Patna High Court
Soumya Bharadwaj vs The State Of Bihar on 11 July, 2024
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10421 of 2024
======================================================
Soumya Bharadwaj Daughter of Sanjay Kumar Jha Resident of village-
Bihari, P.O.-Narauchh Dham, Via-Ratanpur Abhiman, P.S.-Jale, District-
Darbhanga-847307.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Health
Department, Govt. of Bihar, Patna,
2. The Bihar Public Service Commission, Patna through its Chairman.
3. The Additional Secretary-Cum-Examination Controller, Bihar Public
Service Commission, Patna,
4. Uma Kumari Roll No. 901573, selected under EWS category for the post of
Drug Inspector against advertisement no. 09/2022
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Prashant Sinha, Advocate
For the B.P.S.C. : Mr. Sanjay Pandey, Advocate
For the State : Mr. Bipin Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 11-07-2024
Heard Mr. Prashant Sinha, learned counsel appearing
on behalf of the petitioner; Mr. Sanjay Pandey, learned counsel
appearing on behalf of the Bihar Public Service Commission and
Mr. Bipin Kumar, learned counsel for the State.
2. The petitioner in paragraph no. 1 of the present writ
petition has sought inter alia following relief(s), which is
Patna High Court CWJC No.10421 of 2024 dt.11-07-2024
2/15
reproduced hereinafter:
"(i) For issuance of writ in the nature of certiorari
for quashing of that part of the result dated 27.06.2024 issued by
the Bihar Public Service Commission against advertisement no.
09/2022, for the post of Drug Inspector whereby the result of the
written examination of the petitioner bearing Roll No. 901913
has been cancelled on the ground that the petitioner has
produced the EWS certificate on the basis of financial year 2022-
23 and not on the basis of financial year 2021-2022 due to which
she was not treated in the EWS Category and her cut off was
below the cut off of unreserved (woman) category.
(ii) For holding that the petitioner submitted her
application pursuant to the Important Notice dated 23.05.2023
issued by the BPSC, hence, she submitted the EWS certificate on
the basis of the financial year 2022-23, therefore, it was wrong
on the part of the respondents to not to include the petitioner in
the EWS category and treat her in the unreserved (Woman)
category.
(iii) For necessary direction upon the respondent
authorities of the BPSC to recommend the name of the petitioner
for being appointed as Drug Inspector against advertisement no.
09/2022 in the EWS category and further direction to the
respondent State to appoint the petitioner on the post of Drug
Inspector.
(iv) For necessary direction upon the respondent
authorities to keep one post of Drug Inspector, in EWS category,
vacant during the pendency of this writ application as the
petitioner has been illegally deprived in the selection process by
the respondents.
(v) For any other direction, which your Lordships
may deem fit and proper in the facts and circumstances of the
case."
3. Petitioner is aggrieved by the result dated
27.06.2024published by the Bihar Public Service Commission (hereinafter referred to as the 'B.P.S.C.' for short) against the Advertisement No. 09 of 2022, for the post of Drug Inspector, whereby, on the basis of the result of the written examination of the petitioner bearing Roll No. 901913, her candidature has been cancelled on the ground that the petitioner has produced the Economically Weaker Section (hereinafter referred to as the 'E.W.S.' for short) Certificate on the basis of Financial Year 2022- Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 3/15 2023 and not on the basis of Financial Year 2021-2022, due to which, she was not treated in the E.W.S. Category and her cut off marks was also below the cut off marks of Unreserved (Woman) Category.
4. Learned counsel appearing on behalf of the petitioner submitted that the vital right of the petitioner to be appointed has been defeated as a result of non-selection of the petitioner in E.W.S. Category for the post of Drug Inspector, for which the advertisement was issued by the B.P.S.C on 22.11.2022. Learned counsel submitted that the requirement of furnishing of E.W.S. Certificate for Financial Year 2021-22 is in teeth of the provision contained in Clause (5) and (6) of the Bihar Reservation of Vacancies of Posts and Services and in Admissions in Educational Institutions (for Economically Weaker Sections) Rules, 2019 (hereinafter referred to as 'Rules, 2019' for short). Learned counsel further submitted that the requirement of advertisement cannot be against the statutory provision as contained in Rules, 2019. Learned counsel in support of the claim has submitted that the advertisement was subject matter of CWJC No. 17581 of 2022, which was filed by one candidate, namely, Chandan Kumar Yadav, who had sought for quashing of Advertisement No. 9 of 2022, wherein, apart from educational qualification, the experience mentioned in the first Proviso to Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 4/15 Rule 49 of the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as 'the Rules of 1945' for short) has been included as a mandatory qualification in Clause (3) of the Advertisement No. 09/2022. The co-ordinate Bench of this Court had allowed the grievance of the said writ petitioner by holding that petitioner has been able to establish a prima facie case under the circumstances mentioned therein that the incorporation of the Proviso as if it is part of the mandatory and essential qualification for appointment as Drug Inspector is bad in law. Referring to Full Bench decision of the Allahabad High Court, in case of Kuldeep Singh & Ors. vs. State of U.P. & Anr. reported in 2014 SCC OnLine All 5119 dated 10.04.2014, learned counsel submitted that the Full Bench of Allahabad High Court has formulated two questions, which have been considered by the co-ordinate Bench of this Court, which are inter alia as follows:
"(1) Whether the experience required in the proviso to Rule 49 of the Drugs and Cosmetics Rules, 1945 is only a bar of authorization to inspect the manufacture of substances, or is an essential qualification under Rule 49 for direct appointment as Drug Inspector under Rule 5(4) of the U.P. State Drug Control Gazetted Officers' Service Rules, 1995.
(2) Whether the Division Bench judgment in State of U.P. v. Zunab Ali has been correctly decided."
5. After the order dated 12.05.2023 passed by a co- ordinate Bench of this Court in CWJC No. 17581 of 2022, the B.P.S.C. published urgent notice in respect of Advertisement No. Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 5/15 09/2022 relating to the appointment of Drug Inspector giving information to all such eligible candidate to apply, those, who had not applied earlier pursuant to the Advertisement No. 09/2022. Petitioner finding herself to be eligible in terms of the Advertisement No. 09/2022 and being aware of the eligibility conditions and requirement contained in Sub-Clause (viii) of Clause (8) of the Advertisement, had applied for the post of Drug Inspector under the said Advertisement. Learned counsel, in these backgrounds, submitted that the rejection of the candidature of the petitioner on the ground that she had not furnished E.W.S. Certificate for Financial Year 2021-2022 cannot be sustained in the eye of law. Learned counsel further submitted that the petitioner was considered under the Unreserved (Woman) Category, in which, she could not meet the cutoff marks in the written examination, although, as per the marks obtained in written examination, she had qualified under the E.W.S. Category. Learned counsel submitted that the petitioner has been denied the opportunity of being appointed on frivolous ground, which is against the mandate of Article 14 and 16(1) of the Constitution of India.
6. Per contra, Mr. Sanjay Pandey, learned counsel appearing on behalf of the Bihar Public Service Commission submitted that it is settled principle of law that the selection Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 6/15 process has to be completed in terms and conditions of the advertisement and the petitioner having applied under the E.W.S. Category, after having been aware of the terms and conditions of the advertisement, cannot turn around and take a plea as on date, without challenging the said advertisement at the threshold, if it was against the statutory provision of Rules, 2019. Learned counsel further submitted that it is further settled principle of law that if the relief as sought for in the present writ petition is allowed, the same will amount to Change of Rule of Game. Considering the fact that the advertisement is dated 22.11.2022 and the eligibility condition in respect of the E.W.S. Category is to furnish E.W.S. Certificate for the Financial Year 2021-2022, the petitioner cannot take advantage even according to the governing rules, which provides that the E.W.S. Certificate is valid only for one Financial Year. The petitioner was required to furnish certificate relating to Financial Year 2021-22 being valid only for one year as per Rule 5 of the Rules, 2019, and now making plea that even after the expiry of Financial Year, she can furnish E.W.S. Certificate for Financial Year 2022-23 is contrary to the said Rules. Learned counsel further informs that the final result has already been published on 27.06.2024 and the petitioner having not qualified under Unreserved (Woman) Category in the written examination, her candidature was Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 7/15 cancelled and, as such, the present writ petition does not require any interference of this Court.
7. Heard the parties.
8. Having considered the rival submissions made on behalf of the parties, as well as, the fact that the advertisement relates to year 2022 published on 22.11.2022. The petitioner possesses B.Pharma and M.Pharma qualifications and had applied for the post of Drug Inspector. It has been claimed by the petitioner that in terms of Rule 49 of the Drugs and Cosmetic Rules, 1945, she became eligible to be appointed as Drug Inspector having degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialization in Clinical Pharmacology or Microbiology from a recognized University in India. The petitioner, not having experience as provided in Clause (3) of the Advertisement published by the B.P.S.C, could not applied against the Advertisement dated 22.11.2022. One of such candidates, who was also not having the require experience had filed a writ petition bearing CWJC No. 17581 of 2022 (Chandan Kumar Yadav vs. State of Bihar & Ors.), challenging the condition put in Clause (3) of the Advertisement and a co- ordinate Bench of this Court passed an interim order dated 12.05.2023 allowing the said petitioner to fill up the form for appointment and in compliance of the order dated 12.05.2023, the Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 8/15 respondent-B.P.S.C. published an important notice on 23.05.2023 allowing all such candidates to apply against the post of Drug Inspector. The petitioner could not be considered in E.W.S. Category as she had not furnished E.W.S. Certificate for Financial Year 2021-22. The petitioner has claimed in the writ petition that in spite of the said fact, she was called for the interview on 19.04.2024 and the result was declared on 27.06.2024 declaring the petitioner to be unsuccessful on the ground that at the time of document verification, the petitioner had produced E.W.S. Certificate for Financial Year 2022-23, while in terms of Advertisement, she was required to produce E.W.S. Certificate for Financial Year 2021-22. In support of her claim that the authority has acted in an arbitrary manner in spite of the fact that she had been successful in written examination and has faced the interview and the E.W.S. Certificate for Financial Year 2021-22 could not have been issued by the authorities in terms of Rules (5) of the Bihar Reservation in Vacancy of Posts and Services and in Admission in the Educational Institutions (For Economical Weaker Sections) Rule, 2019, according to which, E.W.S. Certificate remains valid for the concerned Financial Year and in the case of the petitioner, the requirement of E.W.S. Certificate for Financial Year 2021-22 had already became invalid. The petitioner had submitted E.W.S. The petitioner has claimed that Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 9/15 the Certificate for Financial Year 2022-23 submitted by her is in terms of Rule (5) of Rule, 2019. I find it proper to reproduce the provisions of Rule (5) and (6) of Rule 2019, which inter alia is as follows:
" 5. Validity.- Validity of income and assets certificate will be of one year from the date of issue.
6.Verification.- The appointment/admission under Economically Weaker Sections quota will be provisional and subject to the income and assets certificate being verified. If the verification reveals that the certificate produced by the candidate is fake/false, the service/admission will be terminated without assigning any further reasons and without prejudice to further action as may be taken under the provisions of Indian Penal Code for the production of fake and false certificate."
9. I have also perused the communication dated 23.05.2023, which was published as an important notice in respect of Advertisement No. 09 of 2022 allowing the candidates with educational qualification as provided in Clause (3) of the Advertisement to apply against the post of Drug Inspector, who have experience as contained in proviso to Rule 49 being not mandatory requirement for being appointed as Drug Inspector. Allowing such candidate, the date of application was extended from 24.05.2023 till 30.05.2023, however, the terms and conditions of the Advertisement was not changed in respect of Sub-Clause (viii) of Clause (8), which mandates for submission of E.W.S. Certificate relating to Financial Year 2021-22. Rule (5) of Rule, 2019 provides that the E.W.S. Certificate is valid only Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 10/15 for one year and considering the said fact, the advertisement having been issued on 22.11.2022, no change in respect of Financial Year would become unjustified in respect of the candidates, who had already applied in terms of the Advertisement dated 22.11.2022. Even the interim order dated 12.05.2023 passed in CWJC No. 17581 of 2022 in no manner, interfered with the condition contained in Clause (8) in respect of Sub-Clause (viii) of the Advertisement, which mandates for furnishing of E.W.S Certificate for the Financial Year 2021-22. The petitioner, at this stage, cannot say that she did not know the said condition of Advertisement after having participated in the selection process. The petitioner, at the same time, cannot be allowed by wrongful interpretation of Rules (5) and (6) of Rule, 2019. Taking into consideration the requirement of Advertisement in terms of Sub-Clause (viii) of Clause (8), it cannot be said to Dehors the Rule (5) of Rule, 2019 as it is well settled principle of law that an attempt to change the Rule after the game has already been played is held to be illegal in view of the law settled by the Hon'ble Supreme Court in the case of Sivanandan C.T. & Ors. vs. High Court of Kearala & Ors. reported in (2016) 10 SCC 484, K. Manjusri vs. State of A.P. & Anr. reported in (2008) 3 SCC 512 and Govt. of NCT Delhi & Ors. Vs Pradeed Kumar & Ors. reported in (2019) 10 SCC 120. The petitioner can only Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 11/15 claim her entitlement in terms and conditions of the Advertisement and her failure to furnish E.W.S. Certificate for Financial Year 2021-22 cannot be considered to be denial of equal opportunity to her in violation of Article 16(1) of the Constitution of India. Nothing prevented the petitioner to furnish the same.
10. The question whether 'Rules of Game' could be changed has been considered by the Hon'ble Supreme Court in number of cases. The proposition of Rules of Game has been duly considered by the Apex Court in the case of Tej Prakash Pathak and Ors vs. Rajasthan High Court and Ors (2013) Vol. 4 SCC
540. It will be useful to reproduce paragraph nos. 12 to 15.
"12. If the principle of Manjusree case [K. Manjusree v. State of A.P., (2008) 3 SCC 512 at p. 524, para 27 : (2008) 1 SCC (L&S) 841] is applied strictly to the present case, the respondent High Court is bound to recruit 13 of the "best"
candidates out of the 21 who applied irrespective of their performance in the examination held. In such cases, theoretically it is possible that candidates securing very low marks but higher than some other competing candidates may have to be appointed. In our opinion, application of the principle as laid down in Manjusree case [K. Manjusree v. State of A.P., (2008) 3 SCC 512 at p. 524, para 27 : (2008) 1 SCC (L&S) 841] without any further scrutiny would not be in the larger public interest or the goal of establishing an efficient administrative machinery.
13. This Court in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] while dealing with the recruitment of Subordinate Judges of the Punjab Civil Services (Judicial Branch) had to deal with the situation where the relevant rule prescribed minimum qualifying marks. The recruitment was for filling up of 15 vacancies. 40 candidates secured the minimum qualifying marks (45%). Only 7 candidates who secured 55% and above marks were appointed and the remaining vacancies were kept Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 12/15 unfilled. The decision of the State Government not to fill up the remaining vacancies in spite of the availability of candidates who secured the minimum qualifying marks was challenged. The State Government defended its decision not to fill up posts on the ground that the decision was taken to maintain the high standards of competence in judicial service. The High Court upheld the challenge and issued a mandamus. In appeal, this Court reversed and opined that the candidates securing minimum qualifying marks at an examination held for the purpose of recruitment into the service of the State have no legal right to be appointed. In the context, it was held: (Subash Chander Marwaha case [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] , SCC p. 227, para 12) "12. ... In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high standards of competence to fix a score which is much higher than the one required for more (sic mere) eligibility."
14. Unfortunately, the decision in Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] does not appear to have been brought to the notice of Their Lordships in Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 at p. 524, para 27 : (2008) 1 SCC (L&S) 841] . This Court in Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 at p. 524, para 27 : (2008) 1 SCC (L&S) 841] relied upon P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] , Umesh Chandra Shukla v.
Union of India [(1985) 3 SCC 721 : 1985 SCC (L&S) 919] and Durgacharan Misra v. State of Orissa [(1987) 4 SCC 646 : 1988 SCC (L&S) 36] . In none of the cases, was the decision in Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] considered.
15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the "rules of the game"
insofar as the prescription of eligibility criteria is concerned as was done in C. Channabasavaih v. State of Mysore [AIR 1965 SC 1293] , etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the "rules of the game"
stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard."
Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 13/15
11. The above observation made by the Apex Court leads to the fact that the theory of change of 'Rules of Game' is yet to be crystallized. In view of the proposition having been referred to the larger Bench of Hon'ble Supreme Court.
12. Specific terms and conditions of the Advertisement contained in Sub-Clause (viii) of Clause 8, which relates to reservation in respect of E.W.S. Category, which is reproduced hereinafter:
"8-(viii) lkekU; iz'kklu foHkkx] fcgkj dh vf/klwpuk la[;k&2622] fnukad& 26-02-2019 ds vkyksd esa vkfFkZd :i ls detksj oxZ ds fy, bl foKkiu dh dafMdk 1 ¼d½ 2 esa of.kZr fjfDr ds vuqlkj 10% vkj{k.k dk ykHk ysus gsrq vkfFkZd :i ls detksj oxZ ds lnL; }kjk izLrqr fd;k tkusokyk vk; ,oa ifjlEifŸk izek.k i= mi;qZDr vf/klwpuk ds lkFk layXu vuqlwph&1 ¼izi=&1½ esa l{ke izkf/kdkj }kjk fuxZr gksuk pkfg, vU;Fkk vkfFkZd :i ls detksj oxZ dks ns; vkj{k.k dk ykHk ugha feysxkA ;g izko/kku jkT; esa ykxw vU; fdlh fu;e ds }kjk fofHkUu vkjf{kr dksfV ds fy, fofgr vkj{k.k ds vfrfjDr gksxh ijarq jkT; ls ckgj ds vH;FkhZ bl fu;e ds v/khu vkj{k.k dk ykHk gsrq nkok ugha djsaxsA vk; ,oa ifjlEifŸk laca/kh izek.k i= fuxZr fd;s tkus dh frfFk ls ,d o"kZ ds fy, oS/k ekuk tk;sxkA bl foKkiu gsrq fofŸk; o"kZ 2021&22 ds vk/kkj ij fuxZr EWS izek.k i= ekU; gksaxsA"
13. From bare perusal of the said Clause, it appears that the requirement of Advertisement was that the candidates were required to submit E.W.S. Certificate for Financial Year 2021-22 and the petitioner having submitted E.W.S. Certificate for Financial Year 2022-23, would not entitle him to claim reservation under E.W.S. Category. The very object of the Rule, 2019 also mandates that yearly Financial Assessment of the Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 14/15 family has to be taken into consideration year wise and the petitioner having failed to give the E.W.S. Certificate in respect of Financial Year 2021-22, has herself accepted that the same was wanting. It cannot be said that the other participants, who had applied in accordance with the Advertisement, had not submitted E.W.S. Certificate for the Financial Year 2021-22. It is admitted by the parties that the result has already been published on 27.06.2024. The relief, as claimed by the petitioner in the present writ petition, is otherwise also not sustainable as the petitioner has not qualified under the Unreserved (Woman) Category as she has not obtained the Cut-off marks prescribed for Unreserved (Woman) Category in the written examination, as well as, E.W.S. Category, since she has not furnished the required certificate for Financial Year 2021-2022. This Court finds that the petitioner having not fulfilled the required condition contained in the Advertisement, the question of her having been eligible, does not arise, as such, there is no violation of Fundamental Right granted under Article 14 and 16 (1) having been infringed.
14. It has been informed by the learned counsel appearing on behalf of the B.P.S.C. that the result has already been published on 27.06.2024 on the basis of Advertisement No. 09 of 2022 and the selection process has already completed.
Patna High Court CWJC No.10421 of 2024 dt.11-07-2024 15/15
15. In view of the discussions made hereinabove, I don't find any merit in the present writ petition and the same is accordingly dismissed.
(Purnendu Singh, J) Niraj/-
AFR/NAFR N.A.F.R. CAV DATE N/A Uploading Date 15.07.2024 Transmission Date N/A