Patna High Court
Rajesh Kumar Ranjan vs The Bihar Public Service Commission & ... on 31 March, 2015
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.23924 of 2013
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Rajesh Kumar Ranjan S/O Late Ladli Sharan Resident Of Ramnagar Chhawani,
P.S- Bhagwan Bazar, Chapra, At Present Posted As In- Charge Headmaster, S.M.T.
High School, At + Post+ P.S- Vaishali.
.... .... Petitioner/s
Versus
1. The Bihar Public Service Commission Through Its Secretary, Bailey Road,
Patna.
2. The Chairman, Bihar Public Service Commission, Bailey Road, Patna.
3. The Officer- On- Special Duty, Bihar Public Service Commission, Bailey Road,
Patna.
4. The Examination Controller, Bihar Public Service Commission, Bailey Road,
Patna.
5. The State of Bihar through the Principal Secretary, Education Department,
Government of Bihar, Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Gyan Prakash, Advocate.
For the Respondent/s : Mr. Sanjay Pandey, Advocate
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
C.A.V. JUDGMENT
Date: 31-03-2015
Heard learned counsel for the parties.
2. The prayer of the petitioner in this writ application
reads as follows:-
"1. That this writ application is being filed for issuance of
a writ in the nature of certiorari for quashing Memo
No. 6451 dated 23.09.2013 issued by the Officer-on-
Special Duty, Bihar Public Service Commission, Patna
(hereinafter B.P.S.C.) by which erroneously on non-
existing ground petitioner's application filled up before
06.06.2007in pursuance of Advertisement No 01/2007 for appearing in examination for appointment on the sanctioned and vacant post of Headmaster in Government Undertaking and Project Girls High Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 2 School, has been rejected which the examination is going to be held on 07.12.2013 and for issuance of a writ in the nature of Mandamus commanding the Respondents to allow and issue Admit Card to the petitioner to appear in the examination schedule to be held on 07.12.2013."
3. Let it be noted that an interim order was passed in this case on 6.12.2013, relevant portion whereof reads as follows:-
"The candidature of the petitioner for appearing at the examination for appointment of Headmaster in Government School scheduled on 7th of December, 2013 has been rejected vide order contained in Annexure-4. The said order states that the petitioner was not drawing salary in the pay scale of Rs. 6500- 10500/-.
Learned counsel for the petitioner has submitted with reference to Annexure-1 that said scale of pay was granted to him in the year 2010 but w.e.f. 17.11.2006. It has also been submitted that one of the persons cited in the said order who was similarly granted requisite/higher pay scale w.e.f. 5.10.2006 has been permitted by the respondent Commission to take examination.
Let a counter affidavit(s) on behalf of the respondent Commission as well as the State be filed within two weeks.
Post this matter after three weeks high on Board. During pendency of this application the petitioner is provisionally permitted to take the examination scheduled on 7th of December, 2013 subject to the final result of the application. Mr. Shahi, learned counsel for the Commission, has stated that the Commission as well as the concerned respondents shall be informed about the present order."
4. Pursuant to the aforesaid interim order, the petitioner has appeared in the examination held on 7.12.2013 but, his result has not been published awaiting the final disposal of this writ application. Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 3
5. Learned counsel for the petitioner, in support of the aforementioned prayer, has submitted that the Bihar Public Service Commission (hereinafter referred to as 'the Commission') has failed to correctly decide the eligibility of the petitioner. In this regard, he has explained that he petitioner was appointed as an Assistant Teacher on 17.11.1994 in S.M.T. High School, Vaishali and in course of time was also assigned the duty of In-charge Headmaster under the order of the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. He has also submitted that the petitioner was subsequently given the higher pay-scale of the post of teacher in the senior pay-scale of Rs. 9300-34800/- under the order dated 6.12.2010 with effect from 17.11.2006 and, therefore, the petitioner was deemed to be qualified for the post of Headmaster in terms of the advertisement dated 05.05.2007.
6. Learned counsel in this regard has emphasised on the aspect that when the application filed by the petitioner in terms of advertisement no. 01/2007 inviting application for the post of Headmaster in Government Nationalised and Project Girls High Schools was accepted the Commission also had screened the application of the petitioner and had allotted roll number 202637 he could not have been held to the ineligible in any manner. He has also explained that the petitioner was infact waiting for appearing in the examination scheduled to be held on 7.12.2013 but he, instead of Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 4 being given an admit card for appearing in the said examination, was sent a communication by the Commission on 23.9.2013 rejecting his application on the ground that he was ineligible in terms of the requirement laid down in the advertisement no. 01/2007. Learned counsel for the petitioner has accordingly submitted that such rejection of the candidature of the petitioner was wholly illegal and therefore when the petitioner has now appeared in the written test and interview pursuant to an interim order of this Court, his result should be published by Commission. specially
7. In the supplementary affidavit, the petitioner, having annexed the copy of the advertisement, has sought to make out a case that the reason given in the impugned order of the Commission for rejecting the candidature of the petitioner was factually incorrect because it was wrong to say that the petitioner had not been given the pay-scale of Rs. 6500-10500/- meant for senior teacher inasmuch he was granted higher replacement pay scale of Rs. 9300-34800 w.e.f. 17.11.2006.
8. In this case, a counter affidavit has been filed by the Commission wherein it has been stated that the State Government through department of its Education vide letter no. 3109 dated 28.9.2006 had sent a requisition for filling up 50% posts of Headmaster in the Government Nationalised Project High Schools by way of direct recruitment prescribing the essential qualification and Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 5 experience for the post of Headmaster and had also enclosed the government notification no. 1635 dated 12.10.2004 laying down procedure for conducting such examination. It is the further case of the Commission that advertisement no. 01/2007 was published on 5.5.2007 inviting application from the eligible candidates and the last date for submission of form was 6.6.2007.
9. According to the respondent Commission, the application of the petitioner had been rejected on the ground of not fulfilling the criteria stated in column 2(Gh) of the advertisement in which it was clearly mentioned that a candidate must have 12 years of experience in the senior pay-scale of Rs. 6500-10500. It is the specific case of the Commission that since the petitioner had not fulfilled the aforesaid criteria as laid down in column no. 2(Gh) of the advertisement regarding pay-scale of Rs. 6500-10500 till the last date of filing of the application, the candidature of the petitioner had been rejected and a communication to this effect had been sent by the Commission to the petitioner on 23.9.2013.
10. The Commission has also explained in its counter affidavit that even in the application which was forwarded by the Controlling Officer of the petitioner, the petitioner was shown to be working as Assistant Teacher in the pay-scale of Rs. 5500-9000 with a clear endorsement that his case for promotion in senior pay-scale was still pending. It has also been explained by the Commission that Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 6 the plea of the petitioner that he had been given the senior pay-scale of the post of teacher by order dated 6.12.2010 with effect from 17.11.2006 could not have made the petitioner eligible because the last date for filing of the application was 6.6.2007 and, on that day, the petitioner's promotion had not been notified, inasmuch as, such grant of senior pay-scale of the post of teacher to the petitioner was notified only on 6.12.2010 with effect from 17.11.2006.
11. The Commission in defence of its action of rejecting the candidature of the petitioner has also given a specific instances of as many as 123 candidates whose candidatures were also rejected by the Commission only on account of there having not been fulfilling the requirement of being in senior pay-scale of Rs. 6500-10500 as on the date of filing of the application. It has further been explained that out of the aforesaid 123 candidates whose candidatures were rejected by the Commission, it is only the petitioner who had been issued the admit card to appear in the examination provisionally in view of the interim order passed by this Curt on 6.12.2013 and rest 122 candidate were not allowed to sit in the examination.
12. The Commission has also filed supplementary counter affidavit wherein it has been stated that the result of the written examination held on 7.12.2013 was published on 7.2.2014 in which 1052 candidates successful including the petitioner were declared to have qualified and all of them were called for interview Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 7 and the petitioner also had appeared in the interview with other candidates which was held from 21.3.2014 to 5.4.2013 whereafter a final result of successful candidates was published on 5.4.2014 showing that the result of one post of general category had been kept reserved for the petitioner due to pendency of this writ application. In the supplementary counter affidavit, it has also been stated that the Commission had sent recommendation of successful candidates on 15.4.2014 while withholding the result of the petitioner.
13. The petitioner has also filed a compact reply of both the aforesaid counter affidavit and supplementary counter affidavit of the Commission wherein a stand has been taken by him that it was immaterial as to whether the petitioner's promotion in the senior pay- scale of Rs. 6500-10500 was notified on 6.12.2010 because ultimately the petitioner's such promotion in the senior pay-scale was given to him from retrospective effect from the date of 17.11.2006.
14. In the background of the aforesaid pleadings and the submissions of the learned counsel for the parties, the only question which would be required to be answered by this Court is as to whether the petitioner was eligible in terms of the advertisement? The answer to this question would largely depend on the contents of the advertisement, which for the sake of clarity and convenience is quoted hereinbelow:-
Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 8 ^^fcgkj yksd lsok vk;ksx 15] tokgjyky usg: ekxZ¼csyh jksM½] iVuk&800001 foKkiu la[;k 01@2007 ekuo lalk/ku fodkl foHkkx] fcgkj ljdkj ds vUrxZr jktdhd`r ,oa ifj;kstuk ckfydk mPp fo|ky; esa iz/kkuk/;kid osrueku 7500&12000@& ds in ij lh/kh fu;qfDr gsrq lq;ksX; mEehnokjksa ls fofgr izi= esa lEcfU/kr fu;a=h inkf/kdkjh ds ek/;e ls vkosnu vkeaf=r fd, tkrs gSA 1- fjDr inksa dh la[;k dqy 695 ¼N% lkS iupkUos½ buesa lkekU;
Js.kh&348] vuqlwfpr tkfr&111] vuqlwfpr tutkfr&07] vR;Ur fiNM+k oxZ 125] fiNM+k oxZ 83 ,oa fiNM+s oxZ dh efgykvksa ds fy, 21 in vuqekU; gSA bu vuqekU; inksa esa 21 in fodykaxkas ds fy, vkjf{kr gSa fofHkUu dksfV ds fodykaxksa dks ns; vkj{k.k] dkfeZd ,oa iz'kklfud lq/kkj foHkkx] fcgkj iVuk ds ladYi ¼Kkikad&62 fnuad 05-01-2007½ ds vuq:i vuqekU; gksxkA 2- 'kS{kf.kd ;ksX;rk ¼d½ fdlh ekU;rkizkIr fo'ofo|ky; ls ,oa vuqHko dyk@[email protected]; vFkok led{k LukrdksRrj mikf/kA ¼[k½ fdlh ekU;rkizkIr fo'ofo|ky; ls jkT; ljdkj }kjk ekU;rkizkIr vFkok jkT; ljdkj ds f'k{kk foHkkx ls izkIr ch0,M0 vFkok jkT; ljdkj }kjk ?kksf"kr f'k[kd izf'k{k.k ds fy, led{k vgZrkA vU; jkT;ksa ds oSls izf'k{k.k laLFkkuksa ls mRrhZ.k vH;fFkZ;ksa dks Hkh ekU;rk nh tk;sxh tks ml jkT; ljdkj ls vFkok ,u0lh0Vh0bZ0 ubZ fnYyh ls ekU;rk izkIr gksaA ¼x½ vuqHko& fdlh ekU;rk izkIr cksMZ@fo'ofo|ky;@jkT; ljdkj@ dsUnzh; ljdkj@laxBu ¼dsUnzh;
Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 9 fo|ky; laxBu ,oa uoksn; fo|ky;
lfefr½ }kjk lapkfyr ek/;fed Lrj ds fo|ky; esa 12 o"kksaZ dk 'kS{kf.kd vuqHko ,oa ojh; osrueku 6500&10500@& /kkjd] ijUrq vuqlwfpr tkfr@vuqlwfpr tutkfr ,oa efgykvksa ds ekeyksa esa 8 o"kZ dk 'kS{kf.kd vuqHko i;kZIr gksxk ,oa bu dksfV ds mEehnokjksa ds fy, ojh;
osrueku/kkjd gksuk vfuok;Z ugha gSA ¼?k½ ¼i½ mPp fo|ky;@$2 esa f'k{kd ;k O;k[;krk inuke ls osrueku 6500&10500@& esa dk;Zjr f'k{kd Hkh iz/kkuk/;kid in ds fy, lqik= gksaxsA ¼ii½ uoksn; ;k dsUnzh; fo|ky;ksa esa osrueku 6500&10500@& esa dk;Zjr LukrdksRrj f'k[kd Hkh iz/kkuk/;kid in ds fy, lqik= gksaxs c'krsZ fd ;s ch0,M0 fMxzh/kkjh gksaA ¼iii½ fcgkj ljdkj esa osrueku 7500&12000@& esa dk;Zjr f'k{kd dh iz/kkuk/;kid in ds fy, lqik= gksaxsA 3- mez lhek % dksbZ mez lhek ugha gSA 4- p;u dh izfdz;k % mEehnokjksa dk p;u fyf[kr ijh{kk ,oa lk{kkRdkj esa izkIr vadksa ds vk/kkj ij fd;k tk;sxkA fyf[kr ijh{kk 2 ¼nks½ i=ksa esa nks ikfy;ksa esa vk;ksftr dh tk;sxhA izO;sd ijh{kk rhu ?kaVksa dh gksxh ,oa izR;sd i= 100 vadksa dks gksxkA izFke i= esa fgUnh Hkk"kk ,oa lkekU; Kku ds Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 10 dze'k% 50&50 vadksa ds iz'u gksaxsA f}rh; i= esa f'k{kk fof/k 'kS{kf.kd fodkl rFkk ys[kk ls lEcfU/kr iz'u jgsx a sA lk{kkRdkj ds fy, 50 vad fu/kkZfjr gSa fVII.kh & fcgkj jkT; ds ckgj ds mEehnokj viuh 'kS{kf.kd ,oa iz'kS{kf.kd ;ksX;rkvksa ls lacaf/kr izek.k i=ksa dh tkap vius fu;a=h (Controlling) inkf/kdkjh ls djk;saxsA** (Underlining for emphasis)
15. From bare reading of the advertisement, and specifically its underlined portion, it would be clear that the last date of filing of application was 6.6.2007 and all the educational qualification and experience had to be fulfilled only till the last date of filing of the application. The post of Headmaster being pay-scale of Rs. 7500-12000, the eligibility clause for the candidates was that a teacher working in the pay-scale of Rs. 6500-10500 or even a teacher working in the pay-scale of Rs. 7500-12000 could be alone eligible for appointment on the post of Headmaster.
16. In this background, when this Court has perused the original application filed by the petitioner in the prescribed format as contained in Annexure-D to the counter affidavit, it becomes very clear that the said application was filed by the petitioner in the date of 25.5.2007 and in the column no.9 and 11, the petitioner had described to be holding the post of Assistant Teacher with effect from 17.11.1994 in the pay-scale of Rs. 5500-9000. As a matter of fact, the Controlling Officer of the petitioner also in the prescribed proforma Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 11 while forwarding the application of the petitioner had clarified the pay-scale of the petitioner to be the same i.e. Rs. 5500-9000, relevant portion whereof reads as follows:-
^^09- f'k{kd ds in ij fu;kstu dk fooj.k%& ¼A½ in dk uke LFkk;h@ inHkkj xzg.k osrueku fu;qfDr ink0 vLFkk;h djus dh ¼inuke½ frfFk lgk;d f'k{kd LFkk;h 17&11&1994 :0 5500&175 funs'kd :0 9000@& ek/;fed f'k{kk fcgkj] iVukA o"kZ eghuk fnu ¼A½ 'kS{kf.kd vuqHko 1 2 0 6 1 9 fnukad 06-06-2007 mEehnokj dk ,d 'kkjhfjd igpku fpUg nkfgus xky ij dVs dk fu'kku 11- vU; dksbZ lwpuk 1- izoj osrueku gsrq vkosfnr ijUrq vHkhrd 'krksZa dks iwjk djus ds i'pkr izkIr ugha gSA foHkkxh; dk;Zokgh gSA 2- fo|ky; ds ,u0lh0lh0 inkf/kdkjh ds :i esa dk;Zjr gSA 12- vkbZ0ih0vks0@cSad MzkIV ls tek fd;s x;s ijh{kk 'kqYd dk fooj.k % ¼tks ewy esa vuqyXud djsa½ dzekad tkjh djus okys vkbZ0ih0vks0 tkjh djus jkf'k Mkd?kj@jk"Vzhd` @cSda MzkIV dh frfFk :0 iS0 r cSd a 'kk][kk la0 dk uke 01 th ih vks] 6H262663 fn0 22-05-07 100 = 00 eqtIQjiqj ?kks"k.kk eSa ,rn~ }kjk ?kks"k.kk djrk@djrh gwW fd bl vkosnu esa mij nh xbZ lwpuk,a lR; ,oa lgh gSa eSus fdlh izdkj dh tkudkjh dks ugha Nqik;k gSa fQj Hkh ;fn mij esa nh xbZ dksbZ tkudkjh xyr fl} gksrh gS] rks mlds fy, eSa ftEesokj gksmaxk vkSj eSa ekurk gwW fd esjs fo:n~/k oS/[email protected] dkjZokbZ djrs gq, esjs vkosnu dks jn~n fd;k tk ldrk gSA blesa eq>s dksbZ vkifRr ugha gksxhA eSa vk;ksx ds lHkh fu;eksa dk ikyu djus ds fy, rS;kj gwWA QksVksxzkQ Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 12 frfFk% 25&05&2007 fgUnh esa g0@& jkts'k dqekj jatu mEehnokj dk gLrk{kj LFkku% eqtIQjiqj vaxszth esa Sd/-
Rajesh Kumar Ranjan ^^fu;a=h inkf/kdkjh dk vxzlkj.k izekf.kr fd;k tkrk gS fd Jh jkts'k dqekj jatu tks jkT; ljdkj }kjk lapkfyr fo|ky; esa fnukad 17-11-1994 ls lgk;d f'k{kd ds LFkk;h in ij osrueku 5500&175&9000 esa dk;Zjr gS] dk vkosnu vko';d dkjZokbZ gsrq vxzlkfjr fd;k tkrk gSA ;fn mDr foKkiu ds vkyksd esa iz/kkuk/;kid ds in ij budh fu;qfDr dh tkrh gS] rks mUgsa fojfer djus esa dksbZ vkifRr ugha gksxhA 'kS{kf.kd ,oa iz'kSf{k.kd ;ksX;rkvks ls lacaf/kr buds leLr izek.k i=ksa dh tkap dj yh xbZ gS ,oa ;s lgh ik;s x;s gSa ;s foKkiu esa mfYyf[kr vko';d vgZrkvksa dks iwjk djrs gSA uksV& izoj osrueku esa izksUufr yafcr gSA g0@& fu;a=h inkf/kdkjh dk gLrk{kj iwjk uke] inuke rFkk eqgj fVIi.kh&vxzlkfjr djus ds iwoZ fu;a=h lqfuf'pr gksa ysa fd vkosnd mDr foKkiu esa mfYyf[kr vko';d 'krksZ@vgrkZvksa dks iwjk djrs gSA** (underlining for emphasis)
17. Let it be noted that both the Controlling Officer of the petitioner as also the petitioner himself had mentioned the fact that the promotion of the petitioner in the senior pay-scale was pending consideration but, then, neither the petitioner nor his Controlling Officer had claimed the petitioner to have been fulfilling the requirement of the petitioner's working as a teacher in the pay-scale Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 13 of Rs. 6500-10500 and, as such, on the basis of the materials on record, it will not be difficult for this Court to hold that the petitioner, on the basis of his application filed for the post of Headmaster on 25.5.2007, was not eligible in terms of the advertisement specially its Clause 2(Gh) quoted above.
18. The only other plea of the petitioner that he was subsequently after almost three years of filing of his application for the post of Headmaster in the office of the Commission was favoured with an order of promotion in the senior pay-scale of teacher on 6.12.2010 by way of giving him the pay-scale of Rs. 9300-34800 with effect from 17.11.2006 will also be of no avail at least in terms of advertisement because even if such promotion of petitioner was notified on 6.12.2010 with retrospective effect from a back date i.e. 17.11.2006 that could not have made him eligible for the selection process which had already commenced with the advertisement dated 05.05.2007 with last date for filing application only till 06.06.2007.. The subsequent event of granting senior pay-scale to the petitioner could have inured to his benefit for any other purpose but not for changing the terms and conditions of the advertisement in which as on the last date of filing of the application, a candidate had to satisfy the requirement of working as a teacher in the senior pay-scale of Rs. 6500-10500.
19. This aspect becomes more clear from the requisition Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 14 of the State Government sent to the Commission on 28.9.2006 wherein the minimum requirement for the post of Headmaster was as follows:-
^^i=kad &iz0 5 LFkk0@jksLVj&92@94 3109 ekuo lalk/ku fodkl foHkkx] fcgkj] iVukA izs"kd] vk;qDr ,oa lfpo ekuo lalk/ku fodkl foHkkx lsok esa] lfpo fcgkj yksd lsok vk;ksx] iVukA iVuk] fnukad 28@906 fo"k;& jktdh;d`r ,oa ifj;kstuk ckfydk mPp fo|ky;ksa esa iz/kkuk/;kid ds fjDr in ij 50 izfr'kr lh/kh fu;qfDr ds rgr vf/k;kpuk Hkstus ds laca/k esaA egk'k;] funs'kkuqlkj vuqjks/k gS fd ekuo lalk/ku fodkl foHkkx ds vf/klwpuk la[;k&11 fu- 2&13&91 la0&1635 fnukad 12&10&2004 ,oa vf/klwpuk la[;k&11@o 1&10@2005 ek-&1092 fnukad 25 twu 05 Aizfrfyfi layXuA ds rgr jktdhd`r ,oa ljdkjh ifj;kstuk ckfydk mPp fo|ky;ksa A1981&82A esa iz/kkuk/;kidksa ds in ij fu;qfDr dh tkuh gSa bl laca/k esa 50 izfr'kr lh/kh fu;qfDr dh tk;sxh ftlds fy, 695 inksa dk vkj{k.k jksLVj dkfeZd ,oa iz'kklfud lq/kkj foHkkx ls djk;k x;k gS ftldk jksLVj dzekad 573 ls 1267 rd gS vkSj ftldk fooj.k uhps vafdr dh tk jgh gSA dzekad dksfV inksa dh la[;k 1& lkekU; 348 2& vuqlwfpr tkfr 111 3& vuqlwfpr tu tkfr 07 4& vR;Ur fiNM+k oxZ 125 5& fiNM+k oxZ 83 6& fiNM+k oxZ dh efgyk 21
--------------------------695
--------------------------------- 100 fcUnqvksa ds vkn'kZ jksLVj es jksLVj fcUnq 1 ls 33] 34&67 ,oa 68&100 rd rhu lewg ekus tk;sxs rFkk izR;sd leqg esa ,d Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 15 fodykax ds fy, in vkjf{kr jgsxkA iz/kkuk/;kid in ds fy, vko';d U;qure vgRrkZ 1& fdlh ekU;rk izkIr fo'ofo|ky; ls dyk] foKku] okf.kT; vFkok LukrdksRrj fMxzh 2& fdlh ekU;rk izkIr fo'ofo|ky;@jkT; ljdkj] laxBu }kjk lapkfyr ek/;fed Lrj ds ckjg o"kZ dk 'kS{kf.kd vuqHko ,oa ojh;
osrueku /kkjd ijUrq vuqlwfpr tkfr@vuqlwfpr tu tkfr ,oa efgykvksa ds ekeys esa U;wure 9 o"kksZa rd 'kS{kf.kd vuqHko iz;kIr gksxkA 3& fdlh ekU;rk izkIr fo|ky; ls jkT; ljdkj }kjk ekU;rk izkIr vFkok jkT; ljdkj ds f'k{kk foHkkx ls izkIr ch0,M0 vFkok jkT; ljdkj }kjk ?kksf"kr f'k{kd izf'k{k.k ds fy, led{k vgRrkZA ijh{kk vk;kstu ds laca/k esa vf/klwpuk la[;k&1635 fnukad 12&10&2004 dh Nk;kizfr layXu dj Hksth tk jgh gSA mDr vf/klwpuk esa ijh{kk vk;kstu dh izfdz;k crk;h x;h gSA izfdz;k ds vuqlkj gh ijh{kk vk;kstu fd;k tk;A vr% jktdh;d`r mPp fo|ky;ksa esa iz/kkuk/;kid ds osrueku 7500&12000 esa 695 inksa dk lkeku; foKkiu fudky dj fofgr izfdz;k dk vuqikyu djrs gq, dksfVokj jksLVj lg vf/kekU;rkdze esa es/kk lwph Hkstus dh d`ik dh tk;A KkrO; gS fd izLrqr ekeyk ,e0ts0lh0 la0 181@99 dsnkj ik.Ms; cuke jkT; ljdkj ls vNkfnr gSa ekuuh; U;k;ky; }kjk fu/kkZfjr le; lhek lekIr gks pqdk gSaA d`i;k iwjh izfdz;k dks izkFkfedrk ds vk/kkj ij iw.kZ djkrs g, iSuy rS;kj dj vfoyEo Hkstus dh d`ik dh tk;A fo'oklHkktu g0@& 26@9@06 vk;qDr ,oa lfpo ekuo lalk/ku fodkl foHkkxA g0@& 26@9@06** (Underlining for emphasis)
20. From the aforesaid requisition of the State Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 16 Government, it therefore becomes very clear that not only the experience of 12 years in a high school as a teacher was condition precedent for becoming eligible for the post of Headmaster but also that the person concerned had be in the senior pay-scale of the post of teacher. The wordings of the requisition of the State Government dated 28.9.2006, would also leave nothing for speculation that whatever qualification was laid down in the requisition for its being advertised by the Commission was in terms of the statutory rule framed under proviso to Article 309 of the Constitution of India namely Bihar Secondary Teachers Appointment Rules, 2004 published in the official gazette vide notification no. 1635 dated 12.10.2004, Rule 3 & 6 thereof being relevant, is quoted hereinbelow:-
^^3- jktdh;d`r ek/;fed fo|ky;ksa ds iz/kkuk/;kid ds inksa ij lh/kh fu;qfDr }kjk Hkjh tkus okyh fjfDr;ka fcgkj yksd lsok vk;ksx] iVuk }kjk vk;ksftr [kwyh izfr;ksfxrk ijh{kk ds vk/kkj ij Hkjh tk;saxh ftlesa 80 izfr'kr vad fyf[kr ijh{kk ,oa 20 izfr'kr vad lk{kkRdkj ds fy;s gksaxsA 6- iz/kkuk/;kid ds fy;s& ¼i½ fdlh ekU;rk izkIr fo'ofo|ky; ls dyk foKku] okf.kT; vFkok led{k fo|ky;ksa es LukrdksRrj fMxzhA ¼ii½ fdlh ekU;rk izkIr cksMZAfo'ofo|ky;AjkT; ljdkjAdsUnzh; ljdkjAlaxBu }kjk lapkfyr ek/;fed Lrj ds fo|ky; esa ckjg o"kZ dk 'kS{kf.kd vuqHko ,oa ojh; osrueku /kkjd ijUrq vuqlwfpr tkfr;ksaAvuq lwfpr tutkfr;ksa ,oa efgykvksa ds ekeys esa U;wure ukS o"kZ dk 'kS{kf.kd vuqHko i;kZIr gksxkA ¼iii½ fdlh ekU;rk izkIr fo'ofo|ky; ls jkT; ljdkj }kjk ekU;rk izkIr vFkok jkT; ljdkj ds f'k{kk foHkkx ls izkIr ch0,M0 Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 17 vFkok jkT; ljdkj }kjk ?kksf"kr f'k{kd izf'k{k.k ds fy;s led{k vgZrkA**
21. From a bare perusal of Rule 6(ii), it would again be apparently clear that not only the experience of 12 years as a teacher was compulsory for the post of Headmaster but such a teacher was also to be a holder of the senior pay-scale of the post of teacher in the High School. Thus, either from the advertisement or from the requisition or from the statutory rule, this becomes clear that for direct recruitment on the post of Headmaster, a teacher had to fulfill the requirement of being working in the senior pay-scale at the relevant point of time, when the advertisement was issued in the May 2007 pursuant to the aforesaid requisition of the State Government dated 28.09.2006, the pay-scale of the post of Headmaster was Rs. 7500-
12000 whereas the pay-scale of a teacher in the senior pay-scale was Rs. 6500-10000 and the pay-scale of the post of basic grade teacher was 5500-9000.
22. It is true that after acceptance of the pay-revision committee report, the pay-scale of a senior grade teacher was enhanced from 6500-10000 to 9300-34800 but, the petitioner's post and the pay-scale on the last date of filing of the application was Rs. 5500-9000 as had also been admitted by he himself in his application in column no. 9 and 11, filed by him in the Commission on 25.05.2007 and was also forwarded by his immediate controlling Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 18 authority vide Annexure D to the counter affidavit of the Commission relevant portion whereof has already reproduced in the preceeding paragraphs of this judgment. In that view of the matter, the petitioner cannot be said to be eligible for the post of Headmaster as per the terms of advertisement.
23. The law with regard to eligibility for a post with reference to the last date of advertisement is by now well settled. Reference in this connection may be usefully made to the judgment of the Apex Court in the Case of Rekha Chaturvedi v. University of Rajasthan & Ors. reported in 1993 Supp (3) SCC 168, wherein it was held as follows:
"10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 19 candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications..... "
24. Yet again in the case of Bhupinderpal Singh & Ors. v. State of Punjab & Ors. reported in (2000)5SCC 262, wherein the Apex Court had taken the same view in the following words:
"12. All the appeals and the writ petitions have been taken up for hearing analogously. The only question arising for decision in this case is by reference to which date the eligibility of the several candidates is to be judged and the consequences flowing from the failure to satisfy the eligibility test in the facts and circumstances of the case.
13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18, A.P. Public Service Commission v. B.Sarat Chandra (1990) 2SCC 669, District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi (1990) 3 SCC 655, Rekha Chaturvedi v. University of Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 20 Rajasthan 1993 Supp(3) SCC 168, M.V.Nair (Dr) v. Union of India (1993) 2 SCC 429 and U.P.Bublic Service Commission U.P., Allahabad v. Alpana (1994) 2SCC 723, the High Court has held (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with."
25. The same issue was again gone into by the Apex Court in the case of Shankar K. Mandal & Ors. v. State of Bihar & Ors. reported in (2003) 9 SCC 519 wherein the law, in this regard, was laid down lucidly in the following words:
"What happens when a cut-off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non-prescription has been considered by this Court in several cases. The principles culled out from the decisions of this Court ( see Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18; Bhupinderpal Singh v. State of Punjab, (2000) 5 SCC 262 and Jasbir Rani v. State of Punjab, (2002) 1 SCC 124) are as Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 21 follows:
(1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules. (2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications. (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority".
26. Approving the aforementioned decisions and taking note of some of the dissenting judgment, the Apex Court in the case of Ashok Kumar Sonkar v. Union of India & Ors. reported in (2007) 4 SCC 54, had held as follows:
"11. The question as to what should be the cut-off date in absence of any date specified in this behalf either in the advertisement or in the reference is no longer res integra. It would be last date for filing application as would appear from the discussions made hereinafter.
20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application."
Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 22
27. This Court, having regard to the facts of the case and the law laid down by the Apex Court, as discussed above, will have be now no escape from reaching to the conclusion that the petitioner, on the date of filing of such application under the advertisement in question for the post of headmaster, having been not granted the senior pay scale of the post of teacher, as specifically prescribed in the advertisement, was not eligible for the post of headmaster. The subsequent event taking place after more than three years of the last date of filing of application under the advertisement of the petitioner being granted senior pay scale of the post of teacher will not change the situation because many other teachers alike the petitioner who were also in the basic grade of the post of teacher as on the last date of filing of the application for the post of headmaster were not found eligible as has been also specifically asserted by the Commission in its counter affidavit while citing instances of rejection of 123 similarly situated candidates. The aforesaid averment made in the counter affidavit has not been controverted by the petitioner even in his reply to the counter affidavit of the Commission. Thus even on the basis of pleadings on record, it has to be held that the petitioner was ineligible for being considered for the post of Headmaster and that he could appear only in the written test and interview because of the interim order passed by this Court on 06.12.2013 which was of course subject to the final result of this writ application.
Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 23
28. The petitioner in the writ application however has tried to also make out a case of discrimination by pointing out a specific instance of one Dr. Rakesh Kumar Sinha about whom he has stated as follows:-
"23. That it has been learnt that one similarly situated Dr. Rakesh Kumar Sinha whose name is appearing at Serial No.4 of Annexure 1 of the writ petition and who has got higher pay scale of Rs. 9300-34800 along with petitioner by the same Annexure-4 has been issued Admit Card and his Examination is Scheduled to be held on 07.12.2012."
29. Let it be noted that this specific plea of discrimination has been fully dealt and explained by the Commission in its counter affidavit and paragraph no.12 being relevant reads as follows:-
"30. That it is stated that a Supplementary Affidavit has also been filed by the petitioner and in para04 of the said affidavit, it is stated by the petitioner that a similar candidate Rakesh Kumar Sinha who has got higher pay scale, has been issued admit card and his examination is scheduled to be held on 07.12.2013.
In this regard, it is stated and submitted that the said Rakesh Kumar Sinha has been issued admit card for the said examination as he has clearly mentioned in his application that he is working as an Assistant Teacher in the pay scale of Rs. 6500-10500. His application has been forwarded by the Controlling Officer, i.e., District Education Officer, Muzaffarpur.
Copy of the application form of Rakesh Kumar Sinha is annexed herewith and marked as Annexure-F to this Counter Affidavit."
Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 24
30. This court has also carefully perused annexure-F to the counter affidavit filed by Commission being the application of Rakesh Kumar Sinha in the prescribed format and from its perusal, it becomes clear that the same was filed on 30.5.2007 and his Controlling Officer had duly certified that Rakesh Kumar Sinha was getting the pay-scale of Rs. 6500-10500. Such relevant portion of the certificate of the Controlling Officer of Rakesh Kumar Sinha forming part of his application in the prescribed proforma again for sake of clarity and convenience is also quoted hereinbelow:-
^^09- f'k{kd ds in ij fu;kstu dk fooj.k%& ¼A½ in dk uke LFkk;h@ inHkkj xzg.k osrueku fu;qfDr ink0 vLFkk;h djus dh frfFk ¼inuke½ lgk;d f'k{kd LFkk;h 05@10@94 1640&60&280 funs'kd 0&75&2900 ek/;fed f'k{kk fcgkj] iVukA o"kZ eghuk fnu ¼A½ 'kS{kf.kd vuqHko 1 2 0 7 2 5 mEehnokj dk ,d 'kkjhfjd igpku fpUg nkfgus yykV ij dVs dk fu'kku 11- vU; dksbZ lwpuk ------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------- 12- vkbZ0ih0vks0@cSad MzkIV ls tek fd;s x;s ijh{kk 'kqYd dk fooj.k % ¼tks ewy esa vuqyXud djsa½ dzekad tkjh djus okys vkbZ0ih0vks0 tkjh djus jkf'k Mkd?kj@jk"Vzhd` @cSda MzkIV dh frfFk :0 iS0 r cSd a 'kk][kk la0 dk uke 01 th ih vks] 6H272692 29-05-07 100@& eqtIQjiqj ?kks"k.kk eSa ,rn~ }kjk ?kks"k.kk djrk@djrh gwW fd bl vkosnu esa mij nh xbZ lwpuk,a lR; ,oa lgh gSa eSus fdlh izdkj dh tkudkjh dks ugha Nqik;k gSa fQj Hkh ;fn mij esa nh xbZ dksbZ tkudkjh xyr fl} gksrh Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 25 gS] rks mlds fy, eSa ftEesokj gksmaxk vkSj eSa ekurk gwW fd esjs fo:n~/k oS/[email protected] dkjZokbZ djrs gq, esjs vkosnu dks jn~n fd;k tk ldrk gSA blesa eq>s dksbZ vkifRr ugha gksxhA eSa vk;ksx ds lHkh fu;eksa dk ikyu djus ds fy, rS;kj gwWA QksVksxzkQ frfFk% 30&05&2007 fgUnh esa g0@& jkds'k dqekj flUgk mEehnokj dk gLrk{kj LFkku% eqtIQjiqj vaxszth esa Sd/-
Rakesh Kumar Sinha ^^fu;a=h inkf/kdkjh dk vxzlkj.k izekf.kr fd;k tkrk gS fd Jh jkds'k dqekj flUgk tks jkT; ljdkj }kjk lapkfyr fo|ky; esa fnukad 05-10-94 ls lgk;d f'k{kd ds LFkk;h in ij osrueku 6500&200&10500 esa dk;Zjr gS] dk vkosnu vko';d dkjZokbZ gsrq vxzlkfjr fd;k tkrk gSA ;fn mDr foKkiu ds vkyksd esa iz/kkuk/;kid ds in ij budh fu;qfDr dh tkrh gS] rks mUgsa fojfer djus esa dksbZ vkifRr ugha gksxhA 'kS{kf.kd ,oa iz'kSf{k.kd ;ksX;rkvks ls lacaf/kr buds leLr izek.k i=ksa dh tkap dj yh xbZ gS ,oa ;s lgh ik;s x;s gSa ;s foKkiu esa mfYyf[kr vko';d vgZrkvksa dks iwjk djrs gSA g0@& fu;a=h inkf/kdkjh dk gLrk{kj iwjk uke] inuke rFkk eqgj fVIi.kh&vxzlkfjr djus ds iwoZ fu;a=h lqfuf'pr gksa ysa fd vkosnd mDr foKkiu esa mfYyf[kr vko';d 'krksZ@vgrkZvksa dks iwjk djrs gSA** (underlining for emphasis)
31. In view of the above, while this Court would find it difficult to sustain the plea of discrimination as raised by the petitioner specially when Rakesh Kumar Sinha has not been made party to this writ application but, then, keeping in view that even Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 26 though the Controlling Officer of Rakesh Kumar Sinha may have certified his pay-scale of Rs.6500-10500 whereas Rakesh Kumar Sinha himself in column no.9 had given his pay-scale of Rs. 1640-2900, if the plea of the petitioner is to be accepted that since Rakesh Kumar Sinha was also given senior pay-scale along with the petitioner on 6.12.2010, this much verification has to be made in the case of Rakesh Kumar Sinha by the Director, Secondary Education, Patna being the controlling Officer and if it is found that Rakesh Kumar Sinha had made a false declaration as with regard to his being in pay-scale of Rs.6500-10500, his candidature as also appointment on the post of Headmaster despite recommendation of the Bihar Public Service Commission would become vulnerable and in fact fit to be cancelled but that will not mean that such illegality committed in the case of Rakesh Kumar Sinha will have to be perpetuated even in the case of the petitioner.
32 In the considered view of this Court, aforesaid Rakesh Kumar Sinha, therefore, may also become ineligible like the petitioner but, that will not mean that Article 14 of the Constitution of India will have to be enforced in a negative manner. Reference in this connection may usefully be made to the judgment of the Apex Court in the case of State of Bihar Vs Upendra Narayan Singh reported in (2009) 5 SCC 65 wherein it was held as follows:
"67. By now it is well settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 27 a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order - Chandigarh Admn. Vs. Jagjit Singh, {(1995) 1SCC 745}; Jaipur Development Authority v. Daulat Mal Jain, {(1997) 1 SCC 35}; Union of India v. J.V.Subhaiah, {(1996) 2SCC 258}; Gursharan Singh v. NDMC, {(1996) 2 SCC 459}; State of Haryana v. Ram Kumar Mann, {(1997) 3 SCC 321}; Faridabad Central Government.Scan Centre v. D.G.Health Services, {(1997) 7 SCC 752}; Style (Dress Land) v. UT, Chandigarh, {(1999) 7 SCC 89}; State of Bihar v. Kameshwar Prasad Singh, {(2000) 9 SCC 94}; Union of India v. International Trading Co., {(2003) 5 SCC 437} and Directorate of Film Festivals v. GAurav Ashwin Jain {(2007) 4 SCC 737}.
33. Thus, the long and short of this case is the issue of cut-off date as with regard to eligibility of the petitioner and since the cut-off date of eligibility involved has to be judged in terms of the advertisement and the advertisement had required the fulfillment of the qualification and experience on the last date of the filing of the application, it has to be essentially held that the petitioner on account of his own admission of being in the pay-scale of Rs. 5500-9000 on the date of filing of his application was ineligible for the post of Headmaster in terms of the advertisement and its Clause-2(Gh) requiring a teacher to be working in a senior pay-scale of teacher with pay-scale 6500-10500.
34. Thus, for the reason indicated above, this writ application fails and is, accordingly, dismissed.
35. As a result of dismissal of this writ application of the Patna High Court CWJC No.23924 of 2013 dt._31-03-2015 28 petitioner, the Commission will now not be required to declare the result of the petitioner or making recommendation despite qualifying in the written examination and appearing in the interview.
36. There would be, however, no order as to costs.
(Mihir Kumar Jha, J) Patna High Court Dated the 31st March 2015 A.F.R./Rishi U