Patna High Court
Dr. Lalita Kumari vs The Bihar State University Service ... on 27 September, 2023
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15313 of 2022
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Dr. Lalita Kumari D/o Sri Hirdanand Thakur, W/o Bablu Kumar, R/o Ward
No. 12 (Old), New - 08, Near Mahavir Asthan, Khutia, P.S.- Mansi, District-
Khagaria - 851214. ... ... Petitioner
Versus
1. The Bihar State University Service Commission 8th Floor, Bihar School
Examination Board Academic Building, Buddh Marg, Patna - 800001
through its Secretary.
2. The Chairman, Bihar State University Service Commission, 8th Floor, Bihar
School Examination Board Academic Building, Buddh Marg, Patna-
800001.
... ... Respondents
======================================================
with
Civil Writ Jurisdiction Case No. 15314 of 2022
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Anjali Kumari, Wife of Dr. Jawahar Paswan, Resident of Ward No. 04,
Ambedkar Hostel, T.P. College Madhepura, P.O. and P.S. and District-
Madhepura, Pin Code- 852113 ... ... Petitioner
Versus
1. The State of Bihar through the Additional Chief Secretary, Education
Department, Bihar, Patna.
2. Bihar State University Service Commission, Patna through its Secretary.
3. Chairman, Bihar State University Service Commission, Patna.
4. Secretary, Bihar State University Service Commission, Patna.
... ... Respondents
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 15313 of 2022)
For the Petitioner/s : Mr. Purushottam Kumar Jha, Advocate
For the Respondent/s : Mr. Pawan Kumar Choudhary, Advocate
(In Civil Writ Jurisdiction Case No. 15314 of 2022)
For the Petitioner/s : Mr. Abhinav Srivastava, Advocate
For the Respondent/s : Mr. Pawan Kumar Choudhary, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date : 27-09-2023
These two writ applications are raising a common
question for consideration, therefore, on the request of the parties,
Patna High Court CWJC No.15313 of 2022 dt.27-09-2023
2/26
both the writ applications have been taken up together for
consideration and are being disposed of by this common judgment.
2. For sake of clarity, this Court would briefly refer the
facts of both the cases separately hereunder:-
CWJC No.15313 of 2022
3. In this case, the petitioner has questioned the Notice
No. B.S.U.S.C./foKk0&14/2022-1240 dated 13.10.2022 (Annexure
'3') and Notice No. B.S.U.S.C/foKk0&14/2022-([k.M&5)-1298 dated
22.10.2022(Annexure '5') to the writ application whereby the petitioner has been held ineligible for the post of Assistant Professor, Hindi (under EBC category) on the ground that the petitioner had paid Rs.75/- as fee but she does not come under clause 10.1(ii), 10.1(iii) or 10.1(iv) of the advertisement published by the Bihar State University Service Commission (hereinafter referred to as the 'Commission') vide Annexure '1' to the writ application. The petitioner further prays that upon setting aside the impugned orders, a writ of mandamus be issued commanding the Commission to allow the petitioner to participate in the process of interview for the post of Assistant Professor, Hindi which had been scheduled in between 03.11.2022 to 08.11.2022.
4. It is the case of the petitioner that pursuant to the advertisement published by the Commission inviting applications Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 3/26 from the eligible candidates for appointment on the post of Assistant Professor in different subjects in different Universities of the State of Bihar, the petitioner submitted her application online vide Annexure '2' to the writ application and deposited the fixed amount of fee of Rs.75/-.
5. The grievance of the petitioner is that the Commission declared the petitioner 'ineligible' and her candidature has been rejected on the ground that the fee paid is Rs.75/- but the candidate does not come under Clause 10.1(ii), 10.1(iii) or 10.1(iv) of the advertisement.
6. It is stated that the petitioner represented before the Commission by submitting through registered post her recent non- creamy layer certificate, residential certificate and caste certificate issued by the competent authority of the Government of Bihar and further explained that she is permanent resident of the State of Bihar as her father is basically a permanent resident of Village- Amhara, P.O. Mankatha, District- Lakhisarai and for his work only, he is residing at Sahebganj (Jharkhand) where he has built up a residential house. The petitioner claims that she was married to one Bablu Kumar in the year 2004 who is a permanent resident of Ward no. 12 (old), New-08, near Mahavir Asthan, Kutia, P.S.- Mansi, District- Khagaria. The petitioner, therefore, requested the Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 4/26 Commission to treat her candidature in EBC category for the post of Assistant Professor in Hindi but the Commission once again vide notice as contained in Annexure '5' held the petitioner ineligible on the same ground.
CWJC No.15314 of 2022
7. In this writ application, the petitioner is aggrieved by and dissatisfied with the part of the notice dated 22.10.2022 issued by the Commission by which the petitioner has been declared ineligible for participating in the process of selection to be conducted pursuant to advertisement no. AP-HIND-07/20-21 published by the Commission. She had also applied against the post of Assistant Professor in Hindi, however, her candidature had been rejected because she (a) paid a fee of Rs.75/- and (b) as per attached caste certificate, candidate's father belongs to Jharkhand State.
8. It is the case of the petitioner that the petitioner was born on 02.02.1977 in the District of Godda which was one of the districts in the erstwhile State of Bihar. The petitioner submits that after coming into force of the Bihar Reorganization Act, 2000 (hereinafter referred to as the 'Act of 2000') w.e.f. November 15 th, 2000, the District Godda became a part of the successor State of Jharkhand. Thereafter, upon solemnization of her marriage with Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 5/26 one Dr. Jawahar Paswan, the petitioner became a resident of the District of Madhepura where she is presently residing, therefore, the petitioner claims that she was clearly entitled for being treated as a permanent resident of the State of Bihar and accordingly, she was also entitled for the benefits of reservation as was to be extended in favour of the candidates belonging to Schedule Caste category.
9. It is stated that the petitioner had submitted the caste certificate issued in her favour from the place where her father was residing and in the said certificate, the address of her father has been shown as that of District of Godda in the State of Jharkhand. A copy of the caste certificate dated 28.10.2020 issued by the office of the Circle Officer, Mahagama, Godda (Jharkhand) has been brought on record as Annexure '3' to the writ application. It is stated that the caste certificate issued from the State of Jharkhand was submitted because the caste certificate had to be issued on the basis of parentage of the candidate but in view of the fact that during the relevant time, when the petitioner was born, the District of Godda was in the State of Bihar and even after the marriage of the petitioner to Dr. Jawahar Paswan, she continues to remained a permanent resident of the State of Bihar by virtue of her marriage in the District of Madhepura, State of Bihar. Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 6/26
10. In order to strengthen her claim, the petitioner submits that she had participated in the process of selection for appointment of Guest Faculty in the colleges under B.N. Mandal University, Madhepura and on the basis of her performance, she has been appointed as such and is continuing as Guest Faculty in Hindi since 14.11.2019.
11. The petitioner submits that the stipulation contained under Clause 8.2 of the advertisement dated 21.09.2020, inter-alia, prescribes that the benefits of reservation would be extended only in favour of such candidates who were the permanent residents of the State of Bihar and it was also indicated in the said clause that for the purposes of ascertaining the permanent residence of a candidate, the permanent address given by such candidate in the application form alone would be treated to be valid. The petitioner submits that to prove that she is a permanent resident of the State of Bihar, she has been in possession of a residential certificate issued from Alamnagar under Sub-Division-Udakishunganj in the District of Madhepura which has been issued on 10.10.2020 clearly showing that the petitioner is a permanent resident of the said block. Her husband's name is indicated in the residential certificate, copy of which has been enclosed in the writ application as Annexure '4'.
Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 7/26 Submissions on behalf of the Petitioners
12. In course of submissions, learned counsel for the petitioners have relied upon judgment of the Hon'ble Supreme Court in the case of Pankaj Kumar versus State of Jharkhand and others ( Civil Appeal No. 4864 of 2021 arising out of SLP (Civil) No. 13473 of 2020) reported in 2021 SCC online 616. A reference has also been made to the judgment of the Hon'ble Supreme Court in the case of Akhilesh Prasad versus Jharkhand Public Service Commission and Others reported in 2022 online SC 510.
Stand of the State
13. On the other hand, it is the stand of the State that the writ petitioners in the present case have not submitted their application in terms of the advertisement, therefore, in the initial stage itself, during screening/ scrutiny of the application, their application forms were found incomplete and accordingly, they were held ineligible.
14. It is submitted that if the petitioners have not filled up their forms in accordance with the provisions/ conditions of the advertisement, they cannot claim against the conduct of the Commission because the advertisement Clause 14.1 categorically mentions that with regard to any deficiency in the filled up form, Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 8/26 the Commission shall not be responsible and for any adverse decision only candidate can be held responsible.
15. It is stated that Clause 8.1 and 8.3.1 categorically mention that the applicant must be a resident of the State of Bihar for availing the benefit of the reservation policy of the State of Bihar. The petitioner in CWJC No.15314 of 2022 submitted a residential certificate with the name of her husband whereas in Clause 8.3.4 of the advertisement, it is clearly mentioned that the married female must submit her caste, residential and creamy layer certificate with the name of her father so that the domicile can be decided for the benefit of reservation. Father of the petitioner is a resident of the State of Jharkhand accordingly, she had submitted a caste certificate issued by the authority of the State of Jharkhand, therefore, for this reason, her case has not been considered in the category of a Schedule Caste for the reservation purposes. Moreover, she had deposited only Rs.75/- in respect of fee, so it is not sufficient fee and accordingly, she has been declared 'ineligible'.
16. It has also been stated that the Commission has already published the result and final selection list had been published whereafter recommendations for appointments were made to the concerned Universities. It is stated that pursuant to the Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 9/26 advertisement dated 21.09.2020, appointments have already been made and the entire selection process has been completed.
17. Learned counsel for the State further submits that the ratio of the judgment in the case of Pankaj Kumar (supra) would go against the petitioners and the judgment of the Hon'ble Apex Court in the case of Akhilesh Prasad (supra) would not apply in the facts of these cases.
Consideration
18. Having heard learned counsel for the petitioners and the State in both the writ applications, this Court, at first instance, finds it appropriate to reproduce the relevant clauses of the advertisement which have been referred to by the parties for adjudication in the present writ application. The advertisement contains Clause '8' and it's various sub clauses thereunder which provide for the reservation policy. Clause 10 of the advertisement calls upon the candidates in different categories i.e. reserved/ unreserved to make online application by making payment of their application fee in the manner suggested under Clause '10'. Clause '8' and Clause '10' of the advertisement are being reproduced hereunder for a ready reference:-
¼8½ vkj{k.k uhfr %& ¼8-1½ vkWuykbu vkonsu i= ds lacaf/kr dkWye esa vkj{k.k dk nkok ugha djus ij vH;FkhZ dks vkj{k.k dk ykHk ugha feysxkA dsoy fiNM+s oxZ dh efgyk vkj{k.k dksfV ¼WBC½ dh efgyk vH;fFkhZ;ksa dks bls vyx ls bafxr djus dh vko";Drk ugha Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 10/26 gSA fiNM+s oxZ dh efgyk vkj{k.k dksfV ¼WBC½ esa vuqlwfpr tkfr@ vuqlwfpr tu tutkfr@ vR;ar fiNM+k oxZ ,oa fiNM+k oxZ dksfV dh efgyk dks vkj{k.k dk ykHk fn;k tk,xkA ¼8-2½ vuqlwfpr tkfr @ vuqlwfpr tu tkfr @ fiNM+k oxZ @vR;ar fiNM+k oxZ ds mUgha vH;fFkZ;ksa dks vkj{k.k dk ykHk feysxk tks fcgkj ds ewy vf/koklh gSa fcgkj jkT; ds ckgj ds vf/koklh vH;fFkZ;ksa dks vkj{k.k dk ykHk ns; ugha gksxkA vkWuykbu vkosnu esa Hkjk x;k LFkk;h irk gh vkj{k.k iz;kstu ds fy, LFkk;h fuokl vuqekU; gksxkA ¼8-3½ fcgkj inksa ,oa lsokvksa dh fjfDr;ksa esa vkj{k.k ¼vuqlwfpr tkfr;ksa @ vuqlwfpr tu tkfr;ksa ,oa vU; fiNM+s oxksZ ds fy, ½ vf/kfu;e] 1991 ¼fcgkj vf/kfu;e&3] 1992½ ¼le;≤ ij ;Fkkla"kksf/kr½ ds izko/kkuksa dk vuqikyu fd;k tk;sxkA vkj{k.k dk YkkHk dsoy oSls lq;ksX; vH;fFkZ;ksa dks fn;k tk;sxk tks fcgkj ds LFkk;h vf/koklh gSA vU; jkT; @ dsUnz "kkflr izns"k ds vkjf{kr Js.kh ds vH;fFkZ;ksa dh x.kuk xSj vkjf{kr Js.kh ds vH;FkhZ esa dh tk;sxh ,oa mu ij xSj vkjf{kr Js.kh ds mij ykxw gksus okys izko/kku ykxw gksaxsA vkosnu esa vafdr LFkk;h irk gh vkj{k.k iz;kstu ds fy, LFkk;h fuokl vuqekU; gksxkA 8-3-1 vuq0 tkfr ,ao vuq0 tu tkfr ds mEehnokjksa dks fuEuakfdr izek.ki= tek djuk vfuok;Z gksxkA%& ¼a½ tkfr izek.k i= ¼b½ ewy fuokl iek.k i= ¼Mksfelkby izek.k i=½ 8-3-2 fiNMk+ oxZ ,oa vR;ar fiNM+k oxZ ds mEehnokjksa dks fuEuakfdr izek.ki= tek djuk vfuok;Z gksxk %& ¼a½ tkfr izek.k i= ¼b½ ewy fuokl izek.k i= ¼Mksfelkby izek.k i=½ ¼c½ Øhehys;j jfgr izek.k i= 8-3-3 fiNM+k oxZ ,oa vR;ar fiNM+k oxZ dk vH;FkhZ gksus dh n"kk esa vius LFkk;h vf/kokl vapy ds vapyf/kdkjh }kjk fuxZr Øhehys;j jfgr izek.k i=] tkfr izek.k i= ,oa LFkk;h fuokl izek.k i= ,oa vuq0 tkfr vkSj vuq0 t0 tkfr dh n"kk esa vius LFkk;h vf/kokl vapy ds vapykf/kdkjh }kjk fuxZr tkfr izek.k i= Mksfelkby izek.k i= ekU; gksxkA 8-3-4 vkj{k.k dk nkok djus okyh fookfgr efgykvksa dh tkfr@Øhehys;j jfgr izek.k i= mlds firk ds uke o LFkk;h irk ls fuxZr gksuk pfg,] u fd mlds ifr ds uke o irk lsA 8-3-5 vkjf{kr dksfV ds mEehnokj viuh tkfr ds vuq:i iw.kZ :i ls larq'V gksus ds i"pkr gh vkjf{kr dksfV dk vadu vkWuykbZu vkosnu ds lacaf/kr dkWye esa djsaxs ,oa vkWuykbZu vkosnu Hkjrs le; muds ikl vkj{k.k dksfV ds vuq:i l{ke izkf/kdkj ls fuxzr izek.k&i= miyC/k gksuk vfuok;Z gksxkA fdlh izdkj dh =qfV gksus ij vkj{k.k dk nkok ekU; ugha gksxkA vkonsu Hkjus ds i"pkr vkj{k.k dksfV esa ifjorZu dk nkok ekU; ugha gksxkA lkFk gh xyr vkj{k.k dksfV vafdr djus ij vkj{k.k dk ykHk ugha feysxkA vkjf{kr dksfV fuEuor~ gS%& Ø0 l0 vkjf{kr dksfV vkWuykbZu vkosnu esa vkjf{kr dksfV 01 vuqlwfpr tkfr ¼Schedule Caste½ SC 02 vuqlwfpr tutkfr ¼Schedule Tribe½ ST Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 11/26 03 vfr fiNM+k oxZ ¼Extremely Backward EBC Class½ 04 fiNM+k oxZ ¼Backward Class½ BC 05 vkfFkZd :i ls detksj oxZ ¼Economically EWS Weaker Section½ 8-3-6 lkekU; iz"kklu foHkkx] fcgkj iVuk ds vf/klwpuk la[;k & 13062] fnukad & 12-10-2017 ds vkyksd esa dsoy ,sls vH;FkhZ lsokvksa @ inksa ls 04 izfr"kr fnO;kaxrk vk/kkfjr {kSfrt vkj{k.k ds fy, ik= gksaxs] tks de ls de 40 izfr"kr laxr fnO;kaxrk ls xzLr gksaA tks vH;FkhZ vkj{k.k dk ykHk izkIr djuk pkgrs gksa] mUgsa l{ke izkf/kdkj }kjk fofgr izi= esa tkjh fd;k x;k fnO;kaxrk izek.k&i= izLrqr djuk gksxk] vU;kFkk mugsa fnO;kaxkrk ds vk/kkj ij vkj{k.k dk ykHk ns; ugh gksxkA 8-3-7 fcgkj ljdkj] lkekU; iz"kklu foHkkx ds i=kad & 2342] fnukad 15-02-2016 ds izko/kku ds varxZr vkjf{kr ,oa xSj&vkjf{kr Js.kh dh efgykvksa dks 35 % {kSfrt vkj{k.k ds v/khu vkj{k.k ns; gksxkA 8-3-6 lkekU; iz"kklu foHkkx] fcgkj ds i=kad & 2526] fnuakd 18-02-
2016 ds vkyksd esa fcgkj jkT; ds oSls Lora=rk lsukfu;ksa ftUgsa dsUnz }kjk ias"ku Lohd`r gS] ds iksrk@iksrh @ ukrh @ufruh dks fjfDr dh miyC/krk dh fLFkfr esa fu;ekuqlkj 02 izfr"kr {kSfrt vkj{k.k ns; gksxkA ,sls vkj{k.k dk nkok djus okys vH;fFkZ;ksa ds ikl vkonsu djrs le; vius x`g ftyk ds ftyk inkf/dkjh ;k muds }kjk izkf/kd`r inkf/kdkjh ds gLrk{kj ls fuxZr ¼HkwriwoZ Lora=rk lsukuh ds iksrk@iksrh @ ukrh @ufruhs gksus dk½izek.k &i= fuf"pr :i ls miyC/k gksuk pkfg,A 8-3-9 lkekU; iz"kklu foHkkx] fcgkj dh vf/klwpuk la[;k&2622] fnaukd 26-02-2019 ds vkyksd esa vfFkZd :i ls detksj oxZ ds fy, fjfDr dh miyC/krk dh fLFkfr esa fu;ekuqlkj 10 izfr"kr vkj{k.k ns; gksxkA vkfFkZd :i ls detksj oxZ ds lnL; }kjk izLrqr fd;k tkusokyk vk; ,oa ifjlEifr izek.k i= mi;qZDr vf/klwpuk ds lkFk layXu vuqlwph&2 ¼izi= & 1½ esa l{ke izkf/kdkj }kjk fuxZr gksuk pkfg,A 8-3-10 miZ;qDr vkj{k.k laca/kh lHkh izek.k i= lk{kkRdkj ds le; ewy :i ls izLrqr ugha djus ij vkj{k.k dk ykHk ns; ugha gksxkA uksV %& ¼i½ vkWuykbZu vkosnu izkIr djus ds Øe esa vH;fFkZ;ksa ls dfri; lwpuk, flQZ MkVk csl la/kkfjr djus gsrq yh tk jgh gSA vxj mDr lwpuk ls lacaf/kr fdlh izdkj dh NwV foKkiu esa vafdr ugha gS rks] u rks mldk nkok ekU; gksxk vkSj u gh mldk ykHk ns; gksxkA foKkiu esa of.kZr lwpuk @"krZ @ tkudkjh @ fdlh izdkj dh NwV gh vafre :i ls ekU; gksxhA ¼ii½ mi;ZqDr vafdr vkj{k.k dk YkkHk ¼fnO;kaxrk vk/kfjr vkj{k.k dks NksM+dj½ dsoy oSls lw;ksX; vH;kfFkZ;ksa dks ns; gksuk tks fcgkj jkT; ds LFkk;h vf/koklh ¼Domicile½ gSA ¼10½ vkWuykbZu vkosnu "kwYd %& Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 12/26 ¼10-1½ dksfVgkj vkWuykbZu vkosnu "kwYd dk fooj.k uhps fn;k x;k gSA ¼i½ vukjf{kr Js.kh ds mEehnokj gsrq & 300 : ¼rhu lkS :i;s½ ¼ii½ dsoy fcgkj jkT; ds vuqlfpr tkfr @ vuqlwfpr tutkfr ds vH;fFkZ gsrq & 75 :0 ¼ipgrj :i;s½ ¼iii½ dsoy fcgkj jkT; dh LFkk;h fuoklh lHkh ¼vkjf{kr oxZ @ vukjf{kr oxZ½ efgyk gsrq & 75 :0 ¼ipgrj :i;s½ ¼iv½ fnO;kax vH;fFkZ;ksa ¼40 izfr"kr ;k mlls vf/kd ½ ds fy, & 75 :0 ¼ipgrj :i;s½ ¼v½ "ks'k vU; mEehnokj gsrq & 300 : ¼rhu lkS :i;s½ ¼10-2½ vkonsu "kqYd ØsfMV dkMZ @ MsfcV dkMZ @ usV cSfadx @ ;w0ih0vkbZ0 }kjk vkWuykbZu bZ & Hkqxrku xsVos ds ek/;e ls tek fd;k tk;xkA ¼10-3½ vH;FkhZ dks mi;qZDRk "kqYd ds vfrfjDr fofHkUu cSadks }kjk fu/kZkfjr pktZ Hkh nsuk gksxk ftls vkWuykbZu Hkqxrku ds Øe esa cSad }kjk Lor% pktZ ds :i esa ys fy;k tk,xkA vkosnu ds lkFk vkosnu "kqyd ,oa cSad pktZ ds :i esa vf/klwfpr jkf"k ykSVkbZ ugha tk;sxhA oSls lHkh dksfV ds vH;FkhZ ,oa vuqlwfpr tkfr @ vuqlwfpr tutkfr dksfV ls vkus okys vH;FkhZ tks fnO;kax @ vuqlwfpr tkfr @ vuqlwfpr tutkfr dksfV ds YkkHk dk nkok djrs gS vkSj muds }kjk vuqlwfpr tkfr] vuqlwfpr tkutkfr ,oa fnO;kaxrk ds vuq:i "kqYd tek fd;k tkrk gS vkSj Hkfo'; esa oSlh vH;FkhZ }kjk fnO;kaxrk ls lacaf/kr izek.k&i= rFkk vuqlwfpr tkfr @ vuqlwfpr tutkfr ds vH;FkhZ }kjk vuqlwfpr tkfr @ vuqlwfpr tutfr ls lacaf/kr izek.k i= izLrqr ugha fd;k tkrk gS ;k mlij fdlh izdkj dk lansg mRiUu gksrk gS rks mUgs fj;k;rh "kqYd ¼Concessional fee½ ds vk/kkj ij vufgZr fd;k tk ldrk gSa fnO;kax vH;fFkZ;ksa ,oa vuqlwfpr tkfr @ vuqlwfpr tutkfr dksfV ds vH;fFkZ;ks dks bl lanFkZ esa lwfpr fd;k tkrk gS fd os LosPNk ls "kqyD lkekU; vH;fFkZ;ksa ds vuq:i tek djrs gS] rks bl fcUnq ij mudh vH;fFkZrk lqjf{kr jgsxhA bl ij vH;FkhZ Loa; fu.kZ; ys ldrs gSA"
19. From a bare perusal of the aforementioned clauses of the advertisement, it is evident that the rules of reservation with respect to filling up of the vacant post in the service of the Government of Bihar would be covered by the statutory provisions contained under Bihar (Reservation in Posts and Services for Schedule Castes/Schedule Tribes and other Backward Classes) Act, 1991 (hereinafter referred to as the 'Act of 1991') with Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 13/26 amendments from time to time. Clause '8.3' specifically says that the benefit of reservation shall be given only to those suitable candidates who are permanent residents of the State of Bihar. It also provides that the candidates from other States/Union Territories and falling in the reservation list of those States and Union Territories shall be treated in unreserved category and they would be governed by the conditions which would be applicable for the unreserved category of candidates.
20. So far as the case of the petitioner in CWJC No. 15313 of 2022 is concerned, it is evident from her own statement in the writ application that her father was residing at Sahebganj in the State of Jharkhand and had built up a residential house there.
She has brought on record a caste certificate and residential certificate dated 05.08.2022 and 05.08.2022 respectively as contained in Annexures '4/4' and '4/3' respectively issued by the Revenue Officer, Lakhisarai. In her online application also she had declared her category as Extremely Backward Class and a permanent resident of the State of Bihar. On perusal of Clause '8.3.4' of the advertisement, it is evident that a married woman claiming reservation must produce the caste certificate (Non-
Creamy Layer) with the name of her father and should have been issued from the permanent address of her father and not in the Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 14/26 name of her husband and from the address of her husband. The petitioner herself declared that her father was working at Sahebganj in the State of Jharkhand where he had built up a residential house. She has placed on record Annexure '6/1' dated 22.10.2020 with the name of her father who has been declared a member of the Extremely Backward Class (Schedule I) in the State of Jharkhand which is recognised for filling up the posts and services in the Jharkhand Government. The petitioner had obtained the caste certificate dated 09.12.2020 also from the State of Jharkhand for admissions in the Central Government Educational Institutions and appointment on the Government of India posts. It is, thus, evident from the documents which have been brought on record by the petitioner that at the time of the advertisement of 21.09.2020, she was taking benefit of reservation on the basis of the caste certificate issued from the State of Jharkhand.
21. Similarly, in CWJC No. 15314 of 2022, this Court finds that the petitioner admits to have born in the District of Godda in the erstwhile State of Bihar which after bifurcation of the erstwhile State of Bihar fell in the part of the successor State of Jharkhand. She moved to the State of Bihar voluntarily after her marriage in the District of Madhepura, State of Bihar. On perusal of her caste certificate enclosed as Annexure '3' to the writ Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 15/26 application, it would appear that the same has been issued by the Circle Officer, Mahagama, Godda, Jharkhand wherein she has been shown with her father's name and resident of Village-
Mohani, P.S. Mahagama, District-Godda and that she belongs to Scheduled Caste which is approved as Scheduled Caste for the State of Jharkhand. In the aforementioned background where on the date of advertisement, both the above named petitioners were having caste certificates issued by the State of Jharkhand, a question would arose whether by virtue of their having born in an area falling in the erstwhile State of Bihar or because their fathers belong to the erstwhile State of Bihar, the petitioners in these two writ applications can claim reservation as permanent residents of the State of Bihar.
22. In the case of Pankaj Kumar (supra), the Hon'ble Supreme Court was considering a case in which the appellant's father in Civil Appeal @ SLP (Civil) No(s) 13473 of 2020 originally belonged to District-Patna in the State of Bihar but the appellant was born on 27th November, 1974 at Hazaribagh where his father was residing. Earlier, Hazaribagh was part of the unified State of Bihar but after the Act of 2000 came into force from the appointed date i.e. 15.11.2000, the District-Hazaribagh became part of the successor State of Jharkhand. The appellant had been Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 16/26 born and brought up there, got his education and was appointed on the post of Assistant Teacher on 21st December, 1999 and posted in a school at Ranchi against the post reserved for Scheduled Caste category. Pursuant to the cadre revision, he had opted the State of Jharkhand. While serving as a Teacher, the appellant appeared in the 3rd Combined Civil Services Examination, 2008 pursuant to an advertisement no. 11 of 2007 published by the State of Jharkhand.
He passed the prelims, mains and after his interview, he was finally selected and placed at Sr. No. 5 in the final result against 17 vacancies reserved for Schedule Caste category but at this stage, the State of Jharkhand raised an issue and a plea was taken on behalf of the State that service book of the appellant was showing that he was permanent resident of District Patna in the State of Bihar, therefore, he has to be treated as a migrant to the State of Jharkhand and as a consequence thereof, he would not be eligible for appointment in Scheduled Caste category.
23. In the aforementioned background, the Hon'ble Supreme Court dealt with the issues relating to reservation. What has been held in paragraphs '35' to '41' of the judgment would be important to take note hereunder:-
35. It may be noticed that in the integrated State of Bihar, these very castes/tribes have been identified under the Constitution (Scheduled Castes)/ (Scheduled Tribes) Order, 1950, it applies throughout the State of Bihar including 18 districts Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 17/26 which now form the territorial jurisdiction of the successor State of Jharkhand created in terms of Section 3 of the Act, 2000.
36. In the integrated State of Bihar, in terms of the Constitution (Scheduled Castes)/(Scheduled Tribes) order, 1950, after the caste certificate of the Scheduled Castes/Scheduled Tribes/OBC has been issued to the incumbent on the basis of his place of origin/domicile, made him entitled to claim privileges and benefits throughout the State of Bihar.
After the incumbent has enjoyed the privileges and benefits as a member of Scheduled Caste/Scheduled Tribe/OBC for more than five decades, at the time of issuance of the amendment notification introducing Vth and VIth Schedule in terms of Sections 23 and 24 of Act 2000 in November 2000, those very castes/tribes/OBC with the same nomenclature and geographical conditions, now located in the successor State of Jharkhand by virtue of Section 3 of the Act 2000 became applicable to the residents of the successor State for all practical purposes.
37. The Constitution Bench of this Court in Marri Chandra Shekhar Rao (supra) had an occasion to examine as to whether the person belonging to Scheduled Castes in relation to a particular State would be entitled to the benefits or concessions allowed to Scheduled Castes in the matter of education/employment in another State. Referring to various provisions of the Constitution and the grounds on which the Presidential Orders were issued and noticing earlier judgments, this Court held as under:--
"9. It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community. Extreme social and economic backwardness arising out of traditional Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 18/26 practices of untouchability is normally considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however, varies from State to State and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole."
(emphasis supplied)
38. This Court, while rejecting the contention that the member of the Scheduled Castes/Scheduled Tribes should get the benefit for the purpose of Constitution through out the territory of India, observed that if such contention is to be accepted, the very expression "in relation to State" would lose its significance. Marri Chandra Shekhar Rao (supra) was further followed by another Constitution Bench of this Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra (supra) which further came to be followed by another Constitution Bench of this Court in Bir Singh (supra) wherein in para 34, it was held as under:--
"34. Unhesitatingly, therefore, it can be said that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. The expressions "in relation to that State or Union Territory" and "for the purpose of this Constitution" used in Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand confined to the Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 19/26 geographical territories of a State/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. A person notified as a Scheduled Caste in State 'A' cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State 'A'."
(emphasis supplied)
39. So far as involuntary migration from one State to another State is concerned, the Constitution Bench of this Court in Marri Chandra Shekhar Rao (supra) taking note of the fate of those castes/tribes seeking protection of being classed as Scheduled Castes or Scheduled Tribes in the State of their origin when, because of transfer or movement of their father or guardian's business or service, they move to another State having considered the fate of their migration from one State to another State being involuntary, by force or circumstances either of employment or of profession, left it for the legislature or the Parliament to consider it for appropriate legislation bearing that aspect in mind that their rights and privileges as members of Scheduled Castes/Scheduled Tribes be well protected by virtue of provisions of Articles 341(1) and 342(1) of the Constitution and observed in para 23 as under:--
"23. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribe in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education.
Having considered the facts and circumstances of such situation, it appears to us that where Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 20/26 the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration."
(emphasis supplied)
40. In relation to Backward Classes, this Court in M.C.D. v. Veena and Others6 has specifically held that migrants are not entitled for reservation as Other Backward Classes (OBCs) in the States/Union Territories where they have migrated. The relevant portion of the judgment that may be noticed is as hereunder:
"6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It
6. 2001 (6) SCC 571 Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 21/26 may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs."
(emphasis supplied)
41. By the judgments of the Constitution Bench of which the reference has been made (supra), it has been settled that the person belonging to Scheduled Castes/Scheduled Tribes/OBC of the State, on migration to another State voluntarily or involuntarily, will not be entitled to claim benefits of reservation including privileges and benefits admissible to the member of the Scheduled Castes/Scheduled Tribes/OBC even though, the caste or tribe of the same nomenclature is notified in the latter State(State where migrated) and if that is being permitted, the very expression as mandated under Articles 341(1) and 342(1) of the Constitution in "relation to the State" would become otiose and this issue remain no more res integra after the pronouncements made by the Constitution Bench of this Court.
24. In the aforementioned background of the discussions, it was held that the appellant of the said case had a statutory protection under the Act of 2000, his rights and privileges to the extent being protected by the legislative enactment, he could not have been considered migrant to the Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 22/26 successor State of Jharkhand depriving him of his privileges and benefits to which the incumbent or their lineal descendants has availed from the very inception of the Presidential Order, 1950 in the integrated State of Bihar.
25. So far as the facts of these two cases are concerned, those are completely otherwise. In these two cases, there is no dispute that the fathers of the writ petitioners had chosen to stay in the State of Jharkhand where they got the benefit of reservations. Both the petitioners had obtained caste certificates with the name of their fathers from the place where their fathers were permanently residing.
26. In terms of the judgment of the Hon'ble Apex Court, a person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand but will not be entitled to claim reservation simultaneously in both the successor States. Those who are members of the reserved category and are residents of the successor State of Bihar while participating in open selection in the State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.
27. In the case of Akhilesh Prasad (supra), the appellant had appeared in the Graduate Level (Special) Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 23/26 Competitive Examination held in the year 1994 for filling the post of Cooperative Development Officers. The then Bihar Public Service Commission recommended the name of the appellant in Scheduled Tribes category (Gond). His caste certificate was issued by the Scrutiny Officer Sonepur (Saran) which place now falls in the newly carved State of Bihar after reorganisation of the State. Later, he was appointed on 10.11.1995.
28. After bifurcation of the State of Bihar by virtue of the Act of 2000, the appellant's service was allocated to the successor State of Jharkhand and since then the appellant had been in service of the State of Jharkhand. On 14.08.2008, a letter was issued by the Principal Secretary, Government of Jharkhand to all the Secretaries of the Department regarding reservation in promotion in various categories of services in the State of Jharkhand. The advertisement issued for purpose of the post of Deputy Collectors through limited departmental examination prescribed that the benefit of reservation would be extended only to those who submit the appropriate caste certificate from the Sub- Divisional Officer posted in the State of Jharkhand. The appellant had offered his candidature but in the result, he was declared 'unsuccessful' even though he had secured 123.68 marks against the cut-off at 113.70 for ST category. The State of Jharkhand Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 24/26 contended that the examination is not a general open competitive examination rather it is open for in-service candidates of the Government of Jharkhad only. Thus, the persons who are not employed in the State of Jharkhand are not entitled to appear in the said examination.
29. In the aforementioned background, the Hon'ble Supreme Court considered the issues and the judgment in the case of Pankaj Kumar (supra) was also cited. The Hon'ble Supreme Court considered the issues in paragraphs '23' to '26' which are as under:-
"23. By very nature, the promotion to the next higher level is from and amongst those who are at a lower level in the service. The avenue of promotion is not available to persons from the open market, which talent is to be garnered through direct recruitment. The promotion as a channel to reach the higher level is only available to the persons already belonging to the service. In normal circumstances, the promotion would go by the concept of merit linked with seniority subject to suitability. In order to encourage meritorious candidates who may be comparatively junior in service, a window of opportunity is opened through limited departmental examination. Those who pass the examination are entitled to have an accelerated promotion. This process does not change the character of movement to the higher post and it continues to be a promotional channel. The Single Judge of the High Court was therefore right in allowing the writ petition. The underlined portion from the order passed by the Single Judge shows that the matter was considered in the correct perspective. The Division Bench of the High Court was not justified in concluding that limited departmental examination was nothing but direct recruitment from the open market.
Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 25/26
24. Before we part, we must deal with some of the observations in Pankaj Kumar2.
25. In the instant case and in the case of Pankaj Kumar,2 the appellants belonged to a particular community or tribe which was specified in the erstwhile State of Bihar as Scheduled Castes/ Scheduled Tribes when they entered public service in the erstwhile State of Bihar. The appellants in both the cases were allocated to the service under State of Jharkhand though they belonged to the areas which after re-organization are now part of the successor State of Bihar. By virtue of Sections 73 and 74 of the Act, they could certainly claim benefit in the service under the newly carved State of Jharkhand. On the strength of the view taken in Pankaj Kumar2, the entitlement in a fresh service in State of Jharkhand as well as in accordance with the view taken by us in the instant case, the entitlement in the limited departmental examination in State of Jharkhand is definitely made out. The basis for their entitlement is primarily because of Sections 73 and 74 of the Act. It is quite possible that the progeny of such persons may have stayed back or may later decide to go back to their roots, that is to say, to the area which now falls in the newly carved State of Bihar; and since their lineage is from that area and the State, they may contend that they are entitled to benefits of reservation in the newly carved State of Bihar in relation to which State, the community that they belong, is a Scheduled Caste/Scheduled Tribe. Paragraph 55 of the decision in Pankaj Kumar2 is capable of being read as conferring entitlement on the wards or the progeny of the appellants in State of Jharkhand alone where in contradistinction to their lineage, they can claim to have connection only through their parent(s) and the effect of the provisions of the Act.
26. It must be stated that the entitlement of the progeny or the wards of the appellant in State of Jharkhand had not strictly arisen for consideration in Pankaj Kumar2. In our view, the issue, if any, can and must be gone into in detail in an appropriate case."
2. [2021(9) SCALE 576] Patna High Court CWJC No.15313 of 2022 dt.27-09-2023 26/26
30. So far as the above observations of the Hon'ble Apex Court are concerned, the petitioners in these cases cannot draw any strength from the observation because they have earlier chosen to obtain their caste certificate from the State of Jharkhand.
31. In both the judgments of the Hon'ble Supreme Court, so far as the petitioners are concerned, they have no case.
32. These writ applications are dismissed.
(Rajeev Ranjan Prasad, J) SUSHMA2/-
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