Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 1153 (PAT)

AJIT KUMAR v. STATE OF BIHAR

2011-06-21

NAVIN SINHA

body2011
ORDER Heard learned Counsel for the petitioners and the learned Counsel for the Bihar Staff Selection Commission (hereinafter referred to as ‘the Commission’). None for the State Government in the Department of Statistics and Evaluation. 2. An advertisement was published on 23.8.2006 for 224 posts of Block Statistical Supervisor, Junior Statistical Assistants and Investigator. The two petitioners were applicants under the backward caste category, which numbered 27 in all. The advertisement stipulated that they were required to submit their caste certificate inclusive of Creamy Layer from the District Magistrate. The petitioners acknowledge having submitted their caste certificate from the concerned SDO. The advertisement itself stipulated that those who did not furnish their caste certificate from the competent authority shall be treated as unreserved candidate. They have therefore been placed in the general list and are aggrieved by their non-selection. 3. Counsel for the petitioners submits that the Commission issued communications to others for rectification of this deficiency. No opportunity was provided to the petitioners subjecting them to hostile discrimination. The petitioners have obtained backward caste certificate from the District Magistrate and claimed to have submitted it to the Commission and desired reconsideration of their candidature on that basis. 4. Counsel for the Commission submits that not only was a Under Postal Certificate communication sent to the individual candidates including the two petitioners but paper publications were also made requiring the concerned candidates to rectify the defects as the present within the time indicated. The petitioners took no steps to do so within the time prescribed. 5. Counsel for the petitioners retorts to submit that the paper publication did not even spell out the roll number of the concerned candidate and any other connecting link to enable the petitioners to appreciate that it was an opportunity furnished to them also. 6. Counsel for the Commission submits that recommendations have been made for a certain number of posts and the unfilled posts have been returned to the Department. 7. If an applicant did not comply with the conditions of the advertisement and failed to submit the caste certificate from the competent authority prescribed no fault can be found in the rejection of his candidature as a reserved category candidate and treating him as general category candidate. But once the Commission decided to grant opportunity to such candidates for removal of deficiencies, the opportunity has to be applied uniformly. But once the Commission decided to grant opportunity to such candidates for removal of deficiencies, the opportunity has to be applied uniformly. A presumption which attaches to a communication sent by registered post shifting the onus on to the addressee shall not be available to the Commission in a communication sent under postal certificate. The onus shall lie on the Commission to demonstrate that the communication had reached the addressee. No such stand has been taken on behalf of the Commission. Conversely the Commission did publish two advertisements, providing time period for removal of deficiencies. If the petitioners had submitted a caste certificate from an authority not competent to do so under the advertisement, surely they must be aware of those deficiencies in their applications and should undoubtedly have been more cautious in noticing the paper publication and co-relating it with their deficiency and rectifying the deficiencies within the time prescribed. The Court has therefore no hesitation in holding that once the Commission decided to relax the conditions, both sides must bear the blame in equal proportion. Had the communication of the Commission been received by the petitioners then perhaps they may have had no case at all. 8. That still leaves the question of availability of vacancy and desirability of the appointing authority to fill up the vacancies under advertisement. In the entire nature of the controversy no mandamus can be issued, except to direct that the Commission shall examine its records and satisfy itself if the petitioners have actually submitted a caste certificate from the District Magistrate concerned as was urged on their behalf before the Court. If they have, and the Commission be otherwise satisfied of their eligibility, it shall then proceed to recommend their names to the Department, which shall then take decision on this recommendation in the light of the discussions aforesaid in so far as they are concerned. 9. If they have, and the Commission be otherwise satisfied of their eligibility, it shall then proceed to recommend their names to the Department, which shall then take decision on this recommendation in the light of the discussions aforesaid in so far as they are concerned. 9. The apprehension of the Commission that the present order shall open a Pandora’s Box with regard to others who may be similarly situated, can be disposed off on the observation that there has to be a difference between those who are vigilant for protection of their rights and approach the Court and those who indulge in fence-sitting sanguine in their fate waiting and watching what happens to similarly situated others and then move the Court, which alone is sufficient ground to distinguish their case for which this Court does not considers it necessary to refer to any settled enunciated law. 10. Let the Commission act accordingly within a maximum period of two months from the date of receipt and/or production of a copy of this order before it. 11. The writ application stands disposed.