SWEETY KUMARIversusTHE STATE OF BIHAR AND OTHERS

                  [2023] 12 S.C.R. 556 : 2023 INSC 853



                             CASE DETAILS

                           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.]

                              HEADNOTES

      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

                                     556
         SWEETY KUMARI v. THE STATE OF BIHAR                             557


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
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]

       LIST OF CITATIONS AND OTHER REFERENCES

     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.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     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.
     Appearances:
     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,
558          SUPREME COURT REPORTS                       [2023] 12 S.C.R.


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.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

      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) 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
           SWEETY KUMARI v. THE STATE OF BIHAR                            559
                  [J. K. MAHESHWARI, J.]

(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.
      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
560          SUPREME COURT REPORTS                          [2023] 12 S.C.R.


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 un-reserved 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.
      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
          SWEETY KUMARI v. THE STATE OF BIHAR                             561
                 [J. K. MAHESHWARI, J.]

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.
      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
562           SUPREME COURT REPORTS                         [2023] 12 S.C.R.


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 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
         SWEETY KUMARI v. THE STATE OF BIHAR                              563
                [J. K. MAHESHWARI, J.]

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 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 non-production 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,
564          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


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 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 31 st 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 30 th
Examination by borrowing those extra vacancies from the 32nd Examination.
The vacancies notified for the 32nd Examination are in process of being
         SWEETY KUMARI v. THE STATE OF BIHAR                             565
                [J. K. MAHESHWARI, J.]

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 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
  st
31 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            SUPREME COURT REPORTS                       [2023] 12 S.C.R.


      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:                                          Appeals allowed.
Divya Pandey