SUPREME COURT OF INDIA
Dolly Chhanda
Vs.
Chairman, Joint Entrance Examination
C.A.No.6506 of 2004
(R. C. Lahoti CJI. and G. P. Mathur JJ.)
05.10.2004
G. P. Mathur, J.
1. Leave granted.
2. This appeal, by special leave, has been preferred against the judgment and
order dated 31.10.2003 of High Court of Orissa by which the writ petition filed
by the appellant for issuing a direction to the respondents to admit her in
MBBS course was summarily dismissed.
3. The appellant passed 10+2 (Science) Examination conducted by the Council of
Higher Secondary Education, Orissa, in First Class. As she was desirous of
joining a medical course, she appeared in the Joint Entrance Examination, 2003
(for short 'JEE-2003') under the reserved MI category being daughter of an
ex-serviceman NK Manoranjan Chhanda who was discharged from armed forces on the
ground of permanent disability. Under Clause 2.1.4 of Information Brochure of
JEE-2003 certain percentage of seats are reserved for children/widows of
personnel of armed/paramilitary forces of Orissa, killed/disabled in action
during war or peace time operation. Her rank in the JEE-2003 in the reserved MI
category in the medical stream was 20 and accordingly she was called for
counseling for admission to a medical college on 7.7.2003. During the course of
scrutiny of papers it was revealed that in the certificate dated 29.6.2003
given to her father by the Zilla Sainik Board in Column No.3 which pertained to
"Disabled/killed in war/hostilities" the words "not
eligible" were written. Since the aforesaid certificate did not satisfy
the requirement of the reserved MI category, her candidature was rejected.
“The candidates who had secured ranks at 24 and 26 in the aforesaid category
were given admission. She produced the disability certificate which was issued
to her father by the army authorities, but in view of requirement of Clause
2.1.4 of the Information Brochure the same was not accepted. The appellant's
father then requested the Zilla Sainik Board, Sambalpur to rectify the mistake,
which issued a fresh certificate on 16.7.2003 which mentioned "Permanently
Disabled" in Column No.3.
The appellant then again approached respondent no.1 with the aforesaid correct
certificate, but no action was taken. On coming to know that another round of
counseling had been fixed for 29.10.2003 on account of increase in seat, the
appellant went to the concerned centre and requested for being given admission
on the basis of the fresh certificate issued by the Zilla Sainik Board, which
certified that her father had been discharged from armed forces on the ground
of permanent disability.
The candidates who had secured rank from 27 to 30 in the MI category were
called for counseling, but the appellant's candidature was not considered. The
case of the appellant thus is that it was the Zilla Sainik Board which had
committed the mistake in not issuing a correct certificate and the said mistake
having been was rectified in the second certificate issued on 16.7.2003, she
was entitled for admission in a medical college as candidates securing lower
ranks had already been admitted.
4. The writ petition filed by the appellant was dismissed by the High Court on the ground that at the time of the counseling on 7.7.2003 the certificate furnished by the appellant did not bear any testimony that her father being a personnel of armed/paramilitary forces of Orissa had been disabled in action and consequently in terms of Clause 2.1.4 of the Information Brochure her claim that she belong to the reserved MI category had not been established.
5. In the counter affidavit filed on behalf of the respondents, it is admitted
that the appellant had secured rank at serial no.20 in the medical stream in
the JEE-2003 in the reserved MI category. The stand taken is that as in the
certificate produced by the appellant at the time of counseling on 7.7.2003, it
was not mentioned that her father was a disabled personnel of the
armed/paramilitary forces, her candidature was rejected. It is further pleaded
that since her candidature was rejected due to her ineligibility, she was not
allowed to appear in the second counseling. The fact that candidates who have
secured ranks lower than the appellant in the reserved MI category have been
given admission is not disputed.
6. The appellant has filed a copy of the certificate dated 3.10.2001 issued by
Signal Abhilekh Karyalaya, Signals Records, Post Bag No.5, Jabalpur (M.P.),
which certifies that Ex-NK Manoranjan Chhanda resident of VPO Larambha,
District Sambalpur (Orissa) is suffering from permanent disability. The
certificate produced by the appellant on 7.7.2003 was issued by Zilla Sainik
Board on 28.6.2003 and in this certificate a mistake had crept in, namely, in
Column No.3 pertaining to "Disabled/killed in war/hostilities", the
words "not eligible" were written. This mistake was rectified in the
second certificate issued by the Zilla Sainik Board on 16.7.2003 where in
Column No.3 the words "Permanently disabled" were written. The
factual position, viz., that the appellant's father Manoranjan Chhanda was
discharged from army on account of permanent disability is not at all disputed
by the respondents. Similarly, the correctness of the second certificate issued
by the Zilla Sainik Board, Sambalpur, wherein it was mentioned that Ex-NK
Manoranjan Chhanda had suffered permanent disability is also not disputed. The
only ground on which the appellant's candidature was rejected is that at the
time of the counseling on 7.7.2003 she failed to produce the certificate to
show that she belongs to a reserved category.
7. The general rule is that while applying for any course of study or a post, a
person must possess the eligibility qualification on the last date fixed for
such purpose either in the admission brochure or in application form, as the
case may be, unless there is an express provision to the contrary. There can be
no relaxation in this regard i.e. in the matter of holding the requisite
eligibility qualification by the date fixed. This has to be established by
producing the necessary certificates, degrees or mark sheets. Similarly, in
order to avail of the benefit of reservation or weightage etc. necessary
certificates have to be produced. These are documents in the nature of proof of
holding of particular qualification or percentage of marks secured or
entitlement for benefit of reservation. Depending upon the facts of a case, there
can be some relaxation in the matter of submission of proof and it will not be
proper to apply any rigid principle as it pertains in the domain of procedure.
Every infraction of the rule relating to submission of proof need not
necessarily result in rejection of candidature.
8. This principle was explained and applied in Charles K. Skaria & Ors. v.
Dr. C. Mathew & Ors. . The controversy here related to admission to a
post graduate course in medicine. The relevant rule provided for addition of
10% marks if a candidate possessed a diploma in the relevant subject or
sub-specialty and this benefit could be given only if the candidate's success
in the diploma course was brought to the knowledge of the Selection Committee
before completion of selection in an authentic or acceptable manner. The
Prospectus provided that the attested copies of statement of marks and other
documents should be attached with every application. Three such candidates were
given admission who had not attached the certificate of having passed the
diploma along with their applications. Their admission to post graduate course
was set aside by the High Court on the ground that their applications, wherein
they claimed the benefit of diploma, were liable to be rejected as the
requisite certificates had not been attached. This Court speaking through
Krishna Iyer, J. reversed the judgment of the High Court and held that the
admission to the candidates had rightly been given as they had in fact passed
the diploma before the date fixed. The relevant parts of paras 20 and 24 of the
judgment, where this principle was highlighted are being reproduced below:
"20. There is nothing unreasonable or arbitrary in adding 10 marks for
holders of a diploma. But to earn these extra 10 marks, the diploma must be
obtained at least on or before the last date for application, not later. Proof
of having obtained a diploma is different from the factum of having got it. Has
the candidate, in fact, secured a diploma before the final date of application
for admission to the degree course ? That is the primary question. It is
prudent to produce evidence of the diploma along with the application, but that
is secondary. Relaxation of the date on the first is illegal, not so on the
second. Academic excellence, through a diploma for which extra mark is granted,
cannot be denuded because proof is produced only later, yet before the date of
actual selection.
The emphasis is on the diploma; the proof thereof sub serves the factum of
possession of the diploma and is not an independent factor.
Mode of proof is geared to the goal of the qualification in question. It is subversive
of sound interpretation and realistic decoding of the prescription to telescope
the two and make both mandatory in point of time. What is essential is the
possession of a diploma before the given date; what is ancillary is the safe
mode of proof of the qualification. 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
unshakably 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.
24. It is notorious that this formalistic, ritualistic, approach is unrealistic
and is unwittingly traumatic, unjust and subversive of the purpose of the
exercise. This way of viewing problems dehumanizes the administrative, judicial
and even legislative processes in the wider perspective of law for man and not
man for law. Much of hardship and harassment in administration flows from
over-emphasis on the external rather than the essential. We think the
government and the selection committee rightly treated as directory (not
mandatory) the mode of proving the holding of diplomas and as mandatory the
actual possession of the diploma. In actual life, we know how exasperatingly
dilatory it is to get copies of degrees, decrees and deeds, not to speak of
other authenticated documents like mark-lists from universities, why, even bail
orders from courts and government orders from public offices"
9. The appellant undoubtedly belonged to reserved MI category. She comes from a
very humble background, her father was only a Naik in the armed forces. He may
not have noticed the mistake which had been committed by the Zilla Sainik Board
while issuing the first certificate dated 29.6.2003. But it does not mean that
the appellant should be denied her due when she produced a correct certificate
at the stage of second counseling. Those who secured rank lower than the
appellant have already been admitted. The view taken by the authorities in
denying admission to the appellant is wholly unjust and illegal.
10. The appellant had qualified in the JEE-2003 but the said academic year is
already over. But for this situation the fault lies with the respondents, who
adopted a highly technical and rigid attitude and not with the appellant. We
are, therefore, of the opinion that the appellant should be given admission in
MBBS course in any of the State medical colleges in the current academic year.
11. The appeal is accordingly allowed with costs. The judgment and order dated
31.10.2003 of the High Court is set aside. The respondents are directed to give
admission to the appellant in any one of the State medical colleges forthwith.
In case the State seats have already been filled up, one extra seat shall be
created for her.