the provisions contained in the Constitution ofIndia and the guidelines/principles laid down by this Court fromtime to time. The status of a person whether he belongs to SC orST category depends on the caste which he belongs to by birth,and such status would remain unchanged and would be static,however, the status of a person whether he belongs to OBC-NCL/MBC-NCL/EWS would depend upon his/her social andeconomic status, and such status would keep on changingdepending on his/her income and therefore would be dynamic. Itis very well settled position of law that the persons belonging tothe Scheduled Castes and Scheduled Tribes were and are treatedas a separate category, and the principle of “creamy layer” doesnot apply to the said categories. It applies only to the personsbelonging to the socially and the economically backward classes.Ergo, the date of issuance of certificate to the persons belongingto OBC-NCL/MBC-NCL/EWS categories assumes significancefor the purpose of ascertaining as to whether the candidateclaiming to belong to a particular reserved category on the datewhen he/she applied for the post in question under such category,in fact belonged to the said category on the date on which suchapplication was made or on the date prescribed in theadvertisement. [Para 14][625-D-G]

2. Having regard to the said instructions contained in thesaid advertisement dated 22.07.2021, there remains no shadowof doubt that if a candidate had applied under any of the reservedcategories, he or she was expected to have a valid certificateissued by the competent authority as per rules in the prescribedformat, to show his or her eligibility to apply under such category.The time limit for making such application as stated in Clause 17of the said advertisement was upto 5 PM on 31.08.2021. Underthe circumstances, the candidate was expected to have the A

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Arequisite certificate to show that he or she belonged to theconcerned reserved category, on the date of making applicationor on the last date fixed for the submission of applications i.e.31.08.2021. Such certificate to be produced by the concernedcandidate had to be a valid certificate issued by the competentauthority in consonance with the circulars issued by the StateBGovernment dated 09.09.2015 and as clarified in the Circulardated 08.08.2019, which governed the issue with regard to thevalidity of such certificates. [Para 22][630-C-E]

3. All the appellants had produced their respectivecertificates which were obtained by them after the last date fixedCfor the submission of the application i.e., 31.08.2021, and had alsonot produced the documents/affidavits in support thereof, incompliance with the circulars dated 09.09.2015 and 08.08.2019.Therefore, the certificates produced by the appellants at the timeof interview could not said to be valid certificates as mandated in Dthe advertisement dated 22.07.2021 by the respondents. [Para23][630-H; 631-A]

4. It was sought to be submitted by counsel for theappellants that there was no specific date mentioned in theadvertisement dated 22.07.2021 as to the validity period of theEcertificates to be furnished by the appellants, and subsequentnotice dated 04.08.2022 directing the appellants to produce thecertificates as mentioned therein was highly unreasonable, andtantamount to changing the rules of game after the process ofselection had started. The Court does not find any substance inthe said argument. As stated earlier, there were specificFinstructions given in the advertisement that the candidatesapplying under the reserved categories had to submit the validcertificates issued by the competent authority, and therefore suchcertificates had to be in consonance with the circulars of the StateGovernment dated 09.09.2015 and 08.08.2019 which governedGthe validity period of such certificates. The subsequent noticedated 04.08.2022 given by the respondent High Court requiringthe candidates belonging to OBC/MBC(NCL) to produce thecertificates issued not prior to one year from the last date fixed H

for the submission of application form i.e., 31.08.2021, wasabsolutely in consonance with the said circulars issued by the StateGovernment. It was also mentioned in the said notice dated04.08.2022 that in case the OBC/MBC(NCL) certificate wasissued between 31.08.2018 and 30.08.2020, an affidavit inprescribed format along with the caste certificate had to beproduced. For the EWS category, it was stated that the Incomeand Asset certificate required for seeking reservation in EWScategory must not have been issued prior to 01.04.2021 and incase the Income and Asset certificate was issued between01.04.2019 and 31.03.2021, then an affidavit in the prescribedformat along with the certificate had to be produced. It wasspecifically mentioned therein that SC/ST/OBC/MBC/EWScertificate, as the case may be, must not have been issued afterthe last date of submission of the application form i.e., 31.08.2021.Such instructions requiring the reserved category candidates toproduce the requisite certificates could neither be said to beunreasonable nor could be construed as changing the rules ofgame after selection process was started, they being in consonancewith the important instructions given in the advertisement dated22.07.2021, and in consonance with the circulars issued by theState Government with regard to the validity period of castecertificates. [Para 24][631-B-H; 632-A]

5. It is needless to say that when a candidate applies undera particular reserved category, he or she is required to have thecertificate of that particular category on the date on which he orshe makes the application to show his or her eligibility to applyunder the said category. If such certificates are obtainedsubsequent to date of their application or subsequent to the lastdate of submission of the applications mentioned in theadvertisement, such certificates could not be said to be validcertificates, more particularly in cases where the candidate appliesunder OBC-NCL or EWS, which category is highly dynamic andnot static, as the economic status of the candidate would keep onchanging depending on the income of the candidate. [Para 25][632-B-C]

6. It is no more res integra that in absence of a fixed dateindicated in the advertisement inviting applications, with reference ABC

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Ato which the requisite eligibility is to be judged, and when therules are silent, the only certain date for the scrutiny of theeligibility of a candidate would be the last date for making theapplications. It cannot be gain said that the date of interview orselection would always be uncertain and the uncertainty of thedate may lead to an anomalous situation in as much as even thoseBcandidates who were not eligible to apply under the reservedcategory on the date of making application, may apply under thereserved category and subsequently obtain the certificate by thetime the interviews are held. In such circumstance, the possibilityof playing mischief also cannot be ruled out. In the instant case,Cthe last date for the submission of applications was 31.08.2021and the interviews were fixed in August 2022. So, there was agap of one full year between the last date for submission of theapplications and the date of interview, during which period theeconomic status and resultant status of “creamy layer/non-creamylayer/EWS” of the candidates might have also changed. Therefore,Dthe exposition of law settled by this Court is that in absence of afixed date indicated in the advertisement, and when the rules arealso silent, the last date fixed for submitting the applications wouldbe the date for the scrutiny of the eligibility of the candidates.[Para 29][633-F-H; 634-A-B]

E7. It is also pertinent to note that if the appellants wereallowed to produce the certificates issued after the last date fixedfor the submission of applications mentioned in the advertisementi.e. 31.08.2021, the other candidates similarly situated as theappellants might raise a grievance for not giving them suchFopportunity. The appellants who are the defaulters could not begiven preferential treatment by accepting the certificatesproduced by them as valid, though the same were obtained bythem after the last date for the submission of applications fixedin the advertisement. The said certificates were also notsupported by the requisite affidavits as per the GovernmentGcirculars dated 09.09.2015 and 08.08.2019. [Para 33][635-H; 636-A-B]

8. In view of the afore-stated factual and legal aspects ofthe matter, the Court does not find any error having been H

committed by the High Court while passing the impugnedjudgments and orders. [Para 34][636-C]

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Dr. M.V. Nair v. Union of India & Ors. (1993) 2 SCC429; Ashok Kumar Sharma & Ors. v. Chander Shekhar& Anr. (1997) 4 SCC 18 : [1997] 2 SCR 896 – reliedon.

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Dolly Chhanda v. Chairman, JEE & Ors. (2005) 9 SCC779 : [2004] 5 Suppl. SCR 79; Ram Kumar Gijroya v.Delhi Subordinate Services Selection Board and Anr.(2016) 4 SCC 754; Karn Singh Yadav v. Governmentof NCT of Delhi & Ors. 2022 SCC OnLine SC 1341;Ashok Kumar Sonkar v. Union of India & Ors. (2007)4 SCC 54 : [2007] 3 SCR 95; Rakesh Kumar Sharmav. State (NCT of Delhi) & Ors. (2013) 11 SCC 58; IndraSawhney & Ors. v. Union of India & Ors. 1992 Supp(3) 217 : [1992] 2 Suppl. SCR 454; M. Nagaraj & Ors.v. Union of India & Ors. (2006) 8 SCC 212 : [2006] 7Suppl. SCR 336; Ashoka Kumar Thakur v. Union ofIndia & Ors. (2008) 6 SCC 1 : [2008] 4 SCR 1; JanhitAbhiyan v. Union of India W.P. (C) 55/2019; RekhaChaturvedi v. University of Rajasthan and Others(1993) 3 Supp SCC 168 : [1993] 1 SCR 186 - referredto.

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[2023] 9 S.C.R.

A[1993] 1 SCR 186referred topara 31

[1997] 2 SCR 896

relied on

para 32

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3957

of 2023.

BFrom the Judgment and Order dated 06.09.2022 of the High Courtof Judicature for Rajasthan at Jaipur in DBCWP No. 12374 of 2022.

With

Civil Appeal Nos. 3958-3961, 3963, 3962, 3908 and 3909 of 2023.

Rishabh Sancheti, Ms. Padma Priya, Anchit Bhandari, SuyashCJain, Chirag Kalani, Zeeshan Ali, K. Paari Vendhan, Abhisar Bhanu,Prince, Archit Upadhyay, Shubham Mishra, Vaibhav Shahi, Mrs. PrashitaMishra, Anvesh Soni, Pallav Mongia, Ankush Mangal, Tushar Srivastava,Advs. for the Appellant.

Gopal Jha, Ajay Choudhary, Advs. for the Respondents.DThe Judgments of the Court were delivered byRASTOGI, J.

1. Leave granted.

E2. The present batch of appellants before us are the members ofOther Backward Classes (Non-Creamy Layer i.e., NCL); MoreBackward Class (NCL) and from the category of Economically WeakerSection (EWS), finally qualified in the selection process held for the postof Civil Judge pursuant to an advertisement issued by the respondentdated 22[nd] July, 2021 but they have not been considered in the categoryFto which they belong for the reason that the certificate of the categorywhich was furnished by each of the appellant is subsequent to the lastdate indicated in the advertisement, i.e., 31[st] August, 2021 and each ofthem unfortunately could not qualify in open category, filed writ petitionunder Article 226 of the Constitution that came to be dismissed by theGDivision Bench of the High Court, which is the subject matter of challengebefore this Court.

3. The brief facts of the case emanate from the record are thatthe post of Civil Judge to which we are concerned is included in the Schedule appended to Rajasthan Judicial Service Rules, 2010 (hereinafterbeing referred to as the “Rules, 2010”) and is to be filled up only bydirect recruitment based on the result of competitive examinationconducted by the recruiting authority as provided under Part IV of theRules, 2010.

4. Apart from the method of recruitment, it may be noticed thatthe reservation is being provided to the members of Scheduled Castes/Schedule Tribes/Other Backward Classes/More Backward Classes/Persons with Disabilities and Women Candidates under Rule 10 of theRules, 2010. With the stipulation under Rule 10(2) & (5) that in the eventof non-availability of suitable candidates amongst OBC/MBC in aparticular year of recruitment, the vacancies so reserved for them shallbe filled in accordance with the normal procedure and such of the unfilledvacancies be carried forward to the subsequent recruitment year.

5. That as per the Scheme of examination referred to under Rule20 of the Rules, 2010, the competitive examination for recruitment to thepost of Civil Judge shall be conducted by the recruiting authority in twostages i.e. preliminary examination followed with Main examination asper the Scheme specified in Part-IV of the Rules, 2010. With thestipulation that the marks obtained in the preliminary examination by thecandidates who are declared qualified for admission to the Mainexamination shall not be counted for determining their merit and thosewho qualified in the Main examination will be called for interview andthe marks secured in the Main examination and interview shall be thegoverning factor in determining merit and those who finally placed in themerit list, their names will be recommended by the recruiting authorityfor appointment under Rule 24 and the appointments will be made by theappointing authority in consultation with the Court in terms of Rule 26 ofRules, 2010.

6. Around 120 vacancies of the year 2020-21 of Civil Judge cameto be advertised by the respondent pursuant to advertisement dated 22[nd]July, 2021 and category-wise reservation was indicated in the tabulationchart as referred to under Clause 4 of the advertisement, which isreproduced as under:- A

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594SUPREME COURT REPORTS[2023] 9 S.C.R.ABCD*Out of 05 posts reserved for persons with Benchmark Disabilities, 01(one)

*Out of 05 posts reserved for persons with Benchmark Disabilities, 01(one)post is reserved for blindness and low vision, 01 (one) for deaf and hard ofhearing, 01 (one) for locomotor disability including cerebral palsy, leprosycured, dwarfism, acid attack victims and muscular dystrophy and 02 (two) forautism, intellectual disability, specific learning disability and mental illness andmultiple disabilities from the amongst persons under Clauses (a) to (d) includingEdeaf-blindness in the posts identified for each disabilities.7. Under Clause 5 of the advertisement, it is indicated that in theabsence of vacancies reserved of various categories remained unfilled,what method has to be adopted in filling those unfilled vacancies with anote appended thereto that the applicants who are from the State ofRajasthan and members of Other Backward Class (Creamy Layer)/FMore Backward Class (Creamy Layer) and applicants from other thanthe State of Rajasthan and members of SC/ST/OBC (Creamy Layer/Non-Creamy Layer) and More Backward Class (Creamy Layer/Non-Creamy Layer) and Economically Weaker Sections (EWS) shall beconsidered in general category and as referred to under Clause 6(i) andG(iii) of the advertisement, caste certificate issued as per Rules in theprescribed format by the competent authority has to be produced forseeking reservation and under Clause 22(3) (Other ImportantInstructions), it was indicated that the applicant has to produce on demandof the recruiting authority all such documents/certificates while claimingbenefit of reservation required by the Rajasthan High Court or theH

concerned recruiting authority. The extract of Clause 6(i) and (iii) readwith Clause 22(3) of the advertisement are reproduced hereunder:

“6. In the context of Certificate of various categories

(i) Caste Certificate issued as per rules in the prescribed formatby the Competent Authority will have to be produced forreservation in the Scheduled Caste, Scheduled Tribe, OtherBackward Class and Highly Backward Class.

(ii) ……

(iii) Certificate issued as per rules in the prescribed format by theCompetent Authority shall have to produce in the event of applicantbelongs to Economic Weaker Section.

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“22. Other Important Instructions:-

(1)-(2)……….

(3) It would be mandatory for the applicants to submit all concerningoriginal documents/certificates, on the basis of which they raiseany claim on being demanded by the Rajasthan High Court orconcerned Appointing authority.

(4) …….”

8. The instructions indicated that in terms of Clause 6(i) & (iii)read with Clause 22(3), the applicants who claim the benefit of reservation,such certificate/document has to be produced on demand by the HighCourt or concerned Appointing authority. Thus, it is clear that there is norequirement to furnish the caste certificate of the category claimingbenefit of reservation either at the stage of filling the application form orat any lager stage, however, it has to be produced on demand by therecruiting authority. It may be noticed that the reservation for MBC(NCL) and EWC are for the first time introduced in the instant selectionprocess held pursuant to an advertisement dated 22[nd] July, 2021.

9. The relevant requirement was notified by the respondent to befurnished by the applicant claiming reservation against reserved vacanciesOBC-NCL, MBC-NCL or EWS category as the case may be, with thestipulation that the certificate must be of the period not prior to one yearof the last date of submission of application i.e. 31[st] August, 2021 for the A

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Afirst time by its notice dated 04[th] August, 2022 of which reference hasbeen made. The extract of the documents demanded by the respondentin reference to the certificate relating to category, is reproduced as under:- “(iii) Certificate relating to category a.OBC/MBC (Non Creamy Layer) certificate issued not priorBto one year from the last date of submission of the applicationform i.e. 31.08.2021.

b.In case OBC/MBC (Non Creamy Layer) certificate isissued between 31.08.2018 and 30.08.2020, an affidavit inprescribed format along with caste certificate has to beCproduced.

c.In case of EWS category – Income & Asset required forseeking reservation in EWS category must not be issuedprior to 01.04.2021.

In case Income & Asset Certificate issued between01.04.2020 and 31.03.2021, an affidavit in prescribed formatalong with certificate has to be produced.

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d.SC/ST/OBC/MBC/EWS certificate, as the case may bemust not have been issued after the last date of submission”of the application form i.e. 31.08.2021.E

(emphasis supplied)

10. It is not the case of the respondent that either of the appellantdoes not belong to the respective reserved category i.e. OBC-NCL,MBC-NCL or EWS but their certificate relating to category is of theFdate later to the cut-off date i.e. 31[st] August, 2021 but each of the applicantalthough was permitted to appear in the interview under the interim orderof the High Court but were not permitted to claim the benefit of theircertificate relating to category which was furnished and were treated tobe in the open category.

G11. When the result came to be finally published, indisputedly,each of the applicant secured higher marks in their respective categoryi.e. OBC-NCL, MBC-NCL or EWS as the case may be, and thecandidates lower in merit have been selected by the respondent butsince their certificate relating to category is somewhere later to the cut-off date i.e. 31[st] August, 2021 (the last date of application form), theH

benefit of reservation has not been extended and since each of theapplicant failed to qualify in the open category, they were finally deniedfrom being considered for appointment to the post of Civil Judge and thisfact can be further supported from the result of recruitment of CivilJudge Cadre 2021 published by respondent by notice dated 30[th] August,2022 that indicates that the present appellants have secured higher marksin their respective category qua those who have been finallyrecommended for appointment in the category of OBC-NCL, MBC-NCL or EWS category to which the present appellants are concernedand for convenience, comparative statement prepared by the respondent,in the tabulation form is reproduced as under:- “OBC-NCL category - SLP(C) No.5654/2023, SLP(C) No.16428/2022, SLP(C) Nos.18296-18299/2022

“MBC-NCL category – Sunil Gurjar SLP(C) No.19179/22 &Kuldeep Bhatia SLP(C) No.21644/22

“EWS category – Parul Jain SLP(C) Diary No.1581 of 2023

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12. It is not disputed by the respondent that each of the applicantis holding the certificate of their respective category and it is of priordate when demanded by the respondent under its notice dated 04[th] August,2022.C

13. This has come on record that circulars are issued by the Stateof Rajasthan for the purpose of obtaining the certificate relating tocategory in reference to seeking employment issued by the Departmentof Social Justice and Empowerment, Jaipur dated 09[th] September, 2015followed with 08[th] October, 2019 indicating the validity of certificate ofDOBC-NCL, MBC-NCL or EBC and since there was a lot of confusionand the circulars were not accessible to the people at large and litigationwas pending before the Courts, the State Government stepped in and infurtherance thereof, issued its directive dated 17[th] October, 2022 andcame with the clarification that if for any reason, the candidate has notproduced a certificate issued till the last date of application form andEproduces a certificate after the last date of filling up of application thenin that case, candidate should submit an affidavit that he was having theeligibility of respective category and if the information is found incorrect,then appointment can be cancelled. The extract of the clarification madeby the Government in meeting out the exigencies as demanded and toFstreamline the on-going litigation, under its directive dated 17[th] October,2022 is reproduced as under:- “If for any reason a candidate has not produced a certificate issuedtill the last date of application form and produces a certificatewhich is issued after the last date of filling application form thenGin that case candidate should write an affidavit to this aspect thathe was having the qualification of respective class and if theinformation is found incorrect then the appointment shall becancelled.”

14. For the sake of repetition, it may be noticed that it is not thecase of the respondent that either the appellant is not holding eligibility ofH

the respective category of which he/she belongs in terms of advertisementdated 22[nd] July, 2021 and their only fault is that their certificate relatingto category is of a date later to the last date of application (i.e. 31[st]August, 2021) in terms of notice dated 04[th] October, 2022 demandingfor furnishing the certificate relating to category to which they wereprovisionally called for interview.

15. On a writ petition being filed by the appellants assailing theaction of the respondent in not permitting them of claiming benefit ofreservation to which they belong and each of them have qualified aftersecuring more marks over the cut-off of respective category, the DivisionBench of the High Court has non-suited their claim on the premise thateach of them had failed to furnish certificate of their category as requiredon the last date of application i.e. 31[st] August, 2021 by placing relianceon the judgment of this Court in Ashok Kumar Sonkar vs. Union ofIndia and Others (2007) 4 SCC 54 held that the last date of applicationis a touchstone for determining the eligibility and since each of them hadfailed to furnish their respective certificate relating to category on orbefore 31[st] August, 2021, they are held ineligible from being consideredin the respective category and since each of them had not been able toqualify in the open category considered unsuitable for appointment tothe post of Civil Judge, under the impugned judgment dated 18[th] August,2022 in the case of Jyoti Beniwal vs. The Rajasthan High Court,Jodhpur Through Its Registrar General and Another (D.B. CivilWrit Petition No.11784/2022) and that was referred to in the subsequentwrit petitions filed and all were disposed of placing reliance on thejudgment of Jyoti Beniwal (Supra) by subsequent impugned judgmentdated 06[th] September, 2022 and in the case of appellant Parul Jain,separate judgment was passed on 18[th] November, 2022 relying on thesame judgment of High Court in Jyoti Beniwal (Supra) and that becamethe subject matter of challenge in appeal before us.

16. Learned counsel for the appellants jointly submit that it wasnowhere indicated at any stage that certificate of the category uptowhich date is to be furnished by the applicants/candidates while claimingreservation and each of the appellant holds the certificate of theirrespective category and accordingly, each of them mentioned in theirapplication form with regard to the category they intend to participate inthe selection process and although the permission granted to appear inthe preliminary examination was provisional but no one has examined at AB

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Aany stage that what is the requirement and since there is no referencemade either in the Scheme of Rules, 2010 or in the advertisement dated22[nd] July, 2021 to the certificate of category to which the appellant claimhas to be furnished is of which date or year. Each of them had bonafidely pleaded that the certificate of the category which is being obtainedis issued by the competent authority after due compliance for all practicalBpurposes and in the given facts and circumstances, the rigor which hasbeen put by the Division Bench of the High Court under the impugnedjudgment taking 31[st] August, 2021 as a sacrosanct date for furnishingthe certificate relating to category is nowhere prescribed either underthe Rules of 2010 or in the advertisement to which we are concernedChence, the premise on which the High Court has proceeded is completelymisconceived.

17. Learned counsel further submits that the judgment on whichreliance has been placed is not at all applicable on the facts of the instantcase for the reason that the judgments relied upon are related to theDminimum academic qualification and in the cases where rules are silentor there is no administrative instruction issued by the competent authority/recruiting authority before the selection process being initiated are inplace, this Court has stepped in and laid down a principle that in theabsence of rules indicating the requirement of holding academicqualification, the last date of filling application is considered to be aEbenchmark for the applicant to possess the minimum academicqualification.

18. But we are not dealing in this case with minimum academicqualification or the date of birth which is defined under the Scheme ofRules, 2010. In the given facts and circumstances, the premise on whichFthe claim of the present appellants has been non-suited by the HighCourt that they failed to furnish the certificate of category on or before31[st] August, 2021 is completely without basis/foundation having no nexusand they all have been put to surprise while it was notified to themdemanding to furnish the certificate relating to category on or beforeG31[st] August, 2021, which was the last date of submission of applicationbut it was, for the first time, notified when the provisional list of candidatescalling for interview was published on 04[th] August, 2022.

19. Learned counsel further submits that they all are coming fromrural background and belonging to a poor strata in society, having noHmeans to know the advanced technology which is available in the urban cities and with the minimal facilities available at their end, still they areable to crack the competitive examination and when this is not the caseof the respondents that either of the appellant is not a member of acategory which was indicated by him/her in application form originallyfiled to non-suite them at the stage when they finally qualified thecompetitive test and as informed that vacancies are available becauseof non-joining by the candidates, they can easily be adjusted against theunfilled advertised vacancies without disturbing or taking away the rightsof the persons/candidates who have been appointed on being declaredsuccessful by this authority.

20. Per contra, while supporting the finding recorded by the HighCourt, learned counsel for the respondent submits that this being settledby this Court in a catena of judgments that eligibility is to be looked intoon the last date of submission of application or the cut-off date indicatedin the relevant rules. In the instant case, when the rules are silent in suchcircumstances, what being laid down by this Court is the law on thesubject and the eligibility of the applicant is to be looked into on the lastdate of application which in the instant case is 31[st] August, 2021 andadmittedly, each of the applicant was not holding their certificate relatedto category as demanded of the period prior to 31[st] August, 2021 andaccordingly, no error was committed by the respondent and have rightlybeen treated in open category and it is not the case of the appellant thatany candidate who has been recommended and appointed in opencategory is lower in the order of merit in the selection process held bythe respondent pursuant to advertisement dated 21[st] July, 2021 and insupport of his submission, learned counsel has placed reliance on thejudgment of this Court reported in Ashok Kumar Sonkar (Supra)followed with Rakesh Kumar Sharma vs. State (NCT of Delhi) andOthers (2013) 11 SCC 58 and submits that this being a settled law heldby this Court and relied upon by the High Court, no error has beencommitted by the High Court, which may called for interference of thisCourt.

21. We have heard the learned counsel for the parties and withtheir assistance perused the material available on record.

22. It is not disputed that the post of Civil Judge is included in theSchedule appended to the Rules, 2010 and is to be filled up by directrecruitment in terms of Part IV and the advertisement was notified bythe respondents on 22[nd] July, 2021 holding selection against 120 vacanciesof Civil Judge for the year 2020-2021.

AB

C

D

E

F

G

H

A23. It is not disputed that the Rules of 2010 is a complete codeand silent in reference to the date when certificate of the category hasto be furnished and so far as the advertisement is concerned, it nowhereindicates as to what should be the crucial date for the purpose offurnishing the caste related certificate by the applicants who intended toparticipate in the selection process and admittedly each of the appellantBholds the certificate of the category and the period prior to as have beennotified by the respondent while their provisional list of the candidates tobe called for interview has been published on 04[th] August, 2022.

24. It may be noticed that reservation to MBC (NCL) and EWScategory has been introduced for the first time and the candidates areCcompletely alien to the procedure and the format in which the certificateof their category has to be furnished and so far as the candidates whoappeared in EWS quota is concerned, it has been submitted that fatherof the appellant Parul Jain submitted the Income-Tax Returns of theprevious years and applied for EWS certificate on E-mitra kiosk on 16[th]DAugust, 2021 and the appellant was assured that she will receive EWScertificate within 6-7 days but despite the appellant demanding hercertificate, it was issued by the E-mitra kiosk on 07[th] September, 2021but it is not disputed by the respondent that the appellant belongs toEWS category.E25. It is also not disputed that either in the advertisement whichwas initially notified on 22[nd] July, 2021 or at the stage of preliminaryexamination held on 11[th] January, 2022 followed with Main examinationheld on 30[th] April, 2022 to 01[st] May, 2022, it was nowhere notified thatthe certificate of the category has to be furnished of the period prior to31[st] August, 2021 and only when the list came to be published of theFcandidates provisionally qualified for interview on 04[th] August, 2022, therespondent came out with a defence that cut-off date for furnishingcaste related certificate should be prior to one year from the last date ofsubmission of application i.e. 31[st] August, 2021 and since each of theapplicant from OBC-NCL, MBC-NCL or EWS has furnished theirGrespective certificate of the category after it was brought to their noticeby the provisional list published on 04[th] August, 2022 and so far as thecandidate belonging to EWS category is concerned, appellant furnishedher caste certificate dated 07[th] September, 2021 with delay of sevendays.

26. In the Scheme of rules, age has to be looked into as on thefirst date of January following the last date fixed for receipt of application,if one is not holding the age in terms of Rule 17, the applicant standsdisqualified provided relaxed by the appointing authority and Rule 18 ofthe Scheme prescribes the academic qualification and it is nowhereindicated as to when the academic qualification of the applicant is to belooked into and here this Court has stepped in and the exposition of lawon the subject from Rekha Chaturvedi (Smt.) vs. University ofRajasthan and Others 1993 Supp (3) SCC 168 is consistent and isno more res integra that if the rules are silent and no date is beingnotified on which the qualification/eligibility of the applicant is to be lookedinto, the best course is to be taken care is the last date of application. Totake a judicial note, reference can be made of Rekha Chaturvedi (Supra)which was further noticed in the case of Bhupinderpal Singh andOthers vs. State of Punjab and Others (2000) 5 SCC 262, JasbirRani and Others vs. State of Punjab and Another (2002) 1 SCC124, Shankar K. Mandal and Others vs. State of Bihar and Others(2003) 9 SCC 519 followed with Ashok Kumar Sonkar (Supra) andRakesh Kumar Sharma (Supra).

27. This Court in Rekha Chaturvedi (Supra) held as under:- ”10. The contention that the required qualifications of thecandidates should be examined with reference to the date ofselection and not with reference to the last date for makingapplications has only to be stated to be rejected. The date ofselection is invariably uncertain. In the absence of knowledge ofsuch date the candidates who apply for the posts would be unableto state whether they are qualified for the posts in question or not,if they are yet to acquire the qualifications. Unless theadvertisement mentions a fixed date with reference to which thequalifications are to be judged, whether the said date is of selectionor otherwise, it would not be possible for the candidates who donot possess the requisite qualifications in praesenti even to makeapplications for the posts. The uncertainty of the date may alsolead to a contrary consequence, viz., even those candidates whodo not have the qualifications in praesenti and are likely to acquirethem at an uncertain future date, may apply for the posts thusswelling the number of applications. But a still worse consequencemay follow, in that it may leave open a scope for malpractices.

ABC

D

EF

G

H

SUPREME COURT REPORTS

AThe date of selection may be so fixed or manipulated as to entertainsome applicants and reject others, arbitrarily. Hence, in the absenceof a fixed date indicated in the advertisement/notification invitingapplications with reference to which the requisite qualificationsshould be judged, the only certain date for the scrutiny of thequalifications will be the last date for making the applications. WeBhave, therefore, no hesitation in holding that when the SelectionCommittee in the present case, as argued by Shri Manoj Swarup,took into consideration the requisite qualifications as on the dateof selection rather than on the last date of preferring applications,it acted with patent illegality, and on this ground itself the selectionsCin question are liable to be quashed.Reference in this connectionmay also be made to two recent decisions of this Court in A. P. Public Service Commission, Hyderabad v. B. SaratChandra [(1990) 2 SCC 669 : 1990 SCC (L&S) 377 : (1990) 4SLR 235 : (1990) 13 ATC 708] and District Collector &Chairman, Vizianagaram Social Welfare Residential SchoolDSociety, Vizianagaram v. M. Tripura Sundari Devi [(1990) 3SCC 655 : 1990 SCC (L&S) 520 : (1990) 4 SLR 237 : (1990) 14ATC 766].”

(Emphasis supplied)

E28. It was later followed in the case of Ashok Kumar Sonkar(Supra), wherein this Court held as under:-

“17. In Bhupinderpal Singh v. State of Punjab [(2000) 5 SCC262 : 2000 SCC (L&S) 639] this Court moreover disapproved theprevailing practice in the State of Punjab to determine the eligibilityFwith reference to the date of interview, inter alia, stating: (SCCpp. 267-68, para 13)

“13. Placing reliance on the decisions of this Court in AshokKumar Sharma v. Chander Shekhar [(1997) 4 SCC 18 : 1997SCC (L&S) 913], A.P. Public Service Commission v. B. SaratChandra [(1990) 2 SCC 669 : 1990 SCC (L&S) 377 : (1990)13 ATC 708], Distt. Collector & Chairman, VizianagaramSocial Welfare Residential School Society v. M. TripuraSundari Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 :(1990) 14 ATC 766], Rekha Chaturvedi v. University ofRajasthan [1993 Supp (3) SCC 168 : 1993 SCC (L&S) 951 :

G

H

SAKSHI ARHA v. THE RAJASTHAN HIGH COURT ANDOTHERS [AJAY RASTOGI, J.]

(1993) 25 ATC 234], M.V. Nair (Dr.) v. Union of India [(1993)2 SCC 429 : 1993 SCC (L&S) 512 : (1993) 24 ATC 236]and U.P. Public Service Commission v. Alpana [(1994) 2SCC 723 : 1994 SCC (L&S) 742 : (1994) 27 ATC 101] theHigh Court has held (i) that the cut-off date by reference towhich the eligibility requirement must be satisfied by thecandidate seeking a public employment is the date appointedby the relevant service rules and if there be no cut-off dateappointed by the rules then such date as may be appointed forthe purpose in the advertisement calling for applications; (ii)that if there be no such date appointed then the eligibility criteriashall be applied by reference to the last date appointed by whichthe applications have to be received by the competent authority.The view taken by the High Court is supported by severaldecisions of this Court and is therefore well settled and hencecannot be found fault with. However, there are certain specialfeatures of this case which need to be taken care of and justicebe done by invoking the jurisdiction under Article 142 of theConstitution vested in this Court so as to advance the cause ofjustice.”

29. It has been transpired and culled out from the aforementioneddecision that:-

(i) the cut-off date by reference to which the eligibility requirementmust be satisfied by the applicant seeking a public employment isthe date notified in the relevant service rules.

(ii) If there is no cut-off appointed date indicated under the rulesthen such date shall be as appointed for the purpose in theadvertisement calling for applications.

(iii) If there is no such date appointed then the eligibility criteriashall be applied by reference to the last date notified by which theapplications were to be received by the recruiting authority.

30. These principles have been settled by this Court and is nomore res integra for further discussion that when the rules are silentand no date is notified to satisfy the eligibility requirement under theadvertisement, the eligibility criteria shall be applied by reference to thelast date of application by which applications are to be received by therecruiting authority.

ABC

D

E

F

GH

A31. Let us examine the Scheme of Rules, 2010 in other way andPart IV in particular, which provides the method of recruitment in thecadre of Civil Judge, Rule 19 postulates that the candidate has to submita character certificate while participating for direct recruitment whichmay qualify him for employment in service, has to be not more than sixmonths prior to the date of application which the candidate has to encloseBwhile the application form is filled for participation in the selection processand if we proceed on the principles as aforestated, the question arisesthat if the candidate who has participated in the selection process afterfurnishing the character certificate along with the application form interms of Rule 19, if at a later stage in the process of selection involves inCany act of moral turpitude before he is actually appointed whether theappointing authority is under an obligation to give him appointment if hisname is finally placed in the order of merit, the answer indeed is innegative and the reason is that the character certificate enclosed by theapplicant at the time of filling the application form in terms of Rule 19 isonly for the purpose of satisfaction in reference to the character of theDapplicant/candidate who intends to participate in the process of recruitmentwhich may qualify him for employment in service, but if he later getshimself involved in any act of moral turpitude, although there is norestriction/embargo, but the authority is always in its competence to takeinto consideration the later developments and upto the date of appointmentEif the candidate finally selected is found to be unsuitable for appointmentwhich indeed he did not carry at the time when the application form wasfilled and that too on the last date of application, but that can always beconsidered as material to adjudge the suitability of the candidate forbeing considered for appointment and in the given situation the theory oflast date of application becomes completely otiose.F

32. It is true that the general rule is that while participating in therecruitment process, the person must possess the eligibility qualificationon the last date fixed for such purpose unless there is any expressprovision to the contrary and there can be no relaxation in the matter ofholding requisite eligibility qualification by the date fixed and this has toGbe established by producing necessary certificate or degree, as the casemay be. But, at the same time, in order to avail the benefit of reservationor weightage, necessary certificates have to be produced but they are inthe nature of proof for the purpose of seeking entitlement to claim thebenefit of reservation, but it has no nexus with the last date of the H

application and, it may not be proper to apply any rigid principle in theabsence of any rule to the contrary. As a matter of caution, everyinfraction of the rule relating to submission of proof in availing the benefitof reservation may not necessarily result in rejection of the candidature.

33. In the similar circumstances, the vacancies are reserved forvarious categories i.e. SC/ST/OBC/MBC/Persons with Disabilities andwomen candidates under the Scheme of Rules, 2010 and that has beennotified category-wise under Clause 4 of the advertisement dated 22[nd]July, 2021 with which we are concerned, and it goes without saying thatthe candidate must be a member of the reserved category at the timewhen the application form is filled pursuant to the advertisement inquestion, but at the same time so far as the scheme of examination andsyllabus, as provided in Rule 20 of the Rules, 2010 is concerned, forholding competitive examination for the post of Civil Judge conductedby the recruiting authority is common for all and each of the candidateregardless the category to which one belongs, has to undergo the sameprocess of qualifying the preliminary examination followed with mainexamination and interview, except that the candidates are admitted tothe main examination followed with interview in terms of the total numberof vacancies category-wise.

34. The reservation of vacancies of various categories as referredto in Rule 10 is not a condition of eligibility for the candidate to participatein the selection process as the certificate of category for the purpose ofclaiming reservation will arise not at the stage when the application formis filled making self-declaration by the individual candidate to participatein the selection process but at the stage when the select list is to beprepared of the candidates who have participated in the selection processsince the final select list has to be published category-wise by giving thebenefit of reservation to the candidates who have participated in theprocess of selection and for no other purpose and when the respondenthas demanded from the applicant to furnish their respective certificateof the category to which one had participated in the selection processunder its notice dated 04[th] August, 2022, indisputedly each of the applicanthad furnished the certificate of their category to which one belong at thetime of advertisement when demanded by the recruiting authority interms of Clause 6(i) & (iii) read with Clause 22(3) of the advertisementdated 22[nd] July, 2021.

AB

C

D

EF

G

H

A35. This Court in Dolly Chhanda vs. Chairman, Jee & Others(2005) 9 SCC 779, has considered the situation where the incumbenthas failed to furnish the certificate seeking benefit of reservation andafter examining the Scheme, this Court in the given circumstances, heldas under:

B“7. The general rule is that while applying for any course of studyor a post, a person must possess the eligibility qualification on thelast date fixed for such purpose either in the admission brochureor in application form, as the case may be, unless there is anexpress provision to the contrary. There can be no relaxation inthis regard i.e. in the matter of holding the requisite eligibilityCqualification by the date fixed. This has to be established byproducing 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 aredocuments in the nature of proof of holding of particularDqualification or percentage of marks secured or entitlement tobenefit of reservation. Depending upon the facts of a case, therecan be some relaxation in the matter of submission of proof and itwill not be proper to apply any rigid principle as it pertains in thedomain of procedure. Every infraction of the rule relating tosubmission of proof need not necessarily result in rejection ofEcandidature.”

36. Later, in Ram Kumar Gijroya vs. Delhi Subordinate ServicesSelection Board and Another (2016) 4 SCC 754, this Court hasexamined the question as to whether a candidate who appears in anexamination under the OBC category and submits the certificate afterFthe last date mentioned in the advertisement is eligible for selection tothe post under OBC category and answered it in affirmative as under:- “18. In our considered view, the decision renderedin Pushpa [Pushpa v. Govt. (NCT of Delhi), 2009 SCC OnLineDel 281] is in conformity with the position of law laid down by thisGCourt, which have been referred to supra. The Division Bench ofthe High Court erred in reversing the judgment and order passedby the learned Single Judge, without noticing the binding precedenton the question laid down by the Constitution Benches of thisCourt in Indra Sawhney [Indra Sawhney v. Union of India,1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22

H

ATC 385] and Valsamma Paul [Valsamma Paul v. CochinUniversity, (1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996) 33ATC 713] wherein this Court after interpretation of Articles 14,15, 16 and 39-A of the directive principles of State policy held thatthe object of providing reservation to the SCs/STs and educationallyand socially backward classes of the society is to remove inequalityin public employment, as candidates belonging to these categoriesare unable to compete with the candidates belonging to the generalcategory as a result of facing centuries of oppression and deprivationof opportunity. The constitutional concept of reservation envisagedin the Preamble of the Constitution as well as Articles 14, 15, 16and 39-A of the directive principles of State policy is to achievethe concept of giving equal opportunity to all sections of the society.The Division Bench, thus, erred in reversing the judgment andorder passed by the learned Single Judge. Hence, the impugnedjudgment and order passed by the Division Bench in Letters PatentAppeal No. 562 of 2011 is not only erroneous but also suffersfrom error in law as it has failed to follow the binding precedentof the judgments of this Court in Indra Sawhney [IndraSawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC(L&S) Supp 1 : (1992) 22 ATC 385] and ValsammaPaul [Valsamma Paul v. Cochin University, (1996) 3 SCC 545: 1996 SCC (L&S) 772 : (1996) 33 ATC 713]. Therefore, theimpugned judgment and order [Delhi Subordinate ServicesSelection Board v. Ram Kumar Gijroya, 2012 SCC OnLine Del472 : (2012) 128 DRJ 124] passed by the Division Bench of theHigh Court is liable to be set aside and accordingly set aside. Thejudgment and order dated 24-11-2010 passed by the learned SingleJudge in Ram Kumar Gijroya v. Govt. (NCT of Delhi) [RamKumar Gijroya v. Govt. (NCT of Delhi), WP (C) No. 382 of2009, order dated 24-11-2010 (Del)] is hereby restored.”

37. This judgment came up for consideration later before two-Judge Bench of this Court in Karn Singh Yadav vs. Govt. of NCT ofDelhi and Others (SLP(C) No.14948/2016) and the Court has somereservations and referred the matter to be placed before three-JudgeBench by order dated 24[th] January, 2020 and three-Judge Bench of thisCourt while relying upon Ram Kumar Gijroya (Supra) disposed of theappeal under its order dated 28[th] September, 2022, it appears that thereference made by two-Judge Bench of this Court remained unnoticed.

AB

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ABe that as it may, the position as on today is that three-Judge Bench ofthis Court under its order dated 28[th] September, 2022 has affirmed theview expressed by two-Judge Bench of this Court in Ram KumarGijroya (Supra).

38. That apart, taking into consideration the Scheme of Rules,B2010, which is indisputedly, silent on the subject issue and theadvertisement dated 22[nd] July, 2021 nowhere indicates that the castecertificate/certificate of category has to be produced of the period priorto the last date of the application (31[st] August, 2021) in the instant case.To the contrary, Clause 6(i) & (iii) read with Clause 22(3) of theadvertisement, such certificate of category which one claimed for seekingCthe benefit of reservation, has to be produced on demand by the recruitingauthority.

39. In the given facts and circumstances, when the rules are silentand there is no such instruction that the certificate of the category has tobe produced of the period on or before the last date of the applicationDunder the advertisement and each of the applicants has produced thecertificate relating to category on being demanded by the recruitingauthority when the list came to be published of the candidates who wereprovisionally called for interview on 04[th] August, 2022, each of theapplicants indisputedly has furnished their certificate of the category toEwhich they belong at the time of advertisement and had participated inthe process of selection. At this stage, in our view, the High Court hadgone wrong and was influenced with the condition of eligibility to belooked into on the last date of application, while examining the productionof certificate of the category to which the candidate belong andparticipated in the selection process is in no manner co-related with theFconditions of eligibility and the judgments relied upon to non-suite theclaim of the appellants has no application in the facts of the instant case.

40. To understand the dynamics, the Government has come outwith the Circulars earlier dated 9[th] September, 2015 followed with08[th] October, 2019 of which reference has been made, but it has alwaysGto commensurate with the process of selection when the advertisementhas been published by the recruiting authorities for making open selectionand in every advertisement notified by the recruiting authority, the lastdate of application is bound to differ and that may change the completedynamics of the certificate which the applicant holds and he is notHsupposed to obtain the certificate of category in conformity with each advertisement and it is not being practically possible and that appears tobe the reason since there was no scheme or instructions in place whichmay regulate and streamline as to what is the procedure the applicanthas to follow while participating in the selection process intending toavail the benefit of reservation for various categories and to overcomethe on-going litigation, the State Government has stepped in and clarifiedunder its directives dated 17[th] October, 2022 indicating that if the applicanthas failed to furnish the certificate on the last date of application orfurnish the same of the date later to the last date of application, he has tofurnish an affidavit that if it is found to be incorrect or false, suchappointment will be cancelled. To our mind, it may be an ad-hoc situationnoticed to meet out the current exigency by the Government, but therecruiting authority or the Government, as the case may be, has to examinethe issue in totality and take into consideration the grievances which arebeing raised and considered by the Court at various stages and to issueclear guidelines with wide circulation which the candidates have to followwho wants to avail the benefit of reservation to avoid/overcome thelitigation.

41. To sum up further, as noticed by this Court, the final merit listof 120 selected candidates was notified by the respondents as indicatedin the notice dated 30[th] August, 2022 and there is no provision under theScheme of Rules, 2010 of having any waiting list/reserve list. Thus, nofurther appointments could be made after the final select list of 120candidates has been exhausted on account of non-joining or for anyother reason of the candidates.

42. It is informed to this Court that out of 120 candidates whowere recommended for appointment, appointment orders were issuedto 119 candidates on 09[th] March, 2023 and five candidates have notjoined and that apart in MBC (NCL) category, five vacancies werereserved and only two candidates are appointed and three vacanciesare filled by open category. Taking the overall spectrum of the fact situationthat the candidates who might be lower in the order of merit vis-à-visthe present appellants have joined and sent for training, but they werenever at fault, at the same time, the present appellants also needindulgence of being considered for appointment after they are finallyselected and indisputedly have secured higher marks than cut-off in theirrespective category and this fact has not been disputed by the respondents AB

C

D

E

F

G

H

Aas well, few of the applicants can be adjusted against the availableadvertised vacancies and without disturbing or taking away the rights ofthe candidates who have been appointed by the recruiting authority, inthe peculiar facts and circumstances, in exercise of our power underArticle 142 of the Constitution, to do complete justice to the parties, itmay be appropriate to direct the respondents to consider each of theBappellants for appointment who could not be adjusted against theadvertised vacancies of Civil Judge against future vacancies, subject totheir suitability under the Scheme of Rules, 2010.

43. The appeals succeed and are accordingly allowed. TheCimpugned judgment of the High Court is hereby quashed and set asideand the respondents are directed to consider candidature of each of theappellant for appointment with consequential benefits including seniorityto the post of Civil Judge on their participation in the selection processheld pursuant to advertisement dated 22[nd] July, 2021. The order may bepassed subject to their suitability within two months. No costs.D

44. Pending applications, if any, shall stand disposed of.

BELA M. TRIVEDI, J.E

1. I have had the opportunity to go through the opinion expressedby my esteemed brother Justice Ajay Rastogi, however I express myinability to agree with the views expressed in the said opinion, and pendown my opinion as under: -F

2. Leave granted.

3. The common adjudication is being made having regard to thecontextual semblance of facts and legal issues involved in all these appeals.The appellants in all the appeals have challenged the impugned ordersGpassed by the High Court of Judicature for Rajasthan, whereby the HighCourt has dismissed the writ petitions filed by them. In the writ petitionsbefore the High Court, the primary challenge was to the action of therespondent-High Court in issuing the notice on 04.08.2022 requiring thecandidates, who had successfully qualified themselves in the main H

examination for the post of Civil Judges, to produce the certificates relatingto the categories like Other Backward Class / More Backward Class -Non-Creamy Layer and Economically Weaker Section etc. issued withinone year from the last date of submission of the application form i.e.31.08.2021 and not after the said date. The appellants having producedthe certificates showing their status in the respective reserved category,which were issued after the said date 31.08.2021, they were not foundeligible for the said post by the respondent-High Court.

Factual Matrix

Factual Matrix

4. The short facts that emanate from the record of the presentbatch of appeals are that the respondent-High Court issued anadvertisement on 22.07.2021 inviting applications for the recruitment ofCivil Judges against the vacancies in the year 2021 as per the RajasthanJudicial Service Rules, 2010 (hereinafter referred to as the Rules, 2010).The relevant part of the said advertisement is produced hereunder forthe better appreciation of the issues involved:

“Rajasthan High Court, Jodhpur

Advertisement No.:- Rajasthan High Court, Jodhpur/ExaminationCell/ R.J.S./ Civil Judge Cadre/ 2021/ 780 dated 22.07.2021.

Competitive Examination for Direct Recruitment in CivilJudge Cadre, 2021.

1. Online applications are invited by Rajasthan High Court,Jodhpur for direct recruitment on total 120 vacant posts (89posts of year 2020 and 31 posts of year 2021) of Civil Judgeand Judicial Magistrate on probation in Civil judge Cadre ingrade pay 27700-770-33090-920-40450-1080-44770 underRajasthan Judicial Service Rules, 2010 (as amended).

2to 3 ……….

4. Number of Vacant posts and Reservation.

A

B

C

D

E

F

G

H

614SUPREME COURT REPORTS[2023] 9 S.C.R.ABCD

*Out of 05 posts reserved for persons with BenchmarkDisabilities, 01 (One) post is reserved for blindness and low vision,E01 (One) for deaf and hard of hearing, 01 (one) for locomotordisability including cerebral palsy, leprosy cured, dwarfism, acidattack victims and muscular dystrophy and 02 (two) for autism,intellectual disability, specific learning disability and mental illnessand multiple disabilities from the amongst persons under clauses(a) to (d) including deaf blindness in the posts identified for eachFdisabilities.

Note-The number of aforesaid vacant posts can be increased ordecreased as per rules for which no re-advertisement orcorrigendum will be published.

5. Regarding reservation of various categories- G

i.Reservation for posts reserved for women (including widowand divorced women) shall be treated as horizontal againstcategory wise vacant posts meaning thereby women of whichcategory (Scheduled Castes/ Scheduled Tribes/ OtherBackward Classes/ More Backward Classes/ Economically H

Weaker Sections/ General Category) will be selected, suchwoman candidate will be adjusted against the concernedcategory of which she is an applicant.

A

ii. Reservation for posts reserved for Persons with Disabilitiesshall be treated as horizontal against total vacant posts meaningthereby persons with disabilities of which category (ScheduledBCastes/ Scheduled Tribes/ Other Backward Classes/ MoreBackward Classes/ Economically Weaker Sections/ GeneralCategory) will be selected, such candidates will be adjustedagainst the concerned category of which they are applicant.

iii. In the event of non-availability of eligible and suitableCcandidates against the posts reserved for Scheduled Castes/Scheduled Tribes/ Other Backward Classes/ Most BackwardClasses /Economically Weaker Sections/ women (includingwidow and divorced women) / Persons with Disabilities ofRajasthan, these posts will be filled by the procedure andDmanner prescribed in Rajasthan Judicial Service Rules, 2010(as amended).

iv. For selection against posts meant for general category, it willbe essential for reserved category candidates to be eligible asgeneral category candidates.

E

Note- Applicants from creamy layer category of OtherBackward Class and More Backward Class of Rajasthan andScheduled Castes/ Scheduled Tribes/ Other Backward Class(Creamy layer and non-creamy layer)/ More Backward Class(Creamy layer and non-creamy layer)/ Economically WeakerSections of other states, shall be treated as general categorycandidates.

F

6. Regarding certificates of various categories-

i.For reservation as Scheduled Castes/ Scheduled Tribes/ OtherBackward Classes and More Backward Class, certificateissued by the Competent authority as per rules in the prescribedformat, will have to be furnished.

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ii. For the applicants coming within Persons with Disabilitycategory, such candidates will have to furnish Certificate ofDisability issued in the prescribed format by Authorized H

ACertifying Authority authorized by appropriate Government,as and when demanded by Rajasthan High Court. As per theextant rules applicable in this regard, only Disability CertificateHolder candidates shall be considered eligible for selectionand appointment against the posts reserved for the Personswith Disabilities.B

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iii. In case of Economically Weaker Sections applicants, suchcandidates will have to furnish the certificate duly issued asper rules of the Competent Authority.

iv. For availing benefit of reservation meant for married womenCcandidates of Scheduled Castes and Scheduled Tribes, suchwomen candidates will have to furnish caste certificate basedon the name and address of father issued in the prescribedformat as per rules. The certificate based on the basis of name,address and income of the husband shall not be applicable.

Dv. For availing benefit of reservation meant for married womencandidates of Other Backward Classes and More BackwardClasses, such women candidates will have to furnish castecertificate based on the name and address of father issued inthe prescribed format as per rules. The certificate based onthe basis of name, address and income of the husband shallEnot be applicable.

vi. In case of widow women candidate, she will have to furnishdeath certificate of her husband issued by the Competentauthority and in case of Divorcee women candidate, she willhave to furnish proof of Divorce.F7 to 9. ……

10. AGE:-

A candidate must have attained the age of 21 years on 01[st]January 2022 however must not have attained the age of 40Gyears.

Provided that –

(i) the upper age limit mentioned above shall be relaxed by5 years in case of candidates belonging to the ScheduledCastes/Scheduled Tribes, Other Backward Classes/MoreH

Backward Classes/ Economically Weaker Sections andWomen Candidates.

11 to 16. ……

17. Time Limit to Apply:-

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18. Important Instructions to Apply:-

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1. Any applicant under which category he is eligible to applyshould apply in the same category. The category filled inthe application will not be changed under anycircumstances on the request of the applicant.

2. Before applying online application, the applicant must ensureDthat he/ she meets all the eligibility conditions as per theconditions mentioned in the advertisement and all theinformation required in the online application form is filled incorrectly and fully in the relevant column. The informationfilled in the online application form will be considered as correctEand provisional admission will be given in the examination.Therefore, the applicant himself/herself will be responsiblefor the information filled in the online application form.

3. Only the applications filled by the last date of online applicationwill be accepted. In case all the entries are not complete andFcorrect, the application will be rejected by the Rajasthan HighCourt.

4. No change can be made in the entries once finally entered inthe online application, nor will any application in this regard beaccepted for consideration.

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19 to 21. …..

22. Other Important Instructions:-

1….

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A3. The candidates will be required to produce all the relevantoriginal documents/certificates, on the basis of which they makeany claim, if required by the Rajasthan High Court or theconcerned appointing authority.

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9. Only such applicants, who have successfully deposited theexamination fee by applying online till the last date, will beprovisionally allowed to appear in the examination by theRajasthan High Court. Merely issuing the admit card to anapplicant to appear in the examination would not mean thatChis candidature has been finally accepted by the RajasthanHigh Court or that the entries made by the applicant in theapplication form have been treated as correct and true. Whilechecking the eligibility of the applicant from the originaldocuments by the Rajasthan High Court and as per rule, ifhis/her ineligibility is detected on the ground of non-fulfilmentDof other essential conditions of eligibility on the basis of age,educational qualification and SC/ST/OBC/More BackwardClass/EWS/PH/Women/ Widow/Abandoned (Divorced) etc.,his/her candidature for this examination is liable to be cancelledat any stage, the responsibility of which will be that of theEapplicant himself.”

5. All the appellants claiming to be the members of OBC/MBC-NCL/EWS, appeared in the main examinations conducted by therespondent and successfully cleared the same. They having beenprovisionally qualified to be called for the interview, were invited by theFrespondent for the interview between 20.08.2022 to 27.08.2022, videthe notice dated 04.08.2022. In the said notice it was directed that thecandidates had to bring all the original documents along with the attested/certified photocopies at the time of interview. The precise directionscontained in the said notice are reproduced as under:

G“The candidates are required to remain present for Interview onthe date and reporting time mentioned above in the temporaryoffice of Registrar (Examination), at Rajasthan State JudicialAcademy, Jodhpur, Near Jhalamand Circle, Old Pall Road, Jodhpur(Rajasthan) with their original documents/certificates forverification. The candidates are directed to bring all the following H

original documents along with two attested/certified photo copiesof each document: - i….

ii….

iii. Certificate relating to category:-

(a) OBC/MBC (Non Creamy layer) certificate issued not priorto one year from the last date of submission of the applicationform i.e. 31.08.2021.

(b) In case OBC/MBC (Non Creamy Layer) certificate isissued between 31.08.2018 and 30.08.2020, an affidavit inprescribed format along with caste certificate has to beproduced.

(c) In case of EWS category - Income & Asset Certificaterequired for seeking reservation in EWS category must not beissued prior to 01.04.2021. In case Income & Asset Certificateissued between 01.04.2019 and 31.03.2021, an affidavit inprescribed format along with certificate has to be produced.

(d) SC/ST/OBC/MBC/EWS certificate, as the case may bemust not have been issued after the last date of submission ofthe application form i.e. 31.08.2021.”

6. The appellant Jyoti Beniwal (SLP (C) No. 5654/2023) who hadapplied under the category OBC-NCL for the said post of Civil Judge,filed the writ petition being No. 11784 of 2022 inter alia challenging theconditions imposed in the said notice dated 04.08.2022 requiring thecandidates to furnish the OBC-NCL certificates issued between31.08.2018 to 31.08.2021, and declaring that the certificates issued after31.08.2021 would not be accepted. The Division Bench of the HighCourt dismissed the said petition vide the judgment and order dated18.08.2022, which is impugned before this Court.

7. The appellant Kuldeep Bhatia (SLP (C) No. 21644 of 2022)also filed writ petition being no. 12022 of 2022 before the High Courtchallenging the said notice dated 04.08.2022 prescribing the requirementof furnishing the OBC (NCL) certificate of the period not prior to oneyear preceding the last date of submission of application form. The saidpetition also came to be dismissed by the High Court vide the order A

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Adated 06.09.2022, which is also impugned before us in this batch ofappeals. Similar writ petitions filed by the other appellants-writ petitionerscame to be dismissed by the High Court by passing separate ordersrelying upon the decisions in case of Jyoti Beniwal and Kuldeep Bhatia.

8. For the better understanding and for the sake of convenience,Ba comparative statement showing the facts in case of each of theappellants is produced hereunder:

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I. OBC-NCL category SLP 5654/2023, SLP 16428/2022,SLP 18296 – 18299/22

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II. MBC-NCL category-Sunil Gurjar SLP(C) NO. 19179/22 & Kuldeep Bhatia SLP(C) NO. 21644/22

III. EWS Category-Parul Jain SLP (C) No. 9544 OF 2023

9. It is pertinent to note that as per Clause-6 read with the importantinstructions mentioned in the advertisement dated 22.07.2021, thecandidates belonging to various reserved categories had to produce legallyvalid certificates issued by the competent authority. It may be furthernoted that the Department of Social Justice and Empowerment,Government of Rajasthan keeps on issuing the guidelines and directionsfrom time to time for the issuance of caste certificates to the SCs, STs,OBCs, MBCs and EWS. The circulars prevalent at the relevant timewere the circulars dated 09.09.2015 and 08.08.2019. The relevantparagraph 4 of the Circular dated 09.09.2015 with regard to issuance ofcaste certificates reads as under:

“4. Validity Period of Caste Certificate: -

1. The validity of caste certificates issued for SC / ST will belifetime whereas the certificate for OBC will be issued onlyonce but the fact that the person is not in the creamy layerwill be recognised on the basis of a valid affidavit up to threeyears.

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A2.The certificate of non-creamy layer will be valid for one year.Once the certificate of non-creamy layer is obtained, if theapplicant is not in the creamy layer in the next year as well,then in such a situation an affidavit (Appendix-D) will beobtained from him, where the earlier issued non-creamy layercertificate shall be deemed valid, this can be done for aBmaximum period of three years.”

10. The relevant part of the Circular dated 08.08.2019 clarifyingthe aforesaid direction contained in the circular dated 09.09.2015 readsas under:

C“Government of RajasthanDepartment of Social Justice and Empowerment No. F-11/S.C.S.T.OBC/S.B.C

Date: 08.08.2019

…Therefore, it is once again clarified in this regard that the casteDcertificate of Other Backward Classes shall be valid for one year,however, in a situation where the applicant has been issued acertificate for not falling in the creamy layer category and if suchapplicant does not fall within the creamy layer in the subsequentyear as well, in that situation, previously issued certificate of fallingwithin the non-creamy layer will be treated as valid after obtainingEan attested affidavit from the applicant, which can be donemaximum for a period of three years.”

11. The substance of the above circulars was that the certificateof OBC-NCL issued to a person would be valid for one year, however inthe subsequent year also if he continues to remain in the “non-creamyFlayer” category, the previously issued certificate would be treated validafter obtaining an attested affidavit from such person, and such procedurecould be followed for a maximum period of three years.

Submissions:

12. The Learned Counsels appearing for the appellants madeGfollowing submissions:

(i) The appellants having complied with all requisites in formas well as in substance have been wrongly not consideredfor the post of Civil Judge and the lesser meritoriouscandidates in the respective categories have been selectedHfor the said post.

(ii) In absence of any specification with regard to the date ofAcertificates to be produced by the candidates applying underthe reserved categories either in the recruitmentadvertisement dated 22.07.2021 or in the said Rules of 2010,the prescriptions contained in the notice dated 04.08.2022requiring the candidates to produce the certificates as perBClause 3 thereof tantamount to changing the rules of gamein the midst of the recruitment process, which is notpermissible in the eye of law.

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(iii) The impugned conditions introduced by the respondents inthe notice dated 04.08.2022 limiting the chances of theCappellants being selected were absolutely unreasonable andarbitrary.

(iv) For availing the benefit of reservation, the appellants wererequired to produce the relevant certificates, however anyrigid principle with regard to the date of certificate as theDproof for the purpose of seeking entitlement to claim thebenefit of reservation, had no nexus with the last date ofsubmission of application.

(v) Relying upon the decision of this Court inDolly ChhandaVs. Chairman, JEE & Ors.1, it is submitted that there canbe some relaxation in the matter of submission of proof ofthe certificates/documents and it would not be proper toapply any rigid principle. Every infraction of rule relating tosubmission of proof need not be necessarily result in rejectionof candidature.

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(vi) Reliance has been placed in case of Ram Kumar GijroyaVs. Delhi Subordinate Services Selection Board & Anr.2,to submit that the submission of certificate after the lastdate mentioned in the advertisement was valid for theselection of the candidate under the reserved category.According to the appellants, the said view was affirmed byThree-Judge Bench in case of Karn Singh Yadav Vs.Government of NCT of Delhi & Ors.3 (SLP (C) 14948/2016).

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1 (2005) 9 SCC 779

2 (2016) 4 SCC 754

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3 2022 SCC OnLine SC 1341

A(vii)Distinguishing the judgment ofAshok Kumar Sonkar Vs.4Union of India & Ors., relied upon by the respondent, itwas submitted that the ratio laid down in the said judgmenthad no relevance to the facts of the present appeals in asmuch as the said case pertained to the qualification ofcandidates at the time of selection, whereas in the instantBappeals the issue is with regard to the date of the issuanceof certificates which is only procedural matter.

13. The Learned Counsel for the Respondents made the followingsubmissions:

C(i)The appellants had failed to reproduce valid certificates asmentioned in the advertisement dated 22.07.2021 and noticedated 04.08.2022.

(ii) The State Government had issued the circulars dated09.09.2015 and 08.08.2019 in which it was clarified thatDthe OBC certificate shall be issued only once, and thecertificate regarding Non-Creamy Layer would also be validfor one year only, however, if the applicant continues tohold the position of “Non-Creamy Layer” in the subsequentyear, then the certificate issued in previous year would betreated valid with an affidavit of the candidate. In the instantEappeals the appellants claiming to be belonging to OBC-NCL had not produced the requisite valid certificates northe affidavit in that regard.

(iii) As held in Ashok Kumar Sonkar (supra), the last date forfiling application is required to be treated as the cut-offFdate in absence of any date specified in this behalf either inthe advertisement or in the rules.

(iv) Relying upon Rakesh Kumar Sharma Vs. State (NCT of5Delhi) & Ors., it has been submitted that the eligibilitycriteria/conditions should be examined as on the last dateGof the receipt of the application. The appellants havingacquired the requisite certificates after the cut-off date oflast date of submission of applications, they were rightlynot considered for selection for the post in question.

4 (2007) 4 SCC 54H5 (2013) 11 SCC 58

(v) The reservation under the category of OBC-NCL and EWSis on the basis of the current economic status of thecandidates, whereas the caste status of person i.e., acandidate being SC, ST or OBC would be dependent onthe birth of the person which factor remains static. Hence,considering the dynamic state of the category of OBC-NCLand EWS, the Government had issued the circulars dated08.08.2009 and 09.09.2015 for issuing the requisitecertificates by the competent authority, and the appellantsaccordingly had to produce the valid certificates issued bysuch competent authorities as per the said circulars, whichthe appellants had failed to produce in the instant cases.

Analysis and Reasoning:

14. At the outset, it deserves to be noted that the certificates tothe persons belonging to the reserved categories like SC/ST/OBC-NCL/MBC-NCL/EWS are being issued by the competent authorities of therespective State Governments keeping in view the provisions containedin the Constitution of India and the guidelines/principles laid down by thisCourt from time to time. The status of a person whether he belongs toSC or ST category depends on the caste which he belongs to by birth,and such status would remain unchanged and would be static, however,the status of a person whether he belongs to OBC-NCL/MBC-NCL/EWS would depend upon his/her social and economic status, and suchstatus would keep on changing depending on his/her income and thereforewould be dynamic. It is very well settled position of law that the personsbelonging to the Scheduled Castes and Scheduled Tribes were and aretreated as a separate category, and the principle of “creamy layer” doesnot apply to the said categories. It applies only to the persons belongingto the socially and the economically backward classes. Ergo, the date ofissuance of certificate to the persons belonging to OBC-NCL/MBC-NCL/EWS categories assumes significance for the purpose ofascertaining as to whether the candidate claiming to belong to a particularreserved category on the date when he/she applied for the post in questionunder such category, in fact belonged to the said category on the date onwhich such application was made or on the date prescribed in theadvertisement.

15. In this regard, before adverting to the submissions made bythe learned counsels for the parties, let us peep into the brief history of AB

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Areservations, more particularly for the category of “Other BackwardClasses” and “Economically Weaker Sections”, with which I amconcerned. The most landmark decision on the issue of reservations forthe “Other Backward Class” category is the Nine-Judge Bench decisionin case of Indra Sawhney & Ors. Vs. Union of India & Ors.[6], inwhich it was noticed that amongst the backward class, there is a sectionBof the backward class which belong to the affluent section of societyand they do not deserve any sort of reservation for further progress inlife. In the majority judgment opined by B.P. Jeevan Reddy, J., it wasobserved while discussing the issue under the head “Means test” and“creamy layer”, that “Means test’ signifies imposition of an income limit,Cfor the purpose of excluding persons from the backward class whoseincome is above the said limit, (also referred as the persons belonging tocreamy layer). It was further opined that the exclusion of “creamy layer”must be on the basis of social advancement and not on the basis of mereeconomic criteria. At the same time, income to the extent of propertyheld by person can be taken as a measure of social advancement and onDthat basis “creamy layer” of all given caste/community/occupational groupcan be excluded to arrive at a true backward class. It was further opinedthat it is not impermissible for the State to categorize backward classesinto backward and more backward on the basis of their relative socialbackwardness. It was finally concluded while answering various questionsEdealt with by the majority inter alia that (i) ‘creamy layer’ can be, andmust be excluded; (ii) it is not necessary for class to be designated as abackward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes; (iii) a backward class of citizens cannot be identifiedonly and exclusively with reference to economic criteria. It is of coursepermissible for the Government or other authority to identify backwardFclass of citizen on the basis of occupation-cum-income, without referenceto caste, if it is so advised; (iv) there is no Constitutional bar to classifybackward classes of citizens into backward or more backward categories;(v) the Government of India and the State Governments have the powerto, and ought to, create a permanent mechanism in the nature ofGcommission etc.

16. In another significant decision in case ofM. Nagaraj & Ors.Vs. Union of India & Ors.7, the Constitution Bench while propounding 6 1992 Supp (3) 217H7 (2006) 8 SCC 212

the concepts of “formal equality” and “proportional equality”, as thebasis of distribution of benefits and burdens, referred the concept of“creamy layer” evolved in case of Indra Sawhney (supra), and opinedas under:

“120. At this stage, one aspect needs to be mentioned. Socialjustice is concerned with the distribution of benefits and burdens.The basis of distribution is the area of conflict between rights,needs and means. These three criteria can be put under twoconcepts of equality, namely, “formal equality” and “proportionalequality”. Formal equality means that law treats everyone equal.Concept of egalitarian equality is the concept of proportionalequality and it expects the States to take affirmative action infavour of disadvantaged sections of society within the frameworkof democratic polity. In Indra Sawhney [1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] all the Judgesexcept Pandian, J. held that the “means test” should be adoptedto exclude the creamy layer from the protected group earmarkedfor reservation. In Indra Sawhney [1992 Supp (3) SCC 217 :1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] this Court has,therefore, accepted caste as a determinant of backwardness andyet it has struck a balance with the principle of secularism whichis the basic feature of the Constitution by bringing in the conceptof creamy layer…......”

17. In another significant decision of the Constitution Bench in8case ofAshoka Kumar Thakur Vs. Union of India & Ors., it wasopined, again referring to the principle of “creamy layer” introduced inIndra Sawhney (supra) that: - “168. As noticed earlier, determination of backward class cannotbe exclusively based on caste. Poverty, social backwardness,economic backwardness, all are criteria for determination ofbackwardness. It has been noticed in Indra Sawhney case [1992Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC385] that among the backward class, a section of the backwardclass is a member of the affluent section of society. They do notdeserve any sort of reservation for further progress in life. Theyare socially and educationally advanced enough to compete forthe general seats along with other candidates.

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A169……

170. It is to be understood that “creamy layer” principle isintroduced merely to exclude a section of a particular caste onthe ground that they are economically advanced or educationallyforward. They are excluded because unless this segment of casteis excluded from that caste group, there cannot be properidentification of the backward class. If the “creamy layer” principleis not applied, it could easily be said that all the castes that havebeen included among the socially and educationally backwardclasses have been included exclusively on the basis of caste.Identification of SEBC for the purpose of either Articles 15(4),15(5) or 16(4) solely on the basis of caste is expressly prohibitedby various decisions of this Court and it is also against Article15(1) and Article 16(1) of the Constitution. To fulfil the conditionsand to find out truly what is socially and educationally backwardclass, the exclusion of “creamy layer” is essential.

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171-185…….

- It was further held:

186. Moreover, right from the beginning, the Scheduled Castesand Scheduled Tribes were treated as a separate category andEnobody ever disputed identification of such classes. So long as“creamy layer” is not applied as one of the principles of equality,it cannot be applied to the Scheduled Castes and Scheduled Tribes.So far, it is applied only to identify the socially and educationallybackward classes. We make it clear that for the purpose ofreservation, the principles of “creamy layer” are not applicableFfor Scheduled Castes and Scheduled Tribes.”

18. So far as Economically Weaker Section category is concerned,the Parliament by 103[rd] amendment had inserted Clause (6) in Article 15and Clause (6) in Article 16 of the Constitution of India. In the statementof objects and reasons of the said Amendment, it was stated that theEconomically weaker sections of the citizens were not eligible for thebenefit of reservation, and with a view to fulfil the mandate of Article 46and to ensure that economically weaker sections of the citizens get afair chance of receiving higher education and participation in theemployment in the services of the State, it was decided to amend theConstitution of India. The Constitutional validity of the said 103[rd]

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amendment was challenged before this Court in case ofJanhit AbhiyanVs. Union of India9 and by 3:2 the validity of the said amendment wasupheld, vide the judgment dated 07.11.2022.

19. The reason for quoting the aforesaid judgments is only todemonstrate that the status of the candidates claiming reservation underthe category SCs and STs would be static, whereas the status of thecandidates claiming reservation under the category OBC-NCL, MBC-NCL and EWS would be fluid, dynamic and not static. Under thecircumstances, the State Governments are issuing the guidelines fromtime to time laying down the eligibility criteria for deciding the economicstatus of a person and the methodology or procedure to be followed forissuing the certificates to the persons belonging to the OBC-NCL/EWScategories.

20. In the instant case, the State of Rajasthan had issued theCircular dated 09.09.2015 with regard to the validity period of castecertificate, in which it was stated inter alia that the validity of castecertificates issued for SC/ST will be lifetime whereas the certificate forOBC will be issued only once, and that the certificate of non-creamylayer will be valid for one year. However, once the certificate of “non-creamy layer” is issued, and if the applicant remains in the category ofnon-creamy layer in the subsequent year also, then in such a situation anaffidavit in the prescribed form will be furnished by him, in which casethe earlier issued “non-creamy layer” certificate shall be deemed valid,and such procedure could be followed for a maximum period of threeyears. The said Circular 09.09.2015 was further clarified vide Circulardated 08.08.2019 in which it was stated that the caste certificate ofother backward classes shall be valid for one year, however in a situationwhere the applicant has been issued a certificate of “not falling in thecreamy layer” category, and if such applicant does not fall within “creamylayer” in the subsequent year as well, in that situation, previously issuedcertificate of falling within the “non-creamy layer” will be treated asvalid on his furnishing an attested affidavit, which could be followed formaximum period of three years.

21. So far as the facts of the present case are concerned, asstated in the Clause 6 of the advertisement dated 22.07.2021, thecandidates claiming reservation under the categories of SC/ST/OBC-NCL/MBC-NCL/EWS had to furnish valid certificates duly issued by 9 W.P. (C) 55/2019

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Athe competent authority as per the rules in the prescribed format. It wasalso stated in the important instructions of the advertisement that thecategory filled in the application will not be changed under anycircumstances, and that the candidates will be required to produce allthe original documents/certificates on the basis of which they made claimof reservation, if required by the Rajasthan High Court or the concernedBappointing authority.

22. Having regard to the said instructions contained in the saidadvertisement dated 22.07.2021, there remains no shadow of doubt thatif a candidate had applied under any of the reserved categories, he orshe was expected to have a valid certificate issued by the competentCauthority as per rules in the prescribed format, to show his or her eligibilityto apply under such category. The time limit for making such applicationas stated in Clause 17 of the said advertisement was upto 5 PM on31.08.2021. Under the circumstances, the candidate was expected tohave the requisite certificate to show that he or she belonged to theDconcerned reserved category, on the date of making application or onthe last date fixed for the submission of applications i.e. 31.08.2021.Such certificate to be produced by the concerned candidate had to be avalid certificate issued by the competent authority in consonance withthe circulars issued by the State Government dated 09.09.2015 and asclarified in the Circular dated 08.08.2019, which governed the issue withEregard to the validity of such certificates.

23. Admittedly, all the appellants had the certificates issued afterthe last date fixed for the submission of their applications i.e., 31.08.2021.So far as OBC-NCL category was concerned the appellant Jyoti Beniwalhad furnished the OBC-NCL certificate dated 25.07.2022, appellantFSakshi Arha had the certificate dated 12.08.2022, appellant Priyankahad the certificate dated 20.06.2022, appellant Bhavya Kulhar had thecertificate dated 16.06.2022, appellant Neha Batar had the certificatedated 21.06.2022 and appellant Nikhil Kataria had the certificate dated09.06.2022. So far as MBC-NCL is concerned, the appellant Sunil SinghGGurjar had the certificate dated 16.06.2022 and appellant Kuldeep Bhatiahad the certificate dated 09.03.2022. So far as EWS category isconcerned, the appellant Parul Jain had the certificate dated 07.09.2021.Thus, all the appellants had produced their respective certificates whichwere obtained by them after the last date fixed for the submission of theapplication i.e., 31.08.2021, and had also not produced the documents/H

affidavits in support thereof, in compliance with the circulars dated09.09.2015 and 08.08.2019. Therefore, the certificates produced by theappellants at the time of interview could not said to be valid certificatesas mandated in the advertisement dated 22.07.2021 by the respondents.

24. It was sought to be submitted by learned counsel for theappellants that there was no specific date mentioned in the advertisementdated 22.07.2021 as to the validity period of the certificates to be furnishedby the appellants, and subsequent notice dated 04.08.2022 directing theappellants to produce the certificates as mentioned therein was highlyunreasonable, and tantamount to changing the rules of game after theprocess of selection had started. The Court does not find any substancein the said argument. As stated earlier, there were specific instructionsgiven in the advertisement that the candidates applying under the reservedcategories had to submit the valid certificates issued by the competentauthority, and therefore such certificates had to be in consonance withthe circulars of the State Government dated 09.09.2015 and 08.08.2019which governed the validity period of such certificates. The subsequentnotice dated 04.08.2022 given by the respondent-High Court requiringthe candidates belonging to OBC/MBC(NCL) to produce the certificatesissued not prior to one year from the last date fixed for the submission ofapplication form i.e., 31.08.2021, was absolutely in consonance with thesaid circulars issued by the State Government. It was also mentioned inthe said notice dated 04.08.2022 that in case the OBC/MBC(NCL)certificate was issued between 31.08.2018 and 30.08.2020, an affidavitin prescribed format along with the caste certificate had to be produced.For the EWS category, it was stated that the Income and Asset certificaterequired for seeking reservation in EWS category must not have beenissued prior to 01.04.2021 and in case the Income and Asset certificatewas issued between 01.04.2019 and 31.03.2021, then an affidavit in theprescribed format along with the certificate had to be produced. It wasspecifically mentioned therein that SC/ST/OBC/MBC/EWS certificate,as the case may be, must not have been issued after the last date ofsubmission of the application form i.e., 31.08.2021. Such instructionsrequiring the reserved category candidates to produce the requisitecertificates could neither be said to be unreasonable nor could beconstrued as changing the rules of game after selection process wasstarted, they being in consonance with the important instructions givenin the advertisement dated 22.07.2021, and in consonance with the AB

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Acirculars issued by the State Government with regard to the validityperiod of caste certificates.

25. It is needless to say that when a candidate applies under aparticular reserved category, he or she is required to have the certificateof that particular category on the date on which he or she makes theBapplication to show his or her eligibility to apply under the said category.If such certificates are obtained subsequent to date of their applicationor subsequent to the last date of submission of the applications mentionedin the advertisement, such certificates could not be said to be validcertificates, more particularly in cases where the candidate applies underOBC-NCL or EWS, which category is highly dynamic and not static, asCthe economic status of the candidate would keep on changing dependingon the income of the candidate.

26. The submission made by the learned counsel for the appellantsthat in absence of a fixed date specified in the advertisement and inabsence of any provision in the Rules, the certificates produced on theDdate of interview should be treated as valid, cannot be accepted. Though,reliance was sought to be placed by the learned counsel for the appellantsonDolly Chhanda v. Chairman, JEE and Others (supra), Ram KumarGijroya v. Delhi Subordinate Services Selection Board and Another(supra)and Karn Singh Yadav vs. Govt. Of NCT Of Delhi & Ors.E(SLP (C) No. 14948 of 2016)they are hardly of any help to the appellants.In Dolly Chhanda (supra), this Court while observing that every infractionof rule relating to submission of proof need not necessarily result inrejection of candidature, had emphasized that:

“7. The general rule is that while applying for any course of studyFor a post, a person must possess the eligibility qualification on thelast date fixed for such purpose either in the admission brochureor in the application form as the case may be, unless there is anexpressed provision to the contrary. There can be no relaxation inthis regard i.e. in the matter of holding the eligibility qualificationby the date fixed. This has to be established by producing theGnecessary certificates, degrees or marksheets. Similarly, in orderto avail the benefit of reservation or weightage etc. necessarycertificates have to be produced. These are the documents in thenature of proof of holding of particular qualification or percentageof marks secured or entitlement to benefit of reservation..”

27. In Ram Kumar Gijroya (Supra), the two Judge Bench of thisCourt had found the candidate eligible for selection to the concernedpost under the OBC category, though the certificate in that regard wassubmitted after the last date mentioned in the advertisement, howeveranother two judge Bench of this Court in Karn Singh Yadav (supra) hadexpressed reservation in that regard, and had referred the matter to theThree-Judge Bench vide the order dated 24.01.2020. The Three-JudgeBench in the said case of Karn Singh Yadav (supra) however relyingupon Ram Kumar Gijroya (supra) disposed of the appeal vide the orderdated 28.09.2022, without noticing the reference made by the two JudgeBench in the said case. Be that as it may, in none of these two cases,was there an issue whether the candidate could have produced therequisite certificate showing his reserved category, issued after the lastdate fixed for the submission of the applications mentioned in theadvertisement, as has been done in the instant appeals.

28. Further, none of the appellants had raised any such contentionin their writ petitions that they had applied on time and the delay inissuing certificates was on the part of the competent authorities.Admittedly, no such affidavits as contemplated in the circulars dated09.09.2015 and 08.08.2019 were filed by the appellants either beforethe competent authority issuing the certificates or before the respectiveHigh Court at the time of interview, though indicated in the notice dated04.08.2022.

Conclusion:

Conclusion:

29. It is no more res integra that in absence of a fixed dateindicated in the advertisement inviting applications, with reference towhich the requisite eligibility is to be judged, and when the rules aresilent, the only certain date for the scrutiny of the eligibility of a candidatewould be the last date for making the applications. It cannot be gain saidthat the date of interview or selection would always be uncertain andthe uncertainty of the date may lead to an anomalous situation in asmuch as even those candidates who were not eligible to apply under thereserved category on the date of making application, may apply underthe reserved category and subsequently obtain the certificate by thetime the interviews are held. In such circumstance, the possibility ofplaying mischief also cannot be ruled out. In the instant case, the lastdate for the submission of applications was 31.08.2021 and the interviewswere fixed in August 2022. So, there was a gap of one full year between AB

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Athe last date for submission of the applications and the date of interview,during which period the economic status and resultant status of “creamylayer/non-creamy layer/EWS” of the candidates might have alsochanged. Therefore, the exposition of law settled by this Court is that inabsence of a fixed date indicated in the advertisement, and when therules are also silent, the last date fixed for submitting the applicationsBwould be the date for the scrutiny of the eligibility of the candidates.

30. A Three-Judge Bench of this Court inDr. M.V. Nair Vs.Union of India & Ors.[10], had held inter alia that the qualification andeligibility have to be considered with reference to the last date for receivingthe applications, unless the notification calling for applications itselfCspecifies a date.

31. InRekha Chaturvedi v. University of Rajasthan andOthers11, this Court held as under: - “10. The contention that the required qualifications of thecandidates should be examined with reference to the date ofDselection and not with reference to the last date for makingapplications has only to be stated to be rejected. The date ofselection is invariably uncertain. In the absence of knowledge ofsuch date the candidates who apply for the posts would be unableto state whether they are qualified for the posts in question or not,Eif they are yet to acquire the qualifications. Unless theadvertisement mentions a fixed date with reference to which thequalifications are to be judged, whether the said date is of selectionor otherwise, it would not be possible for the candidates who donot possess the requisite qualifications in praesenti even to makeFapplications for the posts. The uncertainty of the date may alsolead to a contrary consequence, viz., even those candidates whodo not have the qualifications in praesenti and are likely to acquirethem at an uncertain future date, may apply for the posts thusswelling the number of applications. But a still worse consequencemay follow, in that it may leave open a scope for malpractices.GThe date of selection may be so fixed or manipulated as to entertainsome applicants and reject others, arbitrarily. Hence, in the absenceof a fixed date indicated in the advertisement/notification invitingapplications with reference to which the requisite qualifications 10 (1993) 2 SCC 429H11 1993 Supp (3) SCC 168

should be judged, the only certain date for the scrutiny of thequalifications will be the last date for making the applications. Wehave, therefore, no hesitation in holding that when the SelectionCommittee in the present case, as argued by Shri Manoj Swarup,took into consideration the requisite qualifications as on the dateof selection rather than on the last date of preferring applications,it acted with patent illegality, and on this ground itself the selectionsin question are liable to be quashed. Reference in this connectionmay also be made to two recent decisions of this Court in A.P.Public Service Commission, Hyderabad v. B. SaratChandra [(1990) 2 SCC 669 : 1990 SCC (L&S) 377 : (1990) 4SLR 235 : (1990) 13 ATC 708] and District Collector &Chairman, Vizianagaram Social Welfare Residential SchoolSociety, Vizianagaram v. M. Tripura Sundari Devi [(1990) 3SCC 655 : 1990 SCC (L&S) 520 : (1990) 4 SLR 237 : (1990) 14ATC 766] .”

32. A Three-Judge Bench of this Court in Ashok Kumar Sharma & Ors. Vs. Chander Shekhar & Anr.12, observed as under: - “6. The proposition that where applications are called forprescribing a particular date as the last date for filing theapplications, the eligibility of the candidates shall have to be judgedwith reference to that date and that date alone, is a well-establishedone. A person who acquires the prescribed qualification subsequentto such prescribed date cannot be considered at all. Anadvertisement or notification issued/published calling forapplications constitutes a representation to the public and theauthority issuing it is bound by such representation. It cannot actcontrary to it. One reason behind this proposition is that if it wereknown that persons who obtained the qualifications after theprescribed date but before the date of interview would be allowedto appear for the interview, other similarly placed persons couldalso have applied. Just because some of the persons had appliednotwithstanding that they had not acquired the prescribedqualifications by the prescribed date, they could not have beentreated on a preferential basis.”

33. It is also pertinent to note that if the appellants were allowedto produce the certificates issued after the last date fixed for the12 (1997) 4 SCC 18

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Asubmission of applications mentioned in the advertisement i.e. 31.08.2021,the other candidates similarly situated as the appellants might raise agrievance for not giving them such opportunity. The appellants who arethe defaulters could not be given preferential treatment by accepting thecertificates produced by them as valid, though the same were obtainedby them after the last date for the submission of applications fixed in theBadvertisement. The said certificates were also not supported by therequisite affidavits as per the Government circulars dated 09.09.2015and 08.08.2019.

34. In view of the afore-stated factual and legal aspects of thematter, I do not find any error having been committed by the High CourtCwhile passing the impugned judgments and orders. In that view of thematter, the appeals being devoid of merits are dismissed.

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Ankit Gyan(Assisted by : Tamana, LCRA)

Matter be placed before Hon'ble CJIfor constitution of appropriate Bench.

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