[2023] 12 S.C.R. 556 : 2023 INSC 853
SWEETY KUMARI
v.
THE STATE OF BIHAR AND OTHERS
(Civil Appeal No. 6072 of 2023)
SEPTEMBER 22, 2023
[J.K. MAHESHWARI* AND K.V. VISWANATHAN, JJ.]
Issue for consideration: Whether the rejection of the candidatures
of the appellants due to non-production of the original certificate
at the time of interview by the Bihar Public Service Commission
(BPSC) is justified and what relief can be granted to the appellants.
Bihar Civil Service (Judicial Branch) (Recruitment), Rules,
1955 – rr.7(b), 9 – Non-production of original certificate at the
time of interview – Rejection of candidatures – Impermissible:
Held: The language of the rules makes it clear that the production
of the original certificates at the time of interview was not
mandatory but directory – This is apparent from the language
of second note to r.9 which uses the word “may be required to
produce the originals before commission at the time of viva-voce
test” – Further, even going by the advertisement, the certificates
of educational qualification and other required documents on the
date of the submission of the online application form were to be
necessarily possessed but their production was not mandatory –
The factum of eligibility is different from factum of proof thereof – If
a person possesses eligibility before the date of actual selection,
he cannot be denied benefit because its proof is produced later –
In the present case, the proof was available and true photocopies
were on record – Appellants’ candidature could not have been
rejected merely because the original was not produced before
the Commission at the time of interview in particular when such
requirement was not mandatory – Further, the case of appellants is
at par with the case of Aarav Jain and other seven candidates who
were appointed in furtherance of the judgment of this Court dated
23.05.2022 in Aarav Jain v. The Bihar Public Service Commission
and Ors. Civil Appeal No. 4242 of 2022 wherein this Court had
not accepted the plea taken by BPSC that production of original
certificate was mandatory because the candidates possessed
such certificates on the date of submission of the application
* Author
[2023] 12 S.C.R. 557
SWEETY KUMARI v. THE STATE OF BIHAR AND OTHERS
form – No reason to deny similar benefits to the two appellants
at par with Aarav Jain and seven other candidates – Thus, they
cannot be discriminated by not granting relief merely because of
non-availability of vacancies in the 30th Bihar Judicial Service
Competitive Examination – Further, in SLP (Civil) No. 16749/2023,
the appellant appeared in 31st Bihar Judicial Service Competitive
Examination, and secured 501 marks, whereas cut off was 499 in
EWS category therefore, the respondents to adjust one vacancy
of EWS for the same examination or from the next examination
and extend similar benefits to the said appellant, in view of the
ratio of Aarav Jain – Impugned judgments set aside – Present
judgment passed in the peculiar facts of the case. [Paras 14, 16-
19, 22, 24, 27-29]
Aarav Jain v. The Bihar Public Service Commission
and Ors. Civil Appeal No. 4242 of 2022; Charles K.
Skaria and Others vs. Dr. C. Mathew and Others (1980)
2 SCC 752:[1980] 3 SCR 71 – relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.6072 of 2023.
From the Judgment and Order dated 03.11.2021 of the High Court of
Judicature at Patna in CWJC No.18038 of 2021.
With
Civil Appeal Nos.6073 and 6074 of 2023.
Radheshyam Sharma, Dibyanshu Pandey, Harish Pandey, Mukesh
Kumar, Madhup Kumar Tiwari, Rajesh Kumar, Brijesh Kumar,
Ms. Neha Rai, Krishna Kumar Singh, Mridul Chakraborty, Tushar
Srivastava, Abhijeet Kumar Pandey, Aditya Singh-1, Raman Kr.
Singh, Advs. for the Appellant.
Azmat Hayat Amanullah, T. G. Shahi, Navin Prakash, Gaurav Agrawal,
Advs. for the Respondents.
The Judgment of the Court was delivered by
J. K. MAHESHWARI, J.
1. Leave granted.
2. In the instant three appeals, the judgments passed by the High Court
of Judicature at Patna (hereinafter referred to as “High Court”) in
Sweety Kumari v. State of Bihar and Others (CWJC No. 18038/2021)
558 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
dated 03.11.2021; Vikramaditya Mishra v. State of Bihar and Others
(CWJC No. 3707/2020) dated 04.09.2021; and Aditi v. Bihar Public
Service Commission Patna and Others. (CWJC No. 15325/2022)
dated 19.04.2023 are under challenge. By the said judgments, the
High Court upheld the decision of the official Respondents. The
candidature of appellants was rejected by the official respondents
on account of non-furnishing of original character certificates (in
case of Sweety Kumari and Vikramaditya Mishra) and law degree
(in case of Aditi) respectively.
3. The High Court in the first two cases dismissed the writ petitions
relying upon the order passed in the case of a similarly situated
candidate titled as Aarav Jain v. The Bihar Public Service Commission
and Ors. (CWJC No. 24282/2019) decided on 04.05.2021. Whereas
in the third case, the High Court while dealing with the case of the
appellant Aditi and one similarly placed candidate named Ankita,
through a common order found that though the appellant Aditi has
her case on merits at par with Ankita, but due to non-availability of
the vacancy in EWS category the relief as granted to Ankita cannot
be extended to appellant Aditi.
4. The appellants Sweety Kumari, a candidate of Scheduled Caste (SC)
category and Vikramaditya Mishra, unreserved category candidate,
appeared in 30th Bihar Judicial Service Competitive Examination
(hereinafter referred to as “30th Examination”) conducted for selection
of Civil Judge (Junior Division) pursuant to an Advertisement No. 6 of
2018 dated 21.08.2018/23.08.2018. Both the candidates have been
declared successful in the preliminary examination vide the results
declared on 07.01.2019 and main examination vide result declared
on 05.10.2019 after obtaining more marks than the cut-off for their
respective category. Pursuant to this, they were called for interview
vide letter dated 15.12.2019.
5. The candidature of the appellants Sweety Kumari and Vikramaditya
Mishra was rejected on account of not producing the original character
certificates at the time of interview. True photocopies were produced.
However, while declaring the result on 27.11.2019/29.11.2019, the
candidature of the present two appellants as well as of one, Aarav
Jain were rejected by a common communication.
[2023] 12 S.C.R. 559
SWEETY KUMARI v. THE STATE OF BIHAR AND OTHERS
6. On other hand, appellant Aditi applied in the Economically Weaker
Section (EWS) category in furtherance to the 31st Bihar Judicial
Service Competitive Examination (hereinafter referred to as “31st
Examination”). She secured 501 marks, whereas cut-off was 499.
Her candidature was rejected on the ground of not having the law
degree certificate on the date of interview. The candidature of the
similarly situated candidate Ankita was also cancelled on the same
ground. However, on the filing of separate writ petitions which was
disposed of by a common order, Ankita was granted relief by the
High Court due to availability of vacancy in SC category, but Aditi
was denied relief due to non-availability of the vacancy in the EWS
category.
7. In view of the foregoing factual scenario, the questions that fall for
consideration before us are as under:
i) Whether the rejection of the candidatures of the appellants
due to non-production of the original certificate at the time of
interview by the Bihar Public Service Commission (hereinafter
referred to as “BPSC”) is justified?
ii) In the facts and circumstances of the case, what relief can be
granted to the appellants?
8. Undisputed facts of the case succinctly put are that the appellants
Sweety Kumari and Vikramaditya Mishra appeared in 30th Examination
in furtherance to the advertisement No. 6 of 2018 published on
21.08.2018/23.08.2018 by the BPSC to fill up the 349 vacancies.
The said advertisement was issued in furtherance of the Bihar Civil
Service (Judicial Branch) Recruitment Rules, 1955 (hereinafter
referred to as “the Rules”). Appellant Sweety Kumari applied in
SC category while appellant Vikramaditya Mishra applied in the unreserved category. Aarav Jain along with seven other candidates also
applied in the unreserved, SC, EBC and BC categories respectively.
Their candidature had also been rejected on similar grounds. On
challenging the said rejection, the High Court passed a detailed order
in CWJC No. 24282 of 2019 titled as ‘Aarav Jain v. The Bihar Public
Service Commission and others’ and dismissed the said petition by
upholding the rejection by the BPSC.
560 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
9. By the impugned orders dated 03.11.2021 and 04.09.2021, the writ
petitions filed by Sweety Kumari and Vikramaditya Mishra respectively,
have been rejected relying upon judgment dated 04.05.2021 passed
in the case of Aarav Jain.
10. Aarav Jain and seven others similarly placed candidates filed their
respective petitions before this Court in Civil Appeal No. 4242 of
2022 titled Aarav Jain v. The Bihar Public Service Commission
and Ors. as the leading matter which were decided by a common
judgment dated 23.05.2022. By the said judgment this Court repelled
the contention of BPSC regarding cancellation of the candidature
due to non-submission of the originals at the time of the interview
as their true photocopies were on record and subsequently, the
originals were also submitted before BPSC. This Court was of the
opinion that the plea of non-submission of the originals at the time
of interview is neither related to the qualification nor eligibility and
a verification and vigilance report is anyway obtained by the State
during probation. Therefore, the production of the original was not a
mandatory condition. The stand of the BPSC had materially resulted
in the dis-qualification of candidates who were otherwise in the merit
list. Therefore, in the facts and circumstances of the case, this Court
directed that the rejection of candidature was improper, unjustified
and not warranted.
11. This Court granted relief to the eight candidates in the civil appeal of
Aarav Jain (supra) by adjusting the available five vacancies in the
unreserved category and for the other three candidates belonging to
EBC, SC and BC category, it was directed to the State to either adjust
them against future vacancies which were stated to be available at
that time or the State was permitted to borrow three posts from future
vacancies, one each in respective categories. It was also held that the
power to vary the vacancies of the said advertisement always vests
in the employer under the wisdom and discretion of the State. This
Court gave weight to the fact that all the candidates secured marks
more than the cut-off and, therefore, such meritorious candidates
would only be an asset for the institution helping in disposal of cases.
This Court further directed to allow to all these eight candidates the
benefits of increment and other notional benefits at par to other
selected candidates as per their merits without arrears of salary.
[2023] 12 S.C.R. 561
SWEETY KUMARI v. THE STATE OF BIHAR AND OTHERS
12. In the said appeal, one Jyoti Joshi filed an application for intervention
seeking directions for her appointment in implementation of judgment
dated 09.02.2022 passed in CWJC No. 7751 of 2020 by the High
Court and also sought clarification to the effect that the interim order
dated 23.07.2021 passed in Aarav Jain (supra) has not interfered
with her appointment. This Court dismissed the said intervention
application vide the judgment passed in Aarav Jain (supra) and
denied her the benefit because she was in the waiting list and
not in the merit list. More so, the interim orders dated 23.02.2021,
08.10.2021 and 07.02.2022 passed in Aarav Jain (supra), keeping
the posts vacant, being prior in time, have also not been brought to
the notice of the High Court, before passing of the final order dated
09.02.2022. It is apparent that the civil appeals filed in the case of
Aarav Jain (supra) have been decided in favour of the candidates
and against the employer and the said order was already implemented.
13. We have heard learned counsel for the parties and have perused
the Bihar Civil Service (Judicial Branch) (Recruitment), Rules, 1955
(hereinafter referred to as the ‘Rules’) and the Advertisement No.
6 of 2018. Rule 7(b) of the Rules contemplates that a candidate
must satisfy BPSC that his character is such as to qualify him for
appointment to the service. Rule 9 prescribes that the candidate
should submit evidence as to educational qualifications; certificate
of character from the Heads of the Colleges, where he/she has
studied; the reference of two known persons; certificate of medical
practitioner in prescribed form; and the certificate of the duration of
practice from the respective authorities. The second note to Rule 9
indicates that the certificates and other documents required should
be true copies of the originals and each of them should be certified
by a gazetted officer, specifying that after seeing the original, he
certified the true copy of the same. The candidate may be required
to produce the original before BPSC at the time of viva voce test.
14. In view of this position in the rules it can safely be perceived that
the candidate must be of good character so as to satisfy BPSC in
this regard by submitting true photocopies and upon requirement by
BPSC, the original may be produced at the time of viva voce test.
Therefore, it is clear that the candidate should possess the character
562 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
certificate and if required, it may be made available at the time of
interview. The said language makes it clear that the production of
the original certificates at the time of interview is not mandatory but
directory. This is apparent from the language of second note to Rule
9 which uses the word “may be required to produce the originals
before commission at the time of viva-voce test”.
15. In furtherance to the Rules, the advertisement No. 6 of 2018 was
issued. Clause 7(ii) of the said advertisement is regarding online
applications which prescribes that for any defects in entry made by
candidate in the course of filling the online application, the commission
shall not be responsible, and correction and change in this regard
shall not be permissible. As per Clause 8(1) of the advertisement, the
documents attached to the online application form may be produced
when the commission demands at the time of the interview or at any
point of time. As per Clause 9, the certificates regarding qualification
is required to be possessed prior to the last date. As per Clause
10, all the certificates and marksheets are required to be submitted
at the time of interview and the commission shall have discretion
to take a decision regarding eligibility of candidates not complying
with the said directions. Clause 11 of the advertisement relates to
the fact that the candidate shall ensure that he has all the required
certificate in original at the time of filling of application form.
16. In view of the various clauses, as referred to hereinabove, even going
by the advertisement, the certificates of educational qualification
and other required documents on the date of the submission of
the online application form must be necessarily possessed but its
production is not mandatory. In clause 3 of the interview letter sent
to the candidates, indeed it was mentioned that they shall be present
with the certificates, mark-sheet and other documents including
character certificate, in original form and its self-attested photocopies
in two numbers. Appellant Sweety Kumari has averred in the writ
petition and the Special Leave Petition that her original character
certificate was submitted in the State Bar Council and the same was
not made available to her within the stipulated deadline despite her
best attempts. On the other hand, appellant Vikramaditya Mishra
has averred that the department of his Law College has sent the
[2023] 12 S.C.R. 563
SWEETY KUMARI v. THE STATE OF BIHAR AND OTHERS
original character certificate to the Controller of Examination, BPSC
by post which was dispatched on 25.11.2019 and delivered to BPSC
on 27.11.2019. Despite, the same, their candidature was rejected
for want of original copies of the character certificate.
17. In the case of Aarav Jain (supra), this Court has not accepted
the plea taken by BPSC that production of original certificate was
mandatory because the candidates possessed such certificates on
the date of submission of the application form. This Court was of
the opinion that once such a condition is not mandatory, then nonproduction of original copies at the time of interview would not be
sufficient to reject the candidature of a candidate who was placed
in the merit.
18. The view taken by this Court is fortified by the analogy drawn in
the case of Charles K. Skaria and Others vs. Dr. C. Mathew and
Others (1980) 2 SCC 752 whereby Justice Krishna Iyer speaking for
the Court held that the factum of eligibility is different from factum of
proof thereof. This Court held that if a person possesses eligibility
before the date of actual selection, he cannot be denied benefit
because its proof is produced later.
19. In the present case, the proof is available and true photocopies were
on record. The appellants’ candidature could not have been rejected
merely because the original was not produced before the Commission
at the time of interview in particular when such requirement was not
mandatory, in view of the manner in which the Rules are couched.
20. Now, coming to the case of appellant Aditi in SLP (Civil) No.
16749/2023, she has passed the final examination but the certificate
of law degree was not issued to her. The High Court in the impugned
order dated 19.04.2023 has relied upon the judgment of Charles K.
Skaria (supra) to support her contention and observed that when the
candidate possesses the required essential qualification on the date
on which it was required, then there cannot be any justification in not
accepting the late arrival of the certificate because of the pandemic.
However, the High Court has declined to grant the relief on the pretext
that she had applied under EWS category for which 23 posts were
earmarked and those posts have already been filled up. The High
564 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
Court also observed that though she has secured 501 marks which
was 2 marks more than the cut off for the EWS category, but it was
not known as to who may be the last successful candidate in the
EWS category. Also at the time of passing of impugned order those
posts had already been filled. Thus due to non-availability of posts,
the relief was denied.
21. As per the directions issued by this Court vide order dated 14.8.2023,
the Registrar General of the High Court of Judicature at Patna filed
an affidavit after perusing the documents produced before him by the
State of Bihar and the BPSC. In the said affidavit, it is admitted that
the case of the appellants Sweety Kumari and Vikramaditya Mishra
is similar to the case of Aarav Jain (supra). As per the information
furnished by the High Court, appellant Sweety Kumari in SC category
secured 414 marks when the cut-off was 405 marks and the appellant
Vikramaditya who applied under unreserved category secured 543
marks whereas the cut off under the unreserved category was 517.
It is also fairly stated that in the 30th Examination, the total vacancies
were 349 but after issuing of the directions by this Court, the State
appointed 351 candidates deducting one post each of EWS and
SC category from the future vacancies which were to be advertised
under the 32nd Examination.
22. Learned counsel for the appellant Sweety Kumari has fairly stated
before this Court that she got selected in the 31st Examination under
the SC category and joined the service. In view of the discussion
made hereinabove and the affidavit filed by the Registrar General,
it is clear that the case of appellant Sweety Kumari and appellant
Vikramaditya Mishra are at par with the case of Aarav Jain and other
seven candidates who were appointed in furtherance of the judgment
of this Court dated 23.05.2022 in Aarav Jain (supra).
23. Appellants in Aarav Jain (supra) have been appointed by the State
Government extending the number of vacancies advertised in the
30th Examination by borrowing those extra vacancies from the 32nd
Examination. The vacancies notified for the 32nd Examination are
in process of being filled. The case of appellants Sweety Kumari
and Vikramaditya Mishra were dismissed by the High Court relying
upon its earlier judgment dated 04.05.2021 in Aarav Jain v. The
[2023] 12 S.C.R. 565
SWEETY KUMARI v. THE STATE OF BIHAR AND OTHERS
Bihar Public Service Commission (CWJC No. 24282/2019). The
said judgment dated 04.05.2021 was challenged by Aarav Jain and
seven other candidates by filing special leave petitions. The said
special leave petitions were converted into civil appeals and this
Court vide judgment dated 23.05.2022 set-aside the judgment dated
04.05.2021 of the High Court.
24. Therefore, there cannot be any reason to deny similar benefits to
the present two appellants at par with Aarav Jain and seven other
candidates as ordered by this Court in Aarav Jain (supra). We
are of the considered view that present aforesaid two appellants
(Sweety Kumari, Vikramaditya Mishra) cannot be discriminated by
not granting relief merely because of non-availability of vacancies
in the 30th Examination.
25. Reverting to the case of appellant Aditi, which is related to the
31st Examination, as per the affidavit submitted by the Registrar
General, it is apparent that out of 221 vacancies advertised, only 214
candidates were recommended for appointment and seven vacancies
have been carried forward to the 32nd Examination. Thus, there are
vacancies, which are yet to be filled up for the 32nd Examination.
The process of selection is not yet complete. Learned counsel
appearing on behalf of the State of Bihar and BPSC, in the peculiar
facts of the case, have fairly stated that because of the directions
issued by this Court in the case of Aarav Jain (supra), the other
candidates who secured more marks than the cut-off in the merit of
the respective categories, can be accommodated. However, upon
issuance of directions by this Court, the State Government is ready
to accommodate all the three candidates (namely Sweety Kumari,
Vikramaditya Mishra and Aditi) who have also secured more marks
than cut-off for their respective categories.
26. In view of the discussion made hereinabove, because Sweety
Kumari secured 414 marks though cut off in SC category was 405
and Vikramaditya Mishra secured 543 marks, though cut off was
517 in the unreserved category in the 30th examination and they
were candidates of merit, they be extended the benefit at par with
the Aarav Jain (supra) and others.
566 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
27. The appellant Aditi appeared in 31st Examination, and secured 501
marks, whereas cut off was 499 in EWS category. Therefore, the
respondents are directed to adjust one vacancy of EWS for the same
examination or from the next examination and extend similar benefits
to Aditi, in view of the ratio of Aarav Jain (supra).
28. Accordingly, we set-aside the impugned judgments dated 03.11.2021,
04.09.2021 and 19.04.2023 passed by the High Court. The appellants
Sweety Kumari and Vikramaditya Mishra be accommodated being
successful candidate in the 30th Examination and appellant Aditi be
accommodated being a successful candidate in the 31st Examination.
29. We clarify that this judgment is passed in the peculiar facts of the
case to mitigate the plea of discrimination to candidates who are
before us and who knocked the door of the court well within time. It
is made clear here that similarly situated candidates would not be
entitled to claim the same benefit further, because they have not
come before this Court within a reasonable time.
30. In view of above, the appeals are allowed. Pending application, if
any, stands disposed of. No order as to costs.
Headnotes prepared by: Divya Pandey Result of the case : Appeals allowed.
