The respondent Narmada Bachao Andolan (hereinafter called as NBA) has filed the aforesaid applications for expunging certain adverse remarks made in paragraphs = In view of the above, para 145 of the judgment stands modified to the extent as under: “In view of the above, we reach the inescapable conclusion that the NBA has not acted with a sense of responsibility and not taken appropriate pleadings as required in law. However, in a PIL, the court has to strike a balance between the interests of the parties. The court has to take into consideration the pitiable condition of oustees, their poverty, inarticulateness, illiteracy, extent of backwardness, unawareness also. It is desirable that in future the court must view presentation of any matter by the NBA with caution and care, insisting on proper pleadings, disclosure of full

                                                         REPORTABLE










             IN THE SUPREME COURT OF INDIA




              CIVIL APPELLATE JURISDICTION




          I.A.  NOS.  256-270 & 271-285 OF 2011 




                                  IN




          CIVIL APPEAL NOS. 2083-2097 of 2011








State of Madhya Pradesh                                ...Appellant






                               Versus






Narmada Bachao Andolan & Anr.                       ....Respondents 








                                WITH




             I.A.  NOS.  31-45 & 46-60  OF 2011 




                                  IN




          CIVIL APPEAL NOS. 2098-2112 of 2011










                            O R  D E R








J.M. PANCHAL, J.








1.    The respondent Narmada Bachao Andolan (hereinafter 






called   as   NBA)   has   filed   the   aforesaid   applications   for 






expunging   certain   adverse   remarks   made   in   paragraphs 



                                                                        2




129-132 and 145 of the judgment and order in the aforesaid 






civil appeals dated 11.5.2011. 








2.    These applications have been filed on the grounds that 






adverse   remarks   made   against   the   applicants   are 






unwarranted   and   uncalled   nor   based   on   any 






material/evidence   on   record.   More   so,   they   were   not 






necessary   to   adjudicate   upon   the   controversy   involved   in 






the appeals.  Thus, the same may be expunged.  








      In the said appeals, a large number of factual and legal 






issues had arisen. However, this court was concerned with 






acquisition of land to the extent of 284.03 hectares falling in 






5   villages   named   therein   for   the   reason   that   the   State 






authorities   had   taken   a   decision   to   abandon   the   land 






acquisition   proceedings   and   not   to   conclude   the   same. 






Before the High Court the applicants had pleaded that order 






of the Authorities to abandon the proceedings was void  ab-






initio  as possession of the land in dispute had already been 






taken.   The   High   Court   came   to   the   conclusion   that   as   the 






possession of the land in dispute had already been taken it 






was not permissible for the appellants herein to resort to the  



                                                                                  3




provisions   of   Section   48  of  the  Land   Acquisition   Act,   1894 






(hereinafter called 1894 Act). 








3.    When the matter came in appeal before this Court, the 






factual  controversy arose  as  to  who  was  in  actual physical 






possession of the land. The NBA had taken a stand that as 






the   tenure   holders   of   the   said   land   had   already   been 






dispossessed   the   question   of   abandoning   the   land 






acquisition   proceedings   could   not   arise.   The   State 






authorities submitted that actual physical possession is still 






with   the   tenure   holders   and   the   stand   taken   by   the   NBA 






was   not   factually   correct.   It   was   in   view   thereof   that   this 






court on 24.2.2011 passed the following order:








      "The   learned   counsel   appearing   for   the   parties 


      would   be             at   liberty   to   submit   their   written 


      submissions within 10 days from today in SLP(C) 


      Nos.   31047-31061/2009   &   SLP(C)   Nos.   34195-


      34209/2009.   However,   during   the           course   of 


      hearing   it   has   been   seriously   contended   by   the 


      State  of M. P. that  actual  physical possession of 


      the land ad-measuring 284.03 hect. falling in five 


      villages   viz.   Dharadi,   Kothmir,   Narsinghpura, 


      Nayapura and Guwadi has not been taken  by the 


      State,       in   spite     of     resorting           to   acquisition 


      proceedings   to   a   certain   extent.       This   fact   has 


      been   seriously   refuted   by   respondent   No.1   i.e. 


      Narmada   Bachao   Andolan   and   it   has   been 


      contented that       actual       physical     possession 


      has    been   taken, which is projected in various 



                                                                                          4




      documents   including  the   affidavits  sworn   by  the 


      oustees/cultivators   of   the   said   land.   They   have 


      also placed reliance on the entries in the revenue 


      records which           reflected the position that the  


      Executive   Engineer   of   the   Company   was   in 


      possession   of   the   said   land   measuring   284.03 


      hect. also.  In the light of   serious      contentions  


      raised by both the parties it is in fact not possible 


      for us to come to a definite conclusion as to who 


      is in actual          possession   of the land today.  


      In view of this,       we    deem     it    fit     and  


      proper           to         request               the   learned 


      District       Judge,       Indore     to        make    a  


      spot inspection and submit his report with regard 


      to   the   land           ad-measuring         284.03   hect.  


      situated      in    the aforesaid five villages. Before 


      going   to   the   spot,   he   will   inform   the   parties 


      concerned   so   that   they   may,   if       so   desire, 


      remain               present         at               the       time       of  


      inspection                     and               render                 proper  


      assistance         in identifying the land in question. 


      We   clarify   that   we   are         not               concerned 


      with      the    total        land     of    those villages, 


      rather the controversy is      limited     to 284.03  


      hect.,      which        the    State     does       not 


      want       to acquire.   It may also be mentioned in 


      the   report   as   to   whether   there   is   any   crop 


      standing on the said land or part of it and if it is 


      so,   who   had   sown   the   crop.     If   the   crop   has 


      recently   been   removed   or   land   has   been   tilled, 


      who has done so.       Let the report be submitted 


      by the  District Judge within  a period of 15 days 


      from the date of communication of this order." 








4.    Such   an   order   was   necessary   for   the   reason   that   the 






affidavit   filed     on   behalf   of   `NBA'   dated   1.7.2010   clearly 






provided   that   the   order   passed   by   the   authorities   dated 






2.4.2009,   not   to   acquire   the   land   of   the   5   villages   was   a 



                                                                       5




nullity and void ab-initio because the possession of the land 






had already been taken in December 2007. 








5.    In   pursuance   of   the   said   order,   the   District   Judge, 






Indore     videographed     the   entire   land   in   dispute   and 






recorded   the   statements   of   the   tenure-holders   in   the 






presence   of   the   representative   of   `NBA'   and   came   to   the 






conclusion   that   the   tenure-holders   were   in   actual   physical 






possession of the said land.  








6.    The copy of the report along with CDs were supplied to 






the  parties.     They   were   given   opportunity   and   they   availed 






the   same   by   filing   objections   thereto   and   advanced   their 






arguments.     It   was   after   considering   the   same,   the   matter 






was decided, wherein finding has been recorded that as the  






report   was   prepared   in   presence   of   the   representative   of 






`NBA',   the   same   was   worth   acceptance   and   it   was   in   view 






thereof, further a  finding was recorded that the claim made 






by the   `NBA'  regarding  the  physical possession  of the  land 






was not factually correct.   The `NBA' had been afforded full 






opportunity   to   make   out   the   case.   Their   past   conduct   was 



                                                                            6




also   pointed   out   and   dealt   with   in   paragraph   133   of   the  






judgment dated 11.5.2011.








7.    In fact the application filed by the State under Section 






340   of   the   Code   of   Criminal   Procedure,   1973   (hereinafter 






called   Cr.P.C.)   was   at   a   later   stage,   i.e.   on   31.3.2011   and  






this   court   has   not   decided   the   same.     Therefore,   the 






contents   of   that   application   or   issuance   of   notice   on   the 






same did not have any bearing so far as the main judgment 






is concerned. 








8.    It   is   in   this   background     the   submissions   have   been 






advanced   by   Shri   Rajinder   Sachar,   Shri   Rajiv   Dhavan, 






learned   senior   counsel   and   Shri   Sanjay   Parikh   that   there 






was no occasion for the court to pass the adverse remarks 






in the aforesaid paragraphs of the judgment as it amounts 






to black listing   the  NBA. The NBA had taken a consistent 






stand throughout the proceedings that the word `possession' 






denotes different meanings so far as the 1894 Act and R & R 






Policy are concerned. In law it may be permissible under the  






1894   Act   that   a   person   may   be   dispossessed   but   he   may  






continue   in   possession   because   of   the   R   &   R   Policy. 



                                                                       7




Therefore,   adverse   remarks   have   been   made   by   this   court 






under total misconception and the same be expunged. 








9.     On   the   contrary,   Shri   P.S.   Patwalia,   learned   senior 






counsel   has   vehemently   opposed   the   applications 






contending that NBA cannot be permitted to make a totally 






new case.   The only issue involved had been as who was in  






actual physical possession of the land and had it been the  






case of NBA that the tenure holders were not in possession 






of   the   land,   question   of   appointing   the   Commissioner   i.e. 






District Judge, Indore would not have arisen. Accepting the 






submissions made by the applicants would render the order 






dated   24.2.2011   insignificant/meaningless   as   a   futile 






exercise. Thus, the applications are liable to be rejected. 








10.    In  State   of   U.P.   v.   Mohammad   Naim,   AIR   1964   SC 






703,   this   Court   was   asked   by   the   State   of   U.P.   -   the  






appellant, to quash the adverse remarks made by the High 






Court of Allahabad against the police department as a whole 






e.g.- "That there is not a single lawless group in the whole of 






the country whose record of crime comes anywhere near the 



                                                                              8




record of that organised unit which is known as the Indian  






Police Force."








                    This   Court   held   that   the   court   in   its   inherent 






jurisdiction   can   expunge   the   adverse  remarks   suo  moto  or 






even   on   application   of   a   party.   However,   there   must   be   a 






ground for expunging as such remarks were not justified, or 






were without foundation, or were wholly wrong or improper 






and expunging thereof is necessary to prevent abuse of the 






process   of   the   court   or     otherwise   to   secure   the   ends   of 






justice.   However,   the   court   must   bear   in   mind   that   such 






jurisdiction   being   of   exceptional   nature   must   be   exercised 






only   in   exceptional   cases.     The   cardinal   principle   of   the 






administration   of   justice   requires   for   proper   freedom   and 






independence   of   Judges   and   such   independence   must   be 






maintained   and   Judges   must   be   allowed   to   perform   their 






functions   freely   and   fairly   and   without   undue   interference 






by anybody, even by this Court.  However, it is also equally 






important that in expressing their opinions the Judges must 






be guided by consideration of justice, fair play and restraint.  






It   should   not   be   frequent   that   sweeping   generalisations 



                                                                           9




defeat the very purpose for which they are made. Thus, it is  






relevant to consider:








        (a)   whether   the   party   whose   conduct   is   in 




        question   is   before   the   court   or   has   an 




        opportunity of explaining or defending himself; 






        (b)   whether   there   is   evidence   on   record   bearing 




        on that conduct justifying the remarks; and 






        (c) whether it is necessary for the decision of the  




        case,   as   an   integral   part   thereof,   to   animadvert 




        on that conduct.   






11.    This view has been persistently approved and followed 






by   this   Court   as   is   evident   from   the   judgments   in   Jage 




Ram, Inspector of Police & Anr. v. Hans Raj Midha, AIR 




1972   SC   1140;  R.K.   Lakshmanan   v.   A.K.   Srinivasan   & 




Anr., AIR 1975 SC 1741; Niranjan Patnaik v. Sashibhusan 




Kar   &   Anr.,  AIR   1986   SC   819;    Major   General   I.P.S. 




Dewan   v.   Union  of  India   &   Ors.,   (1995)   3   SCC   383;    Dr. 




Dilip   Kumar   Deka   &   Anr.   v.   State   of   Assam   &   Anr., 




(1996)   6   SCC   234;   and  State   of   Maharashtra   v.   Public 




Concern for Governance Trust & Ors.,  AIR 2007 SC 777.



                                                                           1




12.    Thus,   the   law   on   the   issue   emerges  to   the   effect   that 






the   court   may   not   be   justified   in   making   adverse 






remarks/passing   strictures   against   a   person   unless   it   is 






necessary for the disposal of the case to animadvert to those 






aspects in regard to the remarks that have been made.  The 






adverse   remarks   should   not   be   made   lightly   as   it   may 






seriously   affect   the   character,   competence   and   integrity   of 






an   individual   in   purported   desire   to   render   justice   to   the 






other party. 








13.    In the case, at hand, the Court had not  to decide the 






issue of justification of the tenure-holders for retaining the 






possession of the land rather the question was, as who is in 






actual physical possession of the land.  Had it been the case 






of justification of retaining the possession of the land by the  






tenure-holders   without   being   rehabilitated,   the   question   of 






appointing   the   Commissioner   i.e.   District   Judge,   Indore, 






would not have arisen.








14.    Observations/remarks   made   in   the   judgment   dated 






11.5.2011   are   based   on   the   pleadings   taken   into 



                                                                            1




consideration   as   has   been   taken   note   of   in   paras   114   and 






115 which mainly read as under: 








        "114. The High Court while dealing with the said 


        applications   did          not   deal   with   the   issue 


        specifically as to whether the possession of the 


        land has actually been taken or even symbolic 


        possession has been taken by the State; as to 


        whether the persons interested have been evicted 


        from   the   said   land;   or   they   have   voluntarily 


        abandoned   their   possession;   or   they   are   still   in 


        physical possession of the land; or as to whether 


        after   being   evicted   they   had   illegally   encroached 


        upon   the   land   in   dispute.   A   direction   has   been 


        issued observing as under:




                   "The   lands   in   these   5   villages   of   the  


             oustees   were   acquired   by   notifications  


             issued under the Land Acquisition Act, and  


             the   NVDA   has   now   passed   an   order   on  


             2.4.2009   saying   that   the   land/property   of  


             these   5   villages   shall   not   be   acquired   and  


             the action taken till now be dropped as per  


             the   provisions   of   law.......The   respondents,  


             therefore,   will   have   to   provide   all   the  


             rehabilitation  benefits to the villagers of the  


             5   villages   and   for   the   purpose   of  


             rehabilitation,   the   order   dated   2.4.2009   of  


             the NVDA is of no consequence. The two IAs  


             stand disposed of." 








        115.       The   appellants   herein   have   raised   an 


        objection that the tenure holders of the said land 


        are still in actual physical possession and they 


        had never been evicted.   However, on behalf of 


        the   respondent   i.e.   Narmada   Bachao   Andolan, 


        Shri   Alok   Agrawal,   Chief   Activist   of   the 


        organisation, has filed the counter affidavit dated 


        1.2.2010   before   this   Court,   wherein   it   has 


        specifically been mentioned as under:



                                                                            1




             (a)    ........ 








             (b)    The   order   dated   2.4.2009   as   not   to 


             acquire   the   land   of   the   five   villages   is   a 


             nullity   and   void  ab   initio  because  the 


             possession of the lands  has already  been 


             taken.   The   land   has   already   vested   in   the 


             State.     This   may   be   seen   from   the   judicial 


             orders   of   Reference   Courts   Devas;   the   land 


             record of the revenue authorities of the State 


             Government,   the   order   of   the   Land 


             Acquisition   Officer   and   the   affidavits   of   the 


             concerned   oustees   which   were   placed   on 


             record before the said authorities. 








             (c)    .....


             (d)    .....


             (e)    ...... 


             (f)    ...... 


             (g)    ...... 




             (h)    The oustees of the five villages had filed 


             a   large   number   of   affidavits   before   the 


             authorities/courts   concerned   stating  that 


             possession   of   their   lands/properties 


             acquired   had   been   taken   in   December 


             2007.                            




                                              (Emphasis added)  




15.    Thus, in view of the above, the arguments advanced on 






behalf   of   the   applicants   are   not   justified.   The   applicants  






cannot   be   permitted   to   make   out   a   new   case   to   justify 






expunging   of   adverse   remarks.     More   so,   while   making 






certain   observation   against   the   `NBA'   the   guidelines   laid 



                                                                        1




down by this Court in Mohd. Naim (Supra) had strictly been 






observed.   Remarks have been made as it was necessary to 






do   so   while   deciding   the   controversy   involved   therein.   The 






submissions so made are not worth acceptance. 








        However, learned counsel appearing for the applicants 






have submitted that the NBA has rendered great service for 






a   long   number   of   years   to   the   down   trodden   and   poor 






farmers   and   thus   NBA   should   not   be   deprived   of   the 






opportunity   to   represent   poor   peasants.   Mr.   Sanjay   Parikh 






learned   counsel   has   expressed   remorse   on   behalf   of   the 






applicants   that   the   applicants   ought   to   have   acted   with 






more responsibility. 








16.    In view of the above, para 145 of the judgment stands  






modified to the extent as under: 








        "In   view   of   the   above,   we   reach   the   inescapable 


        conclusion   that   the   NBA   has   not   acted   with   a 


        sense   of   responsibility   and   not   taken   appropriate 


        pleadings   as   required   in   law.   However,   in   a   PIL, 


        the   court   has   to   strike   a   balance   between   the 


        interests of the parties. The court has to take into 


        consideration   the   pitiable   condition   of   oustees, 


        their   poverty,  inarticulateness,  illiteracy,   extent   of 


        backwardness,   unawareness   also.   It   is   desirable 


        that in future the court must view presentation of 


        any   matter   by   the   NBA   with   caution   and   care, 


        insisting   on   proper   pleadings,   disclosure   of   full 



                                                                       1




        facts   truly   and   fairly   and   should   insist   for   an 


        affidavit of  some  responsible person  in support of 


        facts contained therein." 








17.    With   these   observations,   the   applications   stand 






       disposed of. 










                                                                              


                                                 ...........................J.


                                                 (J.M. PANCHAL)






                                                                              


                                                 ...........................J. 


                                                (DEEPAK VERMA)








                                                                              


                                                 ...........................J.


                                                (Dr. B.S. CHAUHAN)


       New Delhi


       September 29, 2011

extraordinary delay in submitting physical handicap certificate to claim the reservation quota=it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is – 23 – « advocatemmmohan

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. No. 5-8

IN

CIVIL APPEAL NOS. 8343-8344 OF 2011

[Arising out of S.L.P (C) No.20152-20153 of 2010]

Bedanga Talukdar ... Appellant

VERSUS

Saifudaullah Khan & Ors. ...Respondents

O R D E R

1. Leave granted.

2. These appeals are directed against the impugned

judgment and order dated 4th March, 2010 in

Writ Petition (C) No. 950 of 2010 and impugned judgment

and order dated 2nd July, 2010 in Writ Petition (C) No.3382

of 2010 passed by the High Court of Guwahati, allowing the

writ petitions filed by the respondent No.1 whereby Assam

Public Service Commission (hereinafter referred to as

"respondent No. 3") was directed to examine the entitlement

- 1 -

of respondent No.1 by taking into account the identity card

produced by him.

3. We may notice the bare essential facts necessary for

the determination of the controversy involved in these

appeals .

4. The respondent No. 3 issued an advertisement

on 10th August, 2006 bearing advertisement No.6/2006,

announcing its intention to hold the preliminary

examination of the Combined Competitive Examination,

2006 for screening candidates for the Main Examination for

recruitment to various posts educated in the advertisement.

The last date for the receipt of the completed application

forms was fixed as 11th September, 2006. In this

advertisement, although, posts had been reserved for

various categories such as OBC/MOBC, SC, ST(P) and

ST(H), but there was no reservation in favour of the

disabled candidates as required under the Persons with

Disabilities [Equal Opportunities, Protection of Rights and

Full Participation], Act,1995.

- 2 -

5. Consequently, a Public Interest Litigation being P.I.L.

No.61/2006 was filed in the High Court by Order

dated 13th March, 2007. The High Court by an interim

order directed respondent No.3 not to conduct any

examination during the pendency of the petition. By order

dated 13th March, 2007, the High Court directed respondent

No.3 to make a fresh advertisement on the basis of the

requisitions to be received from the Government of Assam

(respondent No.2) incorporating reservation of 3% for

persons with disabilities.

6. In compliance with the orders of the High Court

dated 13th March, 2007, respondent No. 3 issued a

corrigendum on 5th June, 2007 reserving three per cent

vacancies for Physically Handicapped persons, in terms of

Persons with Disabilities [Equal Opportunities, Protection of

Rights and Full Participation], Act,1995. Applications were

invited for one post in the Assam Civil Service

Class-I (Jr. Grade) from persons suffering from Locomotor

Disability, in connection with the conduct of Combined

- 3 -

Competitive (Preliminary) Examination, 2006 for screening

candidates for the Main examination for the posts already

mentioned in the earlier advertisement No. 6/2006. It is

evident that this corrigendum was issued in continuation of

advertisement No. 6/2006 dated 10th August, 2006. It was

provided therein that candidates, who had applied earlier to

the advertisement No. 6/2006 dated 10th August, 2006,

need not apply again but the candidates with Locomotor

Disability must produce supporting documents in the office

of the Assam Public Service Commission or in the

examination hall before the commencement of the

examination. The Last date for submission of the

applications under the corrigendum was 6th July, 2007.

7. Respondent No.1 had applied in response to the

advertisement dated 10th August, 2006. Since there was no

requirement for submission of any details with regard to

any disability, he had not submitted any disability

certificate. Although, in view of the corrigendum,

respondent No.1 was not required to make an application

afresh, he was required to produce necessary supporting

- 4 -

documents in the office of the Commission or in the

examination hall before the commencement of the

preliminary examination. Respondent No.1 had been

certified by the District Medical Board, Dhubri, to be

physically disabled to the extent of 50% on 21st January,

2004. On the basis of this certificate, respondent No.1 was

issued an identity card by the District Social Welfare

Officer, Dhubri on 18th February, 2004 which specified his

disability to be Locomotor Disability to the extent of 50%.

The preliminary examination was held on 23rd September,

2007.

8. We may notice here that respondent No.1 did not

submit the mandatory documents, to substantiate his

candidature in the seat reserved for candidates with

"Locomotor Disability", on or before 6th July, 2007, i.e., the

last date for submission of applications. He also did not

submit the mandatory documents even at the time when he

appeared in the preliminary examination. Therefore, he

appeared in the examination as a general category

candidate.

- 5 -

9. Both the appellant and respondent No.1 successfully

participated in the preliminary examination. The

advertisement had clearly specified that "candidates who

are declared by the Commission to have qualified for

admission to the Main examination will have to apply again

in the prescribed application form, which will be supplied to

them." It was the claim of respondent No.1, that he had

specifically indicated in Column No. 11 of his application in

the prescribed form for the Main examination that he

suffers from Locomotor Disability upto 50%. According to

him, he had submitted the certificate dated 21st January,

2004 issued by the District Medical Board, Dhubri. Being

satisfied Respondent No.3 had permitted him to appear in

the Main examination.

10. Having successfully completed the written

examination, both the candidates, i.e., appellant and

respondent No.1, were called for interview on 1st December,

2008. It was the case of respondent No.1 that he had

produced the necessary documents in support of his claim

- 6 -

of Locomotor Disability to the extent of 50%, along with the

other certificates and testimonials at the time of interview.

The Commission, respondent No. 3, published the list of

selected candidates on 15th June, 2009. The name of

respondent No.1 did not appear in the said list. In fact, the

appellant was shown to have been selected for appointment

in the Assam Public Service Commission as a physically

handicapped candidate.

11. Respondent No.1 made an application under the

provisions of Right to Information Act, 2005 before the

appropriate authority seeking the details of the marks

scored by him as well as the details of the marks obtained

by other physically handicapped candidates called for the

interview. From the information supplied to him,

respondent No. 1 came to know that he had scored 817

marks, whereas the appellant had scored 695 marks.

Respondent No. 1 thereafter made a representation dated

14th September, 2009 addressed to the Chairman of

respondent No.3 as well as the Secretary of the Commission

making a grievance that his candidature had been

- 7 -

arbitrarily rejected, even though, he had scored more marks

than appellant in the examination. It appears that

respondent No. 1 had also reiterated that his claim for

being considered in the Locomotor Disability category, was

duly supported by the necessary documents, i.e., certificate

issued by the District Medical Board, Dhubri

dated 21st January, 2004 and the identity card issued by

the District Social Welfare Officer.

12. He had further stated that at the time of interview, he

had produced the necessary documents in support of his

claim. According to respondent No. 1, on 4th December,

2009, the Deputy Secretary of the Commission (respondent

No.3) had informed him that the identity card showing

respondent No. 1 to be suffering from Locomotor Disability

was not submitted alongwith the application form for the

Main examination, though the same was a compulsory

document. Respondent No. 1 was accordingly asked to

submit the same to the Commission as early as possible on

receipt of the communication dated 4th December, 2009.

Respondent No. 1 replied vide his letter

- 8 -

dated 10th December, 2009 addressed to the

Deputy Secretary of the Commission, stating that all

necessary documents showing that he is a physically

handicapped person suffering from Locomotor Disability

were submitted alongwith the application form of the Main

examination. Respondent No. 1 also reiterated his claim

that all documents were verified by the Commission at the

time of interview on 1st December, 2008. In the letter dated

10th December, 2009, respondent No. 1 also mentioned that

as directed by the Deputy Secretary of the Commission, an

attested copy of the ID card issued to him by the District

Social Welfare Officer, Dhubri is being forwarded.

13. It would be relevant to notice here that the select list

dated 15th June, 2009 was challenged in Writ Petition

No. 2755 of 2009 and other connected cases. The aforesaid

writ petition was disposed of by the High Court by remitting

the matter back to respondent No.3 to take a fresh decision

and publish a revised list. The reservation in the category

of Locomotor Disability was not the issue before the Court

- 9 -

in the aforesaid writ petition. The procedural anomaly

related to women candidates.

14. Subsequently, respondent No. 1 filed Writ Petition

No. 67 of 2010 seeking a direction to include his name in

the fresh list to be issued by the respondent No.3,

Commission. This writ petition was dismissed by the High

Court being premature on 7th January, 2010. Thereafter,

on 5th February, 2010, the Commission published a revised

list, wherein name of respondent No. 1 was again not

included in the list of candidates selected for the

appointment.

15. Respondent No. 1, therefore, challenged the select list

by Writ Petition No. 950 of 2010. The writ petition was filed

on 8th February, 2010. The High Court granted an ex-parte

order on 11th February, 2010 directing respondent No.3 not

to issue the appointment / posting orders to the appellant.

16. In the counter affidavit filed to this writ petition,

respondent No.3 specifically stated that the documents had

- 10 -

not been submitted by the respondent No. 1 within the

prescribed time. On 14th March, 2010, the writ petition

filed by respondent No. 1 was allowed. A direction was

issued to respondent No.3 to reconsider the matter afresh

based on the identity card submitted on 10th December,

2009. We may notice here that this direction had been

issued by the High Court in spite of the categoric assertion

made by the respondent No.3 that the candidature of the

respondent No. 1 had been rejected on the basis of the

resolution dated 8th January, 2010. In its meeting dated

8th January, 2010, respondent No.3 had resolved that

respondent No. 1 did not submit the identity card along

with the form. This was vital to support the claim of

respondent No.1 to be considered for the post reserved for

the candidates having Locomotor Disability. Therefore, his

candidature was rejected for non-fulfillment of an essential

condition. However, pursuant to the directions issued by

the High Court in its order dated 4th March, 2010,

respondent No.3 in its meeting held on 21st May, 2010

again thoroughly examined the matter relating to the

entitlement of respondent No. 1 for final selection as a

- 11 -

physically handicapped (Locomotor Disability) candidate.

Upon a thorough scrutiny and re-examination of the facts

and the material on record, the claim of respondent No. 1

was not accepted. The name of appellant was duly

reiterated as the candidate selected for appointment.

A communication to that effect was sent to the appellant as

well as respondent No. 1 on 31st May, 2010.

17. At this stage, respondent No. 1 filed Writ Petition

No. 3382 of 2010 challenging the minutes dated 21st May,

2010 and the communication dated 31st May, 2010. The

aforesaid writ petition has been allowed by the High Court

with observations that respondent No.3 was under a legal

obligation to examine the petitioner's entitlement for

selection by taking into account his identity card. The High

Court notices that the resolution of the respondent No.3

contained in the minutes of the meeting dated 21st May,

2010 would indicate that the Commission had resolved not

to consider the case of respondent No. 1 for selection for

appointment against the solitary post earmarked for

physically handicapped candidates on the ground that the

- 12 -

identity card, which was required to be submitted by

respondent No. 1 at different stages. The High Court has

held that the aforesaid decision, is not rendered in the light

of the directions given by the High Court in Paragraph 13 of

the order dated 4th March, 2010 passed in Writ

Petition (C) No. 950 of 2010. It has been observed by the

High Court that the question of belated submission of the

identity card having been already answered by the Court

and directions having been issued to take into account the

same, the Public Service Commission could not have acted

in the manner it has done. This writ petition was,

therefore, allowed with the following observations:-

"For the aforesaid reasons, we set aside the

resolution dated 21.5.2010 of the Commission as

well as the communication dated 31.5.2010 and

direct that the Public Service Commission will

now examine the entitlement of the petitioner by

taking into account the identity card produced by

him. For the purpose of clarification, we deem it

appropriate to add that while considering the case

of the petitioner the acceptability, veracity or

otherwise of the contents of the identity card and

the effect of the said contents, if found to be

acceptable, would be considered by the

Commission."

- 13 -

These directions are challenged by the appellant in these

appeals.

18. We have heard the counsel for the parties.

19. Mr. Jayant Bhushan, learned senior counsel,

appearing for the appellant herein submits that in the

advertisement dated 5th June, 2007, one post was reserved

for person suffering from Locomotor Disability only. The

advertisement also further provided that those who applied

earlier in response to advertisement No.6/2006 dated

10th August, 2006 need not apply again, but the candidates

with Locomotor Disability must produce supporting

documents in the office of Assam Public Service

Commission or in the examination hall before

commencement of the examination. The advertisement

further provided that candidates who are declared by the

Commission to have qualified for admission to the main

examination will have to apply again in prescribed

- 14 -

application form, which will be supplied to them. All

candidates applying in the category of persons with

Locomotor Disability upto 50% were required to send a

certificate of Locomotor Disability from the appropriate

authority. According to Mr. Bhushan, respondent No. 1 did

not submit the necessary certificate in the office of the

respondent No. 3 or in the examination hall before

commencement of the examination. In fact, he did not

submit even the ID card till after the interview. By the

time, he submitted the ID card, even the Select List of the

successful candidates had been published. Since

respondent No. 1 had not submitted the requisite disability

certificate within the stipulated period as provide in the

advertisement, respondent No. 3 rejected his candidature

for valid reasons in its resolution dated 8th January, 2010.

20. Mr. Bhushan submits that direction issued by the

High Court are contrary to the settled principle of law that

there can be no variation in the conditions of eligibility as

laid down in the advertisement, unless a specific stipulation

- 15 -

is made about any particular condition being relaxable at

the discretion of the concerned authority. Learned senior

counsel submits that the High Court has erred in holding

that the rigour of Article 14 would not be automatically

applicable "to the domain of appointment in public office

where the employer must strive to pick the best talent

available. To achieve such result, the employer must be

conferred a wide discretion to act in relaxation of the rigour

of the terms of an advertisement. The requirements spelt

out in an advertisement for appointment in public service

must, therefore, not to be understood to be inflexible

leaving no room for elasticity". Learned senior counsel

further submitted that the High Court failed to appreciate

that claim of respondent No. 1 had been rejected upon due

consideration by respondent No. 3 after according him an

adequate opportunity by resolution dated 8th January,

2010.

21. According to the learned senior counsel, the High

Court has proceeded on the erroneous assumption that the

- 16 -

Commission had itself treated candidature of many

candidates to be provisional on account of the fact that

requisite certificates of age or educational qualifications had

not been submitted along with the application form.

According to Mr. Bhushan, the High Court has wrongly

concluded that the Public Service Commission had itself

treated the condition about the submission of necessary

certificates to be not mandatory and inflexible

requirements. According to the learned senior counsel, the

aforesaid conclusion of the High Court is factually

incorrect.

22. The learned senior counsel submits that respondent

No.3 had in fact rejected the candidature of respondent

No.1 strictly in accordance with the instructions issued in

the "Information to the candidates on the Combined

Competitive (Main) Examination". Instruction No. 13

clearly stipulates that "any application form received

without all or some of the enclosures is liable to be

summarily rejected. Any enclosure which was not sent

- 17 -

along with the application earlier but sent subsequently by

the candidates will not be entertained. Thus candidates

must ensure that the application form is properly filled in

and is accompanied by all the relevant documents."

Mr. Bhushan submits that in the case of respondent No. 1,

he was required to submit an attested copy of certificate of

Locomotor Disability. The High Court records that the

necessary certificate was not submitted by respondent

No. 1 before the last date of receipt of applications, which

was 11th September, 2006. Learned senior counsel has also

relied on a judgment of this Court in the case of Karnataka

Public Service Commission & Ors. Vs. B.M. Vijaya

S

hankar & Ors. 1

23. On the other hand, Mr. V. Hazarika, learned senior

counsel submits that the respondent No.3 reconsidered the

entire issue after the High Court set aside the resolution

passed by respondent No.3 on 8th January, 2010.

Respondent No. 1 had to file W.P. (C) No. 950 of 2010 as

1 (1992) 2 SCC 206

- 18 -

respondent No.3 again illegally rejected his candidatures.

He, therefore, challenged the selection of the appellant.

24. In the aforesaid writ petition, it was stated that in the

application, respondent No.1 had specifically mentioned

against Column No. 11 of the application form that he

suffers from Locomotor Disability upto 50%. He had

submitted a certificate issued by the District Medical Board,

Dhubri dated 21st January, 2004 in support of his claim to

be a physically handicapped person along with the identity

card issued by the District Social Welfare officer. It was

further his claim in the writ petition that he had qualified in

the main examination and was called for interview by call

letter dated 1st December, 2008. It was further the case of

the respondent No. 1 that he had produced the necessary

documents in support of his claim of Locomotor Disability

to the extent of 50% along with the other certificates and

testimonials at the time of interview. However, when the

select list was published on 15th June, 2009, the name of

respondent No.1 was not included therein. It was in fact

- 19 -

the appellant, who had been selected for appointment. It

was also the case of the respondent No. 1 that the appellant

had scored 695 marks whereas respondent No.1 had scored

817 marks in the examination. In spite of having scored

higher marks, he was illegally and arbitrarily not selected.

25. The respondent No.1 had, therefore, submitted a

representation on 14th September, 2009 to respondent No.

3, seeking to question the selection of the appellant, who

had scored lesser marks. In the representation, respondent

No.1 had specifically stated that he had submitted the

necessary supporting documents along with the application

form. The said documents were verified at the time of

interview on 11th December, 2008. The documents were

also enclosed with the representation dated 14th September,

2009. Therefore, on 4th December, 2009, the Deputy

Secretary of the Commission had informed respondent No.

1 that the identity card showing him to be suffering from

Locomotor Disability was not submitted along with the

application form for the main examination. Though the

- 20 -

same is a compulsory document. Respondent No.1 was,

therefore, asked to submit the same to the Commission as

early as possible. On receipt of the communication dated

4th December, 2009, respondent No.1 through his letter

dated 10th December, 2008 addressed to the Deputy

Secretary of the Commission reiterated that the documents

had already been submitted and verified by the

Commission. However, he again sent an attested copy of

the identity card issued to him by the District Social

Welfare Officer, Dhubri.

26. Learned senior counsel submits that taking into

consideration the aforesaid facts, the High Court correctly

came to the conclusion that respondent No. 3 had not

specifically denied the claim of the appellant that he had

produced the identity card at the time of interview

on 11th December, 2008. The High Court had also taken

into consideration that the candidature of three other

candidates, who had not submitted the necessary

documents was treated as provisional. These candidates

- 21 -

were included in the select list. Therefore, the High Court

has rightly concluded that the condition with regard to

submission of certificates and testimonials along with the

application or before the preliminary examination was not

mandatory. The action of the respondent No.3 in rejecting

the candidature in the resolutions dated 8th January, 2010

and 21st May, 2010 were rightly quashed by the High Court.

27. Mr. Bhushan, in reply, submitted that upon a

thorough examination of the entire fact situation,

respondent No.3 in its resolution dated 21st May, 2010 has

clearly observed that respondent No.1 was treated as a

general candidate all along in the examination process and

was not treated as physically handicapped with Locomotor

Disability. The respondent No.3 also looked into the

question whether any other candidate, who had not

furnished any essential document with the application or at

the time of interview but submitted them after the interview

were accepted or not. Upon examination of the issue,

respondent No.3 has observed that in fact the candidature

- 22 -

of one applicant namely Smt. Anima Baishya was

specifically rejected as she had submitted the application

before the Chairperson of respondent No.3 on

26th February, 2009, claiming herself to be a SC candidate

for the first time. In the case of respondent No. 1, the

identity card was submitted for the first time with the letter

dated 10th December, 2009 much after the examination

process was over.

28. We have considered the entire matter in detail. In our

opinion, it is too well settled to need any further reiteration

that all appointments to public office have to be made in

conformity with Article 14 of the Constitution of India. In

other words, there must be no arbitrariness resulting from

any undue favour being shown to any candidate. Therefore,

the selection process has to be conducted strictly in

accordance with the stipulated selection procedure.

Consequently, when a particular schedule is mentioned in

an advertisement, the same has to be scrupulously

maintained. There can not be any relaxation in the terms

and conditions of the advertisement unless such a power is

- 23 -

specifically reserved. Such a power could be reserved in the

relevant Statutory Rules. Even if power of relaxation is

provided in the rules, it must still be mentioned in the

advertisement. In the absence of such power in the Rules,

it could still be provided in the advertisement. However, the

power of relaxation, if exercised has to be given due

publicity. This would be necessary to ensure that those

candidates who become eligible due to the relaxation, are

afforded an equal opportunity to apply and compete.

Relaxation of any condition in advertisement without due

publication would be contrary to the mandate of quality

contained in Articles 14 and 16 of the Constitution of India.

29. A perusal of the advertisement in this case will clearly

show that there was no power of relaxation. In our opinion,

the High Court committed an error in directing that the

condition with regard to the submission of the disability

certificate either along with the application form or before

appearing in the preliminary examination could be relaxed

in the case of respondent No. 1. Such a course would not

- 24 -

be permissible as it would violate the mandate of Articles 14

and 16 of the Constitution of India.

30. In our opinion, the High Court was in error in

concluding that the respondent No.3 had not treated the

condition with regard to the submission of the certificate

along with the application or before appearing in the

preliminary examination, as mandatory. The aforesaid

finding, in our opinion, is contrary to the record. In its

resolution dated 21st May, 2010, the Commission has

recorded the following conclusions:-

"Though Shri S. Khan had mentioned in his letter

dated 10.12.2009 that he was resubmitting the

Identity Card with regard to Locomotor Disability he,

in fact, had submitted the documentary proof of his

Locomotor Disability for the first time to the office of

the A.P.S.C. through his above letter dated

10.12.2009. However, after receiving the Identity

Card the matter was placed before the full

Commission to decide whether the Commission can

act on an essential document not submitted earlier

as per terms of advertisement but submitted after

completion of entire process of selection.

The Commission while examining the matter in

details observed that Shri S. Khan was treated as

General candidate all along in the examination

process and was not treated as Physically

Handicapped with Locomotor Disability. Prior to

taking decision on Shri S. Khan it was also looked

into by the Commission, whether any other

candidate's any essential document relating to

- 25 -

right/benefits etc. not furnished with the application

or at the time of interview but submitted after

interview was accepted or not. From the record, it

was found that prior to Shri S. Khan's case, one Smt.

Anima Baishya had submitted an application before

the Chairperson on 26.2.2009 claiming herself to be

a S.C. candidate for the first time. But her claim for

treating herself as a S.C. candidate was not

entertained on the grounds that she applied as a

General candidate and the caste certificate in

support of her claim as S.C. candidate was furnished

long after completion of examination process."

31. In the face of such conclusions, we have little

hesitation in concluding that the conclusion recorded by

the High Court is contrary to the facts and materials on the

record. It is settled law that there can be no relaxation in

the terms and conditions contained in the advertisement

unless the power of relaxation is duly reserved in the

relevant rules and/or in the advertisement. Even if there is

a power of relaxation in the rules, the same would still have

to be specifically indicated in the advertisement. In the

present case, no such rule has been brought to our notice.

In such circumstances, the High Court could not have

issued the impugned direction to consider the claim of

respondent No.1 on the basis of identity card submitted

after the selection process was over, with the publication of

the select list.

- 26 -

32. In view of the above, the appeals are allowed and the

impugned judgment and order dated 4th March, 2010

passed in W.P.(C) No.950 of 2010 and impugned judgment

and order dated 2nd July, 2010 passed in W.P.(C) No.3382

of 2010 of the High Court are set aside.

...................................J.

[Altamas Kabir]

...................................J.

[Surinder Singh Nijjar]

New Delhi;

September 28, 2011.

- 27 -

extraordinary delay in submitting physical handicap certificate to claim the reservation quota=it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is – 23 – « advocatemmmohan

whether the sentence awarded to the appellants needs to be reduced and, if so, to what extent.=Even appellant no.1 is not alleged to have used any force against the constable in the incident in question. The incident itself is nearly ten years old by now. Keeping in view all these circumstances and the fact that Hussain Ibrahim Siddi accused no.1 who was mainly responsible for the grievous injury caused to the constable has already served the sentence awarded to him, we are of the opinion that interest of justice would be sufficiently served if the sentence awarded to the appellants is modified and reduced to the sentence already undergone by them. « advocatemmmohan

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITION

CRIMINAL APPEAL NO.1879 OF 2011

(Arising out of SLP (Crl.) No.5562 of 2011)

Nasib Hussain Siddi & Ors. ...Appellants

Versus

State of Gujarat ...Respondent

O R D E R

T.S. THAKUR, J.

1. Leave granted.

2. This appeal arises out of an order passed by the High

Court of Gujarat at Ahmedabad whereby conviction of the

appellants for offences punishable under Sections 325,

506(2), 333, 342 and 114 IPC has been affirmed and the -

1

sentence reduced to imprisonment for a period of 1=

years.

3. When the special leave petition came up for

admission, this Court by its order dated 1st August, 2011

issued notice to the respondents only on the question of

sentence. We are not, therefore, examining the validity of

the order of conviction which both the Courts below have

passed on a proper appreciation of the evidence on record.

The only question on which we have heard learned counsel

for the parties is whether the sentence awarded to the

appellants needs to be reduced and, if so, to what extent.

4. The genesis of the case of the appellants lies in an

incident that took place on 7th September, 2003 at village

Chitrod in the District of Kutch, State of Gujarat. The

complainant in the case was, during the relevant period, a

Constable posted at Chitrod outpost of Police Station

Bhimasar. The prosecution case is that at about 10.30 a.m.

on 7th September, 2003 when the complainant was on

patrol duty, he found one Babubhai quarrelling in public

place with one Hussain Ibrahim Siddi, accused no.1. The -

2

constable appears to have accosted the quarrelling duo and

asked them as to why they were disturbing peace and

ordered them to accompany him to the police station. This

appears to have infuriated Hussain Ibrahim Siddi who

caught hold of the Constable from his collar and pushed

him. In the meantime the son, wife and mother of Hussain

Ibrahim Siddi also appear to have joined Hussain Ibrahim

Siddi, exchanged hot words with constable and prevented

him from taking Hussain Ibrahim Siddi to the Police Station.

It was on those allegations that Hussain Ibrahim and the

appellants were tried together for the offences mentioned

earlier.

5. At the trial the prosecution examined as many as 13

witnesses to support its case. The depositions of these

witnesses were found reliable by the Trial Court resulting in

the conviction of Hussain Ibrahim for the offence

punishable under Section 325 and sentence of five years RI

besides a fine of Rs.500/-. In default he was directed to

undergo a further sentence of six months. He was also

3

convicted under Section 506(2) of the IPC and sentenced to

-

undergo imprisonment for a period of five years and a fine

of Rs.500/- and in default to undergo further imprisonment

for a period of six months. Hussain Ibrahim was in addition

convicted and sentenced to imprisonment for five years and

a fine of Rs.500/- under Section 333 and in default to

undergo further imprisonment of six months. Imprisonment

for a period of one year and a fine of Rs.100/- was awarded

to him under Section 342 of the IPC and in default to

undergo further imprisonment for a period of one month.

6. In so far as the appellants Hussain Siddi, Malubai wife

of Ibrahim Siddi and Hawabai wife of Hussain Ibrahim are

concerned, the Trial Court found them also to be guilty of

offences punishable under Sections 333 of the IPC and

sentenced them to undergo simple imprisonment for a

period of three years and a fine of Rs.200/-. Malubai

accused no.3 and appellant before us was also in addition

convicted and sentenced to undergo imprisonment for a

period of three years under Section 506(2) IPC apart from

4

a fine of Rs.500/-. In default of payment of fine she was

sentenced to undergo six months further imprisonment.

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7. Aggrieved by the orders of conviction and sentence

the appellants preferred an appeal before the High Court of

Gujarat at Ahmedabad who has while upholding the

conviction of the appellants reduced the sentence awarded

to all of them to 1= years instead of three years.

7. It is common ground that the appellants, two of whom

happen to be females had not physically assaulted the

constable. Even appellant no.1 is not alleged to have used

any force against the constable in the incident in question.

The incident itself is nearly ten years old by now. Keeping in

view all these circumstances and the fact that Hussain

Ibrahim Siddi accused no.1 who was mainly responsible for

the grievous injury caused to the constable has already

served the sentence awarded to him, we are of the opinion

that interest of justice would be sufficiently served if the

sentence awarded to the appellants is modified and reduced

to the sentence already undergone by them.

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8. We order accordingly. The appellants shall be set at

liberty forthwith unless required in any other case. The

appeal is allowed to the above extent.

...................................J.

(CYRIAC JOSEPH)

...................................J.

(T.S. THAKUR)

New Delhi

September 28, 2011

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whether the sentence awarded to the appellants needs to be reduced and, if so, to what extent.=Even appellant no.1 is not alleged to have used any force against the constable in the incident in question. The incident itself is nearly ten years old by now. Keeping in view all these circumstances and the fact that Hussain Ibrahim Siddi accused no.1 who was mainly responsible for the grievous injury caused to the constable has already served the sentence awarded to him, we are of the opinion that interest of justice would be sufficiently served if the sentence awarded to the appellants is modified and reduced to the sentence already undergone by them. « advocatemmmohan