Patna High Court
The Bihar Staff Selection Commission vs Shashi Bhushan Yadav on 7 November, 2022
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1311 of 2019
In
Civil Writ Jurisdiction Case No.727 of 2018
======================================================
1. The Bihar Staff Selection Commission Patna. Through its Chairman.
2. The Chairman The Bihar Staff Selection Commission, Veterinary College
Compound, P.O.- B.V. College, Patna.
3. The Secretary The Bihar Staff Selection Commission, Veterinary College
Compound, P.O.- B.V. College, Patna.
... ... Appellant/s
Versus
1. Shashi Bhushan Yadav Son of Bholanath Yadav Resident of Village-
Maharaj Ke Tola, P.O.- Khawashpur, P.S.- Krishnagarh, District- Bhojpur at
Arrah.
2. The State of Bihar Through the Chief Secretary, Bihar, Patna.
3. The Principal Secretary, Department of Agriculture, Government of Bihar,
Patna.
4. The Principal Secretary, Department of General Administration,
Government of Bihar, Patna.
5. The Agriculture Production Commissioner Department of Agriculture,
Government of Bihar, Patna.
6. The Director Agriculture Department of Agriculture, Government of Bihar,
Patna.
7. The District Agriculture Officer, Bhojpur, District- Bhojpur at Arrah.
... ... Respondent/s
======================================================
Appearance :
For the State : Mr.Sarvesh Kr. Singh AAG-13
Mr.Ravi Kumar Ac to AAG-13
For Commission(BSSC) : Satyabir Bharti Adv.
For the Respondent/s : Mr.Nityanand Mishra
Mr. Alok Abhinav
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 07-11-2022
Heard learned counsels for the parties.
2. The instant L.P.A, is by the Bihar Staff Selection
Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022
2/15
Commission against the order of the learned single Judge dated
17.05.2019passed in C.W.J.C 727 of 2018.
3. Brief facts of the case are that Commission issued an advertisement on 29.04.2015 in filling up number of Agricultural Coordinator of post. In this regard, counselling was undertaken during the period from 18.01.2016 to 09.05.2016. The respondent-Shashi Bhushan Yadav was invited for counselling on 05.05.2016. Even though his application is under reservation category namely Backward Class(Yadav) read with Non Creamy Layer. As on the date of counselling that is on 05.05.2016, he has failed to furnish Non Creamy Layer certificate. Therefore, the respondent-petitioner name has been considered other than the Non Creamy Layer category. Merit list was notified on 05.08.2016, thereafter, certain correspondence was made by the petitioner-Commission. Ultimately, the Commission rejected the respondent's claim that he had not filed Non Creamy Layer certificate as on 05.05.2016 the date on which Counselling was held. Such decision was communicated to the respondent vide decision dated 22.07.2017. Feeling aggrieved and dissatisfied with the decision of the commission dated 22.07.2017, respondent filed C.W.J.C No. 727 of 2018. It was allowed in his favour, hence, the present L.P.A on behalf of Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 3/15 the Commission.
4. Learned Counsel for the Commission vehemently contended that learned single Judge has committed error in allowing the C.W.J.C No. 727 of 2018, while ignoring clause 4(2) of the advertisement dated 29.04.2015 by which candidates have been given instruction to furnish respective certificates as on the date of counselling. In the present case, respondent has not furnished the Non Creamy Layer certificate on 05.05.2016, the date on which he was subjected to counselling. It is further submitted that learned single Judge has relied on Hon'ble Supreme Court's decision (2016) 4 SCC 754 (Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and Another) (para-12).
5. The aforesaid decision has been analyzed by the learned single Judge. The aforesaid decision is contrary to decision of this court reported in 2017(1) PLJR 786 (Dr. Santosh Kumar Vs. The State of Bihar through the Chief Secretary & Ors.).
6. In the light of the aforesaid factual aspects, the order of the learned single Judge is liable to be set aside and writ application of respondent is to be rejected.
7. Per Contra learned counsel for the respondent- Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 4/15 Shashi Bhushan Yadav resisted the aforesaid contentions and submitted that Non Creamy Layer certificate was furnished by the respondent before the counselling date however, he has not produced the same. Even, assuming that he has not furnished Non Creamy Layer certificate, the learned single judge has taken note of decision rendered in the case of Ram Kumar Gijroya (supra) as mentioned in Para 12 of the order of the learned single Judge dated 17.05.2019 passed in C.W.J.C. No. 727 of 2018. In the light of these facts and circumstances the aforesaid contention of the Commission-counsel is liable to be rejected, while upholding the order of the learned single Judge dated 17.05.2019 passed in C.W.J.C No. 727 of 2018.
8. Heard learned counsels for the respective parties.
9. Core issued involved in the present litigation is whether the respondent-Shashi Bhushan Yadav name could be considered for the post of Agricultural Coordinator against Backward Class(Yadav) read with Non Creamy Layer certificate category or not?
10. Advertisement Para 4 reads as under:-
^^4- vkj{k.k%&
(i) v‚uykbZu vkosnu djrs le; fu;r çfof"V ds v/khu bafxr vkj{k.k dk nkok ugha djus ij fdlh Hkh ifjfLFkfr esa vkj{k.k dk ykHk ns; ugha gksxk A lkekU; ç'kklu foHkkx ds ifji= la[;k&70 fnukad& 11-06-1996 ,oa fcgkj vf/kfu;e Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 5/15 15@2003 ¼ewy½ ds vkyksd esa jkT;k/khu lsokvksa esa vkj{k.k dk ykHk jkT; ds ewy oklh dks gh ns; gS A
(ii) fiNM+k oxZ rFkk vR;Ur fiNM+k oxZ Js.kh ds vkjf{kr mEehnokjksa ds fy, jkT; ljdkj }kjk vf/klwfpr vapykf/kdkjh }kjk fuxZr tkfr çek.k&i= ftlesa Øhehys;j esa ugha gksus dk mYys[k gks] ekU; gksxk A vuqlwfpr tkfr@ vuqlwfpr tutkfr Js.kh ds vH;fFkZ;ksa ds fy, vapykf/kdkjh }kjk fuxZr tkfr çek.k&i= ekU; gksxkA v‚uykbZu vkosnu ds le; ;g çek.k&i= tek djus dh vko';drk ugha gS ijUrq dkmalsfyax ds le; fiNM+k oxZ@vR;Ur fiNM+k oxZ Js.kh ds vH;fFkZ;ksa ds }kjk Øhehys;j jfgr çek.k&i= rFkk vuqlwfpr tkfr@vuqlwfpr tutkfr Js.kh ds vH;fFkZ;ksa ds }kjk tkfr çek.k&i= lefiZr ugha djus ij os vukjf{kr Js.kh ds ekus tk;saxsa rFkk mUgsa vkj{k.k dk ykHk ns; ugha gksxkA vH;FkhZ vkosnu&i= Hkjrs le; bl ckr dk /;ku j[ksaxs fd os ftl vkj{k.k Js.kh ds vUrxZr vkrs gks mlh vkj{k.k Js.kh dk nkok djsaxs A
(iii) v‚uykbZu vkosnu&i= esa nkok fd;s x;s vkj{k.k Js.kh esa fdlh Hkh ifjfLFkfr esa ifjorZu ugha fd;k tk;sxk rFkk bl laca/k esa fdlh Hkh vkosnu ij fopkj ugha fd;k tk;sxk A xyr vkj{k.k dk nkok djus ij mUgsa vukjf{kr Js.kh esa ekuk tk;sxkA vH;fFkZ;ksa dks ;g funsZ'k fn;k tkrk gS fd viuh tkfr ,oa lacaf/kr Js.kh dks Hkjrs le; os fcgkj ljdkj ds vf/k--r osclkbZV ij tk dj vius tkfr ls lacaf/kr vkj{k.k Js.kh dk irk yxkus ds i'pkr gh vkj{k.k dk nkok gsrq vkj{k.k Js.kh Hkjuk lqfu'pr djsaxs A
(iv) v‚uykbZu vkosnu çkIr gksus dh vafre frfFk rd tks vH;FkhZ ftl vkj{k.k Js.kh esa gksxs] ogh ekU; gksxk ;fn vkj{k.k Js.kh esa fu;qfä çfØ;k dh vof/k esa dksbZ ifjorZu gksrk gS] rks og ekU; ugha gksxkA
(v) --f"k leUo;d ds dqy 4391 inksa ij fu;qfä esa fodykax dks rhu çfr'kr ¼dksfVokj½ ds rgr ,d çfr'kr p{kq fodykax] ,d çfr"kr ewd of/kj fodykax ,oa ,d çfr'kr pyar fodykax vkj{k.k ns; gksxkA dkfeZd ,oa ç'kklfud lq/kkj foHkkx ¼orZeku esa lkekU; ç'kklu foHkkx½ ds ladYi la[;k 62] fnukad 05-01-2007 ds çko/kku ds dafMdk 5 ds Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 6/15 vkyksd esa dsoy ,sls O;fä lsokvksa vFkok inksa ds fy, ik= gksx a s tks de ls de 40 çfr'kr laxr fu%'kärk ls xzLr gksA**
11. In terms of clause 4(2), candidate is required to furnish respective certificates as on the date of counselling. In the present case, respondent was subjected to counselling on 05.05.2016. The respondent contended that he did submit Non Creamy Layer certificate on 05.05.2016 with reference to Annexure-3 Non Creamy Layer certificate issued on 31.12.2012.
12. However, appellant-commission disputed that respondent-Shashi Bhushan Yadav never produced Non Creamy Layer certificate on 05.05.2016. It is also submitted that 30.12.2012 certificate cannot be taken note of in respect of selection and appointment during the period from 29.04.2015 to 05.05.2016 the date on which counselling was held for the reasons that Non Creamy Layer certificate is in respect of income criteria and not caste certificate. Despite repeatedly asking the respondent-Shashi Bhushan Yadav's counsel, he could not apprise this court that respondent-Shashi Bhushan Yadav had Non Creamy Layer certificate during the intervening period 29.04.2015 the date on which the post was advertised read with date counselling that is 05.05.2016. In other words, he is relying only on Annexure-A-3 Non Creamy Layer certificate Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 7/15 31.12.2012.
13. The commission-appellant disputed that even in production of Annexure-3 dated 31.12.2012. The respondent- Shashi Bhushan Yadav's counsel has not appraised the fact that he did produce Non Creamy Layer on 05.05.2016 before the learned single Judge. That apart, he has not preferred L.P.A in non-consideration of his contention that he did produce Non Creamy Layer as on 05.05.2016.
14. In the light of these facts and circumstances, question for consideration is whether belatedly submission of Non Creamy Layer certificate submitted by the respondent- Shashi Bhushan Yadav dated 29.05.2017 which is beyond the date of counselling date namely 05.05.2016 cannot be accepted.
15. Learned single Judge has taken note of decision cited (supra) reported in 2016 4 SCC 754, para 12 of the learned single Judge reads as under:-
"12. The present case is squarely covered by law laid down by the Hon'ble Apex Court in a judgment reported in (2016) 4 SCC 754 (Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and Another), paragraph Nos. 14 to 18 whereof are reproduced hereinbelow"-
" 14. The Division Bench of the High Court erred in not considering the decision rendered in Pushpa. In that case, the learned single Judge of the High Court had rightly held that the petitioners therein Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 8/15 were entitled to submit the O.B.C. certificate before the provisional selection list was published to claim the benefit of the reservation of O.B.C. category. The learned single judge correctly examined the entire situation not in a pedantic manner but in the backdrop of the object of reservations made to the reserved categories, and keeping in view the law laid down by a Constitution Bench of this Court in Indra Sawhney v. Union of India as well as Valsamma Paul v. Cochin University. The learned single Judge in Pushpa also considered another judgment of Delhi High Court, in Tej Pal Singh, wherein the Delhi High Court had already taken the view that the candidature of those candidates who belonged to the S.C. and ST. categories could not be rejected simply on account of the late submission of caste certificate.
15. The relevant paragraph from the judgment of this Court in Indra Sawhney has been extracted in Pushpa along with the speech delivered by Dr Ambedkar in the constituent assembly and reads thus :(Pushpa case, SCC Online Del para 9) "9..... 251. Referring to the concept of equality of opportunity in public employment as embodied in Article 10 of the draft Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration, Dr Ambedkar emphatically declared that reservation should be confined to "a minority of seats". lest the very concept of equality should be destroyed. In view of its great importance, the full text of his speech delivered in the Constituent Assembly on the point is appended to this judgment. But I shall now Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 9/15 read a few passages from it. Dr Ambedkar stated:
"... firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration.... Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity..... Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10. *must be confined to a minority of seats*. It is then only that the first principle could find its place in the Constitution and effective in operation... we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State,...." [Constituent Assembly Debates, Vol. 7, pp. 701-02 (1948-49).] These words embody the raison d'etre of reservation and its limitations. Reservation is one of the measures adopted by the Constitution to remedy the continuing evil effects of prior inequities stemming from discriminatory practices against various classes of people which have resulted in their social, educational and economic backwardness. Reservation is meant to be addressed to the present social, educational and economic backwardness caused by purposeful societal discrimination. To attack the continuing ill effects and perpetuation of such injustice, the Constitution permits and empowers the Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 10/15 State to adopt corrective devices even when they have discriminatory and exclusionary effects. Any such measure, insofar as one group is preferred to the exclusion of another must necessarily be narrowly tailored to the achievement of the fundamental constitutional goal' (Indra Sawhney case, SCC pp. 433-34, para 251)"
16. In Pushpa, relevant paragraphs from Tej Pal Singh have also been extracted, which read thus: (Pushpa case, SCC OnLine Del para 11) "II...... '15. The matter can be looked into from another angle also. As per the advertisement dated 11-06-1999 issued by the Board, vacancies are reserved for various categories including SC category. Thus in order to be considered for the post reserved for SC category, the requirement is that a person should belong to SC category. If a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to SC category and act thereon by giving the benefit to such candidate for his belonging to SC category. It is not that petitioners did not belong to SC category prior to 30-6-1998 or that acquired the status of being SC only on the date of issuance of the certificate. In view of this position, necessitating upon a certificate dated prior to 30-6-1998 would be clearly arbitrary and it has no rationale objective sought to be achieved.
16. While taking a particular view in such matters one has to keep in mind the objectives behind the post of SC and ST categories as per constitutional mandate Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 11/15 prescribed in Articles 15(4) and 16(4) which are enabling provisions authorising the Government to make special provisions for the persons of SC and ST categories.
Articles 14(4) and 16(4), therefore, intend to remove social and economic inequality to make equal opportunities available in reality. Social and economic justice is a right enshrined for protection of society. The right in social and economic justice envisaged in the Preamble and elongated in the Fundamental Rights and Directive Principles of the Constitution, in particular Arts. 14, 15, 16, 21, 38, 39 and 46 are to make the quality of the life of the poor, disadvantaged and disabled citizens of the society meaningful.' (Tej Pal Singh case, SCC Online Del paras 15-16)"
17. Further, in Pushpa, relevant portion from the judgment of Valsamma Paul case has also been extracted, which reads as under: (Pushpa case, SCC Online Del para 11) "11.... '17... ... "21. The Constitution through its Preamble, Fundamental Rights and Directive Principles created a secular State based on the principle of equality and non-
discrimination, striking a balance between the rights of the individuals and the duty and commitment of the State to establish an egalitarian social order." (Valsamma Paul case, SCC pp. 560-61. para 21)' (Tej Pal Singh case, SCC OnLine Del para 17)"
18. In our considered view, the decision rendered in the case of Pushpa is in conformity with the position of law laid down by this Court which have been referred to supra. The Division Bench of the High Court erred in reversing the judgment and order passed by the learned single Judge, without noticing the binding Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 12/15 precedent on the question laid down by the Constitution Benches of this Court in Indra Sawhney and Valsamma Paul wherein this Court after interpretation of Articles 14,15,16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SCs/STs and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39-A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society. The Division Bench, thus, erred in reversing the judgment and order passed by the learned single Judge. Hence, the impugned judgment and order passed by the Division Bench in the Letters Patent Appeal No. 562 of 2011 is not only erroneous but also suffers from error in law as it has failed to follow the binding precedent of the judgments of this Court in Indra Sawhney and Valsamma Paul. Therefore, the impugned judgment and order passed by the Division Bench of the High Court is liable to be set aside and accordingly set aside. The judgment and order dated 24.11.2010 passed by the learned single Judge in Ram Kumar Gijroya v. Govt. (NCT of Delhi) is hereby restored."
16. Para 7 of the decision rendered in Dr. Santosh Kumar Vs. The State of Bihar through the Chief Secretary & Ors. reported in 2017(1) PLJR 786 reads as under:-
Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 13/15 "7. The decision relied upon by learned counsel for the appellant in the case of Ram Kumar Gijroya (supra) has no application to the facts and circumstances of the present case inasmuch as the petitioner before the Hon"ble Supreme Court had submitted his caste certificate, though after the cut-off date. In the present case, it has not even been averred that the certificate relating to not belonging to the Creamy Layer in terms of the relevant provisions, issued within one year, was produced by the appellant before the authorities. Moreover, the reasoning given by the Hon'ble Supreme Court is in relation to the person belonging to a particular caste which fact, obviously, cannot change, as it is dependent upon his birth, whereas in the present case, the fact of not coming under the Creamy Layer is subject to change with the efflux of time as income does vary and the stipulation for submitting certificate relating to income, being issued within one year, is reasonable and justified".
17. This court has distinguished the object of furnishing Non Creamy Layer certificate. Non Creamy Layer certificate is in respect of income criteria which is required to be furnished depending upon the change of income of the family. Whereas the caste certificate do not change like SC/ST. To that extent, this court has distinguished the Hon'ble Supreme Court's decision in the case of Ram Kumar Gijroya (supra). Therefore, the learned single Judge has committed error in allowing the Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 14/15 respondent-Shashi Bhushan Yadav's case.
18. Hon'ble Supreme Court recently in the case of Mahendra Singh Vs. Union of India & Ors. reported in 2022 SCC Online SC 909 it is held that candidates instructions in respect of selection matter is concerned. It is to be adhered, if there is any deviation. In such circumstances, such candidature selection cannot be entertained.
19. Having regard to the factual aspects of the case in hand it is crystal clear that respondent-Shashi Bhushan Yadav has not furnished Non Creamy Layer certificate and he does not have Creamy Layer certificate other than Annexure A-3 issued on 31st December 2012. Non Creamy Layer certificate dated 31.12.2012 cannot be entertained in respect of selection of the year 2015/2016. In other words, income must have varied from 31st December 2012 to 2015/2016. Therefore, even if there is Non Creamy Layer certificate beyond 05.05.2016 the same cannot be taken into consideration for the reasons that sub clause 2 of clause 4 of advertisement cited (supra) mandates candidates to furnish relevant certificate as on the date of candidates counselling. In the present case on 05.05.2016 respondent-Shashi Bhushan Yadav was subjected to counselling and he had not produced Non Creamy Layer certificate as on Patna High Court L.P.A No.1311 of 2019 dt.07-11-2022 15/15 05.05.2016.
20. In the light of these facts and circumstances, we uphold the decision of the authority dated 22.07.2017 vide Annexure-11 to the writ petition and set aside the order of the learned single Judge dated 17.05.2019 passed in C.W.J.C. No. 727 of 2018.
21. Accordingly the present L.P.A. stands allowed.
(P. B. Bajanthri, J) ( Purnendu Singh, J) shoaib/-
AFR/NAFR CAV DATE Uploading Date 15.11.2022. Transmission Date