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2011 DIGILAW 2499 (PAT)

Amarendra Sah S/o Ramsewak Sah v. State of Bihar

2011-12-16

MIHIR KUMAR JHA

body2011
ORDER 1. Heard counsel for the parties. 2. The petitioner in this writ application has made following prayer:- “That this writ application is being filed for commanding the respondents to consider the case of the petitioner for his appointment to the post of Assistant Teacher against the seats earmarked for scheduled Tribe Category under Patna District. This writ application is also being filed for holding that the petitioner belongs to Gond by caste which comes under the category of scheduled tribes and as such he is entitled to have the benefit of reservation under the category of scheduled tribes for the purpose of appointment under the Patna District as Assistant Teacher. This writ application is also being filed for holding that the impugned non-consideration of the claim of the petitioner for the post of appointment of Primary Teacher due to non furnishing the caste certificate issued by Sub-divisional Officer, is illegal, arbitrary, unreasonable, malafide and without any sanction of law.” 3. Shorn on all the niceties, the case of the petitioner appears to be plain and simple. The petitioner was an aspirant for the post of Assistant Teacher and had submitted the application pursuant to the advertisement issued by the Bihar Public Service Commission in the year 1996. The petitioner had also successfully qualified in the written test, whereafter his name was also included in the final list of selected candidates and the District Superintendent of Education, Patna by his letter dated 27.05.1999 had directed the petitioner to appear in person along with original copies of his educational, training and caste certificates. The petitioner is said to have appeared before, the Authority and produced the originals but he was not appointed, whereafter he had kept running from one Authority to another for being issued his appointment letter and having failed in his efforts, he has filed the present writ application. 4. The petitioner is said to have appeared before, the Authority and produced the originals but he was not appointed, whereafter he had kept running from one Authority to another for being issued his appointment letter and having failed in his efforts, he has filed the present writ application. 4. In this case, the Bihar Public Service Commission has filed a counter affidavit and has taken a plain and simple stand that the petitioner was allowed to appear as a Scheduled Tribe candidate and his name also on the basis of his performance in the written test, was recommended for his appointment as Scheduled Tribe candidate but then the Commission as per its usual practice had left it to the appointing Authority to examine and verify the original certificates at the time of his appointment and that is how it was for the respondent District Superintendent of Education, Patna, to whom the copy of the original application of the petitioner and other selected candidates were sent by B.P.S.C. for making necessary verification. 5. The role of the Commission therefore, having been very limited, it was for the respondent State of Bihar and its officials to explain as to why the petitioner’s appointment was not made. The stand taken by the official respondents of the State of Bihar including the District Superintendent of Education, Patna in the counter affidavit is that the petitioner had not produced the required caste certificate duly issued by the Sub-divisional Officer, as prescribed in the advertisement. 6. When the case was heard and listed on 30.11.2011, this Court had directed the District Superintendent of Education, Patna to produce the original application of the petitioner and the counsel for the Commission was requested to produce a copy of the advertisement. Pursuant to the aforementioned directions, the respondent, District Superintendent of Education, Patna has filed his counter affidavit and has also produced the original application form of the petitioner which was sent to him by the Bihar Public Service Commission along with its recommendation. The counsel for the Commission has also produced the copy of the advertisement which would go to show that for fulfilling the requirement of reservation a candidate belonging to SC and ST category he had to produce either the caste certificate signed and issued by the District Magistrate or counter signed by him or signed and issued by the Sub-divisional Officer but not counter signed. 7. The relevant portion of the advertisement as with regard to production of the caste certificate in the copy of the advertisement produced by the counsel for the B.P.S.C reads as follows:- <span class="Hfont"> ^^vuqlwfpr tkfr@vuqlwfpr tutkfr ds fy, iznRr vkj{k.k dk ykHk gsrq mEEkhnokjksa dks eq[; ijh{kk ds fy, vkosnu i= ds lkFk ftyk n.Mkf/kdkjh }kjk gLrk{kfjr ;k izfrgLrk{kfjr tkfr izek.k i= vFkok vuqe.Myinkf/kdkjh }kjk gLrk{kfjr ¼izfrgLrk{kfjr ugha½ tkfr izek.k i= vfuok;Z :i ls izLrqr djuk gksxkA** 8. From the original application form produced by the District Programme Officer(establishment), Patna the successor in the office of the District Superintendent of Education, Patna in a guard file, it is absolutely clear that not only the petitioner had declared himself to be the candidate of Scheduled Tribe category but had also described his sub-caste as gond in column no. 3 meant for the Scheduled Tribe category. In column no. 13 of the application of the petitioner in the prescribed proforma, it is also clear that he had annexed a caste certificate. Though copy of the caste certificate has not been enclosed and kept in the guard file but from Annexure-2 to the writ application, it is clear that a caste certificate was issued on 08.06.1991 by the Block Development Officer, Ekma, Saran after being counter signed by the District Magistrate, Saran on 15.04.1991. Since, the respondents have not denied the submission of said caste certificate in the counter affidavit and in fact Commission had also treated the petitioner to be of Scheduled Tribe category while processing his selection as also making recommendation after his being successful in the written test, there would be no scope for any speculation for the petitioner’s selection and recommendation made by the B.P.S.C as a Scheduled Tribe category candidate. 9. A question would thus arise as to whether the District Superintendent of Education, Patna having received the recommendation of the B.P.S.C contained in its letter no. 08 dated 08.04.1999 containing the names of six Scheduled Caste candidates and three Scheduled Tribe candidates including the petitioner could have refused appointment of the petitioner on the post of a teacher on the ground that the petitioner had not produced the caste certificate signed and issued by the Sub-divisional Officer. 08 dated 08.04.1999 containing the names of six Scheduled Caste candidates and three Scheduled Tribe candidates including the petitioner could have refused appointment of the petitioner on the post of a teacher on the ground that the petitioner had not produced the caste certificate signed and issued by the Sub-divisional Officer. From the records which have been produced in the guard file of the District Superintendent of Education, Patna it would appear that after the said recommendation of the petitioner and others along with the original application form was sent by the B.P.S.C in its letter dated 08.04.1999 to the office of Collector, Patna and verification was made from the office of B.P.S.C as with regard to the authenticity of the aforementioned recommendation by letter no. 253 dated 22.04.1999 of the Office of District Superintendent of Education, Patna and after the contents of the said recommendation of the B.P.S.C dated 08.04.1999 was confirmed by the B.P.S.C in its letter dated 07.05.1999, a letter was sent to all the nine candidates including the petitioner vide letter no. 686 dated 27.05.1999 from the office of District Superintendent of Education, Patna to produce all the original certificates relating to educational qualification, training qualification and caste certificate in the interview to be held on 10.06.1999. There is also no dispute that a Committee of three persons namely, the District Superintendent of Education, Patna, Head Clerk and Incharge Clerk was constituted by the District Superintendent of Education, Patna on 09.06.1999 for verifying the original certificates of all the nine candidates and the Committee had made verification of the signatures of all the nine candidates and had found in order whereafter a proposal was submitted for the matter being placed in the meeting of District Education Establishment Committee and after obtaining the order of the Collector of the Patna district a meeting of the Establishment Committee was held on 22.06.1999, whereafter the appointment letters were issued to eight persons leaving the petitioner on 30.06.1999. 10. 10. Amidst the aforementioned admitted factual scenario, flaw has to be taken in the counter affidavit filed on behalf of the District Programme Officer that the appointment of the petitioner was not made because of non production of the caste certificate issued by the Sub-divisional Officer seems to be lame explanation, inasmuch as, first of all the same is not supported from the records showing any material that the petitioner was ever asked to produce the caste certificate signed and issued by the Sub-divisional Officer, Patna. Secondly, the letter which was sent to the petitioner for production of his original certificates being letter no. 680 dated 27.05.1999 at page 60 of the guard file would itself indicate that even on 27.05.1999, when the petitioner was asked to appear with his original certificates, he was never asked to produce the caste certificate of the Sub-divisional Officer. Such letter of the District Superintendent of Education, Patna dated 27.05.1999 would itself demolish the case of the respondents as with regard to the petitioner being ever asked to produce the caste certificate signed and issued by the Sub-divisional Officer, inasmuch as, in the said letter he was only directed to produce his original copy of certificates of educational qualification, training qualification and original copy of the admit card issued by the B.P.S.C and the caste certificate issued by the competent Authority. There is no denial to the fact that the petitioner has produced all the certificates as is also recorded in the proceedings of the Three Man Committee in the guard file dated 12.06.1999 and therefore, this Court will have no difficulty in also accepting the specific assertion of the petitioner that the original copy of Annexure-2, the caste certificate signed and issued by the Block Development Officer, Ekma, Saran duly counter signed by the Collector of the Patna district was also produced for verification and was found to be in order by the Three Man Committee constituted for verification of original certificates of all the nine candidates. 11. As noted above, the requirement of caste certificate by the competent Authority in the advertisement was itself made clear, wherein, one could have to produce the caste certificate either signed or counter signed by the District Magistrate or only signed by the Sub-divisional Officer. 11. As noted above, the requirement of caste certificate by the competent Authority in the advertisement was itself made clear, wherein, one could have to produce the caste certificate either signed or counter signed by the District Magistrate or only signed by the Sub-divisional Officer. The petitioner had complied the first option i.e. the caste certificate counter signed by the Collector of the Patna district and therefore, there was no requirement for him to have also produced the caste certificate signed and issued by the Sub-divisional Officer. 12. In the considered opinion of this Court the petitioner therefore, had fulfilled the requirement of advertisement and that is how the Commission also had treated him the candidate of ST category not only for declaring his result but also making his recommendation. From the original application form of the petitioner, it would also transpire that the petitioner had declared himself to be the candidate of ST category with his sub-caste Gond. The petitioner in his application form had also annexed the caste certificate which of course has not been produced but there is no dispute that such application of the petitioner was accompanied with all the certificates including his caste certificate which has not been retained in the Guard File maintained in the Office of the District Superintendent of Education, Patna. 13. The only explanation by the learned counsel for the State that since, there was an entry made on the front page of the application of the petitioner by someone in B.P.S.C. that the caste certificate by the Sub-divisional Officer, was wanting in the case of the petitioner, the D.S.E. had also asked the petitioner to produce the caste certificate of the Sub-divisional Officer. Such a demand of the Caste Certificate first of all had no meaning, inasmuch as, when the commission itself had recommended the case of the petitioner as Scheduled Tribe category with a clear endorsement on the original certificate and testimonials of all the candidates should be verified, the D.S.E. could have asked for production of only that original caste certificate by the petitioner, copy whereof was already submitted by the petitioner at the time of submission of his application form in B.P.S.C.. It is the case of the petitioner that he had submitted the photocopy of caste certificate issued by the Block Development Officer, duly counter signed by the District Magistrate and therefore, if the original of that caste certificate was produced by the petitioner at the time of his verification that should have been the end of the matter. The certificate of Sub-divisional Officer, could have been only required if the petitioner had relied on such certificate. 14. Counsel for the State then submitted that there was a little confusion and dispute as with regard to the sub-caste among the Scheduled Tribe category and the State Government had to issue a clarificatory circular as with regard to the requirement for fulfilling the reservation criteria for Gond category. In this context he has referred to the resolution issued by the Personnel and Administrative Reforms Department, dated 28.02.2007. 15. In the considered opinion of this Court though it would be always open for the respondents to make verification of the caste certificate and be satisfied that the petitioner belonged to the Scheduled Tribe category, such decision for appointment could not have been kept in abeyance for an indefinite period. As noted above, the petitioner had filed his application in response to the advertisement in the year 1996 and even after 15 years, he is still waiting for a final nod of the head by the Authorities even when he has already been recommended by the Bihar Public Service Commission in the year 1999. If the petitioner was required to produce fresh entries to satisfy the D.S.E. as with regard to his belonging to Schedule Tribe Category he could have been asked submit any further proof but then the D.S.E. could not have put the matter in abeyance as had been done by him. It may be quite easy for the respondents to play with the career of a person by indulging in the technicalities but one who has to earn his livelihood by getting employment knows the pinch of it. A person denied of his appointment even after qualifying and competing in competitive test is the worst suffer or inasmuch as no one can compensate the petitioner, his 15 years of agony that he had to undergo for remaining unemployed or under employed even after being selected and recommended by the Bihar Public Service Commission. A person denied of his appointment even after qualifying and competing in competitive test is the worst suffer or inasmuch as no one can compensate the petitioner, his 15 years of agony that he had to undergo for remaining unemployed or under employed even after being selected and recommended by the Bihar Public Service Commission. It is high time that the officials of the State of Bihar would do away with red tapism and bureaucratic approach and at least rise to the occasion for giving justice at the grass root level. 16. Having thus given an anxious consideration to the whole aspect, this Court must hold that the petitioner was prejudiced by an arbitrary and illegal act of the then District Superintendent of Education, Patna who had rather adopted a hyper technical approach of relying on the some endorsement made in the application form by the officials of the Commission. It was much better that the District Superintendent of Education, Patna could have walked few kilometers and gone to the office of the Bihar Public Service Commission at Patna to clarify as with regard to the alleged requirement of the Sub-divisional Officer certificate instead of making the petitioner wait for his being appointed for last 15 years. 17. This Court is, however, satisfied that there was no flaw in the caste certificate produced by the petitioner at the time of appearing in the examination, inasmuch as, it is not the case of the respondents that the caste certificate issued by the B.D.O and counter signed by the District Magistrate, Patna (Annexure-2) is forged or invalid. Thus if there was a valid caste certificate produced by the petitioner at the time of his appearing in the examination as prescribed in the advertisement which was also relied by the B.P.S.C. for recommending the petitioner as a Scheduled Tribe category candidate. The Authorities of the State of Bihar particularly the District Superintendent of Education, Patna who had received the recommendation of the Commission for making appointment of the petitioner has to be held responsible and guilty for causing delay of 12 years in appointing the petitioner. 18. In the result this application is allowed and the respondent District Programme Officer Establishment Patna, the successor in the office of District Superintendent of Education, Patna is hereby directed to make necessary verification of the caste certificate of the petitioner. 18. In the result this application is allowed and the respondent District Programme Officer Establishment Patna, the successor in the office of District Superintendent of Education, Patna is hereby directed to make necessary verification of the caste certificate of the petitioner. The petitioner may also produce a fresh caste certificate in addition to the original of Annexure-2, the earlier certificate issued by the B.D.O and counter signed by the District Magistrate, Patna and the District Programme Officer, Patna having made necessary verification of such caste certificate would appoint the petitioner on the post of Teacher without any further delay. It is made clear that the petitioner will not be denied the post of teacher in the prescribed pay scale for which he was recommended by B.P.S.C. and would not be subjected to his appointment on the post of Panchayat Prakhand Teacher in fixed and consolidated pay as prescribed in Bihar Panchayat Teachers Appointment Rules 2006. The petitioner’s appointment must be made on that very post for which he was selected and recommended by B.P.S.C.. Such an exercise by the concerned Authorities including District Programme Officer Establishment, Patna must be completed within a period of three months from the date of filing of a fresh caste certificate by the petitioner showing him to be a member of Scheduled Tribe. The appointment of the petitioner once made, though he will not be entitled for arrears of salary, he will, however, get all other consequential benefits including the seniority as if his appointment was made in the same transaction with others who were also recommended by the Commission in the year 1999. As there is an obvious lache on the part of the officials of the State of Bihar who had deprived the petitioner from getting his appointment at least for last 12 to 13 years, this Court would award the cost of litigation thurst upon by the respondent officials of the State of Bihar and the same is quantified as Rs. 10,000/- only. Such amount of cost must be paid to the petitioner because the petitioner had filed this writ application only in 2007 even when he was recommended by the Commission in the year in 1999. 19. With the aforementioned observation and direction, this application is disposed of.