Supreme Court of India
DIVYAversusUNION OF INDIA & ORS.
- Citation
- 2023 INSC 900
- Decided
- 9 October 2023
- Disposal
- Dismissed
- Bench
- K MAHESHWARI
Holding
A candidate is eligible for EWS reservation in CSE‑2022 only if he/she meets the government‑prescribed criteria and possesses the requisite Income & Asset Certificate for FY 2020‑21 in the prescribed format on or before the cut‑off date of 22‑02‑2022, making the UPSC’s rejection of the petitioners lawful.
Summary
The petitioners, including Ms. Divya, applied for the 2022 Civil Services Examination (CSE) claiming reservation under the Economically Weaker Section (EWS) category but were rejected by the UPSC because they did not possess the required Income & Asset Certificate (I&AC) for FY 2020‑21 before the prescribed cut‑off date of 22‑02‑2022. The Court examined the eligibility criteria laid down in the Office Memoranda of 19‑01‑2019 and 31‑01‑2019 and the Civil Services Examination Rules, 2022 (CSE‑2022 Rules), particularly Rules 13, 27(3) and 28. It held that eligibility for EWS status crystallises only when the candidate meets the government‑prescribed criteria and holds the I&AC in the prescribed format on or before the cut‑off date, and that the CSE‑2022 Rules are enforceable law traceable to the All India Services Act, 1951. The Court found the UPSC’s cut‑off prescription and rejection of the petitioners’ claims to be constitutionally valid and not violative of Article 14. Consequently, the writ petitions were dismissed, with no relief granted under Article 142.
Issues considered
- What is the eligibility criterion for a candidate to claim the EWS category under the CSE Rules, 2022 read with the Office Memoranda of 19‑01‑2019 and 31‑01‑2019?
- Was the UPSC justified in prescribing a cut‑off date for possession and online uploading of the I&AC for EWS candidates?
- Are the CSE‑2022 Rules enforceable in law?
- Are Rules 13, 27(3) and 28 of the CSE‑2022 Rules constitutionally valid under Article 14?
- Was the UPSC justified in rejecting the petitioners’ claim for consideration under the EWS category?
Legislation cited
Subjects
EWS reservationCivil Services ExaminationEligibility criteriaCut‑off dateRule 13Rule 27(3)Rule 28UPSCArticle 14Article 73Service lawReservation policy
Judgment
[2023] 15 S.C.R. 44 : 2023 INSC 900
CASE DETAILS
DIVYA
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 724 of 2023)
OCTOBER 09, 2023
[J. K. MAHESHWARI AND K. V. VISWANATHAN, JJ.]
HEADNOTES
Issue for consideration: What is the eligibility criterion for a
candidate to stake a valid claim under the Economically Weaker Section
(EWS) Category as per the Civil Services Examination Rules, 2022 r/w
OM dtd.19.01.2019 and 31.01.2019; was the UPSC justified in prescribing
the cut-off date for possession and for uploading of the I&AC certificates
in the prescribed format to stake a valid claim under the EWS category;
are the CSE-Rules 2022 enforceable in law; are rr. 13, 27(3) and 28 of the
CSE-Rules 2022 constitutionally valid; was the UPSC justified in rejecting
the claim of the petitioners for consideration under the EWS category?
Civil Services Examination Rules, 2022 – rr.13, 27, 28 –
Prescriptions as to eligibility for Economically Weaker Section (EWS)
category candidates – Non-fulfillment of – As per Office Memoranda
dtd. 19.01.2019 & 31.01.2019 r/w rr.27, 28, CSE-2022 Rules, for claiming
reservation under EWS category, the Income & Asset Certificate
(I&AC) must be as per the prescribed norms and in possession of the
candidate on or before the cut-off date – Petitioners did not possess the
valid documentation determining their eligibility before the prescribed
cut-off date, were denied the benefit of reservation of the EWS category
by the Union Public Service Commission (UPSC) for the 2022 Civil
Services Examination – Propriety:
Held: Candidates claiming benefit of EWS Category for the purpose
of CSE-2022, acquired eligibility only if they met the criterion prescribed in
the O.M. dtd.19.01.19 and 31.01.19 and were in possession of the required
I&AC, based on the income for the year 2020-21 – Further, as required u/r.28
44
DIVYA v. UNION OF INDIA & ORS. 45
r/w the aforesaid O.Ms, the candidate should have been in possession of the
I&AC as on 22.02.2022 – Any candidate not in possession of the I&AC in
the prescribed format could not claim the benefit of EWS Category – Equally,
as required u/r.13 at the stage of Detailed Application Form–I (DAF-I), the
document in possession as on 22.02.2022 in the prescribed format, had to
be submitted online before the prescribed date – UPSC strictly acted in
accordance with the mandate of r.13 r/w/ rr.27 & 28 – They had an obligation
to scrutinize the forms as uploaded with DAF-I – rr.13, 27 & 28 are to be
r/w the Office Memoranda of 19.01.2019 & 31.01.2019 especially clause
5 of the Office Memorandum of 31.01.2019 – UPSC justified in rejecting
the candidature of the candidates who submitted their I&AC beyond the
stipulated deadline and rejecting their claim for consideration under the EWS
Category in CSE-2022 – Case of the Petitioners in Writ Petition (C) Nos.705
and 764 fails additionally, for being directly covered by the judgment of the
Supreme Court in Union Public Service Commission vs. Gaurav Singh &
Ors. in C.A. No.4152 of 2022. [Paras 74, 86 (i)]
Civil Services Examination Rules, 2022 – Benefits under the EWS
Category – Cut-off date for eligibility prescribed – Justification:
Held: The UPSC was justified in prescribing the cut-off date for
possession and for uploading of the I&AC in the prescribed format for
claimants claiming benefits under the EWS Category – This flows from the
O.M. dtd. 19.01.2019 & 31.01.2019 r/w rr.13, 27(3) and 28 of the CSE-Rules,
2022 and the long line of judgments in which principles for prescription of
cut-off for eligibility are laid down – Service Law. [Para 86 (ii)]
Civil Services Examination Rules, 2022 – Validity:
Held: The CSE-2022 Rules have the force of an enforceable law – They
are traceable to the All India Services Act, 1951 r/w the Indian Administrative
Service (Recruitment) Rules, 1954 r/w the Indian Administrative Service
(Appointment by Competitive Examination) Regulations, 1955 and all this
r/w Article 73 of the Constitution of India – The CSE Rules do not in any
manner supplant any of the provisions of the All India Service Act or the IAS
Recruitment Rules or the IAS (Appointment by Competitive Examination)
Regulations – They only supplement them – While the manner of conduct
of examinations is clearly traceable to Regulation 3, it is untenable to say
that since Regulation 4 in the conditions of eligibility does not prescribe
46 SUPREME COURT REPORTS [2023] 15 S.C.R.
EWS category and EWS certification and hence they do not qualify as part
of eligibility – The EWS category itself came in 2019 – If this contention
was to be right, then there could be no EWS category at all in CSE-2022 –
Hence, the contention that rr.13, 27 and 28 of the CSE-Rules, 2022 cannot
be given a status of rules cannot be countenanced – Additionally, these are
rules traceable to the executive power of the Union which are duly traceable
to Article 73 – These rules are duly gazetted and are set out well before
the selection process begins and candidates are put to notice before the
commencement of the process – It is too late in the day to contend that these
rules have no sanctity or the force of an enforceable law– All India Services
Act, 1951 – Indian Administrative Service (Recruitment) Rules, 1954 –
Indian Administrative Service (Appointment by Competitive Examination)
Regulations, 1955 – Constitution of India – Article 73. [Paras 49, 50, 86(iii)]
Civil Services Examination Rules, 2022 – rr.13, 27(3) and 28 –
Plea to declare the said Rules to be ultra vires Article 14 to the extent
it prescribes that candidate must be in possession of a EWS certificate
as on the closing date of the application for preliminary examination:
Held: Rejected – There is no case made out to show that the cut-off of
22.02.2022 was picked out of the hat – That was the last date for submission
of the application and it was a validly prescribed cut-off – Where there is
absence of any rule or absence of any prescription, the last day for fulfilling
the eligibility is the last date of submission of the application – This is a
judicially recognized default date – In this case the last date for filing of
the application was prescribed as the cut-off in the Rules – rr.13, 27(3) and
28 are constitutionally valid – Constitution of India – Article 14 – Service
Law. [Paras 61, 86(iv)]
Civil Services Examination Rules, 2022 – r.13 – Petitioners argued
that being from the “EWS” category is a status and thus, the Income
and Asset Certificate (I&AC) to be produced was only a proof and could
have been produced at any stage:
Held: Such argument cannot be accepted in the teeth of the clear
prescription in the Office Memoranda r/w the CSE-2022 Rules – Further,
as required u/r.13, at the stage of Detailed Application Form–I (DAF-I),
the document had to be submitted on-line before the prescribed date (for
CSE-2022, the date was 15.07.2022) and that any delay in submission of
DIVYA v. UNION OF INDIA & ORS. 47
DAF-I or document beyond the prescribed date was not allowed – These
clear stipulations run counter to the submissions that on the rectification of
a certificate it relates back to the date of the certificate. [Para 41]
Service Law – Appointment/Recruitment/Selection – Date on
which the eligibility should be possessed:
Held: If there are relevant rules which prescribe the date on which
the eligibility should be possessed, those rules will prevail – In the absence
of rules or any other date prescribed in the prospectus/advertisement for
determining the eligibility, there is a judicial chorus holding that it would be
the last date for submission of the application – Civil Services Examination
Rules, 2022. [Para 46]
Service Law – Appointment/Recruitment/Selection – Selective
Relaxation – Impermissibility:
Held: Determination of eligibility cannot be left uncertain till the
final stages of selection, since that would lead to uncertainty – Further, if
rules prescribe the last date on which eligibility should be possessed, any
relaxation would prejudice non-applicants who for want of possession of
eligibility would not have applied – Relaxation would then be selective,
leading to discrimination – In the present case, rules clearly exist in the
form of CSE-2022 – As is clear from r.13, by 15.07.2022, the certificates
disclosing eligibility had to be uploaded with Detailed Application Form–I
(DAF-I) and it was expressly stipulated that delayed submission of the
DAF-I or documents in support will not be allowed – Further, much water
has also flown under the bridge – The UPSC has made the cadre allocations
and the EWS candidates against the 298 vacancies have also been allotted
their respective cadres – Accepting the contention of the petitioners would
also result in administrative chaos and will prolong the selection process
indefinitely – It is legally not permissible and administratively not feasible
for the UPSC – Civil Services Examination Rules, 2022 – r.13 . [Paras 51-53]
Service Law – Appointment/Recruitment/Selection – Decision of
the Selecting Body – Interference with – Impermissible – Petitioners
argued that with regard to four candidates there was relaxation
inasmuch as they were allowed to rectify the defects in the EWS and
I&AC:
48 SUPREME COURT REPORTS [2023] 15 S.C.R.
Held: UPSC considered these omissions as trivial and as not going
to the root of the eligibility, unlike in the case of the petitioners herein – In
the present case, it did not consider the defects as insignificant – Thus, this
Court has no option but to reject the writ petitions of all the petitioners –
Neither the Office Memorandum nor the rules in question can be construed
as directory – They clearly prescribe the eligibility criterion, the date
before which the certificate should be possessed and submitted – They also
prescribe the consequence for the omission – The petitioners who did not
possess the valid documentation determining their eligibility, before the
prescribed cut-off date, cannot complain, if their claim for categorization
as EWS was rejected – UPSC justified in denying the petitioners the benefit
of categorization as EWS candidates – Civil Services Examination Rules,
2022. [Paras 74, 78, 80 and 81]
Constitution of India – Article 142 – Power under – When not
to be exercised – Petitioners contended that in the event of this Court
upholding the Rules and the action of the UPSC, it should exercise its
power u/Article 142 and to do complete justice, the Petitioners should
be treated as an EWS category Candidate:
Held: Petitioners cannot be granted refuge u/Article 142 – In the
present case, by the rightful application of the OM and the CSE-Rules
2022, complete justice has been done to all – Exercise of power u/Article
142 should be done with great caution and circumspection – The present
case is not the one warranting the invocation of that power – Civil Services
Examination Rules, 2022. [Para 85]
Words and Phrases – “eligible” – Meaning – Discussed – Civil
Services Examination Rules, 2022. [Para 44]
LIST OF CITATIONS AND OTHER REFERENCES
Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board
& Anr. (2016) 4 SCC 754; Charles K. Skaria & Others vs. Dr. C. Mathew
& Others [1980] 3 SCR 71 : (1980) 2 SCC 752; Deepak Yadav & Others
vs. Union Public Service Commission and Another (2021) SCC OnLine SC
709; Dolly Chhanda vs. Chairman, JEE and Others [2004] 5 Suppl. SCR
79 : (2005) 9 SCC 779; Dheerender Singh Paliwal vs. Union Public Service
DIVYA v. UNION OF INDIA & ORS. 49
Commission (2017) 11 SCC 276; Alok Kumar Singh and Others vs. State of
Uttar Pradesh and Others (2018) 18 SCC 242 – distinguished.
Ashok Kumar Sharma and Others vs. Chander Shekhar and Another
[1997] 2 SCR 896 : (1997) 4 SCC 18; Union Public Service Commission vs.
Gaurav Singh & Ors. Decision of Supreme Court dtd.18.05.2022 in C.A.
No.4152 of 2022 – relied on.
Karn Singh Yadav vs. Govt. of NCT of Delhi & Others 2020 SCC
OnLine SC 1472 (two-Judges) and 2022 SCC OnLine SC 1341(three-
Judges); Rekha Chaturvedi v. University of Rajasthan [1993] 1 SCR 186
: 1993 Supp (3) SCC 168; Bhupinderpal Singh v. State of Punjab (2000)
5 SCC 262; Ashok Kumar Sonkar v. Union of India [2007] 3 SCR 95 :
(2007) 4 SCC 54; Mohan Kumar Singhania and Others vs. Union of India
and Others [1991] 1 Suppl. SCR 46 : 1992 Supp (1) SCC 594; A.P. Public
Service Commission v. B. Sarat Chandra [1990] 2 SCR 463 : (1990) 2 SCC
669; T. Jayakumar vs. A. Gopu and Another [2008] 13 SCR 791 : (2008) 9
SCC 403; Ajay Kumar Mishra vs. Union of India [2016] SCC OnLine Del
6563 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 724
of 2023.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
With
Writ petition (C) Nos.705 and 764 of 2023.
Appearances:
K. Parameshwar, Ms. Tanya Shree, Ms. Preetika Dwivedi, Abhisek
Mohanty, Advs. for the Petitioner.
Mrs. Aishwarya Bhati, A.S.G., Digvijay Dam, Mrs. Chitrangda
Rastaravara, Ishaan Sharma, Ms. B. L. N. Shivani, Shuyash Pandey, Arvind
Kumar Sharma, Naresh Kaushik, Vardhman Kaushik, Manoj Joshi, Ms.
50 SUPREME COURT REPORTS [2023] 15 S.C.R.
Shikha John, Shubham Dwivedi, Anand Singh, Ajay Kanojiya, Advs. For
the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
K. V. VISWANATHAN, J.
1. These writ petitions raise questions involving the interpretation of
the Office Memoranda [OM] dated 19.01.2019 and 31.01.2019 prescribing
the eligibility for the Economically Weaker Section [EWS] Category.
Additionally, they also involve the interpretation of the Civil Services
Examination Rules, 2022 [CSE-2022 Rules], particularly, Rules 13, 27 and
28 thereof. The petitioners, for diverse reasons, were denied the benefit of
the EWS category by the Union Public Service Commission [UPSC] for
the Civil Services Examination of the year 2022. Was the UPSC justified
in denying them the benefit of reservation under the EWS category, is the
main question involved. The three Writ Petitions involve different sets of
facts. The factual parts are dealt with separately. The legal submissions
broadly overlap. Whereever they need to be separately discussed, the same
has been done at the appropriate place.
Writ Petition (C) No. 724 of 2023:
2. The petitioner – Ms. Divya was a candidate for the Civil Services
Examination, 2022 (CSE-2022). She had already qualified for the Indian
Police Service in the Civil Services Examination, 2021 and was allotted
the Manipur Cadre. Wanting to fulfil her ambition of joining the Indian
Administrative Service (IAS), she applied for the CSE-2022. The category
in which she wanted to be considered was in the Economically Weaker
Section (EWS) category.
3. The CSE-2022 is governed by the Civil Services Examination
Rules, 2022. These Rules were promulgated on 02.02.2022. These Rules
are crucial for the adjudication of the case as the outcome of the case turns
on the interpretation of these Rules, particularly, Rules13, 27 &28 thereof.
Office Memoranda Dated 19.01.2019 & 31.01.2019:
4. By an Office Memorandum of 19.01.2019, the Government of
India, Ministry of Personnel, Public Grievances and Pensions, Department
of Personnel and Training (DoPT) prescribed the criterion to be eligible
DIVYA v. UNION OF INDIA & ORS. 51
[K. V. VISWANATHAN, J.]
to apply under the EWS category. The prescription was that firstly, a) the
persons should not be covered under the existing scheme of reservations
for the SC/ST and the Socially and Economically Backward Classes and b)
their family gross annual income must be below Rs.8 lakhs.
Secondly, the income was to include income from all sources i.e. salary,
agriculture, business, profession etc. and it will be income for the Financial
Year [FY] prior to the year of application. Thirdly, the persons whose family
owns or possesses any of the following assets are to be excluded from the
category of EWS, irrespective of the family income:
i) 5 acres of Agricultural Land and above;
ii) Residential flat of 1000 sq. ft. and above;
iii) Residential plot of 100 sq. yards and above in the notified
municipalities;
iv) Residential plot of 200 sq. yards and above in areas other than
the notified municipalities.
Fourthly, the income and assets of the families as mentioned above
was to be certified by an Officer not below the rank of a Tehsildar in the
States/Union Territories (UTs). The Officer was to issue the certificate
after carefully verifying all relevant documents following due process as
prescribed by the respective States/UTs.
5. This was followed up by another Office Memorandum [OM] dated
31.01.2019 issued by the Department of Personnel &Training, Government
of India. Under this OM, issued in continuation to the OM of 19.01.2019,
in Clause 5 it is provided as under:
5. INCOME AND ASSET CERTIFICATE ISSUING AUTHORITY
AND VERIFICATION OF CERTIFICATE:
“5.1 The benefit of reservation under EWS can be availed upon
production of an Income and Asset Certificate issued by a Competent
Authority. The Income and Asset Certificate issued by any one of the
following authorities in the prescribed format as given in Annexure-I
shall only be accepted as proof of candidate’s claim as belonging to
EWS:-
52 SUPREME COURT REPORTS [2023] 15 S.C.R.
(i) District Magistrate/Additional District Magistrate/ Collector/Deputy
Commissioner/Additional Deputy Commissioner/ 1st Class Stipendary
Magistrate/ Sub-Divisional Magistrate/Taluka Magistrate/Executive
Magistrate/Extra Assistant Commissioner.
(ii) Chief Presidency Magistrate/Additional Chief Presidency
Magistrate/ Presidency Magistrate.
(iii) Revenue Officer not below the rank of Tehsildar and
(iv) Sub-Divisional Officer or the area where the candidate and/or his
family normally resides.
5.2 The Officer who issues the certificate would do the same after
carefully verifying all relevant documents following due process as
prescribed by the respective State/UT.
5.3 The crucial date for submitting income and asset certificate by the
candidate may be treated as the closing date for receipt of application
for the post, except in cases where crucial date is fixed otherwise.
5.4 The appointing authorities should, in the offer of appointment to
the candidates claiming to be belonging to EWS, include the following
clause:-
“The appointment is provisional and is subject to the Income and
asset certificate being verified through the proper channels and if
the verification reveals that the claim to belong to EWS is fake/
false the services will be terminated forthwith without assigning
any further reasons and without prejudice to such further action
as may be taken under the provisions of the Indian Penal Code
for production of fake/false certificate.”
The appointing authority should verify the veracity of the Income
and asset certificate submitted by the candidate through the certificate
issuing authority.
5.5 Instructions referred to above should be strictly followed so that it
may not be possible for an unscrupulous person to secure employment
on the basis of a false claim and if any person gets an appointment
on the basis of such false claim, her/his services shall be terminated
invoking the conditions contained in the offer of appointment.”
DIVYA v. UNION OF INDIA & ORS. 53
[K. V. VISWANATHAN, J.]
Civil Services Examination Rules, 2022 :
6. For the sake of convenience, we set out herein below Rules 13, 27
& 28 of the CSE-2022 Rules: -
“Detailed Application Forms-I.
13. For the Main Examination, a candidate shall be required to submit
an on-line Detailed Application Form-I (DAF-I) along with scanned
documents/certificates in support of date of birth,category [viz. SC/
ST/OBC (without OBC Annexure)/EWS (without EWS Annexure)/
PwBD/Ex-Servicemen]and educational qualification with required
Examination Fee, within the prescribed time for the same. Any delay
in submission of the DAF-1 or documents in support beyond the
prescribed date will not be allowed and will lead to cancellation
of the candidature for the CSE-2022.
Eligibility for Availing Reservation:
27.(1) A candidate will be eligible to get the benefit of community-
based reservation only in case the particular community/caste to which
the candidate belongs is included in the list of reserved communities
issued by the Central Government.
(2) The OBC candidates applying for CSE-2022 must produce OBC
(Non-Creamy Layer)certificate based on the income for the Financial
Years (FYs) 2018-2019, 2019-2020 and 2020-2021.
(3) A candidate at CSE-2022 will be eligible to get the benefit of
the Economically Weaker Section reservation only in case the
candidate meets the criteria issued by the Central Government and
is in possession of requisite Income & Asset Certificate based on the
income for Financial Year (FY) 2020-2021.
28. Candidates seeking reservation/relaxation benefits available for
SC/ST/OBC/EWS/PwBD/Ex-servicemen must ensure that they are
entitled to such reservation/relaxation as per eligibility prescribed
in the Rules/Notice. They should also be in possession of all the
requisite certificates in the prescribed format in support of their claim
as stipulated in the Rules/Notice for such benefits by the closing date
of the application for Civil Services(Preliminary) Examination-2022.”
54 SUPREME COURT REPORTS [2023] 15 S.C.R.
7. A careful perusal of the Rules would disclose that, under Rule 28,
candidates seeking reservation under EWS for the purpose of CSE-2022
must ensure that they are entitled to such reservation as per the eligibility
prescribed in the Rules. The eligibility prescribed for EWS under Rule
27(3) is that the candidate should meet the criteria issued by the Central
Government and should be in possession of requisite Income &Asset
Certificate (I&AC) based on the income for Financial Year 2020-2021.
Secondly, the candidates should also be in possession of all the requisite
certificates in the prescribed format by the closing date of the application
for Civil Services (Preliminary) Examination - 2022.
It can be seen from the above-mentioned clauses that the benefit of
reservation can be availed on possession of Income & Asset Certificate
[I&AC] issued by a Competent Authority. Under Clause 5.3 of the OM,
the crucial date for submitting I&AC may be treated as the closing date
for receipt of application for the post, except in cases where crucial date is
fixed otherwise.
8. As it would be clear from the Office Memoranda dated 19.01.2019
& 31.01.2019 r/w Rule 27 & 28 of the CSE-2022 Rules, for claiming
reservation under EWS category, the I&AC must be as per the prescribed
norms and must be in possession of the candidate on or before the cut-off
date.
9. The applicable date for possession in this case is 22.02.2022. This
is because after the promulgation of the Rules, the third respondent –
Union Public Service Commission [UPSC] issued the examination notice
on 02.02.2022 and the last date for submission of the application was
22.02.2022 and the time of deadline was 6.00 p.m. on that day.
10. As is clear from Rule 13 extracted above, the uploading of
the certificates happens only after the declaration of the results of the
Preliminary Examination and before the Main Examination is held. For the
Main Examination, a candidate is required to submit an on-line Detailed
Application Form–I (DAF-I) along with scanned documents/certificates in
support of the claim for EWS category within the prescribed time.
11. Any delay in submission of the DAF-I or documents in support
beyond the prescribed date was not to be allowed and would lead to
cancellation of the candidature.
DIVYA v. UNION OF INDIA & ORS. 55
[K. V. VISWANATHAN, J.]
12. What is clear from the above is, before the closing date of
application, the candidate has to be in possession of the requisite Certificate
for the Financial Year 2020-2021 and before the Main Examination, the
candidate is expected to upload the Certificate.
Case of the petitioner:
13. The petitioner claims that she had the EWS Certificate for the
year 2019-2020 since it was issued to her on 09.10.2020 by the Haryana
Government. However, according to her, even after making serious efforts
to apply for the EWS Certificate for the Financial Year 2020-2021, she could
not apply or get the same before 22.02.2022 due to COVID-19 Pandemic
and the lockdown in Haryana till 06.09.2021; and even thereafter due to
the COVID cases prevalent during the middle of 2022; that the Office of
the Revenue Authorities was not functional for general administrative work
and only COVID related work was being undertaken; that the Certificate
is issued by the Village Tehsildar and there was no regular Tehsildar for
District Mahendragarh since 2020 and the Tehsildar from a nearby place
occasionally came to the Village only to perform administrative functions.
14. For these reasons, the petitioner states that she was unable to obtain
the Certificate for the Financial Year 2020-2021 before 22.02.2022. It is
also admitted by her that, by 13.12.2022, she was able to obtain the EWS
Certificate for the Financial Year 2021-2022 but was not able to obtain the
EWS Certificate for 2020-2021 till 01.06.2023.
15. For the CSE-2022, the Preliminary Examination was held on
05.06.2022 and the results were declared on 22.06.2022 and the petitioner
qualified for the Main Examination.
16. The petitioner submitted DAF-I for the CSE 2022 between
06.07.2022 and 15.07.2022 and uploaded the EWS Certificate for the
Financial Year 2019-20, as she did not have the Certificate for any other
year. The Main Examination was held in September 2022 and the results
were declared on 06.12.2022.
17. On 05.01.2023, the Under Secretary of the UPSC issued an e-mail
informing her that the EWS certificate uploaded by her was not in the
prescribed format and she was requested to produce the Certificate in the
prescribed format bearing date prior to 22.02.2022.
56 SUPREME COURT REPORTS [2023] 15 S.C.R.
18. On 10.02.2023, she attended and participated in the interview and
produced the Certificates of EWS for the Financial Year 2019-2020 and
Financial Year 2021-2022. Thereafter, on 14.02.2023, she submitted a letter
with the EWS Certificates for the Financial Year 2019-2020 and Financial
Year 2021-2022 and, according to her, the same was received by the UPSC.
This is, however, controverted by the UPSC by saying that mere delivery
of the letter at the letter receiving section (Dak section) will not amount to
acceptance of the same.
19. According to the petitioner, on 30.05.2023, she was informed, vide
e-mail, that her candidature has been converted to General Category from
EWS Category. Thereafter, the petitioner states that, on 21.06.2023, she
sent a representation to the Department of Personnel and Training (DoPT)
seeking acceptance of her EWS Certificate for the Financial Year 2020-2021
received by her on 01.06.2023 and that she had not received any reply. She
claims that she also e-mailed to the official e-mail ID of the Chairman,
UPSC but received no reply.
20. Being aggrieved, the petitioner has filed this Writ Petition since
she claims that she had secured All India Rank [AIR] 105 and if she were
to be considered in the EWS Category, her cut-off would qualify her,for
admission to the CSE-2022 in the IAS Cadre. In the Writ Petition, she has
prayed for the following reliefs:
“(i) Issue a Writ, Order or Direction in the nature of Certiorari for
quashing email dated 30.05.2023 issued by Respondent no. l;
(ii) Issue a Writ, Order or Direction in the nature of Mandamus
directing the Respondents to retain the petitioner in the economically
weaker section (EWS) category and accept the EWS certificate
submitted by the petitioner for financial year 2020-2021,for the purpose
of recruitment pursuant to Civil Services Examination 2022;
(iii) Issue a Writ, Order or Direction declaring Rule 13, Rule 27 (3)
and Rule 28 of the Civil Service Examination Rules 2022, to the extent
that it prescribes that candidates must be in possession of the EWS
Certificate as on the closing date of the application for Preliminary
Examination, to be ultra vires Article 14 of the Constitution of India
as being arbitrary;”
DIVYA v. UNION OF INDIA & ORS. 57
[K. V. VISWANATHAN, J.]
21. The detailed facts pertaining to the petitioners in W.P.(C) Nos.
705 and 764 have been set out in the later part of this judgment. Insofar
as the petitioners in W.P. (C) Nos. 705 and 764 are concerned, there is no
dispute on one fact that with regard to all of them, the documents submitted
with DAF-I were not the correct documents reflecting their eligibility.
Admittedly, there was some lacunae or the other which they claim were
rectified beyond the date of submission of DAF-I. The UPSC, in its counter
affidavit, has clearly urged that with regard to the 298 EWS candidates, who
were ultimately shortlisted, the I&AC as uploaded by them in DAF-I was
scrutinized and they have rejected their candidature or converted some of
them to the General Category.
Stand of the UPSC:
22. The UPSC has filed a detailed counter affidavit and has also filed
an additional affidavit explaining their position.
23. According to the UPSC, every year they conduct smoothly a
number of structured examinations, including Civil Services Examination
and several recruitment tests involving nearly thirty lakh candidates/
applicants. It is averred that the UPSC has elaborate methods/systems
and procedures developed over nine decades. That the Civil Services
Examination for recruitment to the IAS, IFS, IPS and other various Central
Services in Group ‘A’ and ‘B’ is held in accordance with the CSE Rules
framed and notified by the Government of India in the DoPT.
24. According to the UPSC, all candidates seeking reservation are
bound by Rule 28 of the CSE-2022 Rules and that they must meet the
criterion prescribed by the Central Government and be in possession of the
requisite documents/certificates in the prescribed format before the cut-off
date notified by the UPSC. That the petitioner was informed on 10.02.2023
that her admission was provisional as she had not submitted I&AC based on
the income of F.Y. 2020-21 and that the petitioner signed an undertaking in
that regard. The UPSC contends that under Rule 27(3), candidates applying
under the EWS quota were eligible only if the candidates meet the criteria
issued by the Central Government and the candidate must be and is in
possession of I&AC based on the income for the Financial Year 2020-2021.
It is averred that since the petitioner furnished I&AC based on the income
for F.Y. 2019-2020, she could not be treated under the EWS Category, and
58 SUPREME COURT REPORTS [2023] 15 S.C.R.
she was duly intimated on 30.05.2023 that she had to be considered under
the General Category.
25. It is averred that the petitioner was not the only candidate whose
category was changed to General, due to non-submission of I&AC based on
the income of F.Y. 2020-2021 issued beyond the closing date i.e. 22.02.2022.
It is averred that, as many as 36 candidates, who had applied under the EWS,
were not treated as EWS as they failed to upload the valid I&AC with their
DAF-I. According to the UPSC, out of the 36 candidates, the category of
22 candidates was changed from EWS to General as they had qualified the
CSE-2022 on General Standards and with regard to14 candidates, who failed
to qualify, their candidature was cancelled.
26. According to them, a similar exercise has been carried out for
CSE-2021 also. It is averred by the UPSC that the mechanism employed
by them regarding the filing of DAF post pandemic has been online,
removing any scope for manual intervention and, as such, the submission
of the petitioner that no objection was raised during the filing of DAF-I
was without merit and substance. It is further averred that even during the
pandemic period, CSEs were conducted. Most importantly, it is averred
that in the CSE-2022, from the State of Haryana 80 EWS candidates had
submitted valid I&AC issued on the basis of F.Y 2020-2021. It is averred
that the Rules being sacrosanct should not be relaxed as any relaxation
would amount to relaxing in favour of a ‘selected few’. Finally, it is averred
that any relaxation would pave the way for others to demand for relaxing
the Rules in their favour.
27. In the additional affidavit filed on 26.08.2023, the UPSC has averred
that the result of the Preliminary Examination was prepared, keeping in
view the relevant category of the candidates, and declared on 22.06.2022.
According to the UPSC, as per the Rules of the Examination, the number
of candidates to be admitted to the Civil Services(Main) Examination was
to be about twelve to thirteen times the number of vacancies to be filled
through the Examination. Accordingly, 13,090 candidates (12.8 times of
1,022 vacancies) were declared qualified for the next stage i.e. the Main
Examination. The cut-off marks for each Category were applied and the
Category wise number of candidates who qualified for admission to the
written part of the Main Examination were set out. That it was averred that
DIVYA v. UNION OF INDIA & ORS. 59
[K. V. VISWANATHAN, J.]
the Category wise ‘cut-off’ at every stage was fixed by the UPSC, keeping
in view the number of vacancies in each Category, the ratio required at that
particular (intermediary) stage and the number of candidates available on
particular point of marks. It is averred that, while determining the category
wise cut-off to be applied at every intermediate stage, only the data is taken
into consideration without the individual details of the candidates. It is
averred that once the cut-off is determined by the UPSC on the basis of the
details,all the candidates, who have secured marks equally or more than the
cut-off, are shortlisted for the next stage of the Examination. It is averred
that if any ineligible candidate is allowed to remain in the fray,an eligible
candidate would be excluded from the zone of consideration. It is averred
that if the number of candidates is changed to include extra candidates, the
cut-off fixed by the UPSC will be impacted and will result in inclusion of
many such candidates, who ought not to have been included affecting the
whole process of the Examination.
28. It is averred that out of 13,090 candidates, 13,051 candidates
fi nally submitted their DAF-I. As per the result of the CSE (Main)
Examination, 2022 which was declared on 06.12.2022, 2,529 candidates
(2.5 times of 1022 vacancies), as per the Rules of the examination,
were declared qualified for the interview. That the documents of 2,529
candidates were scrutinized and the candidates were notified of their
deficiency in the certificates; that 298 candidates qualified the interview
belonging to the EWS Category and the I&ACs of the 298 candidates
were scrutinized; that 28 candidates were failed either due to their not
possessing I&AC by 22.02.2022 or for failure to upload I&ACs issued on
the basis of income for the F.Y. 2020-2021;that 14 candidates who fulfilled
the General Standard were adjusted against the General quota and their
category was changed from EWS to General.
29. Strongly refuting the plea of the inability of the petitioner due to
COVID-19 to obtain the Certificate within time, it is averred by the UPSC
that the petitioner had availed the benefit under EWS Category in the CSE
2021 by producing IA&C dated 09.10.2020 during the peak of the pandemic
and that the plea of the petitioner, according to the UPSC, was highly
improbable and did not deserve to be sustained.
60 SUPREME COURT REPORTS [2023] 15 S.C.R.
Response of the petitioner:
30. This affidavit has been countered by the petitioner by contending
that, in her application,she had communicated her Category as EWS;
that the petitioner was counted among the 1281 EWS candidates who
qualified for the Preliminary Examination and were admitted to the
Main Examination; that the petitioner was never excluded at any stage
due to her inability; that the UPSC itself admitted that the scrutiny of
documents uploaded with DAF-I does not happen between the Preliminary
Examination and the Main Examination; that the petitioner was part of the
298 EWS candidates who had qualified the Main Examination; that the
I&AC was scrutinized after the candidates were called for the interview
and at the time of the interview the petitioner had shown the Certificate
for the F.Y. 2019-2020 and 2021-2022 and before allocation of service,
she had also submitted the Certificate for the F.Y. 2020-2021. In view
of that, it is averred that the petitioner should not be excluded since the
delayed submission had, in fact,not affected the Category wise selection
process at any stage.
Contentions:
31. We have considered the averments and the pleadings and heard
the learned counsel for the respective parties at great length.
32. Ms. Preetika Dwivedi, learned counsel for the petitioner (Ms.
Divya), reiterated her case set out in the pleadings and also sought to draw
support from certain judgments of this Court. Shri K. Parameshwar, learned
Counsel, argued for the petitioners in the other two writ petitions. Both the
learned counsel, brought to bear, considerable diligence in their preparation
and presentation of the case.
33. The primary contention of the learned counsel for the petitioners is
that, once their categorization as an EWS was not in dispute, mere inability
to have the Certificate as of 22.02.2022 should not operate to their prejudice.
According to them, the delayed submission did not affect the Category wise
allocation process at any stage and that there was no rationale for insisting
on the Certificate to be dated before the cut-off i.e. 22.02.2022, namely, the
last day for submission of the application for Preliminary Examination. They
DIVYA v. UNION OF INDIA & ORS. 61
[K. V. VISWANATHAN, J.]
relied on Ram Kumar Gijroya vs. Delhi Subordinate Services Selection
Board & Anr. (2016) 4 SCC 754, Karn Singh Yadav vs. Govt. of NCT of
Delhi& Others 2020 SCC OnLine SC 1472 (two-Judges) and 2022 SCC
OnLine SC 1341(three-Judges), Charles K. Skaria& Others vs. Dr. C.
Mathew& Others, (1980) 2 SCC 752, Dolly Chhanda vs. Chairman, JEE
and Others, (2005) 9 SCC 779, Dheerender Singh Paliwal vs. Union Public
Service Commission, (2017) 11 SCC 276, Alok Kumar Singh and Others
vs. State of Uttar Pradesh and Others, (2018) 18 SCC 242 and Deepak
Yadav & Others vs. Union Public Service Commission and Another,
(2021) SCC OnLine SC 709.Additionally, and quite feebly, a contention
was also raised that CSE-Rules 2022 have no statutory flavour and are not
enforceable in law.
34. Ms. Aishwarya Bhati, learned ASG for the Union of India and
Mr. Naresh Kaushik, learned counsel for the Respondent No.3-UPSC,
thoroughly and painstakingly countered the submissions of the petitioners.
According to the learned counsel, the present was a case where there was
a clear prescription in the form of rules. Learned counsel relied on OM
dated 19.01.2019, 31.01.2019 & Rule 13, 27 & 28of the CSE-2022 Rules
to contend that eligibility is acquired as an EWS candidate only after the
candidate meets the criteria issued by the Central Government and is in
possession of the requisite I&AC based on the income for F.Y. 2020-2021;
that under Rule 28, the candidates should be in possession of all the requisite
certificates in the prescribed format in support of their claim by the closing
date of the application viz. 22.02.2022; that for the Main Examination, a
candidate is required to submit DAF-I along with scanned documents in
support within prescribed time for the same; any delay in submission of
the DAF-I or documents in support beyond the prescribed date was not
allowed and would lead to cancellation of the candidature. Learned counsel
distinguished the cases of Charles K. Skaria (Supra), Dolly Chhanda
(supra) and Dheerender Singh Paliwal (supra) by stating that in those
cases the candidates, who were given relief, possessed the eligibility before
the cut-off date and the issue was only about submission of proof. Learned
counsel relied on Ashok Kumar Sharma and Others vs. Chander Shekhar
and Another (1997) 4 SCC 18 and Union Public Service Commission vs.
62 SUPREME COURT REPORTS [2023] 15 S.C.R.
Gaurav Singh & Ors. [C.A. No. 4152 of 2022 decided on 18.05.2022] to
reinforce their submissions and distinguished the case of Deepak Yadav
(supra) as having been confined to its special facts for the extraordinary
COVID year. Learned counsel submitted that Ram Kumar Gijroya (supra)
case was also clearly distinguishable and that the petitioners could not derive
any benefit from it.
35. Learned counsel contend that the petitioners should be estopped
from challenging the validity of the selection process since they have
participated in the selection.
36. Learned counsel contend that the explanation given for not
obtaining the certificate between 01.04.2021 and 21.02.2022 by the writ
petitioner (Divya) in W.P. (C) No. 724 of 2023 is completely untenable.
Learned counsel for the UPSC drew our attention to the fact that the
petitioner had, during the heightened pandemic, obtained certificate for the
year 2019-2020 on 09.10.2020. Learned counsel reiterated his submissions
in the counter affidavit and in the additional affidavit and submitted that the
selection process being over, the cadre being allocated and the personnel
having been deputed for training, to interfere at this stage would result in
administrative chaos.
37. Countering the submission of the petitioners in the other two
petitions, learned Counsel states that the case was squarely covered by
Gaurav Singh (supra) and if each candidate is allowed to come with
clarifications/corrigenda, there will be no end to the selection process
and the sanctity of the rule would completely stand negated. Learned
counsel contended that any selective relaxation would cause enormous
injustice to the non-applicants, who in compliance with the rule would
not have applied for the reason that they did not possess the eligibility
certificate on the last date for submission. To reinforce the submission,
reliance was placed on Ashok Kumar Sharma (supra) and Yogesh Kumar
vs. GNCTD, (2003) 3 SCC 548 wherein it was held that deviation from
the Rules allows entry to ineligible persons and deprives, among others,
who could have competed for the post. So, contending they prayed for
dismissal of the writ petitions.
DIVYA v. UNION OF INDIA & ORS. 63
[K. V. VISWANATHAN, J.]
Questions for Consideration:
38. In the light of the pleadings and the contentions set out above, the
following main questions arise for consideration:
a) What is the eligibility criterion for a candidate to stake a valid claim
under the EWS Category as per the CSE Rules, 2022 read with OM
dated 19.01.2019 and 31.01.2019?
b) Was the UPSC justified in prescribing the cut-off date for possession
and for uploading of the I&AC certificates in the prescribed format to
stake a valid claim under the EWS category, as done in the instant case?
c) Are the CSE-Rules 2022 enforceable in law?
d) Are Rules 13, 27(3) and 28 of the CSE-Rules 2022 constitutionally
valid?
e) Was the UPSC justified in rejecting the claim of the petitioners for
consideration under the EWS category?
Reasons and Conclusion:
Eligibility for EWS Category Candidates for CSE-2022:
39. As is clear from the Office Memoranda issued by the DoPT dated
19.01.2019 & 31.01.2019, the benefit of reservation under EWS category can
be availed only upon possession of I&AC issued by a competent authority.
The OM also makes it clear that crucial date for submission of I&AC by the
candidate may be treated as the closing date of receipt of applications except
where the crucial date is fixed otherwise. Insofar as the EWS candidates
are concerned, Rule 27(3) of the CSE-Rules 2022 is very clear when it
states that a candidate will be eligible to get the benefit of the Economically
Weaker Section reservation only in case the candidate meets the criteria
issued by the Central Government and is in possession of requisite I&AC
based on the income for the F.Y. 2020-2021. Further, Rule 28 states that
a candidate seeking reservation/relaxation benefits available for SC/ST/
OBC/EWS/PwBd/Ex-Servicemen must ensure that they are entitled to such
reservation/relaxation as per eligibility prescribed in the Rules/Notice. The
Rule further states that they should also be in possession of all the requisite
certificates in the prescribed format in support of their claim as stipulated
in the Rules/Notice for such benefits by the closing date of the application
64 SUPREME COURT REPORTS [2023] 15 S.C.R.
for Civil Services (Preliminary) Examination-2022. It is not disputed that
the closing date of the application was 22.02.2022.
40. This takes us to Rule 13 which mentions about the submission
of on-line Detailed Application Form-I (DAF-I) along with scanned
documents/certificates in support of date of birth, category [viz. SC/ST/
OBC/(without OBC Annexure)/EWS(without EWS Annexure)/PwBD/Ex-
Servicemen] and educational qualification with required Examination Fee,
within the prescribed time for the same. Any delay, according to Rule 13,
in submission of the DAF-I or documents in support beyond the prescribed
date was not allowed and will lead to cancellation of the candidature for
the CSE-2022.
41. It is very clear that an EWS candidate acquired eligibility to be
an EWS candidate for the purpose of CSE-2022 only if the candidate met
the criterion prescribed by the Central Government and is in possession of
the requisite I&AC based on the income for the F.Y. 2020-2021. Read with
Rule 28,the candidate should also be in possession of the certificate as on
22.02.2022. So it is beyond cavil that one cannot decide for oneself that
the candidate is an EWS candidate and only on the fulfilment of the criteria
and the issuance of the certificate before 22.02.2022 will the eligibility as
an EWS candidate, enure to the benefit of the candidate for the CSE-2022.
The argument of Shri K. Parameshwar, learned counsel, that being from the
“EWS” category is a status and the I&AC to be produced is only a proof
and as such the I&AC can be produced at any stage cannot be accepted in
the teeth of the clear prescription in the Office Memoranda read with the
CSE-2022 Rules. Further, as required under Rule 13, at the stage of DAF-I
the document had to be submitted on-line before the prescribed date (in
the present case for CSE-2022 the date was 15.07.2022) and that any delay
in submission of DAF-I or document beyond the prescribed date was not
allowed. These clear stipulations run counter to the submissions of learned
counsel that on the rectification of a certificate it relates back to the date of
the certificate.
42. The entire burden of the song of the petitioners is that they were
eligible EWS candidates and that it was only a delay caused in the production
of proof thereof. They repeatedly urge before us the dictum of Krishna Iyer,
J., in Charles K. Skaria (supra),namely:-
DIVYA v. UNION OF INDIA & ORS. 65
[K. V. VISWANATHAN, J.]
“….To confuse between a fact and its proof is blurred perspicacity.
To make mandatory the date of acquiring the additional qualification
before the last date for application makes sense. But if it is unshakeably
shown that the qualification has been acquired before the relevant date,
as is the case here, to invalidate this merit factor because proof, though
indubitable, was adduced a few days later but before the selection or
in a manner not mentioned in the prospectus, but still above-board,
is to make procedure not the handmaid but the mistress and form not
as subservient to substance but as superior to the essence.”
43. In Charles K. Skaria (supra), most candidates possessed the
eligibility viz. the diploma. Only the proof in the form of certificate was
awaited. The authorities had also accepted them as eligible, expressly
informing the selection committee that for eligible candidates even if proof
came later and before the final selection, it should be considered as valid.
This was also equally the situation in Dolly Chhanda (supra), Alok Kumar
Singh (supra) and Dheerender Singh Paliwal(supra) where the factual
position about the eligibility was not in dispute. Those cases and the cases
of that ilk cannot support the petitioners in this case for the purpose of
claiming eligibility in CSE-2022 as an EWS candidate.
44. The meaning of the word “eligible” as defined in P. Ramanatha
Aiyar’s Advanced Law Lexicon is set out hereunder:-
“Applied to the selection of persons, the word has two meanings i.e.
“legally qualified,” or “fit to be chosen.”
Applied to our context, a person can be found eligible as an
economically weaker section candidate and he can be considered as a fit
person to be chosen under that category only if the requirement of the OM
of 31.01.2019 and Rule 27(3) read with Rule 28 are fulfilled. In Gaurav
Singh’s case (supra), it has been categorically held that assets for the
particular Financial Year, prior to the year of submission, goes to the root
of eligibility of the candidate in the EWS category. It has been further held
therein that the candidates whose I&ACs are not in order did not have any
legal right to be considered. It has also been held that no candidate can claim
any legal right for reconsideration of the candidature by submitting a fresh
certificate and/or a rectified certificate.
66 SUPREME COURT REPORTS [2023] 15 S.C.R.
45. That is the fundamental distinction between the Charles J. Skaria
(supra) line of cases and the cases at hand. As pointed out earlier, the
eligibility for being categorized as EWS candidate crystallizes only when
the I&AC is issued and, in this case, as required under the rules, it was to
be issued and possessed by the candidate before 22.02.2022.
46. It is also very well settled that if there are relevant rules which
prescribe the date on which the eligibility should be possessed, those
rules will prevail. In the absence of rules or any other date prescribed in
the prospectus/advertisement for determining the eligibility, there is a
judicial chorus holding that it would be the last date for submission of the
application.
(See Rekha Chaturvedi v. University of Rajasthan [1993 Supp (3)
SCC 168]; Bhupinderpal Singh v. State of Punjab [(2000) 5 SCC 262];
Ashok Kumar Sonkar v. Union of India [(2007) 4 SCC 54].
Legal Status of CSE-2022 Rules:
47. The contention of Ms. Preetika Dwivedi, learned counsel for the
petitioner, that CSE-2022 Rules has no statutory force and hence it cannot
be considered as a mandatorily enforceable rule need not detain the Court
very long.
48. The Union of India has explained the Source of Power for the
CSE Rules. Section 3 of the All India Services Act, 1951 states that
the Central Government, after consultation with the Governments of
the States may make rules for the regulation of recruitment and the
conditions of service of persons appointed to an All India Service. In
exercise of this power, the Central Government has framed the Indian
Administrative Service (Recruitment) Rules, 1954. Rule 7 of the IAS
(Recruitment) Rules, 1954 provides that a competitive examination for
recruitment to the Service shall be held at such intervals as the Central
Government may, in consultation with the Commission, from time to time,
determine and Rule 7(2) states that the examination shall be conducted
by the Commission in accordance with such regulations as the Central
Government may from time to time in consultation with the Commission
and State Governments. In pursuance of Rule 7 of these Rules, Central
Government, in consultation with the State Governments and the UPSC,
DIVYA v. UNION OF INDIA & ORS. 67
[K. V. VISWANATHAN, J.]
has made the Indian Administrative Service (Appointment by Competitive
Examination) Regulations, 1955. Rule 2(c) of the Regulations provides
as under:-
“examination’ means a combined competitive examination consisting
of a preliminary examination and a main examination for recruitment to
the Service held under sub-rule (1) of rule 7 of the Recruitment Rules
and includes a combined competitive examination for recruitment to
the Service and such other Service or Services as may be specified by
the Central Government from time to time;”
49. It will be seen that the “examination” includes a combined
competitive examination for recruitment to the Service and such other
Service or Services as may be specified by the Central Government from
time to time. In Regulation 3, it is provided that the examination shall
be conducted by the Commission in the manner notified by the Central
Government from time to time and Regulation 4 mentions the conditions
of eligibility. These Regulations, having been framed in 1955 and amended
periodically do not mention anything about the EWS Category since EWS
category was notified for the first time only in January, 2019. The CSE
Rules are clearly traceable to Regulation 3 of the 1955 Regulations since
they deal with the manner of the conduct of the examination by the Public
Service Commission read with Article 73 of the Constitution of India
which deals with the executive power of the Union. It is well settled that
the executive power under Article 73 is co-extensive with the legislative
power and that the CSE Rules are traceable to Article 73 as held in Mohan
Kumar Singhania and Others vs. Union of India and Others1992 Supp
(1) SCC 594. The CSE Rules do not in any manner supplant any of the
provisions of the All India Service Act or the IAS Recruitment Rules or the
IAS (Appointment by Competitive Examination) Regulations. They only
supplement them. While the manner of conduct of examinations is clearly
traceable to Regulation 3, it is untenable to say that since Regulation 4 in
the conditions of eligibility does not prescribe EWS category and EWS
certification and hence they do not qualify as part of eligibility. The EWS
category itself came in 2019.If this contention was to be right, then there
could be no EWS category at all in CSE-2022. That is not the scenario
which even the petitioners want to be in.
68 SUPREME COURT REPORTS [2023] 15 S.C.R.
50. Hence, the contention that Rules 13, 27 and 28 of the CSE-
Rules, 2022 cannot be given a status of rules cannot be countenanced.
Additionally, these are rules traceable to the executive power of the Union
which are duly traceable to Article 73. These rules are duly gazetted. These
rules are set out well before the selection process begins and candidates
are put to notice before the commencement of the process. Hence, it is
too late in the day to contend that these rules have no sanctity or the force
of an enforceable law.
Impermissibility of Selective Relaxation:
51. In this case, rules clearly exist in the form of CSE-2022. It has also
been settled that determination of eligibility cannot be left uncertain till the
final stages of selection, since that would lead to uncertainty. [See A.P. Public
Service Commission v. B. Sarat Chandra (1990)2 SCC 669, para 7] Further,
it is well settled that if rules prescribe the last date on which eligibility should
be possessed, any relaxation would prejudice non-applicants who for want
of possession of eligibility would not have applied. Relaxation would then
be selective, leading to discrimination [See Yogesh Kumar (supra)]
52. As is clear from Rule 13, in the present case, by 15.07.2022, the
certificates disclosing eligibility had to be uploaded with DAF-I and it was
expressly stipulated by the rule that delayed submission of the DAF-I or
documents in support will not be allowed.
53. Quite apart from the above, much water has also flown under the
bridge. The UPSC has made the cadre allocations and the EWS candidates
against the 298 vacancies have also been allotted their respective cadres.
Today, it is legally not permissible and administratively not feasible for the
UPSC to unscramble the egg. Accepting the contention of the petitioners
would also result in administrative chaos and will prolong the selection
process indefinitely.
54. The strong reliance placed on Ram Kumar Gijroya case (supra)
also does not impress us. Not only was there no rule, like we have in the
present case, it was only while declaring the result, the requirement of
submitting the OBC certificate before the cut-off date was introduced by
the Selection Authority there. Moreover, unlike the present, there was no
contention or issue raised in that case that eligibility enures or crystallizes
DIVYA v. UNION OF INDIA & ORS. 69
[K. V. VISWANATHAN, J.]
only on the issuance of the certificate and on possession of the certificate,
before the prescribed cut-off date.
55. The judgment in Ram Kumar Gijroyacase (supra) is also directlyin
conflict with the judgment of three Hon’ble Judges in Ashok Kumar Sharma
and Others vs. Chander Shekhar and Another (1997) 4 SCC 18 wherein
in para 6, it was held as under:-
“… So far as the first issue referred to in our Order dated 1-9-
1995 is concerned, we are of the respectful opinion that majority
judgment (rendered by Dr.T.K. Thommen and V. Ramaswami, JJ.)
is unsustainable in law. The proposition that where applications are
called for prescribing a particular date as the last date for filing the
applications, the eligibility of the candidates shall have to be judged
with reference to that date and that date alone is a well-established
one. A person who acquires the prescribed qualification subsequent
to such prescribed date, cannot be considered at all. An advertisement
or notification issued/published calling for applications constitutes a
representation to the public and the authority issuing it is bound by
such representation. It cannot act contrary to it. One reason behind
this proposition is that if it were known that persons who obtained the
qualifications after the prescribed date but before the date of interview
would be allowed to appear for the interview, other similarly placed
persons could also have applied. Just because some of the persons
had applied notwithstanding that they had not acquired the prescribed
qualifications by the prescribed date, they could not have been treated
on a preferential basis…..”
56. Apart from all of this, the correctness of Ram Kumar Gijroyacase
(supra) was referred to a three-Judge Bench in the case of Karn Singh Yadav
(two-Judges). A perusal of para six of the referral order clearly shows that
the Bench was echoing the ratio of the three-judge Bench in Ashok Kumar
Sharma’s case (supra) though there is no express reference to the said case.
However, when the matter came before a three-Judge Bench, the reference
was not answered and even after noticing that Ram Kumar Gijroya case
(supra) covered the case of Karn Singh Yadav (two-Judges), the Court,
however, denied relief to Karn Singh Yadav, the petitioner by holding that
since the appellant was never appointed to the post at that length of time it
70 SUPREME COURT REPORTS [2023] 15 S.C.R.
was not possible to grant any relief to the appellant. Ram Kumar Gijorya
(supra) is clearly distinguishable.
57. Be that as it may, we are bound by the judgment of the three-Judge
Bench in Ashok Kumar Sharma (supra) and we follow the said judgment
and reiterate the principle laid down thereon. It is also interesting to note
that even in Deepak Yadav (supra), a judgment, strongly relied upon by the
learned counsel for the petitioners, the principle in Ashok Kumar Sharma
(supra) has been reiterated. However, because of what the Court called an
abnormal and cataclysmal year, an exception was made due to the ongoing
pandemic, lockdown and restrictions imposed thereof. In Alok Kumar
Singh (supra), no rules like the ones present in this case are shown to have
existed. In the present case, there are clear prescriptions as to eligibility, as
has been discussed herein above.
58. In Gaurav Singh’scase (supra), this Court has held as under:-
“A technical irregularity in a certificate issued by the competent
authority in respect of the correct financial year cannot be equated with
an Income and Asset Certificate in respect of a different financial year
when the Income and Assets for the particular financial year prior to
the year of submission of the application, goes to the root of eligibility
of a candidate to qualify in the EWS category.
The Respondent-Writ Petitioners were well aware that they had
to furnish Income and Asset Certificates issued by the Competent
Authority for the financial year prior to the year of application. If
the applications were made pursuant to a notification published
on 24thApril 2019 with 20thMay 2019 notified as the last date for
submission of the applications, the financial year prior to the year
of submission of application could not possibly be the financial year
2019-2020, to which the Certificates related. The observation in the
impugned judgment and order of the High Court of the expediency of
specifying the financial year in the notification for recruitment is in the
nature of an advisory, which may be kept in mind when recruitment
notifications are issued by the Appellant in future. The Respondent
writ petitioner Nos. 2 and 4, in whose Income and Asset certificates
were not in order, did not have any legal right to be considered EWS
candidates.
DIVYA v. UNION OF INDIA & ORS. 71
[K. V. VISWANATHAN, J.]
The Respondent-Writ Petitioners were required to submit
Certificates for the relevant financial year. The negligence of the
Respondent-Writ Petitioners in not checking if the Certificate related to
the correct financial year, cannot be lightly brushed aside as inadvertent
lapses of the certifying authority. A candidate applying for a post
pursuant to an advertisement, can not afford to be negligent. Documents
required to be submitted have to be carefully checked by the candidate
concerned before submission. An appointing authority proceeds on the
basis of what is stated in a certificate. When a certificate pertains to a
different financial year, the same is liable to be outright rejected. No
candidate can, in such case, claim any legal right to reconsideration
of his/her candidature by submission of a fresh certificate and/or
rectified certificate.
…. … ….
In the case of Respondent-Writ Petitioner No.3, the Income and
Asset certificate, which had initially been questioned as having been
issued by an authority not competent, was later accepted as it was found
that the authority issuing the certificate was in fact competent. The
certificate of the Respondent-Writ Petitioner No.1 was also accepted
as there was no discrepancy in either the date of issuance or the year.
It was just that the seal had been stamped without the full name of the
officer concerned and that was accepted as an error not attributable to
the candidate concerned.”
(Emphasis is ours)
59. The attempt by Ms. Preetika Dwivedi and Shri K. Parameshwar,
learned counsels for the petitioners to get over Gaurav Singh’s case (supra)
by relying on the case of Deepak Yadav (supra) does not also impress us.
Deepak Yadav case (supra) pertained to the Civil Services Examination
for 2020. It was during the middle of the peak pandemic in 2020. In that
scenario, the Court observed as follows:-
“7.Indeed, the last part of Note I of clause 7 clearly provides that
proof of passing the requisite examination should be dated earlier
than the due date (closing date) of Detailed Application Form-I of the
Civil Services (Main) Examination. There is nothing wrong in UPSC
72 SUPREME COURT REPORTS [2023] 15 S.C.R.
strictly adhering to this stipulation, being in the nature of an eligibility
criterion. The respondents are justified and right in urging that this
stipulation is inviolable as expounded in Ashok Kumar Sharma &
Ors. vs. Chander Shekhar & Anr., (1997) 4 SCC 18 and subsequent
decisions of this Court which need not be multiplied.
8.At the same time, it cannot, however, be denied that 2020 was
an abnormal and cataclysmal year due to the ongoing pandemic,
lockdowns and restrictions. UPSC had to postpone their examination
like all other Universities/Boards. The results of the qualifying
examination in the case of petitioners, thus, got delayed. This was
entirely beyond control of the petitioners who were certainly eligible on
the date they appeared in the preliminary examination and had qualified
for the main examination, in which they had appeared. Admittedly,
the petitioners had attained the qualifying eligibility criteria before
the main examination was conducted by UPSC in January, 2021 (i.e.,
between 08.01.2021 and 17.01.2021).
… …. ….
12.Accordingly, we issue direction to UPSC to permit the 5 candidates,
as a special case, to participate in the personality test/interview in the
respective categories in which they have qualified. The addition of
these 5 candidates would not be to the disadvantage of any already
empanelled candidate in the published list for personality test/interview
in the respective branches/categories. We also clarify that this order
should not be treated as a precedent.”
60. This exceptional situation cannot be made a rule. In this case, the
petitioner (Ms. Divya) had an opportunity to obtain I&AC from 01.04.2021
till 21.02.2022. In fact, admittedly she obtained her EWS certificate for the
F.Y. 2019-2020 on 09.10.2020 and obtained her I&AC for F.Y. 2021-2022
on 13.12.2022 but obtained her I&AC 2020-2021 only on 01.06.2023. If she
was in a position to obtain a certificate for F.Y. 2019-2020 on 09.10.2020
when the country was still reeling under a heightened pandemic, there is
no reason why she could not have obtained her I&AC for the F.Y. 2021-
2022 on any of the days between 01.04.2021 and 21.02.2022. We are not
DIVYA v. UNION OF INDIA & ORS. 73
[K. V. VISWANATHAN, J.]
satisfied with the explanation adduced by the petitioner. Hence her claim
challenging the e-mail cancelling the candidature under the EWS category
is also rejected.
Validity of CSE-2022 Rules – Validity of the Cut-off date:
61. The challenge made in the writ petition to declare Rules 13, 27(3)
and 28 to the extent it prescribes that candidate must be in possession of
a EWS certificate as on the closing date of the application for preliminary
examination to be ultra vires Article 14 is only to be stated to be rejected.
There is no case made out to show that the cut-off of 22.02.2022 was picked
out of the hat. That was the last date for submission of the application and,
according to us, it was a validly prescribed cut-off. In fact, the law laid down
by this Court as discussed herein above is, where there is absence of any
rule or absence of any prescription, the last day for fulfilling the eligibility is
the last date of submission of the application. This is a judicially recognized
default date. In this case the last date for filing of the application has been
prescribed as the cut-off in the Rules and we see absolutely no case for
violation of Article 14.
62. In view of the above, we are not examining the other argument
raised by Mr. Kaushik that the petitioners should be estopped from
challenging since they have participated in the selection.
Writ Petition (C) Nos. 705 of 2023 and 764 of 2023:
63. In these two Writ Petitions, the legal question involved is identical,
except that the factual scenario in which they arise is slightly different from
that in Writ Petition (C) No. 724 of 2023.
W.P. (C) No. 705/2023:
64. The petitioners call in question the communication dated
24.05.2023 issued by the UPSC to Petitioner No.1 - Vimlok Tiwari and
Petitioner No.2 Ashwani Dubey and communication dated 30.05.2023 issued
to Petitioner No.3 - Kuber Suraj Laxman. By the said communications,
the UPSC converted the consideration of their candidature to the “General
Category” since, according to the UPSC, the I&AC uploaded with their
DAF-I mentions the Financial Year wrongly as 2021-2022 instead of
2020-2021. In the communication dated 30.05.2023 issued to Kuber Suraj
74 SUPREME COURT REPORTS [2023] 15 S.C.R.
Laxman, it was mentioned that he had submitted the eligibility Certificate
for EWS instead of I&AC. Each of these candidates have their own
explanation.Petitioner No.1 Vimlok Tiwari states that, on 30.01.2023, a
communication was received from the UPSC stating that discrepancy was
found in the DAF-I submitted,inasmuch as the designation, stamp, seal
of the issuing authority and F.Y. 2020-2021 has not been mentioned in
the EWS Certificate submitted by him. He was requested to makeup the
deficiencies and to submit the original EWS Certificate with designation,
stamp and seal of the issuing authority with the mention of the F.Y. 2020-
2021, be produced on the date of the Personality Test. According to the
petitioner, he obtained the clarification dated 31.03.2023 from the authority
which issued the I&AC correcting the Financial Year to 2020-2021 and
by a letter of 05.04.2023 submitted the clarification. The Personality Test
had already been held on 15.02.2023. He also submits that the designation,
stamp, seal of the issuing authority was already available in the Certificate
originally produced.
65. Insofar as Petition No.2 – Ashwani Dubey is concerned, according
to the petitioner, he was in possession of the I&AC dated 25.01.2022 which
mentioned the Financial Year as 2021-2022. He received an intimation dated
10.01.2023 advising him to makeup the deficiencies and was requested to
produce original EWS Certificate for the F.Y. 2020-2021 in the prescribed
format issued on or before the cut-off date i.e.22.02.2022, on the date of
the Personality Test. According to the petitioner, he obtained the Certificate
from Tehsildar Dindhori dated 16.01.2023 certifying that the Financial
Year mentioned as 2021-2022 was a mistake and it should be read as 2020-
2021 in the Certificate dated 25.01.2022. He submitted the clarification on
09.02.2023 when the Personality Test was held.
66. Insofar as Petitioner No. 3 – Kuber Suraj Laxman is concerned, he
was already in possession of Certificate dated 11.10.2021 in the prescribed
format found but he had uploaded the Certificate on the same day for F.Y.
2021-2022 by mistake. He submits that on the day of the Personality Test
dated 17.04.2023, he had furnished the I&AC dated 11.10.2021 for the
year 2020-2021.
67. The petitioner asserts that this is the Certificate for the F.Y. 2020-
2021, while the UPSC in their counter affidavit assert that the F.Y. 2020-
DIVYA v. UNION OF INDIA & ORS. 75
[K. V. VISWANATHAN, J.]
2021 is inserted. Considering what we have held on the interpretation of
the Rule, these facts need not detain us any further. In any case, the Court
is not to be drawn into, to investigate these factual disputes.
W.P. (C) No. 764/2023:
68. Insofar as the Petitioner No.1 - Ved Prakash Singh is concerned,
his candidature was cancelled on the ground that the Financial Year in the
I&AC was wrongly mentioned as 2021. He did not qualify under the General
Category too. In the DAF-I, the candidate had uploaded a Certificate dated
19.03.2021 valid for the year 2021. By a communication of 23.01.2023,
the UPSC informed him to makeup the deficiencies and the candidate
was advised to produce original EWS Certificate in the prescribed format
(issued by the competent authority on or before 22.02.2022) along with
all certified copies of documents uploaded with DAF-I. According to the
Petitioner No.1 - Ved Prakash Singh, he produced I&AC dated 19.02.2022
on the date of the Personality Test dated 22.03.2023.The UPSC has rejected
the Certificate and converted his case to that of General Category. Also, on
the date of the Personality Test, the Certificate was returned citing that the
designation of the issuing authority was not mentioned. An undertaking
was obtained that he was being interviewed provisionally at his own risk.
He submits that he thereafter produced his Certificate with the designation
mentioned on 05.04.2023.
69. With regard to Petitioner No.2 - Mohd. Qasim is concerned, his
candidature was cancelled as he had not qualified under the General Category
also. By a communication dated 24.05.2023, his candidature was cancelled
as his I&AC was for the F.Y. 2021-2022. According to the petitioner, he
was advised to makeup the deficiencies on the date of the Personality Test.
According to the petitioner, he produced a clarification dated 21.02.2023
stating that in the Certificate dated 17.12.2021, the Financial Year should
be read as 2020-2021 instead of 2021-2022. He says he submitted his
Certificate on 21.03.2023.
70. Insofar as Petitioner No.3 - Agnivesh Mishra is concerned, his
candidature was also cancelled as in the I&AC, the Financial Year mentioned
is 2019-2020. According to him, he was asked to produce the Certificate on
the date of the Personality Test and he states that he produced the Certificate
of 10.07.2021 for the year 2020-2021. He had in the DAF-I uploaded the
76 SUPREME COURT REPORTS [2023] 15 S.C.R.
Certificate dated 18.11.2020 which in the body mentioned the Financial Year
as 2019-2020 though in the heading it mentioned valid for the year 2020-
2021. The Certificate of 10.07.2021 produced on the date of the Personality
Test was not accepted.
71. Insofar as Petitioner No. 4 - Priyanshu Raj is concerned, his
candidature was also cancelled by ane-mail of 24.05.2023 since the F.Y.
mentioned was 2019-2020. In the DAF he had uploaded the Certificate dated
19.10.2020 which in the heading mentioned that it was valid for the year
2020-2021 but in the body it was mentioned F.Y. 2019-2020. According to
the petitioner, he was asked to makeup the deficiencies on the date of the
Personality Test. He says that a Certificate of 16.10.2021 for 2020-2021
was submitted on the date of the Personality Test. However, the same was
not considered by the UPSC.
72. Insofar as Petitioner No.5 - Kumari Ritika Tiwari is concerned,her
candidature was rejected by an e-mail of 24.05.2023 since F.Y. mentioned
was 2019-2020 in the form uploaded in the DAF-I. According to the
petitioner, she was informed that her candidature was kept provisional by a
mail of 01.05.2023. She claims that on 04.07.2023, she produced the I&AC
dated 24.02.2021 for the F.Y. 2020-2021.
73. Insofar as Petitioner No.6 - Shivam Agrawal is concerned, by
a communication of 31.05.2023, his candidature was cancelled as in the
I&AC uploaded in DAF-I, the F.Y. mentioned was 2021-2022. According
to the petitioner, by a communication of 07.02.2023, he was informed that
his candidature is kept provisional/conditional because of non-production
of original B.Ed. Certificate. He states that on his own, he obtained a
clarification of 02.06.2023 from the competent authority which issued the
I&AC and the mistake was corrected from 2021-2022 to 2020-2021 and
he submitted the same on 07.06.2023. However, the rectification has not
been considered.
Interference with the decision of the Selecting Body – When
permissible?
74. Could we fault this exercise of the UPSC in rejecting their
candidature under the EWS Category, is the question that arises for
consideration? We are constrained to conclude that we cannot fault the
DIVYA v. UNION OF INDIA & ORS. 77
[K. V. VISWANATHAN, J.]
method adopted by the UPSC. This is for the reason that the UPSC has
strictly acted in accordance with the mandate of Rule 13 read with Rule
27 & 28. They had an obligation to scrutinize the forms as uploaded with
DAF-I. Rules 13, 27 & 28 of the CSE-Rules 2022 are to be read with the
Office Memoranda of 19.01.2019 &31.01.2019 especially clause 5 of the
Office Memorandum of 31.01.2019. The examining body has not considered
the defects as insignificant. If this is so, then we have no option but to reject
the writ petitions of all the petitioners.
75. In our view, the case of the petitioners in Writ Petition (C) Nos.
705 and 764 fails additionally, for being directly covered by the judgment
in Gaurav Singh’scase (supra).
76. In T. Jayakumar vs. A. Gopu and Another, (2008) 9 SCC 403,
it has been held that the defect in the application form which renders the
candidate ineligible even if overlooked in the initial screening and even if
the candidate is called for the interview, does not dis-entitle the examining
body to hold the candidate ineligible for selection at a later stage, once the
defect in the application comes to light.
77. Shri K. Parameshwar, learned counsel, who appeared for
the petitioners in W.P. (C) Nos. 705 and 764 has submitted that the
communications by the UPSC asking them to make up the deficiencies
and to produce the certificate on the date of the Personality Test should
be treated as waiver of the rules. He submitted that the communications
are a clear indicia to construe Rules 13, 27 & 28 as directory. We are not
impressed with the submission. The communications do not guarantee the
petitioners’ that their candidature would be accepted as valid. In any event,
these communications cannot be understood de hors the rules.
78. The rules clearly mandate and as has been held in the case of
Gaurav Singh (supra), any mistake/omission/ negligence cannot be
condoned so as to extend the deadline for production of the documents.
Neither the Office Memorandum nor the rules in question can be construed
as directory. They prescribe clearly the eligibility criterion and the date
before which the certificate should be possessed and the date before which
the certificate should be submitted. They also prescribe the consequence
for the omission. As the old ditty goes for a want of a horseshoe nail,
kingdoms have been lost. Here we are dealing with crucial documents
78 SUPREME COURT REPORTS [2023] 15 S.C.R.
determining eligibility. The petitioners who did not possess the valid
documentation determining their eligibility, before the prescribed cut-
off date, cannot complain, if their claim for categorization as EWS was
rejected.
79. Shri K. Parmeshwar, learned counsel, argued that with regard
to four other candidates there has been relaxation inasmuch as they were
allowed to rectify the defects in the EWS and I&AC. We asked the UPSC
to respond and the response is extracted herein below :-
Sl. Roll No. Name Remarks
No.
Rank
Allocated
service
under EWS
1. 5409703 Ayush Gupta Minor omission in I&AC w.r.t. stamp on the
photo of the candidate. The candidate was
180, IAS
kept provision a land the DoP&T cleared his
candidature after the omission was made up.
2. 866859 Anunay The I&AC was issued digitally. Subsequently,
Anand the candidate submitted the same physically
signed with the stamp of the issuing authority
185, IAS
hence the candidature was cleared.
3. 834939 Sonam Her I&AC was signed by the Naib Tehsildar and
issued by the Sewa Kendra of the DC office, who
237, IAS
is the superior authority.
4. 807485 Deshmukh Minor error in the name of the father of
Rrajshree the candidate in the I&AC which indicated
Shantaram, complete name including surname which was
719, IRMS not mentioned in the DAF-I.
Subsequently, the candidate submitted an
affidavit clarifying the mistake and the
candidature was cleared.
80. It will be noticed that UPSC has considered these omissions as
trivial and as not going to the root of the eligibility, unlike in the case of the
petitioners herein. In Ajay Kumar Mishra vs. Union of India [2016] SCC
OnLine Del 6563, Indira Banerjee, J. (as Her Ladyship then was) speaking
DIVYA v. UNION OF INDIA & ORS. 79
[K. V. VISWANATHAN, J.]
for the Division Bench of the Delhi High Court felicitously put the issue
about the examining body’s right to decide as to which errors are material
and which are inessential and trivial. We do nothing more except to extract
paras 6, 7 & 9 from the said judgment :-
“6. There can be no doubt that a candidate applying for a government
job, or for that matter, any job should fill in the application form
carefully. No candidate can claim any vested right to rectification
of arrears in an application. Union Public Service Commission and
the State Public Service Commissions deal with lacs of applications,
which are received pursuant to an advertisement. Such applications
are required to be processed within a short time. A candidate, who
is not short-listed and/or not allowed to participate in the selection
process by reason of his own laches in making careless mistakes,
cannot claim any right to be allowed to participate in the selection
process.
7. It is for the body conducting the selection process to decide whether
mistakes should be allowed to be rectified, if so, whether they should
be rectified within any specific time and what are the mistakes which
can be allowed to be rectified and other similar questions. However, in
view of the mandate of Articles 14 to 16 of the Constitution of India,
there should be no discrimination or arbitrariness in deciding these
questions. All candidates applying for the particular post/posts should
be treated equally.
9. It is true that whenever any material discrepancy is noticed in
the application form and/or when any suppression and/ or mis-
representation is detected, the candidature might be cancelled even
after the application has been processed and the candidate has been
allowed to participate in the selection process. However, after a
candidate has participated in the selection process and cleared all the
stages successfully,his candidature can only be cancelled, after careful
scrutiny of the gravity of the lapse, and not for trivial omissions or
errors.”
81. In Gaurav Singh’s case (supra) also the distinction between a
defect that is material and not material and the right of the examining body
80 SUPREME COURT REPORTS [2023] 15 S.C.R.
to condone has been noticed. We hold that the UPSC was justified, in the
case of the petitioners, in denying the benefit of categorization as EWS
candidates.
82. Shri K. Parameshwar, learned Counsel, made a valiant attempt by
drawing support from the letter of the UPSC dated 12.05.2023 by which
the original EWS Certificate dated 19.02.2022 submitted by email dated
06.04.2023 by the petitioner Ved Prakash Singh was returned. The UPSC has,
in their response, clarified that as a practice original documents submitted
after the Personality Test are returned, after scrutiny and a standard format
letter is used for the same. They have also stated that since the Certificate
produced by the candidate was not as per Rules and conditions in the
advertisement, the same was returned and not accepted. In view of this, we
find no merit in that submission too.
83. In view of all of the above, the argument of Shri K. Parameshwar,
learned counsel, that there was a past practice treating Rule13 as directory
has no merit.
84. Ms. Preetika Dwivedi, learned Counsel, made an alternative
submission. Her plea was that in the event of the Court upholding the rule
and the action of the UPSC, the Court should exercise its power under Article
142 of the Constitution of India. Her plea was that to do complete justice,
her client should be treated as an EWS category Candidate.
85. We refuse to grant the petitioners refuge under Article 142. In
this case, by the rightful application of the OM and the CSE-Rules 2022,
complete justice has been done to all. Article 142 is, no doubt, a useful
weapon in the armoury of the Court. However, its exercise should be done
with great caution and circumspection. We do not find the present case as
one, warranting the invocation of that power.
Conclusion:
86. Based on the above discussion, our conclusions are as under :-
i) The candidates claiming benefit of EWS Category for the
purpose of CSE-2022, acquire eligibility only if they meet the
criterion prescribed by the Central Government in the O.M.
DIVYA v. UNION OF INDIA & ORS. 81
[K. V. VISWANATHAN, J.]
dated 19.01.2019 and 31.01.2019 and are in possession of the
required Income and Asset Certificate (I&AC), based on the
income for the year 2020-21. Further, as required under Rule
28 of the CSE Rules, 2022 read with the O.M. of 19.01.2019
and 31.01.2019 the candidate should have been in possession
of the Income and Asset Certificate (I&AC) as on 22.02.2022.
Any candidate not in possession of the I&AC in the prescribed
format as mentioned herein above cannot claim the benefit of
EWS Category. Equally, as required under Rule 13 of the CSE
Rules, 2022 at the stage of DAF-I, the document in possession
as on 22.02.2022 in the prescribed format, had to be submitted
online before the prescribed date. The UPSC was justified in
rejecting the candidature of those candidates claiming benefit
under the EWS Category if they had submitted their I&AC
beyond the stipulated deadline. This conclusion has to be read
with the reasoning in the judgment, particularly in paragraphs
39, 40 and 41 under the heading “Eligibility for EWS category
candidates for CSE-2022”.
ii) As a sequel to conclusion (i) above, we record that the UPSC
was justified in prescribing the cut-off date for possession and
for uploading of the I&AC in the prescribed format for claimants
claiming benefits under the EWS Category. This flows from the
O.M. dated 19.01.2019& 31.01.2019 read with Rules 13, 27(3)
and 28 of the CSE-Rules, 2022 and the long line of judgments
in which principles for prescription of cut-off for eligibility are
laid down.
iii) For the reasons set out in paragraphs 47 to 50 herein above under
the sub-heading “Legal Statusof CSE-2022 Rules”, we hold
that the CSE-2022 Rules have the force of an enforceable law.
They are traceable to the All India Services Act, 1951 read with
the Indian Administrative Service (Recruitment) Rules, 1954
read with the Indian Administrative Service (Appointment by
Competitive Examination) Regulations, 1955 and all this read
with Article 73 of the Constitution of India.
82 SUPREME COURT REPORTS [2023] 15 S.C.R.
iv) Rules 13, 27(3) and 28 of the CSE-Rules, 2022 are constitutionally
valid for the reasons set out in para 61 herein above under the
sub-heading “Validity of CSE-Rules, 2022 - Validity of the cut-
off date”.
v) The UPSC was justified in rejecting the claim of the petitioners,
for consideration under the EWS Category inCSE-2022.
87. For the reasons stated above, all the writ petitions are dismissed.
No order as to costs.
Headnotes prepared by: Writ Petitions dismissed.
Divya Pandey
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