05 October 2004
Supreme Court
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DOLLY CHHANDA Vs CHAIRMAN, JEE .

Bench: CJI R.C. LAHOTI,G. P. MATHUR,P. P. NAOLEKAR
Case number: C.A. No.-006506-006506 / 2004
Diary number: 23331 / 2003


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CASE NO.: Appeal (civil)  6506 of 2004

PETITIONER: Dolly Chhanda

RESPONDENT: Chairman, JEE & Ors.

DATE OF JUDGMENT: 05/10/2004

BENCH: CJI R.C. LAHOTI, G. P. MATHUR & P. P. NAOLEKAR

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(Civil) No.21153/2003)

G. P. MATHUR

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 \026 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  counselling 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 counselling 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  counselling, but the appellant’s candidature was not considered.   The case

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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 counselling 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  counselling 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  counselling.  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  counselling 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  marksheets.   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. 1980 (2) SCC 752.   The controversy here related

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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 subserves the  factum of possession of the diploma and is not an independent  factor. \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005... 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 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.

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

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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\005\005\005\005\005\005\005"                                                    

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  counselling.   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.