2018 (12) TMI 1969 - HC - Indian Laws

Recruitment to the posts of Commercial Tax Officer and Account Officer, Class-II - ineligibility on the ground that S.S.C.E. credit certificate was not produced - HELD THAT - The arena of facts and the rival case, leads to suggest that the case of the respondents that S.S.C.E. certificate was not sent by the petitioner, was beset with a serious dispute. It was the specific case of the petitioner that through R.P.A.D. post, while sending the application, the S.S.C.E. credit certificate was sent along with the other documents. Respondent No.2 took a stance that the same was not received and treated the petitioner to be ineligible for the purpose of interview, after permitting the petitioner to participate in the process by taking main written examination. Even on demurer, what turns out is the alleged non-sending of S.S.C.E. certificate along with the application. However, the existence of S.S.C.E. certificate at the material time, that is sending of the application and other documents, and the availability of such certificate with the petitioner was not in dispute. It leaves no reason for doubt that the petitioner did have the S.S.C.E. Certificate indicating the age proof and on the basis of such availability, he made the application. The application form was sent online and non-producing the Certificate along with the on-line application was a sheer omission. The petitioner did produce the Certificate which was already in existence at the time of written examination. The petitioner was permitted in the written examination - Law conceives a clear differentiation between illegality and irregularity. This nice distinction brings home the case of the petitioner. An illegality is something which amounts to substantial failure in compliance of requirement. It denotes such breach of rule or requirement which alters the position of a party in terms of his right or obligation. Illegality denotes a complete defect in the jurisdiction or proceedings. Illegality is properly predictable in its radical defects. A Certificate already in existence and the factum of birth date on the basis of such Certificate being indisputable, when bona fide omitted to send along with the on-line application by a candidate whose such application was accepted and who has subsequently participated in the stages of selection process, could not be allowed to be prejudiced on the ground of inadvertent non-sending of the Certificate, produced later before the rights and obligations underwent change, more particularly when no other adverse or accentuating aspects override. The defect incurred on part of the petitioner-candidate could be categorised as procedural irregularity so as not to disentitle him in participating in the further process of selection, and not rendering him as ineligible if he is otherwise eligible to be appointed. The action and decision of respondent No.2 Gujarat Public Service Commission in treating the petitioner Rajapara Savan Jagdishbhai as ineligible in the result dated 20th November, 2017 is set aside - Petition allowed.

Summary

Issues Involved:
1. Eligibility of the petitioner based on the submission of the S.S.C.E. credit certificate.
2. Procedural irregularity versus illegality in the submission process.
3. Discrimination in the treatment of candidates by the Gujarat Public Service Commission (GPSC).

Issue-wise Detailed Analysis:

1. Eligibility of the petitioner based on the submission of the S.S.C.E. credit certificate:
The petitioner was declared ineligible by the respondent, Gujarat Public Service Commission (GPSC), on the grounds that the S.S.C.E. credit certificate was not produced. The petitioner contended that the certificate was sent along with the application via Registered A.D. Post and was possibly misplaced by the GPSC. The petitioner promptly made a representation and submitted another attested copy of the certificate. The Court noted that the petitioner did have the S.S.C.E. certificate at the material time and that the application form was sent online. The non-production of the certificate was considered a procedural lapse rather than a fraudulent or misrepresentative act. The Court concluded that the petitioner should not be treated as ineligible due to this procedural lapse, especially since the certificate was produced later.

2. Procedural irregularity versus illegality in the submission process:
The Court differentiated between illegality and irregularity. Illegality denotes a substantial failure in compliance, altering the party's rights or obligations, and is a complete defect in jurisdiction or proceedings. Irregularity, on the other hand, is a procedural lapse that does not amount to a substantial failure. The Court found that the petitioner's omission to send the S.S.C.E. certificate was a procedural irregularity, not an illegality. The petitioner’s subsequent production of the certificate cured the defect, and it was deemed a condonable lapse. The Court emphasized that procedural irregularities should not disentitle a candidate if they are otherwise eligible.

3. Discrimination in the treatment of candidates by the Gujarat Public Service Commission (GPSC):
The petitioner alleged discrimination, stating that other candidates who had similar issues were accommodated and declared eligible upon their representation. The petitioner highlighted that candidates for Class-I posts were granted the opportunity to produce their S.S.C.E. certificates even after being declared ineligible. The Court acknowledged this point, noting that the petitioner should have been granted a similar opportunity to rectify the procedural lapse. The respondents' failure to provide this opportunity was deemed unreasonable and arbitrary.

Conclusion:
The Court allowed the petition, setting aside the GPSC's decision to treat the petitioner as ineligible. The action of the GPSC was found to be procedurally irregular rather than illegal. The Court ruled that the petitioner should not be prejudiced due to the inadvertent non-sending of the certificate, which was later produced. The petition was allowed, and the rule was made absolute accordingly.