Patna High Court - Orders
The Bihar Staff Selection Comm vs Md.Arman & Ors on 27 April, 2012
Author: R.M. Doshit
Bench: Chief Justice, Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1114 of 2009
In
Civil Writ Jurisdiction Case No. 2327 of 2009
======================================================
1. The Bihar Staff Selection Commission through its Chairman at Vetenery College, Sheikhpura, Patna-1.
2. The Secretary, Bihar Staff Selection Commission, Bihar, Patna at Vetenery College, Sheikhpura, Patna-1.
.... .... Respondents-Appellants Versus
1. Md. Arman, son of Hafiz Aftab Alam, Capshor, Law Road, Gaya (Bihar) permanent resident of Mohalla Shahmeer Takiya P.S. Civil Line, District-Gaya.
.... .... Petitioner-Respondent
2. The State of Bihar through the Director General of Police, Bihat, Patna.
3. The Director General of Police (Personnel), Bihar, Patna.
4. The District Magistrate, Gaya.
.... .... Respondents-Respondents ====================================================== With Letters Patent Appeal No.1211 of 2011 IN Civil Writ Jurisdiction Case No. 2327 of 2009 With Interlocutory Application No.5934 of 2011 In Letters Patent Appeal No.1211 of 2011 ====================================================== Birendra Kumar Choudhari S/o Sri Shambhu Choudhary R/o Vill.- Amrit Bigha, Ward No. 1, P.O. + P.S.- Daudnagar, Distt.- Aurangabad, Bihar, presently posted as Sub Inspector (Probationer) Gardanibagh P.S., Distt.- Patna, deputed in Traffic P.S. Patna, China Kothi, Lodipur, Patna .... .... Appellant Versus
1. The State of Bihar through the Director General of Police, Bihar, Patna 2 Patna High Court LPA No.1114 of 2009 (11) dt. 27-04-2012 2/8
2. The Bihar Staff Selection Commission, Patna through its Chairman
3. The Secretary, Bihar Staff Selection Commission, Patna
4. The Director General of Police (Personnel), Bihar, Patna
5. The District Magistrate, Gaya .... .... Respondents-Respondents
6. Md. Arman S/O Hafiz Aftab Ahmad Cap Shop Law Road, Gaya, Distt.- Gaya, Permanent R/O Mohalla- Shahmeer Takya, P.S.- Civil Line, Gaya .... .... Petitioner-Respondent ====================================================== Appearance :
(In LPA No.1114 of 2009) For the Appellants : Mr. Lalit Kishore, Senior Advocate with Mr. S.S.Sundaram, Advocate For the Respondent State: Mr. Bipin Chandra, A.C. to AAG-11 For the Respondent No.1: Mr. Rajendra Prasad Singh, Sr. Advocate Mr. Zeyaul Hoda, Advocate (In LPA No.1211 of 2011) For the Appellant : Mr. Pandit Jee Pandey, Advocate Mr. Nawnit Kr. Tiwari, Advocate For the Respondent State: Mr. Bipin Chandra, A.C. to AAG-11 For the Respondent Nos. 2-3: Mr. Lalit Kishore, Senior Advocate Mr. S.S. Sundaram, Advocate For the Respondent No.6 : Mr. Rajendra Prasad Singh, Sr. Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH C.A.V. JUDGMENT Date : 27th April 2012.
(Per: HONOURABLE THE CHIEF JUSTICE) Both these Appeals preferred under Clause 10 of the Letters Patent arise from the judgment and order dated 20th July 2010 passed by the learned single Judge in above C.W.J.C. No. 2327 of 2009.3 Patna High Court LPA No.1114 of 2009 (11) dt. 27-04-2012 3/8
With the consent of the learned advocates both the Appeals are heard and decided by this common judgment.
Letters Patent Appeal No.1114 of 2009 is preferred by the respondent Bihar Staff Selection Commission (hereinafter referred to as „the Commission‟). Letters Patent Appeal No.1211 of 2011 is preferred by one Birendra Kumar Choudhari, a non- party after seeking leave to appeal from the Court.
Pursuant to the advertisement No.704/2004 published by the Commission, the respondent-writ petitioner made application for appointment as Sub Inspector of Police in the category of Backward Class. The application was accompanied by a caste certificate issued by the Sub Divisional Officer. The application of the petitioner was accordingly processed. Pending the recruitment process, on 13th October 2007, the Commission issued a public notice permitting the candidates who had not submitted the caste certificate issued by the concerned District Magistrate to submit such caste certificate issued by the concerned District Magistrate. Pursuant to the said notice, the petitioner submitted the caste certificate issued by the District Magistrate, Gaya on 8th November 2007. The said certificate indicated that the petitioner belonged to the community „Kasab‟ and that he did not fall within the creamy layer. The said certificate did not specifically indicate whether the petitioner belonged to a Backward Class or to a Most Backward Class.
In view of the application made by the petitioner and the caste certificate produced by him, the petitioner‟s candidature was examined with the other Backward Class candidates. The petitioner being far below on the merit list was not selected for appointment as Sub Inspector of Police in the category of 4 Patna High Court LPA No.1114 of 2009 (11) dt. 27-04-2012 4/8 Backward Class candidate. As the petitioner did not find his place in the select list; the petitioner claimed that his case should be considered in the category of Most Backward Class. He having secured sufficient marks, he should be selected for appointment as Sub Inspector of Police in the category of Most Backward Class. Evidently, his claim was rejected by the Commission. Feeling aggrieved, the petitioner filed above C.W.J.C. No. 2327 of 2009.
The petitioner claimed that the State of Bihar has classified the „Kasab‟ community as Most Backward Class community; the District Magistrate also had opined that the „Kasab‟ community is a Most Backward Class community, the petitioner‟s claim, therefore, was required to be considered in the category of Most Backward Class candidate. Had that been done, the petitioner would have been selected and appointed as the Sub Inspector of Police. According to the petitioner, the applicants possessing lesser merits than the petitioner were selected in the category of Most Backward Class.
The claim was contested by the Commission and the State Government. According to the Commission, the petitioner had applied in the category of Backward Class and not in the category of Most Backward Class. The certificate of Sub Divisional Officer though indicated that the petitioner was of „Kasab‟ community it did not mention whether the „Kasab‟ community was a Backward Class or a Most Backward Class. Similarly, the caste certificate issued by the District Magistrate also did not specify a particular category i.e. either Backward Class or the Most Backward Class. The copy of the certificate produced by the petitioner at Annexure-2 to the writ petition was not a true copy of the original certificate and was tampered with.5 Patna High Court LPA No.1114 of 2009 (11) dt. 27-04-2012 5/8
The District Magistrate filed the counter affidavit indicating that the certificate originally issued by him did not specify the particular category in which the „Kasab‟ community is classified. The certificate was tampered with in collusion with the office staff.
The learned single Judge held that the petitioner was a „Kasab‟ which has been classified as Most Backward Class. The petitioner had been the victim of the mistake committed by the District Magistrate in not specifying the category of the „Kasab‟ community. Consequently, the learned single Judge has allowed the writ petition and has directed that the petitioner‟s claim be considered in the category of Most Backward Class; he be appointed as Sub Inspector of Police in the category of Most Backward Class and that last of the appointees be removed from service after giving him opportunity of hearing.
Feeling aggrieved, the Commission has preferred above Letters Patent Appeal No.1114 of 2009.
Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Commission. He has submitted that the application of the petitioner was processed keeping in view the information submitted by him. He has submitted that the petitioner had specifically applied in the category of a Backward Class. The caste certificate produced by him did not indicate a specific class. In absence of any indication in the caste certificate the Commission cannot be said to have erred in processing the application made by the petitioner along with the other Backward Class candidates. He has further submitted that indisputably the petitioner tampered with the caste certificate issued on 8th November 2007 and produced by him in support of his application. The petitioner, therefore, does not deserve the 6 Patna High Court LPA No.1114 of 2009 (11) dt. 27-04-2012 6/8 sympathy either.
Pursuant to the aforesaid direction, on 20th July 2011 the Commission issued a notice to one Birendra Kumar Choudhari being at the bottom of the merit list, the appellant in Letters Patent Appeal No.1211 of 2011, calling upon him to show cause why in compliance with the direction issued by the High Court, his recommendation for appointment as Sub Inspector of Police should not be cancelled.
Feeling aggrieved by the said notice the said Birendra Kumar Choudhari has preferred the above Letters Patent Appeal No.1211 of 2011.
Learned counsel Mr. Rajendra Prasad Singh has appeared for the petitioner. He has submitted that while the recruitment process was underway; on 12th November 2008 the State Government issued a Circular containing the list of the communities recognized as „Most Backward Class‟ in Schedule-1 and the list of the communities recognized as „Backward Class‟ in Schedule-2. He has submitted that it was on 12th November 2008, first time the „Kasab‟ community was recognized as Most Backward Class. Although on the date of application in 2004 the petitioner had applied in the category of Backward Class, before the recruitment process was concluded the „Kasab‟ community was recognized as a Most Backward Class community. The petitioner, therefore, had a right to be considered in the category of „Most Backward Class‟.
We see no substance in the submission made by Mr. Singh. It is indisputable that the petitioner had applied in the „Backward Class‟ category. Neither of the caste certificates produced by the petitioner; former issued by the Sub Divisional Officer and the later issued by the District Magistrate, 7 Patna High Court LPA No.1114 of 2009 (11) dt. 27-04-2012 7/8 specifically indicated any of the two categories i.e. either „Backward Class‟ or the „Most Backward Class‟. In our opinion, the Commission was justified in considering the application of the petitioner in the category of „Backward Class‟.
There is no substance in the submission that the „Kasab‟ community was first time declared as Most Backward Class community under the Government Circular dated 12th November 2008. It is apparent that on 12th November 2008, the Government had issued a renewed instruction indicating the communities classified as the „Backward Class‟ and the communities classified as the „Most Backward Class‟. Evidently, the said Circular was issued to facilitate the Government Officers in processing the various applications received by them in respect of „Backward Class‟ or „Most Backward Class‟ categories. It is nothing but a compilation of the earlier decision.
The State of Bihar has enacted the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 (Bihar Act 3 of 1992). Section 2(j), as it stood then, defined the term, "Extremely Backward and Backward Classes" to mean and include, ""Extremely Backward and Backward Classes"
mean and includes those castes which have been mentioned and circulated vide Department of Personnel and Administrative Reforms, Government of Bihar Resolution No.11/A1-501/78-756/Ka, dated the 10th November, 1978 as amended from time to time and specified in Schedule I and II of this Act and whose annual family income from all sources is less than the income tax limit." The „Kasab‟ community is included in the Schedule-I at Sl. No.80. Thus, the „Kasab‟ community has been recognized as a Most Backward Class 8 Patna High Court LPA No.1114 of 2009 (11) dt. 27-04-2012 8/8 community at least since 10th November 1978. The petitioner ought to have been more careful in filling-up the application form.
We are petrified to note that the petitioner, with a view to strengthening his case, produced copy of a tampered document and passed it over as a true copy of the original document. The petitioner was clearly guilty of misrepresentation amounting to interference with the process of law. The extraordinary jurisdiction conferred by Article 226 of the Constitution cannot be exercised in favour of such a petitioner.
For the foresaid reasons, the Appeals are allowed. The impugned judgment and order dated 20th July 2010 passed by the learned single Judge in C.W.J.C. No. 2327 of 2009 is set aside. C.W.J.C. No. 2327 of 2009 is dismissed. Interlocutory Application stands disposed of.
The petitioner will bear the cost throughout.
(R.M. Doshit, CJ) Chakradhari Sharan Singh, J.
I agree.
(Chakradhari Sharan Singh, J) Pawan/-