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2008 DIGILAW 280 (PAT)

Bihar Public Service v. State Of Bihar

2008-02-08

BARIN GHOSH, RAJESH BALIA

body2008
Judgment 1. Heard learned counsel for the parties. 2. The appeal is against the order of learned single Judge dated 10.12.2007 allowing the petition filed by respondent no. 2. 3. In pursuance of the advertisement dated 13th of April, 2005 the petitioner-respondent no. 2 appeared for the preliminary test and having cleared the preliminary test vide the result declared as per Annexure-1 the petitioner-respondent no. 2 entered the second phase of selection for the post of Child Development Project Officer, in all 107 posts were advertised. Thereafter, the petitioner-respondent no. 2 was admitted to main examination in pursuance of advertisement, Annexure-2. The petitioner-respondent no. 2 had laid claim to the reserved posts for Other Backward Classes (Category 0-5 ) and she had been called for interview to be held between 10th of September to 15.09.2007. Petitioner-respondents interview took place on 12.09.2007. For considering the candidature against the post reserved for Other Backward Classes/ Extremely Backward Classes, as per advertisement the concerned candidate must have a certificate issued either by the District Magistrate or countersigned by him or issued by the Additional Collector, authorized by District Magistrate or Sub-divisional Officer about creamy layer. The last date for production of such certificate in the advertisement stated to be on the date of candidates interview. 4. The petitioner-respondent no. 2 had produced caste certificate alongwith interview letter, Annexure-6, issued by Sub-divisional Officer, Hilsa (Nalanda), certifying that she belongs to the community recognized as backward classes and that she also does not belong to the persons/sections of creamy layer. This certificate is dated 7.08.2007 and issued on 22.08.2007. 5. However, vide letter of interview the person belonging to the Other Backward classes were required to produce a caste certificate alongwith certificate of creamy layer which has been issued under the signature of concerned District Magistrate or countersigned by him or should have been issued by Additional Collector, authorized by him. This condition in interview call was apparent deviation from requirement advertised about certificate of caste alongwith creamy layer to be produced at the time of interview. But in the case of candidates from Scheduled Caste and Scheduled Tribe a certificate issued by Sub-divisional Officer was also included in the documents on the basis of which benefit of reservation could be extended to them. 6. It appears that in view of this when the petitioner-respondent no. But in the case of candidates from Scheduled Caste and Scheduled Tribe a certificate issued by Sub-divisional Officer was also included in the documents on the basis of which benefit of reservation could be extended to them. 6. It appears that in view of this when the petitioner-respondent no. 2 was asked to produce certificate from District Magistrate or duly authorized Additional District Magistrate, for the first time, she made an application for seeking time to produce the certificate issued by District Magistrate or an Additional Collector, authorized by him. The petitioner-respondent no. 2 did produce on 15.09.2007 a certificate dated 14.09.2007 issued by the District Magistrate, Nalanda. However, the appellants did not take notice of this certificate on the ground that it was produced after the date of interview and rejected the candidature of the petitioner-respondent no. 2 against the seats reserved for backward classes. Considering her to be a candidate falling in general category and not securing place in order of merit against available vacancies for general class, she was left out of consideration. This led to filing of CWJC No. 13222 of 2007. 7. The petitioner-respondent no. 2 has specifically pleaded that the petitioner-re-spondent no. 2 appeared on 12.09.2007 for the oral interview before the Board constituted by the respondent-Bihar Public Service Commission. She also filed caste certificate alongwith creamy layer certificate of BC-II category, Annexure-6, which is issued by Sub-Divisional Officer, Hilsa (Nalanda). It was stated in the writ petition that after completion of the oral interview respondent no. 5 asked the petitioner-respondent no. 2 to produce the caste certificate issued by the District Magistrate and for that an undertaking was taken from the petitioner-respondent no. 2 in writing and time for the same was allowed till 15.09.2007. In her petition she stated that in view of aforesaid she obtained certificate from District Magistrate on making an application on 13.09.2007 and after obtaining a certificate dated 14.09.2007, produced the same before the respondents on 15.09.2007. However, she did not find place amongst the candidates for Other Backward Classes, while she had obtained more than cut off marks. 8. On that basis she said that she had been wrongly denied consideration of her candidature against Other Backward Classes posts and sought the mandamus, as noticed above. 9. However, she did not find place amongst the candidates for Other Backward Classes, while she had obtained more than cut off marks. 8. On that basis she said that she had been wrongly denied consideration of her candidature against Other Backward Classes posts and sought the mandamus, as noticed above. 9. The respondents, in their counter, did not deny the production of a certificate issued by Sub-Divisional Officer, Hilsa, District Nalanda, nor did anything was stated about the authority of the Sub-divisional Officer to issue such certificate but the only plea taken in the counter was that the petitioner-respondent no. 2 belongs to backward category 0-5 and as per terms of the said advertisement/inter-view letter the petitioner-respondet no. 2 did not submit the required caste certificate with the creamy layer certificate is sued by the District Magistrate or Addi tional Collector, authorized by the District Magistrate, in time, namely, till the date of her interview and in absence of that she was treated as a candidate of general category and no candidate in general category who had secured lesser marks than that of the petitioner-respondent no. 2 has been selected by the Commission. 10. Apparently, the only-issue that arose from the pleadings of the party, was whether the certificate of District Magistrate or duly authorized Additional District Magistrate was the only requirement and the certificate issued by the Sub-divisional Officer, if otherwise competent, could not have been taken into consideration and or could be ignored from consideration. 11. We find from the advertisement, Annexure-2, that it was not required that any candidate staking claim to be appointed against the vacancies reserved for members of the Other Backward Classes or extremely Backward Classes should obtain caste certificate or creamy layer certificate only from District Magistrate or authorized Additional District Magistrate only. In fact, advertisement clearly mentioned that the certificate could be issued under the signature of District Magistrate or countersigned by District Magistrate if issued by the authorized Additional District Magistrate or it has been issued by the Sub-divisional Officer. There was no other requirement that so far as certificate issued by the Sub-divisional Officer is concerned, was also required to be countersigned by the District Magistrate or the Sub-divisional Officer was required to be authorized by the Collector before he was to issue caste or creamy layer certificate required for this purpose. 12. There was no other requirement that so far as certificate issued by the Sub-divisional Officer is concerned, was also required to be countersigned by the District Magistrate or the Sub-divisional Officer was required to be authorized by the Collector before he was to issue caste or creamy layer certificate required for this purpose. 12. The learned single Judge has allowed the writ petition that the instructions of the Commission, as contained in paragraph no. 4(ii) of the communique dated 13.11.2006 to obtain caste or creamy layer certificate from the Sub-Divisional Officer has not been superseded under the subsequent communique dated 22.08.2007, Annexure-4, and instructions contained in letter dated 22.08.2008, Annexure-5, and therefore, the Commission was directed to consider the caste/creamy layer certificate of the petitioner-respondent no. 2 dated 14.09.2007, Annexure-9. filed before the Commission on 15.09.2007 and if she is within the merit list then her case may be recommended for appointment on the post of Child Development Project Officer pursuant to the original advertisement no. 34 of 2005. 13. Before us, it has been contended by the learned counsel for the appellants that since certificate produced by the petitioner-respondent no. 2 did not mention that the Sub-Divisional Officer was authorized by the Collector to issue such certificate could not have been taken into consideration. 14. This contention is to be noticed only to be rejected. Firstly, this issue was never joined by the appellants that the certificate produced by the petitioner-respondent no. 2 was not issued by any authorized Officer and suffered from defect of the lack or authorization of Sub-divisional Magistrate by the District Magistrate. Secondly, even the advertisement does not show nor it has been pointed out that under any rule or as a part of the policy of the State the caste certificate to be issued at the Sub-divisional Headquarters must be countersigned by the Collector or the Sub-divisional Officer who is otherwise a Chief Executive of Sub-divisional Headquarter must get independent authority for the purpose of issuing certificate of caste alongwith the creamy layer otherwise vested with power to issue such certificate. Moreover, the certificate has been issued on the official docket of the Sub-Divisional Officer, Hilsa and it was a part of the official duty discharged by the Sub-Divisional Officer of any Sub-Divisional Headquarters. Moreover, the certificate has been issued on the official docket of the Sub-Divisional Officer, Hilsa and it was a part of the official duty discharged by the Sub-Divisional Officer of any Sub-Divisional Headquarters. There is a presumption about regulatory of the official act that it is in compliance of all required authority and legal requirement. It is for those who question such authority to prove that such certificate is not by a duly authorized person. No such question was raised, nor even now it is stated that such specific authorization was needed and in fact no such authorization was issued. All necessary material in this regard is with State. 15. In view thereof no other conclusion is possible that the appellants, in the first instance, committed a mistake in requiring the petitioner-respondent no. 2 to produce the certificate of District Magistrate or Additional District Magistrate only for the purpose of considering her candidature at the time of interview when it was not part of the condition advertised and having required for such additional requirement during interview in spite of a proper certificate having been produced, the petitioner-respondent no. 2 also produced the certificate within the time allowed to her fulfilling such condition also. 16. The contention of Sri Jha that in the circumstances no notice can be taken of any such time granted for the purpose or has any power vested in the Board is also devoid of any force because of very first stage of asking for a certificate from District Magistrate or Additional District Magistrate was without authority. If such a demand is considered legitimate then production of a required certificate within time allowed by it for the purpose cannot be ignored. This observation we make only to buttress the conclusion that if as a result of an unauthorized demand the respondent no. 2 was required to fulfil the deficiency they were not required, the consideration could not have been denied on that ground even after same was fulfilled. 17. Accordingly, the appeal fails and is dismissed. The directions issued by the learned single Judge should be complied with forthwith.