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2020 DIGILAW 555 (PAT)

Kusum Kumari v. State of Bihar

2020-09-25

RAJEEV RANJAN PRASAD

body2020
RAJEEV RANJAN PRASAD, J.:–Heard learned counsel for the parties. 2. Learned counsel for the petitioner undertakes to remove all the defects within four weeks after start of normal functioning of this Court. 3. This writ application has been preferred seeking a direction to the respondents to consider the case of the petitioner for appointment on the post of Auxiliary Nurse Midwifery (hereinafter referred to as ‘A.N.M.’) in various departments. 4. It is the case of the petitioner that pursuant to the advertisement bearing no. 03010216 dated 27.02.2016 (Annexure ‘1’) she had submitted her online application for the post of A.N.M. The petitioner claims that she possessed the qualification required for that purpose and being a candidate in the category of Most Backward Class (‘MBC’) at the relevant time she had also disclosed her reservation category as ‘MBC’. She had obtained a caste certificate as non-creamy layer issued by the Circle Officer, Phulwarishariff vide certificate letter no. C-16/2191/9883 dated 15.09.2016 (Annexure ‘3’). 5. It is her further case that on receipt of the call letter for counseling-cum-interview, she had appeared in the counseling on 25.11.2016 in the office of the Bihar Staff Selection Commission (hereinafter referred to as the ‘Commission’) at Patna. She had submitted all the necessary documents as demanded by the Commission and had also submitted her noncreamy layer caste certificate of the category of Most Backward Caste. 6. In fact the difficulty arose for the petitioner because of the subsequent developments after filling up of the online application form. Online application in this case was submitted pursuant to the advertisement issued on 27.02.2016 and as the petitioner was awaiting receipt of her call letter, the Government of India came out with the Repealing and Amendment Act, 2016 and by virtue of the same the Constitution (Scheduled Tribes) Order Amendment Act, 2006 came to be repealed as a whole. 7. It is the case of the petitioner that the Government of Bihar in its General Administration Department vide letter no. 108/8 dated 08.08.2016 (Annexure ‘5’ series) informed all the departments of the Government that in respect of ‘Lohara’ (yksgkj) caste may be issued a certificate of Scheduled Tribe. 7. It is the case of the petitioner that the Government of Bihar in its General Administration Department vide letter no. 108/8 dated 08.08.2016 (Annexure ‘5’ series) informed all the departments of the Government that in respect of ‘Lohara’ (yksgkj) caste may be issued a certificate of Scheduled Tribe. Thus, because of Annexure ‘5’ series to the writ application the caste of the petitioner fell in the Scheduled Tribe category, therefore, she obtained a certificate of Scheduled Tribe and along with the noncreamy layer caste certificate of the category of Most Backward Caste, she also produced the ‘ST’ certificate before the Commission. 8. It is submitted that after the counseling was over, the Commission gave an opportunity to the candidates to file objection online if any correction was wanted by the candidate(s) in respect of his/her claim in the column as displayed by the Commission online. A copy of the notice regarding filing of objection is available on the record as Annexure ‘5’ series. The relevant part of the notice reads as under:— ^^3- ;fn fdlh vH;FkhZ dk 'kS{kf.kd vad@vuqHko vad@vkj{k.k Js.kh Hkwyo'k okLrfod ls vfèkd ;k fHkUu vafdr gks x;k gks] rks bldh lwpuk vkifÙk ds :i esa ntZ djuk vfuok;Z gksxk vU;Fkk Hkfo"; esa mudh vuq'kalk fu;qfDr fcuk dkj.k crk, jí dh tk ldrh gSA** 9. It is the case of the petitioner that under a bonafide belief and in good faith she corrected her reservation category from the Most Backward Class to Scheduled Tribe. She believed that because of the Government’s notification no. 108/18 dated 08.08.2016, now she is required to disclose her correct caste category. At the time of counseling she had already submitted both the certificates. Subsequently when the result was published by the Commission, name of the petitioner was not found in the list of successful candidates. Petitioner demanded her marks as well as cut-off marks of the various categories which were fixed by the Commission. The cut-off marks for ‘MBC’ candidates was 45.82. Petitioner got details of her marks which disclosed that she had obtained 60.88 marks. Petitioner demanded her marks as well as cut-off marks of the various categories which were fixed by the Commission. The cut-off marks for ‘MBC’ candidates was 45.82. Petitioner got details of her marks which disclosed that she had obtained 60.88 marks. It is the case of the petitioner that because she had initially applied under the ‘MBC’ category and had also submitted non-creamy layer certificate along with the ‘ST’ certificate due to change of her caste category by the Government of Bihar at the time of counseling, she was eligible to be considered at least under the ‘MBC’ category, if not in the ‘ST’ category. She had obtained much higher marks than the cut-off marks on which the last ‘MBC’ candidate was declared successful. 10. The petitioner states that she sought to know the reasons for her non-selection and for this purpose she sought information under Right to Information Act, whereupon the Commission responded vide letter dated 15.11.2019 (Annexure ‘7’). For the first time petitioner came to know from Annexure ‘7’ that she has been treated under ‘General’ category because while submitting her objection she had changed her reservation category from ‘MBC’ to ‘ST’. It is the case of the petitioner that the fact that her reservation category had been changed from ‘MBC’ to ‘ST’ during the ongoing selection process is an admitted position. At the time of filling up of the online application form she had rightly disclosed her reservation category in ‘MBC’, therefore, it cannot be said that the petitioner had given a wrong declaration with regard to her reservation category at any point of time. 11. It is the submission of learned counsel for the petitioner that a bare perusal of the contents of the advertisement (Annexure ‘1’) would show that according to Clause 3(iii) no change in the reservation category would be permissible in any case and no request in this regard would be entertained. According to the said Clause, in case of a wrong claim of reservation the candidate would be placed in the unreserved category. According to learned counsel for the petitioner, the case against the petitioner is not that of wrongly claiming reservation. It is at best a case of changing her reservation category but in that case, according to Clause 3(iii), the request for change of category cannot be entertained, meaning thereby the petitioner shall remain a candidate in the ‘MBC’. 12. According to learned counsel for the petitioner, the case against the petitioner is not that of wrongly claiming reservation. It is at best a case of changing her reservation category but in that case, according to Clause 3(iii), the request for change of category cannot be entertained, meaning thereby the petitioner shall remain a candidate in the ‘MBC’. 12. Learned counsel submits that Clause 3(iii) of the advertisement has been wrongly applied by misconstruing the same. It is also his submission that the petitioner is entitled for reservation in terms of the statutory provisions as contained in Bihar Reservation in the Vacancies on Post and Services (Schedule Caste, Scheduled Tribes and other Backward Categories) Act 1991 (hereinafter referred to as the ‘Act of 1991’) which has statutory force, therefore, she cannot be deprived of the benefit of reservation available to the Most Backward Class candidate in terms of the Act of 1991 and in no case the terms of advertisement may be taken recourse to defeat the provisions of the Reservation Rules. 13. On the other hand learned counsel representing the Commission has heavily relied upon Clause 3(iii) of the advertisement which reads as under:— “3(iii) ^^vkWuykbZu vkosnu&i= esa nkok fd;s x;s vkj{k.k Js.kh eas fdlh Hkh ifjfLFkfr esa ifjorZu ugha fd;k tk;sxk rFkk bl lacaèk esa fdlh Hkh vkosnu ij fopkj ugha fd;k tk;sxkA xyr vkj{k.k dk nkok djus ij mUgasa vukjf{kr Js.kh eas ekuk tk;sxkA** 14. It is the stand of the respondent nos. 3 and 4 that because the petitioner had changed her reservation category from ‘MBC’ to ‘ST’, in terms of the aforesaid Clause of the advertisement, she was placed in the ‘General’ category and because the cut off marks of the ‘General’ category was 65.75 and the petitioner had secured only 60.88 marks, she was not recommended for appointment. 15. The supplementary counter affidavit filed on behalf of the Commission (respondent nos. 3 and 4) shows that the concerned Department had sent requisition for a total number of 1260 posts of A.N.M. in MBC out of which only 1224 posts could be filled up from amongst the eligible candidates. In the MBC category 36 posts were not filled up which were returned to the Department of Health, Government of Bihar. 16. In the counter affidavit filed on behalf of the Department of Health and it’s authorities (respondent nos. In the MBC category 36 posts were not filled up which were returned to the Department of Health, Government of Bihar. 16. In the counter affidavit filed on behalf of the Department of Health and it’s authorities (respondent nos. 5 and 6), it is stated that the grievance of the petitioner with respect to publication of the result of the petitioner in General Category instead of MBS Category is related to the Commission, since the selection process has been completed by the said Commission. It is further stated that an amended ANM Cadre Rules has been notified by the Health Department, Government of Bihar on 16.11.2018 which has been published in the Bihar Gazette on 10.12.2018 whereby the provisions for conducting interview for ANM appointment has been dispensed with and power of conducting selection process has been vested in the Bihar Technical Service Commission instead of Bihar Staff Selection Commission and the future posts which may be lying vacant and would be notified for appointment after getting roaster clearance would be filled up through the selection process to be conducted by the Bihar Technical Service Commission. 17. In course of argument today, this Court called upon learned counsel for the State as well as learned counsel for the Commission to read carefully Clause 3(iii) of the advertisement and take a plea that whether in view of the last line contained therein ^^------xyr vkj{k.k dk nkok djus ij mUgsa vukjf{kr Js.kh esa ekuk tk;sxkA** may be interpreted in a manner so as to take a view that the petitioner had made a wrong claim for reservation. While learned counsel for the Commission has submitted that this is how the Commission has understood it and has put the petitioner in the General Category. Learned counsel for the State has submitted that prima-facie it seems that the petitioner had claimed her reservation in MBC category post on a valid cast certificate and then she had changed her category from MBC to Scheduled Tribe after getting a certificate in the light of the letter of General Administration Department as contained in Annexure ‘5’ to the writ application. 18. 18. This Court when pointed out that the first paragraph of Clause 3(iii) it is clearly provided that the claim of reservation made in the online application shall not be allowed to be changed in any circumstance and in any circumstance in this respect no application shall be considered, therefore, at best the Commission could have rejected the change sought to be incorporated by the petitioner in respect of her reservation category but as a consequence thereof the Commission cannot proceed to place the candidate in the General Category, learned counsel for the Commission could not satisfactorily explain the stand of the Commission on the face of the first part of the conditions contained in Clause 3(iii) of the advertisement. 19. Having heard learned counsel for the parties and upon consideration of the entire materials on the record, this Court finds much force in the submission of learned counsel for the petitioner. The facts of this case are not in dispute. The caste certificate dated 06.09.2016 issued by the Circle Officer, Phulwarishariff (Annexure ‘3’) duly shows that the petitioner belongs to ^yksgkj* caste which is entitled for reservation under the provisions of the Act of 1991 as amended from time to time. Annexure ‘3’ also certifies that the petitioner does not come under the creamy layer. It is, thus, not in dispute that on the date of filling up of the online application form, the petitioner had rightly claimed her reservation as Most Backward Class candidate. She was entitled for reservation in terms of the Act of 1991. It was, thus, not a case of wrongly claiming the reservation. The reliance placed by the learned counsel for the respondent nos. 3 and 4 on Clause 3(iii) of the advertisement seems to be wholly misconceived because according to the said Clause, only in case of a wrong claim of reservation the candidate may be placed in the unreserved category. 20. This Court reminds itself with the judgment of the Hon’ble Supreme Court in the case of Ranajit Kumar Mehar Vs. State of Orissa and Others reported in (2017) 4 SCC 568 in which the Hon’ble Supreme Court has held that there cannot be any appointment in violation of the Rules and qualification of a candidate is to be seen with respect to the rules and not the advertisement inviting applications. State of Orissa and Others reported in (2017) 4 SCC 568 in which the Hon’ble Supreme Court has held that there cannot be any appointment in violation of the Rules and qualification of a candidate is to be seen with respect to the rules and not the advertisement inviting applications. The judgment has been pointed out to learned counsel for the State and the Commission while hearing them today. 21. In this case in terms of the Act of 1991, the petitioner is entitled to be treated under the reserved category and she cannot be deprived of by putting any condition in the advertisement dehorse to the provisions of the Act of 1991. In fact the case of the petitioner is standing on a strong footing inasmuch as even Clause 3(iii) of the advertisement only states that any subsequent change in the category of reservation shall not be allowed and no request in this regard shall be entertained. In case of wrong claim of reservation the candidate will be treated in the ‘General’ category. Thus, at best a reading of Clause 3(iii) would suggest that the subsequent change sought to be incorporated while responding to the notice of the Commission cannot be allowed. The effect of that would be that the petitioner shall continue in her reservation category as ‘MBC’ which is not a wrong claim of reservation. 22. This Court is of the considered opinion that the change with regard to the caste category from ‘MBC’ to ‘ST’ was only a bonafide act of the petitioner and that would not take away her right to get reservation as Most Backward category candidate in accordance with the provisions of the Act of 1991. It is, however, made clear that in this case the Court is not going into merit on the effect of Repealing and Amendment Act 2016 and letter of the General Administration Department, Government of Bihar (Annexure ‘5’ to the writ application). 23. The petitioner has secured 60.88 marks whereas the cut off marks in the ‘MBC’ category is only 45.82 marks, therefore, in the opinion of this Court, the petitioner deserves to be considered as a successful candidate in the select list under the Most Backward Class. The respondent authorities have therefore, wrongly deprived the petitioner of her selection by placing her in ‘General’ category. 24. The respondent authorities have therefore, wrongly deprived the petitioner of her selection by placing her in ‘General’ category. 24. This Court, therefore, allows this writ application, since it has been noticed from the supplementary counter affidavit filed on behalf respondent nos. 3 and 4 that 36 posts in the Most Backward Class remained unfilled up because no candidate could be found eligible for those posts under the Most Backward Class, a writ in the nature of Mandamus is hereby issued directing the respondent nos. 3 and 4 to consider the case of the petitioner treating her name in the Most Backward Class and make a suitable recommendation to the Department for consideration of her name for appointment as A.N.M. 25. This goes without saying that so far as the case of the petitioner is concerned, it has to be governed by the old Rules and in terms of the advertisement as contained in Annexure ‘1’ to the writ application. Respondent Nos. ‘3’ and ‘4’ shall consider and send their recommendation to the Department within a period of 30 days from the date of receipt/production of a copy of this judgment, thereafter, the respondent nos. 5 and 6 shall consider the recommendation and take necessary consequential steps towards appointment of the petitioner within another 30 days from the date of receipt of the recommendation. If any needful is required to be done at the end of the respondent nos. 1 and 2, they would do the same in order to give complete effect to this judgment. 26. In the facts and circumstances of the case, there will, however, be no order as to cost.