Point of Law : Advertisement issued by respondent and letter of Collector makes it clear that all documents including non creamy layer certificate ought to have been produced by successful candidates - It is an admitted position that on date of verification of documents, petitioner did not possess said non creamy layer certificate.

JUDGMENT :

R.D. Dhanuka, J.

1. Rule.

2. Mrs. Deshpande, learned A.G.P. waives service on behalf of respondent nos.1 to 4 and Mr. Jadhav, learned Counsel on behalf of respondent no.5.

3. Rule is made returnable forthwith.

4. By this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 19.1.2022 passed by the Maharashtra Administrative Tribunal, Aurangabad in Original Application No.130 of 2017 thereby allowing the O.A. filed by respondent no.5 herein and setting aside the appointment order granted in favour of the petitioner herein.

5. In response to the advertisement dated 9.9.2016 for filling up six posts, the petitioner and respondent no.5 applied for post at item no.4, i.e. Maharashtra Municipal Council, Water Supply, Drainage and Sanitary Engineering Services (Class-C). The petitioner as well as respondent no.5 applied for the said post under Women (General) category. Respondent no.5 was shown on waiting list at Sr. no.1. The application of the petitioner was found successful.

6. The candidates were directed to produce the documents on 5.1.2017 including non creamy layer certificate.

7. In so far as the petitioner is concerned, it is common ground that on 5.1.2017 the petitioner did not have the said non creamy layer certificate. The candidates were instructed to produce all such documents vide letter dated 2.1.2017.

8. Respondent no.5 filed an Application before the Tribunal contending that there was no power of relaxation granted to the Selection Committee for production of non creamy layer certificate after 5.1.2017.

9. The Administrative Tribunal accepted the submissions of respondent no.5 and was pleased to set aside the order of appointment of the petitioner and directed the management to issue appointment letter in favour of respondent no.5. Being aggrieved by the said order, the petitioner has filed this Petition under Article 226 of the Constitution of India.

10. Learned Counsel for the petitioner invited our attention to the terms and conditions of the advertisement and would submit that the Selection Committee had power to relax the condition to submit non creamy layer certificate. It is submitted that the submission of the said document was only a procedural requirement and would not affect the merit of the candidate. The petitioner was otherwise meritorious and was selected on merits.

11. Learned Counsel for the petitioner invited our attention to the document at page 123 of the writ petition, i.e. the income certificate of the father of the petitioner alleged to have been issued on 5.1.2017 and submits that this certificate was produced with the Selection Committee along with the non creamy layer certificate dated 6.1.2017, on 6.1.2017. There is no proof submitted in support of this submission that both these documents were submitted on 6.1.2017. The fact remains that on 5.1.2017 which was the date for submission of verification of documents, the petitioner did not have non creamy layer certificate.

12. Learned Counsel invited our attention to the non creamy layer certificate produced by his client and would submit that the said certificate was produced on the next day in view of the relaxation granted by the Selection Committee, i.e. after one day of the date prescribed in the advertisement.

13. Learned Counsel placed reliance on the judgment of the Supreme Court in the case of Dolly Chhanda Vs. Chairman, JEE and Ors., AIR 2004 SC 5043 in support of the submission that depending upon the facts of each 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. It is submitted by the learned Counsel that the petitioner was already issued letter of appointment on 28.2.2017 before the grant of interim relief by the Maharashtra Administrative Trib