Jharkhand High Court
Sher Mohammad vs State Of Jharkhand on 12 March, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2543 of 2023
Sher Mohammad, Aged about 27 years, son of Md. Ajij, Resident of
Chataniya Bag, P.O. Saram, P.S. Gomia, District - Bokaro
... ... Petitioner
Versus
1. State of Jharkhand
2. Personnel, Administrative Reforms and Rajbhasha Department,
Govt. of Jharkhand through its Secretary having office at Project
Building, P.O. & P.S. Dhurwa, District - Ranchi
3. Road Construction Department through its Secretary having its
office at Project Building, P.O. & P.S. Dhurwa, District - Ranchi
4. Jharkhand Public Service Commission through its Secretary having
office at Circular Road, P.O. & P.S. Lalpur, District - Ranchi
5. Chairman, Jharkhand Public Service Commission having office at
Circular Road, P.O. & P.S. Lalpur, District - Ranchi
... ... Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mr. Atanu Banerjee, Advocate : Mr. Suman Kumar Ghosh, Advocate For the Respondents : Mr. Sanjoy Piprawall, Advocate : Mr. Prince Kumar, Advocate
---
Lastly heard on 04.03.2024 Judgment delivered on 12.03.2024
1. This writ petition has been filed for the following reliefs:-
(i) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ particularly in the nature of certiorari for quashing the decision of the Jharkhand Public Service Commission to reject the candidature of the petitioner for appointment to the post of Combined Assistant Engineer, in pursuance of the Advertisement No. 5/2019, for submitting the Caste Certificate in central format as apparent from the marks statement of petitioner uploaded on the website of the Jharkhand Public Service Commission on 04.06.2023 (Annexure-9) declaring the petitioner, not selected.
AND
(ii) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ particularly in the nature of mandamus commanding upon the concerned respondents to consider the candidature of the petitioner for selection as petitioner obtained more marks than final cut-off marks prescribed for unreserved category as well as BC-I category, and to recommend the name of the petitioner for appointment to the post of Assistant Civil Engineer in pursuance of the Advertisement No. 05/2019. AND
(iii) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ particularly in the nature of mandamus commanding upon the concerned respondents to consider the case of the petitioner for appointment to the post of Assistant Civil Engineer in the concerned department of the Govt.2
of Jharkhand in view of the fact that the petitioner has qualified the preliminary test and main examination and obtained 150 marks in the interview and the total marks obtained by the petitioner being more than the final cut-off marks fixed for selection in the appropriate category i.e. BC-I and petitioner also obtained more marks than the minimum final cut- off marks fixed for selection in unreserved category.
AND/OR IN ALTERNATIVE
(iv) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ particularly in the nature of mandamus commanding upon the concerned respondents to consider the petitioner as unreserved category candidate for consideration of the case of the petitioner for appointment to the post of Assistant Civil Engineer in pursuance of the Advertisement No. 05/2019. AND
(v) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ particularly in the nature of mandamus commanding upon the concerned respondents to keep a post of Assistant Civil Engineer in BC-I category vacant till final decision of this writ petition. AND/OR
(vi) For further issuance of an appropriate writ (s)/ order(s) /direction (s) as Your Lordships may deem fit and proper in the facts and circumstances of the case and in the interest of justice.
A. Arguments of the Petitioner
2. The candidature of the petitioner has been rejected solely on the ground that the petitioner had submitted his caste certificate in central format. The caste certificate which was submitted by the petitioner is contained at page no. 48. The petitioner belongs to backward class (Annexure-1) i.e. BC-I Category which is also apparent from the certificate dated 19.08.2017 as contained at page no. 44 of the writ records. However, the same was not submitted before the concerned authority.
3. The petitioner had applied under BC-I category and passed the preliminary exam, as well as the mains exam.
4. At the stage of document verification, he produced the original documents and upon being satisfied, the petitioner was also permitted to participate in the interview and secured higher marks than the marks obtained by the candidate in the general category.
5. The learned counsel has submitted that the petitioner was asked to give a fresh caste certificate as the validity of the caste certificate had expired. Consequently, the petitioner submitted a fresh caste certificate on 27.01.2022 on page no. 47 at the time of document verification. He submits that after being satisfied with the candidature of the petitioner, the petitioner was permitted to participate in the interview and 3 ultimately the candidature of the petitioner was rejected on the ground that the caste certificate produced by the petitioner was in central format.
6. During the course of the argument, it transpired from the perusal of page no. 47 and 48 of the writ petition that the caste certificates issued under the central format do not reflect or refer to any of the notifications issued by the State Government concerning the classification of the petitioner under BC-I category or BC-II category and the certificates do not reflect as to whether the petitioner belongs to BC-I category or to BC-II category.
7. At this, the learned counsel for the petitioner has submitted that all the circulars that have been mentioned in the central format have also been referred to in the caste certificate which has been issued in the State government format.
8. The learned counsel has submitted that the advertisement in the present case was issued on 18.07.2019 and preliminary test was held on 19.01.2020.
9. At the time of filling up the form, the required certificate was not to be uploaded and the petitioner was subsequently issued the certificate by the Circle Officer on 29.02.2020 in the central format but all the required information in connection with the petitioner to claim reservation were available in the said certificate. It was also certified that the petitioner did not belong to creamy layer.
10. The document verification was done on 13.10.2022 and on this date the petitioner produced the original certificate dated 29.02.2020 and also one more certificate issued on 27.01.2022 which was also in the central format issued by the Sub-Divisional Officer certifying that that the petitioner belongs to non-creamy layer.
11. Learned counsel has submitted that the format of the caste certificate was irrelevant once all the relevant information were furnished. As per paragraph no.38 of the writ petition, the petitioner was subsequently issued the caste certificate dated 24.10.2021 mentioning that the petitioner belongs to BC-I category and such caste certificate was also produced by the petitioner at the time of document verification.
12. He submits that the caste certificate dated 24.10.2021 read with non-creamy layer declaration and the declaration of the caste of the 4 petitioner as issued under the central format was complete in all respect and therefore, the petitioner could not have been denied the benefit of reservation.
13. Learned counsel submits that the sole reason for rejection of the candidature of the petitioner was that he had submitted the caste certificate in the central format. Learned counsel has referred to the Annexure-9 by which the candidature of the petitioner was rejected by indicating as follows: -
"Candidate got benefit of BC I category in PT and mains result, but the caste certificate submitted in central format hence candidature rejected."
14. Learned counsel has referred to the following judgments: -
a. Judgment passed by the Hon'ble Supreme Court reported in (2016) 4 SCC 754 in the case of Ram Kumar Gijroya Vs. Delhi Sub Ordinate Services Selection Board and Ors.
paragraph nos. 16 and 18; the case of the petitioner is squarely covered by the said judgment;
b. Writ petition decided by this Court in W.P.(C) No. 4572 of 2012 (Tausif Raza Vs. The Union of India and others) on 06.10.2012 paragraph Nos. 11 and 12;
c. Writ petition decided by this Court in W.P.(S) No. 1630 of 2017 (Anil Tanti Vs. The State of Jharkhand and others) decided on 13.10.2017 paragraph 6 and 7 and confirmed in L.P.A. No. 610 of 2017 (Jharkhand Staff Selection Commission Vs. The State of Jharkhand and others) decided on 12.10.2018 and has been upheld up till the Hon'ble Supreme Court;
d. Priyanka Rani versus Government of India and Another reported in 2022 SCC Online Delhi 2621 and has referred to paragraph nos. 40, 41, 42, 43, 44 and 45.
15. The learned counsel submits that the case of the petitioner is squarely covered by the judgment rendered by the Hon'ble Supreme Court in Ram Kumar Gijroya case (Supra) reported in (2016) 4 SCC 754 and in view of that the present writ petition is fit to be allowed.
516. The summary of the arguments advanced by the petitioner is also reflecting from the written submissions filed by the petitioner which is quoted hereunder:
i. Cancellation of candidature of petitioner after interview is contrary to the instruction given in paragraph 12(b) of the Advertisement No. 05/2019. ii. It was mentioned in paragraph 10 (III) (i) /(ii) that certificates that were to be submitted should be issued by competent authority of State of Jharkhand. Petitioner has submitted with its application at the time of document verification issued by Circle Officer, Gomia and Sub-Divisional Bermo and original of both certificate was provided.
iii. Caste certificate issued by competent authority of State of Jharkhand i.e. Sub-Divisional Officer, Bermo cannot be discarded by the Respondent Jharkhand Public Service Commission, only for reason that it is in central format.
iv. Contents of the Caste Certificate in prescribed format and Caste Certificate submitted by petitioner are same and not disputed.
v. Rejection of the candidature of petitioner for the reason that caste certificate is in central format is too hyper-technical.
vi. Caste status of petitioner is not denied. All along the information and documents including caste certificate submitted by petitioner were accepted and only in the final stage it was rejected with giving any opportunity of being heard to the petitioner.
vii. The press communique requiring related to important information relating to mains examination requiring successful candidates in preliminary examination to send necessary documents including caste certificate and other documents in accordance with entry made in online application was complied by the petitioner and then only he was issued Provisional Admit Card of Combined Assistant Engineer Main Examination to be held from 22.10.2021 to 24.10.2021.
viii. The petitioner has now obtained the Caste Certificate in the prescribed format as mentioned in paragraph 20 of Rejoinder (Annexure 20/ page 27 of Rejoinder dated 10.10.2023) and willing to furnish the same before the Respondent.
ix. One week time was requested to be granted by the petitioner through representation dated 11.04.2023 for providing Caste Certificate in the prescribed format.6
x. Petitioner obtained 442 marks out of 600 in section -I;
646 marks out of 1000 and shown to be qualified and selected for interview under BC-I category. Petitioner obtained 150 out of 200 marks in interview. The total marks being 796 out of 1200 marks.
xi. The cut-off marks of unreserved category is 788 whereas the cut-off marks of BC-I category is 671. The marks obtained by petitioner is more than both the category.
xii. Genuineness of Caste Certificate is not denied. xiii. Respondent in para 32/34 in Counter-Affidavit dated 29.09.2023 admits submission of said certificates.
B. Arguments of the Respondents
17. The learned counsel appearing on behalf of the respondents has opposed the prayer and has submitted that the contents and the narration of the certificate issued under the Central Government format and that of the State Government are not the same. He has submitted that not only the creamy layer is to be considered but also the status of the petitioner as to whether he falls under BC- I category or BC-II category is required to be considered; as per the Advertisement, there are different percentages of reservations for BC-I and BC-II category. The learned counsel has submitted that the petitioner claims that he has obtained more marks than the last selected candidate under the general category also but at the same time, the impugned order reflects that the petitioner has had the advantage of reservation at the preliminary test as well as the main examination and, therefore, the final calculation will have no bearing once he has availed the reservation at the stage of preliminary exams. The learned counsel submits that the certificate produced by the petitioner did not reflect that he belongs to BC-I category and therefore the candidature of the petitioner has been rightly rejected.
18. It has been submitted that the petitioner is bound by the terms and conditions of the advertisement. As per the vertical reservation different reservation have been provided for BC-I category and BC-II category. He has also referred to clause 10 of the advertisement to submit that the caste certificate was to be issued in terms of the prescribed Form II which was in terms of the circular issued by the State 7 Government contained in the letter no. 1754 dated 25.02.2019 and it was also indicated that the said format was available on the website.
19. Learned counsel submits that the format was prescribed not only to indicate the specific category in which the candidate was belonging whether BC-I or BC-II but also indicating as to whether the candidate belongs to the creamy layer or not.
20. Learned counsel has referred to clause 12 of the advertisement and has submitted that initially at the time of filing of online application the certificate was not required to be uploaded but the hard copy of the certificate was to be submitted at the time of filling up of the form for Mains Examination. The certificate which was to be submitted in the Mains Examination was the same certificate which was available to the candidate at the time of filling of initial form. Clause 12 of the advertisement further indicated that once online application for Mains Examination is submitted, the required certificate was to be produced at the time of physical verification of the certificate; on the date of physical verification of the certificate, any other certificate which was not mentioned in the online application and not issued on the date of filling up the form was not to be considered.
21. He has also submitted that the advertisement further clarifies that once the application is submitted online no changes would be admissible.
22. The learned counsel has referred to the prescribed form in which the certificate was to be issued. Learned counsel has referred to Annexure - 6 of the writ petition and submits that on 15.09.2020 the documents were to be produced for physical verification including the caste certificate in the prescribed form indicating as to whether the candidate belongs to BC-I or BC-II category.
23. He submits that the reason for rejection of the candidature of the petitioner was rightly mentioned. He has also referred to the, supplementary counter affidavit, paragraph nos. 6 and 7 and the candidature of the petitioner was rejected by indicating that-
"form - 11 not annexed. Issue dt. after hard copy submission last date. Earlier, caste cert. in Central govt. format dt. 29.02.2020 submitted at the time of hard copy submission."
24. The learned counsel has referred to the following judgments: -
8a) Judgment passed in L.P.A. No. 169 of 2015 (Rishi Kumar Vs. Jharkhand Public Service Commission and others) decided on 01.09.2015 paragraph 2 and 4.
b) Judgment passed by this Court in W.P.(S) No. 869 of 2023 (Naodeepika Ekka Vs. The State of Jharkhand and others) paragraph nos. 3, 4, 5, 6, 7, 10, 11, 12, 20, 35, 36.
c) Judgment passed by this Court in L.P.A. No. 91 of 2020 (Dr. Sweta Kumari Vs. The State of Jharkhand and others) decided on 27.10.2021.
25. Learned counsel has relied upon the recent judgment of Hon'ble Supreme Court in Divya Vs. Union of India & Ors. reported in (2024) 1 SCC 448 (Divya Vs. Union of India and others) and has referred to paragraph nos. 5.3, 7, 8, 9, 12, 14, 54, 55, 56, 57 and 61 of the said judgment. Some of the paragraphs are quoted as under:-
54. The strong reliance placed on Ram Kumar Gijroya case (supra) also does not impress us. Not only was there no rule, like we have in the present case, it was only while declaring the result, the requirement of submitting the OBC certificate before the cut-off date was introduced by the Selection Authority there. Moreover, unlike the present, there was no contention or issue raised in that case that eligibility enures or crystallizes only on the issuance of the certificate and on possession of the certificate, before the prescribed cut-off date.
55. The judgment in Ram Kumar Gijroya case (supra) is also directly in conflict with the judgment of three Hon'ble Judges in Ashok Kumar Sharma and Others vs. Chander Shekhar and Another (1997) 4 SCC 18 wherein in para 6, it was held as under:-
"So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr.T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the 9 candidates shall have to be judged with reference to that date and that date alone is a well- established one. A person who acquires the prescribed qualification subsequent to such prescribed date, cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis......"
56. Apart from all of this, the correctness of Ram Kumar Gijroya case (supra) was referred to a three-Judge Bench in the case of Karn Singh Yadav (two-Judges). A perusal of para six of the referral order clearly shows that the Bench was echoing the ratio of the three-judge Bench in Ashok Kumar Sharma's case (supra) though there is no express reference to the said case. However, when the matter came before a three- Judge Bench, the reference was not answered and even after noticing that Ram Kumar Gijroya case (supra) covered the case of Karn Singh Yadav (two-Judges), the Court, however, denied relief to Karn Singh Yadav, the petitioner by holding that since the appellant was never appointed to the post at that length of time it was not possible to grant any relief to the appellant. Ram Kumar Gijorya (supra) is clearly distinguishable.
57. Be that as it may, we are bound by the judgment of the three-Judge Bench in Ashok Kumar Sharma (supra) and we follow the said judgment and reiterate the principle laid down thereon. It is also interesting to note that even in Deepak Yadav (supra), a judgment, strongly relied upon by the learned counsel for the petitioners, the principle in Ashok Kumar Sharma (supra) has been reiterated.
However, because of what the Court called an abnormal and cataclysmal year, an exception was made due to the ongoing pandemic, lockdown and restrictions imposed 10 thereof. In Alok Kumar Singh (supra), no rules like the ones present in this case are shown to have existed. In the present case, there are clear prescriptions as to eligibility, as has been discussed herein above.
61. The challenge made in the writ petition to declare Rules 13, 27(3) and 28 to the extent it prescribes that candidate must be in possession of a EWS certificate as on the closing date of the application for preliminary examination to be ultra vires Article 14 is only to be stated to be rejected. There is no case made out to show that the cut-off of 22.02.2022 was picked out of the hat. That was the last date for submission of the application and, according to us, it was a validly prescribed cut-off. In fact, the law laid down by this Court as discussed herein above is, where there is absence of any rule or absence of any prescription, the last day for fulfilling the eligibility is the last date of submission of the application. This is a judicially recognized default date. In this case the last date for filing of the application has been prescribed as the cut- off in the Rules and we see absolutely no case for violation of Article 14."
26. It is submitted that the parties are governed by the terms and conditions of the advertisement and the judgment passed in the case of Ram Kumar Gijroya case (supra) has no applicability to the facts and circumstances of this Case.
C. Rejoinder arguments of the petitioner
27. In response, the learned counsel for the petitioner has submitted that the judgment passed by the Hon'ble Supreme Court in the case of Ram Kumar Gijroya case (supra) has been considered in the case of Karn Singh Yadav Vs. Govt. of NCT Delhi and others reported in 2022 SCC Online SC 1341.
D. Findings of this Court
28. The following points arise for consideration in the present case:
a) Whether the petitioner was required to be in possession of the caste certificate in terms of the notification no. 1754 dated 25-02-2019 (Annexure - 13) at the time of filling up the online form for preliminary examination pursuant to advertisement no. 5 of 2019.
b) If the answer to the aforesaid point is in the negative, What is the outer date by which the certificate was required to be produced.
c) whether the caste certificate produced by the petitioner at the time of filling up the online form of the mains examination can be said to 11 be sufficient compliance of the required caste certificate and whether the petitioner is right in contending that there was no material difference between the central format and prescribed form
-11 of the caste certificate.
29. The records of the case reveal that Road Construction Department, Water Resources Department, and Drinking Water and Sanitation Department, Government of Jharkhand sent requisitions in the year 2015 for selection process for appointment of Assistant Engineers (Civil) and Assistant Engineer (Mechanical) in the aforesaid departments. Consequently, JPSC issued Advertisement No. 6 of 2015.
30. During the pendency of the selection process, the State Government framed the rules, namely Jharkhand Engineering Services Appointment Rules; the Government of India also published office Memorandum dated 31.01.2019 whereby 10% of the reservation was provided for Economically Weaker Section (EWS); this led to amendment of Reservation Rules 2001 vide Resolution No. 1433, dated 15.02.2019; the Ordinance vide Notification No. 248 dated 25.02.2019; the Ordinance vide Notification No. 259, dated 08.07.2019, and Amendment Act vide Notification No. 285, dated 26.09.2019; the Reservation Rules i.e. The Jharkhand Reservation of Vacancies in Posts and Services (S.C, S.T and O.B.C) was amended and notified vide notification dated 08.07.2019 and was published in Gazette of the State on Jharkhand on 08.07.2019.
31. As a consequence of the aforesaid developments, State Government withdrew the advertisement pertaining to the Advertisement No. 6 of 2015. Thereafter, the selection process started again according to Advertisement No.5 of 2019 (Annexure - 4).
32. The important clauses with regards to availing benefits of reservation are clause 10 and 12 of the advertisement and the extract of the said clauses relevant for the purposes of this case are as under: -
"10 (I) Online (II) 12 (III) vuqekU; tkfr izek.k i= gsrq foLr`r funs'k fuEuor~ gS %&
(i) vuqlwfpr tkfr @ vuqlwfpr tutkfr %& .......
(ii) II I
II I
(iii) vkfFkZd :Ik ls detksj ukxfjd oxZ ds fy, %& .......
(g) [ksydwn dksVk ds vUrxZr vkj{k.k ds nkos
.......
(a) Online
(q)
Online
(Hard Copy)
Online
Hard Copy
(b) Online
(c) Jharkhand Public Service Commission ds osclkbZV
www.jpsc.gov.in ij Online Application System ds ek/;e ls vkosnu Lohdkj fd;k tk,xkA
(d) Online Application Online Application 13 (Entry)
(e) vkWuykbu (Online) vkosnu izi= Hkjus ds iwoZ "How to apply" ¼vkosnu dSls djs½a vk;ksx ds osclkbV www.jpsc.gov.in ij vo'; i<+As foKkiu laca/kh tkudkjh ds fy, vk;ksx ds Help Line No.- 0651@2213009 ij vkosnu tek djus dh vafre frfFk rd dk;Z fnol esa lqcg& 10.00 cts ls 'kke 05:00 cts rd laidZ fd;k tk ldrk gSA
(f) vkWuykbu vkosnu Hkjus esa dksbZ vlqfo/kk gksus ij vk;sx ds Help Line No. ij dk;Z fnol esa lqcg 10:00 cts ls 'kke cts 05:00 rd laidZ fd;k tk ldrk gS %&
(g) ijh{kk 'kqYd tek djus ds lac/a k esa fdlh rjg dh tkudkjh ds fy, Payment Helpline No. - 0651/2213009 ij laidZ fd; tk ldrk gSA
(h) Online Application System ds }kjk okafNr LFkku ij vH;FkhZ viuk Li"V jaxhu ¼ikliksVZ lkbZTk½ QksVksxzkQ ,oa gLrk{kj LdSu dj layXu djuk lqfuf'pr djsaxsAa fu/kkZfjr LFkku ij QksVksxzkQ ,oa gLRkk{kj ugha jgus ij vkosnd dh vH;fFkZRkk jí dj nh tk;sxhA
(i) vkosnu i= ij gLrk{kj dks NksM+dj vkosnu i= ds 'ks"k dkWye vaxzsth ds cM+s v{kjks (BLOCK LETTERS) esa gh Hkjk gksuk pkfg,A
(j) vkosnd viuk uke] firk dk uke dh oÙkZuh (Spelling) ogh fy[ksax]s tks eSfVªd ds lfVZfQdsV@ vad i= esa vafdr gSA
(k) tUe frfFk&vkosnd ds eSfVªd izek.k i=@ vad i= es]a tks mudh tUe frfFk vafdr ;Fkk frfFk] eghuk vkSj o"kZ gS ogh vkonsu i= ds ;Fkk fu/kkZfjr LFkku ij fy[ksAa
(l) vkosnu Hkjrs le; vkosnd 'kS{kf.kd ;ksX;rk ls lacaf/kr fooj.kh] mex laca/kh izosf'kdk ¼eSfVªd½ izek.k i=] tkfr izek.k i=] fu%'kDrrk izek.k i=] HkwriwoZ lSfud izek.k i= ¼tgk¡ ykxw gks½ vkWuykbu (Online) vkosnu i= ds fu/kkZfjr dafMdkvksa esa vfuok;Z :Ik ls izfo"V djsaxsA
(m) p;u izfØ;k fcuk djk.k crk;s fdlh Hkh le; la'kksf/kr] LFkfxr ;k jí djus dk vf/kdkj vk;ksx ds ikl lqjf{kr jgsxkA
(n) vH;fFkZ;ksa dk ijh{kk 'kqYd vk;ksx dks fofgr ek/;e ls izkIr ugha gksus dh fLFkfr esa vkosnu jí fd;k tk ldrk gSA
(o) Online Online
(p)
(q) 14
(q) Hard Copy Online
(i)
(ii) 10+2
(iii) (B.Tech/B.E)
(iv) I II
(v) EWS
(vi)
(vii)
(viii)
(ix)
33. The advertisement reveals that the online application could be submitted w.e.f. 15.10.2019 and the last dated for submission of form was 11.11.2019.
34. The advertisement vide paragraph no.10 (III) (ii) provided that in order to avail reservation, the candidate has to obtain the required certificate in terms of letter no.1754 dated 25.02.2019 in prescribed Form 11 (excluding creamy layer) issued by the competent authority of the State of Jharkhand. It was also indicated that the prescribed form for caste certificate was made available in the website of the JPSC. Upon perusal of the prescribed form -11 this court finds that it was to serve twin purpose, (a) whether the candidate belongs to BC-I category or to BC-II category (b) whether the candidate belongs to creamy layer.
35. The Advertisement reveals that different reservation has been inter alia provided with respect to BC-I and BC-II category. The 15 Advertisement further reveals that the persons who had participated and who had submitted the form pursuant to earlier Advertisement No.6 of 2015 were also required to apply afresh but were not supposed to deposit the required fees.
36. As per clause 9, the minimum qualification has been prescribed and it has also been prescribed that a candidate was required to possess the required degree to be qualified for appearing in the competitive examination.
37. Clause 10 (I) of the advertisement provided that at the time of submitting the online application for preliminary examination, the candidate was required only to mention the category under which application was being made.
38. As per Clause 12 (a), at the time of filling up the form for preliminary examination, no certificate was required to be submitted but the various columns were to be correctly filled up and the hard copies of the certificates were to be submitted along with online application for mains examination.
39. The candidates who qualify the preliminary examination were required to follow the instruction in terms of clause 12 (q) of the advertisement and the hard copies of the required certificates were to be filed along with the online form for mains examination. Clause 12
(q) provided the list of documents which were to be submitted at the time of online application for mains examination which included caste certificate in the prescribed form. It was also clearly indicated under clause 12 (a) that on account of non-submission of hard copy of the documents, the candidature of the candidate would be cancelled.
40. Clause 12 (b) also provided that candidature will be acceptable only on provisional basis and the original of the documents /certificates were to be produced for verification and after verification of the documents, the candidate would be entitled to appear for interview.
41. Thus, the aforesaid terms and conditions of that advertisement clearly provide that though the candidature under one or the other category was required to be claimed at the time of filling up of the initial form for preliminary examination but the required certificates were to be produced and submitted only at the time of filling up of the online form of mains examination. The hard copies of the certificates were 16 required to be submitted along with the online mains application form and no changes could be made once the online application was submitted and on account of non-submission of document the candidature will be cancelled.
42. This Court is of the considered view that for claiming reservation under backward class (BC-I or BC-II) only a declaration with regard to caste status indicating non-creamy layer was to be given at the time of submitting the form for preliminary examination but the supporting hard copies were to be submitted only at the time of filling up online application for mains examination. Such declaration at the time of filling up the form had to indicate as to whether the candidate belongs to BC-I category or BC-II category (both non creamy layer) as the allocation of percentage reservation for the two categories were different. This Court finds that the requirement for claiming reservation under BC-I category or BC-II category were two folds: -
a. The candidate should belong to the caste under BC-I or under BC-II b. The candidate should belong to non -creamy layer category.
43. Both the aforesaid requirements were to be fulfilled at the time of filing the form for the preliminary examination. Though the status of caste is acquired by birth but the status belonging to non-creamy layer is a variable factor and depends upon various parameters.
44. The caste certificate in the prescribed Form 11 specifies as to the whether the candidate belongs to BC-I category or the candidate belongs of BC-II category and as to whether the candidate belong to non-creamy layer category. Certainly, there could be many candidates who might have applied for the required certificate in the format mentioned in the advertisement upon issuance of the advertisement and may not be in physical possession of the caste certificate in the prescribed form at the time of filling up the form for preliminary examination. As per the advertisement, the candidate is not required to submit any document at the time of filling up the form for the preliminary examination but his declaration for claiming reservation should be correct. The advertisement provides that on the date of filling up of online application for mains examination, the hard copies of the documents are required to be produced which required production of 17 certificate in the prescribed Form -11 in support of the claim for reservation which in turn certifies as to whether the candidate belongs to BC-I category or BC-II category and also certifies as to whether the candidate belongs to creamy layer or non-creamy layer.
45. In the recent judgment passed by the Hon'ble Supreme Court reported in (2024) 1 SCC 448 (Supra), the question for consideration was, interalia, as to whether Union Public Service Commission was justified in denying benefit of reservation under the EWS category to the respondents of the said case who had submitted the required certificate after the prescribed cut-off date . The Hon'ble Supreme Court held that as per the rules applicable in the said case the requirement was that the candidate should be in possession of the requisite Income and Asset Certificate based on the income of the financial year 2020-2021 and the candidate should also be in possession of all the requisite certificates in the prescribed format by the closing date of the application for Civil Services (Preliminary) Examination- 2022. In view of the aforesaid specific provision, the Hon'ble Supreme Court held that it was clear from the office memorandums and the rules for claiming reservation under EWS category that the Income and Asset Certificate must be as per the prescribed norms and must be in possession of the candidate on or before the cut-off date. The applicable date for possession in the said case was 22.02.2022; Preliminary examination was held on 05.06.2022.
46. In the present case, there is no such rule or condition that the candidate should be in possession of the caste certificate in the prescribed form-11 on the date of filling up of the form for the preliminary examination. Thus, the argument of the learned counsel for the respondents that the candidates should be in possession of the caste certificate in prescribed form on the date of filling up the form for preliminary examination is rejected.
47. This Court is of the considered view that there was no such requirement as per the advertisement that the candidate should be in physical possession of the caste certificate in the prescribed format at the time of filling up the forms for the preliminary examination but certainly, the candidate was required to meet the twin criteria as mentioned above, that is, caste status (BC-I or BC-II) as well as falling 18 under non-creamy layer at the time of filling up the form of preliminary exam.
48. Thus, the petitioner was not required to be in physical possession of the caste certificate in terms of the notification no. 1754 dated 25-02- 2019 (Annexure - 13) at the time of filling up the online form for preliminary examination pursuant to advertisement no. 5 of 2019. The point no. (a) is accordingly decided.
49. This takes us to the next point i.e What is the outer date by which the caste certificate in prescribed form was required to be produced.
50. The advertisement provides that on the date of filling up of online application for mains examination, the hard copies of the documents were required to be produced including certificate in the prescribed Form - 11 in support of the claim for reservation declaring as to whether the candidate belongs to BC-I category or BC-II category and also declare as to whether the candidate belongs to creamy layer or non- creamy layer. On account of non-production of the hard copies of the required documents at the time of filling up of the mains online form, the candidature of the candidate was to be rejected as fully discussed above while dealing with the terms and conditions of the advertisement. Thus, the candidate was required to be in possession and also file the required caste certificate in the prescribed Form -11 on the date of filling up of online application for mains examination as per the specific terms and conditions of the advertisement.
51. In view of the aforesaid findings, the outer date by which the caste certificate was required to be produced was at the time of submission of online mains application. The point no.(b) is accordingly decided.
52. This takes us to the next point i.e whether the caste certificate produced by the petitioner at the time of filling up the online form of the mains examination can be said to be sufficient compliance of the required caste certificate and whether the petitioner is right in contending that there was no material difference between the central format and prescribed form -11 of the caste certificate.
53. In the present case, the preliminary examination was held on 19.01.2020; the result of preliminary examination was declared on 14.08.2020 in which the petitioner was declared successful; a press 19 communication was issued in terms of clause 12 (q) of the advertisement asking the candidates to submit legible self-attested photocopies of the documents before JPSC during the period from 21.08.2020 to 15.09.2020 which included the caste certificate in prescribed format no. 11 (for ST, SC, BC-I and BC-II category candidates of Jharkhand State); the petitioner submitted self-attested copy of the online application form and other documents as well as caste certificate no.JHCOB/2020/08146 dated 29.02.2020 issued by the Circle Officer, Gomia, Bokaro meant for services under the Government of India. A copy of the said certificate has been annexed as Annexure - A to the counter-affidavit and has also been filed by the petitioner at page no.48 of the writ petition.
54. Upon perusal of the caste certificate produced by the petitioner dated 29.02.2020, the same has been issued for appointment to post/admission to Central Educational Institution under the Government of India and the said caste certificate clearly indicates that the petitioner does not belong to creamy layer as per the notifications of Government of India issued from time to time and that the petitioner belongs to 'momin-muslim' caste which is recognized as 'other backward class' under the various notifications issued by the Government of India from time to time. The number and date of such notifications issued by Government of India have been mentioned in the caste certificate itself. However, the aforesaid caste certificate does not indicate as to whether the petitioner belongs to BC-I category or to BC- II category.
55. The prescribed format for the caste certificate in Form II clearly mentions about the specific declaration as to whether the candidate belongs to BC-I category or to BC-II category which are the classification done by the State of Jharkhand by issuance of notification from time to time. Thus, the caste certificate issued in the Central format and produced by the petitioner at the time of filling up of online mains application form had nothing to do with the classification of the petitioner under BC-I category or BC-II. The caste certificate which was produced by the petitioner dated 29.02.2020 did not mention as to whether the petitioner belongs to BC-I or BC-II category.
2056. This Court is of the considered view that the format of caste certificate under Government of India (Central format) so far it is issued to backward classes is not the same as the prescribed format of the caste certificate which was required to be submitted at the time of submission of online form for mains examination or to claim reservation either under BC-I category or BC-II category. The difference was that the central government format had no specification regarding BC-I and BC- II. This classification assumes importance as the scope for reservation for BC-I is different from BC-II category.
57. The argument of the petitioner that the error was only in terms of the format is not acceptable in as much as the content/specification as to whether the petitioner belongs to BC-I or BC-II category was totally absent in the aforesaid caste certificate dated 29.02.2020 issued in the central format.
58. In the aforesaid facts and circumstances, this Court is of the considered view that the caste certificate produced by the petitioner in central format did not meet the requirement of advertisement to claim reservation under BC-I or BC-II category when the caste certificate itself did not reveal as to whether the petitioner belonging to BC-I or BC-II category. It is not in dispute that the reservations under BC-I or BC-II category are different and, therefore, it was essential for the petitioner to produce the caste certificate in the prescribed format at the time of filing the mains online form which would have mentioned as to whether the petitioner belongs to BC-I or BC-II category to claim benefits of reservation. On account of non-production of caste certificate meeting the requirement of the advertisement at the time of submission of online form for mains examination rightly resulted in rejection of the candidature of the petitioner.
59. The judgment relied upon by the petitioner passed in the case of Ram Kumar Gijroya case (supra) and in the case of Karn Singh Yadav Vs. Govt. of NCT Delhi and others reported in 2022 SCC Online SC 1341 have been duly considered by the Hon'ble Supreme Court in the case of Divya Vs. Union of India & Ors. reported in (2024) 1 SCC 448 (Divya Vs. Union of India and others) in paragraph 54 and 56 which are quoted as under:-
2154. The strong reliance placed on Ram Kumar Gijroya case (supra) also does not impress us. Not only was there no rule, like we have in the present case, it was only while declaring the result, the requirement of submitting the OBC certificate before the cut-off date was introduced by the Selection Authority there. Moreover, unlike the present, there was no contention or issue raised in that case that eligibility enures or crystallizes only on the issuance of the certificate and on possession of the certificate, before the prescribed cut-off date.
56. Apart from all of this, the correctness of Ram Kumar Gijroya case (supra) was referred to a three-Judge Bench in the case of Karn Singh Yadav (two-Judges). A perusal of para six of the referral order clearly shows that the Bench was echoing the ratio of the three-judge Bench in Ashok Kumar Sharma's case (supra) though there is no express reference to the said case. However, when the matter came before a three- Judge Bench, the reference was not answered and even after noticing that Ram Kumar Gijroya case (supra) covered the case of Karn Singh Yadav (two-Judges), the Court, however, denied relief to Karn Singh Yadav, the petitioner by holding that since the appellant was never appointed to the post at that length of time it was not possible to grant any relief to the appellant. Ram Kumar Gijorya (supra) is clearly distinguishable.
60. Thus, in the case of Ram Kumar Girjoya (supra) there was no rule or condition in the advertisement with regards to production of the caste certificate and it was only while declaring the result, the requirement of submitting the OBC certificate before the cut-off date was introduced by the Selection Authority. In the present case there is a specific provision in the advertisement itself that the documents were required to be submitted at the time of filling up the online form of the mains examination. This court is of the view that if the reliance is placed on the judgement passed in the case of Ram Kumar Girjoya (supra) so as to consider the caste certificate produced by the petitioner after filling up the online form of the mains examination, that would amount to ignoring a vital condition of the advertisement. Such a course is not permissible under law. Thus, the judgement passed in the case of Ram Kumar Girjoya (supra) and other judgments primarily based on the judgement of Ram Kumar Girjoya (supra) are not applicable to the 22 facts of this case in the light of the specific terms and conditions of the advertisement regarding production of caste certificate.
61. The petitioner was in possession of one more caste certificate which was dated 19.08.2017 indicating that the petitioner belonged to BC-I backward class (Annexure - I) of Jharkhand Reservation of Vacancies and Posts (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 2001 but the petitioner never produced the same before the authority and it has been annexed with the writ petition for the first time. Upon a specific query made to the petitioner on 27.02.2024, it was stated by the learned counsel for the petitioner that the certificate dated 19.08.2017 was never produced before the authorities. This fact has been recorded in order dated 27.02.2024 passed in this case. The petitioner has now obtained the Caste Certificate in the prescribed format as mentioned in the Rejoinder and has expressed his readiness and willing to furnish the same before the Respondents but such belated submission of the caste certificate is not acceptable in law.
62. This Court is of the considered view that production of prescribed caste certificate at a later stage is of no use when the advertisement was very clear that all the required documents (hard copies) were to be submitted at the time of submitting online application for mains examination with a further stipulation that no change was permissible in online application for main examination and on account of non-submission the candidature will be cancelled.
63. Thus, the caste certificate produced by the petitioner at the time of filling up the online form of the mains examination cannot be said to be sufficient compliance of production of the required caste certificate. The petitioner is not right in contending that there was no material difference between the central format and prescribed form -11 of the caste certificate. Consequently, the candidature of the petitioner was rightly rejected for having filed the caste certificate in central format. Point no. (c ) is accordingly decided .
64. As a cumulative effect of the aforesaid findings, this writ petition is dismissed.
(Anubha Rawat Choudhary, J.) Saurav