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2018 DIGILAW 861 (PAT)

Ashutosh Kumar v. State of Bihar

2018-05-18

MOHIT KUMAR SHAH

body2018
JUDGMENT : Mohit Kumar Shah, J. 1. The petitioners herein have challenged the order dated 24.11.2017 issued by the Joint Secretary-cum-Examination Controller, Bihar Public Service Commission (hereinafter referred to as the B.P.S.C.), whereby and whereunder the petitioners have been informed that they have not been included for the purposes of interview on the ground that they have not obtained the cut-off marks. It has been further prayed for directing the B.P.S.C. not to act against the recruitment rules and the advertisement in preparation of the select list for the purposes of interview pursuant to Advertisement No. 9 of 2015 to 17 of 2015. At the very inception, it may be relevant to mention here that though three interlocutory applications are on record, i.e. I.A. No. 367 of 2018; I.A. No. 598 of 2018 and I.A. No. 1096 of 2018, however, the learned counsel for the respective parties do not wish to press the same. As such, the said I.As. are dismissed. 2. The brief facts of the case are that the petitioners herein are holding the qualifications of M.Sc. and they were appointed on contract basis on the post of Scientific Scientists with the Forensic Science Laboratory, Bihar, Patna and their contract were renewed from time to time. On 30.10.2015, B.P.S.C. published Advertisement No. 8 of 2015 to 17 of 2015 for appointment on the post of Senior Scientific Officers in the various branches of Forensic Science Laboratory. The advertisement specifically laid down that the candidate is required to have three years experience on the post of Senior Scientific Assistant or equivalent or any higher post in any recognized Forensic Science Laboratory. Clatise-5 of the Advertisement also stipulated that the process of award of 60 marks is in consonance with the recruitment rules. Clause-5(ii) of the Advertisement provided for grant of 5 marks for each year of experience up to maximum of 20 marks in the Forensic Science Laboratory situated at Patna, Bhagaipur and Muzaffarpur. The candidates were required to submit their applications online by 30.12.2015 whereafter the petitioners had submitted their application forms with their experience certificates issued by the Director, Forensic Science Laboratory, Government of Bihar, Patna in which it was certified that the petitioners were working as Scientific Assistant from 2012 to 2014 and as Senior Scientific Assistant from 2014 to 2015. The candidates were required to submit their applications online by 30.12.2015 whereafter the petitioners had submitted their application forms with their experience certificates issued by the Director, Forensic Science Laboratory, Government of Bihar, Patna in which it was certified that the petitioners were working as Scientific Assistant from 2012 to 2014 and as Senior Scientific Assistant from 2014 to 2015. Subsequently, the B.P.S.C. published two separate lists of candidates, one containing the names of eligible candidates and another list of ineligible candidates. The name of the petitioners were included in the list of ineligible candidates and the reasons for their ineligibility was that they were not having been requisite experience. Thereafter, the petitioners filed online objections stating that since the post of Scientific Assistant has been redesignated as Senior Scientific Assistant, both the said posts were equivalent for the purposes of counting of experience. The further case of the petitioners is that subsequently, the Home (Police) Department by its letter dated 20.7.2016 requested the B.P.S.C. to treat the experience on the post of Technical Officer/Senior Scientific Assistant/Technician/Scientific Assistant/Laboratory Assistant as experience on the post of Scientific Assistant. The Director, Forensic Science Laboratory had then issued cut off experience certificate wherein it was clearly stated that the experience on the post of Scientific Assistant should be considered as experience on the post of Senior Scientific Assistant and it was also stated therein that the candidates be not debarred from the interview on the ground of insufficient experience. The petitioners had then produced the modified experience certificates before the B.P.S.C., however, the B.P.S.C. by the impugned notice on 19.4.2017 rejected all the objections by a non-speaking order and laid down the cut-off marks on the basis of percentage of marks obtained in the academic qualification, against the terms and conditions of advertisement. According to the petitioners, the percentage of marks was not a relevant factor rather the marks were to be awarded on the basis of division in which the candidate has obtained the concerned academic qualification. In fact the B.P.S.C., according to the petitioners, has not taken into account the marks against the experience of individual candidate. According to the petitioners, the percentage of marks was not a relevant factor rather the marks were to be awarded on the basis of division in which the candidate has obtained the concerned academic qualification. In fact the B.P.S.C., according to the petitioners, has not taken into account the marks against the experience of individual candidate. Some of the candidates had then filed a writ petition before this Court bearing C.W.J.C. No. 6657 of 2017 and this Court by a judgment dated 19.5.2017 allowed the writ petition and the B.P.S.C. was directed to allow the petitioners to participate in the interview along with other eligible candidates by considering their work experience on the basis of their services rendered as Scientific Assistant or equivalent post. The B.P.S.C. had then on 24.11.2017 published a list of candidates wherein the names of the petitioners herein were not included and the reason assigned was that the petitioners were not having marks more than the cut-off marks, as fixed by the B.P.S.C. for each branch of Forensic Science. However, the B.P.S.C. invited objections from the excluded candidates vide notice dated 24.11.2017, in pursuance whereof the petitioners have submitted their objections pointing out that the interview list has been prepared in violation of the recruitment rules and the Advertisement. The B.P.S.C. had then published a notice dated 21.12.2017 whereby intimation was given regarding holding of interview on 18.2.2108. 3. The learned counsel for the petitioners has submitted that the B.P.S.C. has wrongly prepared the select list for the purposes of taking interview since it has illegally taken into account the percentage of marks obtained by the candidates against each of the academic qualification, which is against the recruitment rules and the advertisement, which in fact provides for grant of particular marks for a particular division and there is no provision for consideration of the percentage of marks in a particular division. Thus in nutshell the dispute is that instead of taking the division obtained by the candidates with regard to particular educational qualification and giving marks, the B.P.S.C. has considered the percentage of marks obtained by the candidates in a particular division. 4. Thus in nutshell the dispute is that instead of taking the division obtained by the candidates with regard to particular educational qualification and giving marks, the B.P.S.C. has considered the percentage of marks obtained by the candidates in a particular division. 4. It is the contention of the learned counsel for the petitioners that the Bihar Police Manual (Amendment) Rules, 2015 were notified by Home (Personnel) Department, Government of Bihar on 18.5.2015 and the recruitment rules for the post of Senior Scientific Officer in the Forensic Science Laboratory was framed. According to the said rules the qualification of the post of Senior Scientific Officer was prescribed as M.Sc. in the concerned subject or M.Sc. in Forensic Science. In addition, the candidate was required to have a graduate degree in at least one of the subject in the concerned branch. According to the said rules, the procedure for awarding 60 marks for the educational qualifications was provided in the following manner:-- Sl. No. 01 Qualification 02 1st Division 03 2nd Division 04 3rd Division 05 1 Matric 10 Marks 08 Marks 06 Marks 2 I.Sc. 12 Marks 10 Marks 08 Marks 3 B.Sc. 18 Marks 15 Marks 12 Marks 4 M.Sc./M.A. 20 Marks 18 Marks 16 Marks Total 60 Marks 51 Marks 42 Marks 5. The learned counsel for the petitioners has raised a short point for consideration to the effect that the B.P.S.C. while preparing the select list for the purposes of interview has taken into account the percentage of marks obtained by the candidates against each of the academic qualifications, which is against the recruitment rules and the advertisement inasmuch as both the recruitment rules and the advertisement (the relevant Clause being Clause-5), postulates giving marks according to the chart mentioned under Clause-5 of the Advertisement with regard to a particular division obtained by the candidate vis-à-vis. a particular educational qualification, meaning thereby that in case a candidate has obtained first class in the matric examination, he would be given 10 marks whereas a candidate obtaining second class, shall be given 8 marks and those obtaining third division, shall be given six marks. a particular educational qualification, meaning thereby that in case a candidate has obtained first class in the matric examination, he would be given 10 marks whereas a candidate obtaining second class, shall be given 8 marks and those obtaining third division, shall be given six marks. It is the contention of the learned counsel for the petitioners that no other procedure apart from the said procedure prescribed under Clause-5 of the Advertisement can be resorted to but instead of that the B.P.S.C. has given marks (for the purposes of preparation of the select list), on the basis of percentage of marks received by the candidates in a particular division. 6. Per contra, the learned counsel for the respondent B.P.S.C., while referring to the counter affidavit, has stated that the admitted facts of the case are that the Department of Home (Police), Bihar has sent requisition mentioning therein necessary qualifications and experience required for appointment to the post of Senior Scientific Officers in various sections of Forensic Scientific Science Laboratory in the State vide letter dated 7.7.2015 and 2.10.2015. Thereafter, the Advertisement was published bearing Advertisement Nos. 8 of 2015 to 17 of 2015 and the last date of receiving the applications was fixed as 22.4.2016. It is further stated that Clause-5 of the Advertisement clearly suggest that suitable candidates would be selected on the basis of educational qualifications, work experience and interview. 7. The learned counsel for the respondent B.P.S.C. has reiterated Clause-5 of the Advertisement. It is further submitted that at the time of scrutiny it was found that the petitioners were not having the requisite experience, hence their names were published under the category of ineligible candidates whereafter some of the candidates had filed a writ petition bearing C.W.J.C. No. 6657 of 2017, challenging the decision of the Commission of declaring the candidates ineligible and this Hon'ble Court by an order dated 19.5.2017, allowed the said writ application whereupon the B.P.S.C. treated the application of the petitioners in the category of eligible candidates, hence the issue of working experience is no longer res integra and in fact the petitioners herein have been granted marks for their work experience. In paragraph No. 13 of the counter affidavit filed by the B.P.S.C., it has been stated that the concerned Department while giving concurrence has clearly mentioned in paragraph No. 6 of the letter dated 2.10.2015 that in case of large number of candidates, the Commission could notify candidates totaling to 5 times the number of existing vacancies in each category for interview in light of the B.P.S.C. Rules of Procedure, 1996. In such view of the matter, the Commission had selected candidates totaling five times the total number of existing vacancies from the list of eligible candidates for the purposes of interview and on 24.11.2017 a list of candidates who were not called for interview under the various advertisements, was also published. The B.P.S.C. has fixed cut-off marks of the selected candidates of all categories who have been called for interview, in the following manner:-- Sl.No. Advt. No. Cut-off marks fixed by the Commission 1. 8/2015 Gen-64.50, EBC-61.08 2. 9/2015 Gen-73.83, EBC63.82 3. 10/2015 Gen-72.75, EBC-55.52 4. 11/2015 Gen-64.63, EBC – 61.08 5. 12/2015 Gen-70.50 6. 13/2015 Gen-68.09, SC-00, EBC-61.08 7. 14/2015 Gen-74.06, SC48.19, EBC-63.82 8. 15/2015 Gen-70.88, EBC-59.98 9. 16/2015 Gen-73.09, EBC-63.82 10 17/2015 Gen-73.23 8. It is the contention of the respondents that the petitioners are having less marks than the marks obtained by the last selected candidates which is apparent from the chart mentioned in paragraph No. 14 of the counter affidavit, which is reproduced hereinbelow:-- Sl. No. Name of Petitioner Fathers Name Category Adv. No. Reg. No. Marks obtained by the petitioner Cut-off marks of the last selected candidates 1. Ashutosh Kumar Shashi Prakashan Sinha 01 09/2015 10/2015 12/2015 16/2015 201509000094 201510000080 201512000071 201516000058 63.40 63.40 63.40 63.40 73.83 72.75 70.50 73.09 2. Priti Bala Braj Nandan Yadav 01 14/2015 5/2015 17/2015 201514000183 201515000231 201517000132 69.62 69.62 69.62 74.06 70.88 73.23 3. Sima Kumari Ram Keshwar 05 14/2015 15/2015 17/2015 201514000180 201515000230 201517000131 62.68 62.68 62.68 74.06 70.88 73.23 4. Ranjeet Kumar Chandra Bhushan Rai 01 09/2015 10/2015 12/2015 16/2015 201509000105 201510000088 201512000081 201516000068 56.32 56.32 56.32 56.32 73.65 72.75 70.50 73.09 5. Rajeev Ranjan Shiv Shankar Jha 01 09/2015 10/2015 12/2015 16/2015 201509000096 201510000081 201512000072 201516000059 67.28 67.28 67.28 67.28 73.83 72.75 70.50 73.09 6 Rupali Nagendra Pd. Shirvastawa 01 09/2015 10/2015 12/2015 16/2015 201509000059 201510000055 201512000048 201516000037 65.96 65.96 65.96 65.96 73.83 72.75 70.50 73.09 9. Rajeev Ranjan Shiv Shankar Jha 01 09/2015 10/2015 12/2015 16/2015 201509000096 201510000081 201512000072 201516000059 67.28 67.28 67.28 67.28 73.83 72.75 70.50 73.09 6 Rupali Nagendra Pd. Shirvastawa 01 09/2015 10/2015 12/2015 16/2015 201509000059 201510000055 201512000048 201516000037 65.96 65.96 65.96 65.96 73.83 72.75 70.50 73.09 9. Thus the contention of the learned counsel for the respondents is that the marks obtained by the petitioners are lower than the last cut-off marks obtained by the candidates, who have been selected for interview by the Commission, hence the petitioners herein have not been selected. It is further submitted that except petitioner No. 1, the B.P.S.C. has not received representation of any other petitioners herein and the same has also been rejected and the decision thereof was published on the website of the Commission on 26.11.2017 and a notice to the said effect was published in the daily newspaper as well. It is further submitted that similarly situated candidates had filed a writ petition bearing CWJC No. 6715 of 2017 and the same has been dismissed by this Court by an order dated 19.5.2017. The learned counsel for the respondents B.P.S.C. has also referred to Clause-5 of the Advertisement and submitted that it has been clearly stipulated that in case more application forms are received than the number of vacancies, the decision of the Commission shall be final in the matter of deciding the mode and procedure for calling candidates for interview, category-wise, hence it is submitted that there is nothing wrong in the procedure adopted by the Commission which is in consonance with Clause 4(iii)(a) of the Bihar Public Service Commission, Rules of Procedure, 1996 which reads as follows:-- "(a) The candidates shall be selected for interview on the basis of their career marks to be calculated on the basis of percentage of marks obtained in each examination from Matriculation upto the level of minimum qualification required. The percentage of marks shall be added together and divided by the number of examination and a list accordingly prepared." 10. The percentage of marks shall be added together and divided by the number of examination and a list accordingly prepared." 10. It is also the submission of the learned counsel for the Commission that the aforesaid stipulation in Clause-5 regarding the Commission's decision regarding determining the procedure and number of candidates to be called for interview being final is based on the letter of the Home (Police) Department, Government of Bihar dated 2.10.2015 wherein the clarifications sought by the Commission in pursuance to the requisition made by the said Department for making recruitment, has been made and in the Clause-6 of the said letter dated 2.10.2015, it has been clarified that in case B.P.S.C. receives more applications than the vacancies, it would act as per the procedure mentioned in the Bihar Public Service Commission, Rules of Procedure, 1996. The learned counsel for the petitioner has also relied upon a judgment reported in (2017) 4 SCC 357 (Ashok Kumar vs. State & Anr.) to contend that once the appellants have participated in the fresh process of selection, it is not open for them to challenge the result in a writ petition upon being declared unsuccessful since the principle of estoppel would operate. The relevant paragraphs of the said judgment rendered in the case of Ashok Kumar (supra), being paragraph Nos. 12 to 18 are reproduced hereinbelow:-- "12. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate. 13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari vs. Shakuntala Shukla, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India vs. S. Vinodh Kumar, this Court held that: (SCC p. 107, para 18) "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar vs. Rajiv Govil and Rashmi Mishra vs. M.P. Public Service Commission)" 14. The same view was reiterated in Amlan Jyoti Borooah wherein it was held to be well settled that the candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. 15. In Manish Kumar Shahi vs. State of Bihar, the same principle was reiterated in the following observations: (SCC p. 584, para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal vs. State of J & K, Marripati Nagaraja vs. State of A.P., Dhananjay Malik vs. State of Uttaranchal, Amlan Jyoti Borooah vs. State of Assam and K.A. Nagamani vs. Indian Airlines." 16. In Vijendra Kumar Verma vs. Public Service Commission, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. In Vijendra Kumar Verma vs. Public Service Commission, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible. 17. In Ramesh Chandra Shah vs. Anil Joshi, candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that: (SCC p. 318, para 18) "18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome." 18. In Chandigarh Admn. vs. Jasmine Kaur, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai vs. Dinesh Kumar Pandey, this Court held that: (SCC p. 500, para 17) "17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Development Studies vs. K. Sivasubramaniyan." 11. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Development Studies vs. K. Sivasubramaniyan." 11. I have heard the learned counsel for the parties and gone through the materials on record and I find that neither the petitioners herein have challenged that portion of Clause-5 whereby and whereunder, it has been stipulated that in case more applications than the prescribed vacancies are received, the decision of the Commission with regard to the number of candidates and the procedure to be adopted for calling the candidates for interview shall be final, nor the petitioners herein have challenged the decision of the Commission contained in Annexure-F series to the counter affidavit filed by the B.P.S.C. which is the tabulation-sheet of the marks obtained by the petitioners herein, thus the present writ petition is fit to be dismissed on this score alone. I further find that in view of Clause-5, empowering the Commission to take a final call in deciding the number of candidates and the procedure for calling the candidates for the purposes of interview in cases the applications received are more than the vacancies, the B.P.S.C. cannot be faulted for the mode and manner it has adopted. Nonetheless, the point is that the said procedure, adopted by the B.P.S.C., is not only in accordance with Rule 4(iii)(a) of the Rules, 1996 but has also been uniformly applied to all the candidates who have filed applications, hence neither any prejudice has been caused to the petitioners herein nor they can say that they have been discriminated with. Now, it is their drawback and their lower position in the comparative merit list that they have secured less marks than the marks obtained by the last selected candidate, who has been called for interview, hence they cannot insist for adoption of another procedure especially after participating in the selection process and taking their chance and thereafter being declared unsuccessful, in view of the judgment of the Hon'ble Apex Court rendered in the case of Ashok Kumar (supra). 12. 12. The aforesaid issue is no longer res integra inasmuch as the said issue has also been decided by this Court by a judgment dated 19.5.2017 passed in CWJC No. 6715 of 2017, which also pertains to the same selection process, relevant portions whereof are reproduced hereinbelow:-- "The petitioners are aggrieved by the notice dated 19.4.2017 in so far as it disqualifies the petitioners on the marks awarded against academic qualification. According to Mr. Jha learned Senior counsel appearing for the petitioners in reference to the advertisement, there is no such mention in the advertisement, a copy of which is placed on record at Annexure-P/4 that the respondent-Commission would be following the Bihar Public Service Commission Rules of Procedure, 1996 (hereinafter referred to as 'the Rules'), a copy of which has been placed on record at Annexure-D to the counter affidavit. In short, the submission is that the procedure adopted by the respondent-Commission by following Rule 4(3)(a) of 'the Rules' to award marks on educational qualification, is contrary to the advertisement for it does not take into consideration the experience gained by the candidates during the service. The argument of Mr. Jha has been contested by Mr. Kishore to submit that even though the experience is taken into consideration as per the advertisement but that is only for testing the eligibility of the applicant. He submits that once the applications are received that a selection list was prepared in terms of Rule 4(3)(b) of 'the Rules' and the number of candidates called for interview is 5 times the number of vacancies. He submits that amongst the candidates who were called for interview by following such rules, in so far as the category of the petitioner is concerned, the last of the candidate had obtained 70.50 marks and which is mentioned at paragraph 3 of the impugned notice. It is argued that since the marks secured by the petitioners as against the education qualification fall much below the marks mentioned in paragraph 3 as explained at paragraph 12 of the Counter affidavit, they have not been called for interview. Having heard learned counsel for the parties and though according to Mr. It is argued that since the marks secured by the petitioners as against the education qualification fall much below the marks mentioned in paragraph 3 as explained at paragraph 12 of the Counter affidavit, they have not been called for interview. Having heard learned counsel for the parties and though according to Mr. Jha, the procedure so followed by the Commission is not supported by the Advertisement but in my opinion, the argument advanced is thoroughly misconceived for in view of the discretion vested in the Commission under Clause 5 of the advertisement present at Annexure-P/4 read alongside 'the Rules' which binds the Commission to determine the number of candidates who are to be called for interview, the decision taken meets the stipulations as well as rationale and does not require interference. The writ petition is dismissed." 13. For the reason mentioned hereinabove as also the present case being covered by the judgment of this Court dated 19.5.2017 passed in CWJC No. 6715 of 2017, I find no merit in the present writ petition. The writ petition is dismissed.