Patna High Court
Nivedita Mandal vs The State Of Bihar on 20 June, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3198 of 2020
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Nivedita Mandal D/o Kailash Chandra Mandal, resident of Kailashpuri, Near
Toll Plaza, 17 Mile, NH-34, P.S.- Baishanav Nagar, District- Malda, West
Bengal, PIN-732127
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of General
Administration, Bihar, Patna.
2. Bihar Public Service Commission through the Chairman, Bailey Road, Patna
3. The District Magistrate, Katihar, Bihar
4. The Sub Divisional Officer, Kaithar, Bihar
5. The Circle Officer, Katihar, Patna
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Arvind Kumar, Advocate
For the Respondent/s : Mr. Manish Kumar (GP-4)
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 20-06-2024
Heard learned counsel for the petitioner, learned
counsel for the State and learned counsel for the Bihar Public
Service Commission.
2. The present writ application has been filed for
quashing the final result so far as the same relates to the
petitioner published by Bihar Public Service Commission of
60th, 61st and 62nd Combined Joint Competitive Examination
dated 01.02.2019 whereby the result of the petitioner, who
passed successfully in preliminary and main examination, has
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been cancelled on the ground that the petitioner did not get
verified her Creamy Layer Certificate with its original and,
therefore, her candidature was considered into general category.
As the petitioner did not obtain minimum cut-off marks of
general category, he was not selected in the final result of the
Bihar Public Service Commission. Further prayer has been
made that case of the petitioner be considered in the successful
candidate treating the petitioner as E.B.C. (non-creamy layer)
candidate and direction be given to the respondent to appoint the
petitioner on a suitable post treating her a candidate belonging
to E.B.C. (Female) candidate.
3. Learned counsel for the petitioner submits that
the petitioner appeared in the 60th , 61st and 62nd Combined Joint
Competitive (Preliminary/Mains) Examination. The petitioner
belongs to the Extremely Backward Class female (non-creamy
layer). Counsel submits that the petitioner downloaded the
advertisement dated 15.09.2016 from the website of Bihar
Public Service Commission and pursuant to the said
advertisement the petitioner applied on 04.10.2016 online as a
candidate of reserved category under E.B.C. Code-04. After
submission of form, the Bihar Public Service Commission has
issued admit card and her preliminary test was scheduled to be
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held on 12.02.2017. The petitioner appeared in preliminary test
on scheduled date and became successful candidate. The Bihar
Public Service Commission invited online application from the
successful candidates of preliminary test and the petitioner again
applied online. The petitioner appeared in the mains
examination and again declared successful. The Bihar Public
Service Commission issued interview letter to the petitioner.
The petitioner appeared in the interview, but at the time of
interview verification of certificates has been made and it has
been found that E.B.C. certificate is not containing the non-
creamy layer part and, therefore, her E.B.C. certificate was
declared invalid.
4. Learned counsel submits that the petitioner
had submitted an application to the Examination Controller,
B.P.S.C., Patna, praying therein to grant her some time to
produce non-creamy layer certificate and she was advised to
send it by post. Upon which she sent the non-creamy layer
certificate on the very next day by registered post. Counsel
submits that in the format supplied by the Bihar Public Service
Commission there was no column/space for non-creamy layer
specification. Counsel submits that the final result was
published on 01.02.2019 and from the result it appears that
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Bihar Public Service Commission has cancelled the result of the
petitioner along with ten others of preliminary and mains
treating her candidate of general category for not obtaining cut-
off marks of general category.
5. Learned counsel for the petitioner further
submits that the petitioner has filed application under Right to
Information Act to provide the copy of her answer sheet but it
was not provided. Thereafter, the petitioner has preferred appeal
under the R.T.I. Act and then filed second appeal which is still
pending. Subsequently, petitioner received information under
R.T.I. Act then it came to the knowledge of the petitioner that
her candidature was treated as general candidate and she could
not obtain the minimum cut off marks for general category, as
such her result of preliminary and mains has been cancelled.
Thereafter, the petitioner has filed representation before the
Bihar Public Service Commission on 18.09.2019. Since there
was no response then she filed the present writ petition.
6. Learned counsel for the petitioner submits that
the petitioner just on the very next date of her interview had
sent the non-creamy layer certificate to the Bihar Public Service
Commission as well as it is the categorical stand of the
petitioner that in the format provided by Bihar Public Service
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Commission there was no space provided in the format supplied
by the State and only due to this reason in the certificate it has
not been mentioned. Learned counsel for the petitioner relied on
the judgment of Ram Kumar Gijroya Vs. Delhi Subordinate
Service Selection Board and Another reported in 2016(4)
SCC 754 and submits that in this case the question decided by
Hon'ble Supreme Court "Whether a candidate who appeared in
an examination under the O.B.C. category and submits the
certificate after the last date mentioned in the advertisement is
eligible for selection on the post under the OBC or not?" has
been answered in favour of the petitioner and Hon'ble Supreme
Court has pleased to consider the case of the petitioner of the
case referred herein and his appeal was allowed in his favour.
7. Learned counsel for the State submits that the
State Government has already issued a letter from the General
Administrative Department No.673 dated 08.03.2011, in which
guideline for consideration of reservation for the E.B.C.
category with non-creamy layer certificate is an essential
condition and it has to be followed at any cost. Counsel for the
State further submits that the grievances of the petitioner is
directly against the Bihar Public Service Commission, but stand
of the State is that the said letter with regard to reservation is
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necessary to be followed.
8. Learned counsel for the Bihar Public Service
Commission, on the other hand, submits that counter affidavit
and supplementary counter affidavit both have been filed.
Annexure-A is the Advertisement for the preliminary
examination, Annexure-B is the Advertisement for mains
examination and Annexure-D series is the Interview programme
and interview letter. Counsel for the Bihar Public Service
Commission put emphasis that in the advertisement of
preliminary examination, mains examination and the
information with regard to interview as well as the detailed
programme for interview, it has been categorically mentioned
that condition with regard to taking the benefit of reservation
has to be fulfilled and in case there shall be any deficiency the
candidate shall not be treated as reserve category and their
candidature shall be considered under the general category. The
Bihar Public Service Commission has taken stand that the
petitioner could not be declared successful because petitioner
failed to submit her original non-creamy layer certificate. In
support of his contention, the petitioner relied on the judgment
of Kumari Pushpanjali Bala Vs. State of Bihar passed in
CWJC No.23248 of 2019 decided on 29.01.2020, in the case of
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Sarvesh Kumar @ Sarvesh Kumar Vijay Singh Vs. The
State of Bihar and Others passed in CWJC No.3083 of 2019
decided on 05.03.2020 and in the case of Dr. Santosh Kumar
Vs. State of Bihar through Chief Secretary and Others
reported in 2017(1) PLJR 786 and submits that in the reported
case the Hon'ble Division Bench of this Court has made clear
cut distinction between a certificate not submitted on time and
the certificate which has been submitted without the non-creamy
layer.
9. In the light of the submissions made by the
parties, there are following points which are admitted i.e., in the
advertisement for preliminary exam the condition was clearly
laid down in Clause 13(ii) and Clause 13(v) and in the
advertisement for Mains examination the condition was laid
down in Clause 1(ii) and 2(a). Subsequently, the condition was
also mentioned in the general information issued by the Bihar
Public Service Commission with regard to interview in Clause
3(iv) and Clause 4(ii). Subsequently, in the interview letter also
the said condition was laid down in Clause 2(iv), extract of
those conditions are as follows:-
Conditions mentioned in Clause 13(ii) and
Clause 13(v) of Preliminary Exam Advertisement:
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"13(ii) vkosnd ;g lqfuf'pr
djsaxs fd lHkh okafNr izek.k&i= eqy :i esa muds
ikl vkWuykbZu vkosnu Hkjrs le; miyC/k gSA
13(v) bl foKkiu ls lacaf/kr
of.kZr lHkh izek.k&i=] pkyku dh izfr ,oa
vafre :i ls Hkjs x, vkWuykbZu vkosnu dks MS"k
cksMZ ls MkmuyksM dj gkMZ dkWih vo"; j[ksaxsA
vk;ksx }kjk lk{kkRdkj ds le; ;k fdlh Hkh le;
ekaxs tkus ij mEehnokj dks gkMZ dkWih ,oa lHkh
lacaf/kr izek.k&i= fuf"pr :i ls izLrqr djuk
gksxkA
Conditions mentioned in Clause 1(ii) and 2(a) of
Mains Exam Advertisement:
1(ii) lekU; ç'kklu foHkkx]
fcgkj ds ifji= la- 673] fnukad 08-03-2011 ds
vkyksd esa vkjf{kr dksfV ds mEehnokj ;Fkk]
vuqlwfpr tkfr ,oa vuqlwfpr tutkfr ds
mEehnokjksa dks fuEukafdr çek.k i= tek djuk
vfuok;Z gksxk% &
(a) tkfr çek.k i=
(b) LFkk;h fuokl çek.k i=A
fiNM+h tkfr ,oa vR;ar fiNM+h
tkfr ds mEehnokjksa dks fuEukafdr çek.k i= tek
djuk vfuok;Z gksxk
(a) Øhfeys;j jfgr çek.k i=
fiNM+k oxZ ,oa vR;Ur fiNM+k oxZ dh n'kk esa]
vius LFkk;h vf/kokl vapy ds jkT; ljdkj }kjk
vf/klwfpr vapykf/kdkjh }kjk fuxZr Øhfeys;j
jfgr çek.k i=] ,oa vuqlwfpr tkfr@vuqlwfpr
tutkfr dh n'kk esa] vius LFkk;h vf/kokl vapy
ds jkT; ljdkj }kjk vf/klwfpr
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vapykf/kdkjh }kjk fuxZr LFkk;h fuokl çek.k
i= ,oa tkfr çek.k i= ekU; gksxkA vkj{k.k dk
nkok djus okys vH;fFkZ;ksa dks mlls lcaf/kr çek.k
i= çLrqr djus ds fy, mEehnokj ds lk{kkRdkj
dh frfFk vafre frfFk gksxhA
Conditions mentioned in Clause 3(iv) and Clause
4(ii) of general information issued by the Bihar Public Service
Commission with regard to interview:-
"3(iv) fiNM+k oxZ @ vR;ar
fiNM+k oxZ ds vH;FkhZ ds fy, Øhehys;j
jfgr ?kks"k.kk i= ¼foxr 1& o"kZ ls iwoZ dk gksus
ij½A
4(ii) fiNM+k oxZ @ vR;Ur
fiNM+k oxZ dh fLFkfr esa lkekU; ç'kklu foHkkx]
fcgkj ds i=kad 673] fnukad 08-03-2011 ,oa
i=kad 704] fnukad 10-03-2011 ds vkyksd esa
fcgkj ljdkj }kjk fofufnZ"V fofgr çi= esa vius
LFkk;h vf/kokl vapy ds vapy vf/kdkjh }kjk
gLrk{kfjr] Øheh ys;j jfgr çek.k i= dh ewy
çfr tek dj lR;kiu djkuk vfuok;Z gksxk]
vU;Fkk vkidks vkj{k.k dk ykHk ns; ugha gksxkA"
10. Subsequently, the judgment on which learned
counsel for the petitioner relied has been discussed in the
Division Bench judgment of this Hon'ble Court in the case of
Dr. Santosh Kumar Vs. State of Bihar through Chief
Secretary and Others (supra), which has been properly
considered in paragraphs 6 and 7 of the judgment which reads
as under:-
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"6. Having considered
the rival contentions, we do not find
any merit in the present Letters Patent
Appeal. The terms of the advertisement
clearly disclose that the Reserved
category candidate shall be required to
produce the relevant caste certificate
relating to not coming under the
Creamy Layer in terms of the Circular
No. 673 dated 08.03.2011 issued by the
General Administration Department of
which Clause (12) ii clearly stipulates
that the certificate relating to income, is
valid only for one year. In view of the
aforesaid, the applicant enclosing only
the certificate dated 16.04.2008 with
regard to not belonging to the Creamy
Layer and stating his income, lost its
value after 15.04.2009 and could not
have been made the basis of any claim
for appointment in the present
transaction. The appellant at the time of
taking part in the interview on
24.06.2015has written in his own pen that he was not producing the Creamy Layer certificate. It is also not the case of the appellant that he produced such certificate on 24.07.2015, which was the second opportunity given to such persons to produce the required Patna High Court CWJC No.3198 of 2020 dt.20-06-2024 11/12 certificate for verification. In absence of the same, the authorities cannot be faulted for considering the case of the appellant under the Unreserved (General) category and in that category the appellant having secured 41.61 marks was far below the last candidate selected who had 53.04 marks.
7. The decision relied upon by learned counsel for the appellant in the case of Ram Kumar Gijroya (supra) has no application to the facts and circumstances of the present case inasmuch as the petitioner before the Hon'ble Supreme Court had submitted his caste certificate, though after the cut off date. In the present case, it has not even been averred that the certificate relating to not belonging to the Creamy Layer in terms of the relevant provisions, issued within one year, was produced by the appellant before the authorities. Moreover, the reasoning given by the Hon'ble Supreme Court is in relation to the person belonging to a particular caste which fact, obviously, cannot change, as it is dependent upon his birth, whereas in the present case, the fact of not coming under the Creamy Layer is Patna High Court CWJC No.3198 of 2020 dt.20-06-2024 12/12 subject to change with the efflux of time as income does vary and the stipulation for submitting certificate relating to income, being issued within one year, is reasonable and justified."
11. In the light of the above said discussion, this Court is of the firm view that counsel for the petitioner has failed to submit the certificate of non-creamy layer at the level of preliminary test, at the level of mains examination and at the level of interview and subsequently taken the plea that the Examination Controller has instructed him to submit the said application through registered post. In this regard, it is very clear that Examination Controller is not competent to change the condition of the Advertisement. Therefore, this plea can not be acceptable to the Court. So far as the distinction made by the Hon'ble Division Bench of this Court, this Court is fully agree from the said distinction.
12. In the result, this Court finds no merit in this application. Accordingly, this application is dismissed.
(Dr. Anshuman, J) Mkr./-
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