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TMI Blog2018 (12) TMI 1969X X X X Extracts X X X X X X X X Extracts X X X X ..... ves 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 subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajapara Savan Jagdishbhai secured the marks, which enabled him to get position in the merit-list for final selection. The Court, by order dated 01st May, 2018, dismissed the petition in respect of petitioner Nos.1 and 2. Accordingly, the present petition survived only for petitioner No.3. In the said order dated 01st May, 2018, it was further observed that the appointment, if any, shall be subject to further orders of the Court. 3. Noticing the relevant facts, respondent No.2 Gujarat Public Service Commission issued advertisement No.37/2016-17 for the recruitment to the posts of Commercial Tax Officer and Account Officer, Class-II. As per the said advertisement dated 22nd January, 2017, preliminary examination was taken and the candidates including the petitioner No.3 who had applied for the post in question, appeared in the examination. This preliminary examination was to follow the main written examination. 3.1 It appears that as per the instructions in the advertisement, the applicant-candidates were required to submit the necessary documents which would enable them to appear in the main examination. It was the instruction that true copies of the certificates r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner to be produced before the Court. As noted hereinabove, out of the three petitioners, two petitioners failed in the interview and the petition survived only for petitioner No.3. 4. Heard learned senior advocate Mr.Anshin Desai assisted by learned advocate Mr.Manish Shah for the petitioners, learned Assistant Government Pleader Mr.K.M. Antani for respondent No.1 State and learned advocate Mr.Manish J. Patel for respondent No.2 Gujarat Public Service Commission. 4.1 It was asserted on behalf of the petitioner that the S.S.C.E. certificate was actually sent along with the other documents. Learned senior advocate for the petitioner submitted that respondent No.2 acted contrary to their own advertisement and instructions which stated that upon the application being found satisfactory, the candidate would be permitted to appear in the examination, and that the petitioner was allowed to appear in the main examination accordingly. It was submitted that the certificate was sent along with the application and even after the intimation of respondent No.2, within two days, the petitioner vigilantly approached the authority making representation and submitting anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopting a technical and discriminatory stance. 5. 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. 5.1 In view of what is born out as above, 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot regularly done. It is not in conformity of rule or principle. The concepts illegal , irregular and procedurally irregular , are often understood in terms of their degree which they bear to be not in conformity with rule of particular course of action. The illegality is a highest kind of breach of law which will taint and vitiate the action. One who commit illegality has to be denied the assertion of his right and he stands disentitled to relief in law. Irregularity, as noticed, is breach of procedure of rule or some orderly conduct but not of such nature which could be said to be in the nature of a debilitating defect. It is pardonable in law. The concept of procedural irregularity is indicative of lapse of minor nature in procedure which could not affect adversely rights of a party, nor would exceptionally reverse the obligation of the other side. 5.4 On behalf of the respondents, decision of this Court in Shaileshkumar Maharubhai Chaudhari v. Gujarat Public Service Commission being Special Civil Application No.7465 of 2012 decided on 24th July, 2012 was pressed into service to submit that in that case also the candidate had not submitted the marksheet of the S.S.C. ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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