IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2761 of 2009 KAMESHWAR JEE PRASAD, SON OF LATE HEERA LAL, RESIDENT OF VILLAGE-NAYA BHOJPUR (EAST TOLA), P.S.-DUMRANW, DISTRICT-BUXAR. ……………………………. PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. THE HOME COMMISSIONER, BIHAR, PATNA. 4. THE PRINCIPAL SECRETARY, PERSONAL & ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 5. THE BIHAR STAFF SELECTION COMMISSION, PATNA-14. 6. THE CHAIRMAN, BIHAR STAFF SELECTION COMMISSION, PATNA-14. ……………………………. RESPONDENTS ----------- CWJC No.2813 of 2009 ROHIT KUMAR GUPTA, AGED ABOUT 33 YEARS, SON OF SHEO SHANKAR PRASAD GUPTA,RESIDENT OF FARBISGANJ, P.S.- FARBISGANJ, DISTRICT-ARARIA. ……………………………. PETITIONER Versus 1. THE STATE OF BIHAR THROUGH CHIEF SECRETARY, GOVT. OF BIHAR, PATNA. 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. THE HOME COMMISSIONER, BIHAR, PATNA. 4. THE PRINCIPAL SECRETARY, PERSONAL & ADMINISTRATIVE REFORMS DEPARTMENT, BIHAR, PATNA. 5. THE BIHAR STAFF SELECTION COMMISSION, THROUGH ITS SECRETARY, PATNA-14. 6. THE CHAIRMAN, BIHAR STAFF SELECTION COMMISSION, PATNA-14. ………………………………….. RESPONDENTS ----------- CWJC No.3223 of 2009 RINKU RANJAN KUMAR, SON OF SRI RAM PRAVESH SHARMA, RESIDENT OF VILLAGE-HARIPUR, P.S.- EKANGARSARI/PARWALPUR, DISTRICT-NALANDA. …………………………………..PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 2. THE HOME COMMISSIONER, BIHAR, PATNA. 3. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA. 4. BIHAR STAFF SELECTION COMMISSION THROUGH ITS SECRETARY, PATNA. 5. THE SECRETARY, PERSONAL AND ADMINISTRATIVE REFORMS DEPARTMETN, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA. 2 6. THE CHAIRMAN, BIHAR STAFF SELECTION COMMISSION, PATNA. 7. THE SECRETARY, BIHAR STAFF SELECTION COMMISSION, PATNA. …………………………………….. RESPONDENTS ----------- 3. 9.9.2009 Heard counsel for the petitioners and the counsel for the State as also counsel for Bihar Staff Selection Commission. In all the three writ petitions since a common question is involved, they are being disposed of by this common order. In all the three writ petitions, the petitioners are the candidates, who had filed their respective application for appointment on the post of Sub Inspector of Police pursuant to Advertisement No. 704 of 2004 and in all of them their grievance is that despite they being the candidates of backward/ most backward category have been treated to be the candidate of general category, on account of which their selection could not be made whereas the persons of their category securing lesser marks than them have already been selected and appointed on the post of Sub Inspector of Police. 3 Mr. Rajendra Prasad Singh, learned Senior counsel appearing in C.W.J.C. No. 2813/2009 and C.W.J.C.No. 2761/2009, has submitted that the petitioner Rohit Kumar Gupta had applied for the post of Sub Inspector of Police in O.B.C. category and had attached his Caste and Creamy Layer certificate issued by the Sub-divisional Magistrate, Araria but after declaration of result of the written test he came to know that he was not selected and recommended for appointment because he was treated as a candidate of general category whereas the persons securing lesser marks than him in O.B.C. category have been selected and recommended for appointment. Mr. Singh highlighting the similar case of the petitioner Kameshwar Jee Prasad has submitted that the said petitioner belongs to Most Backward class category (M.B.C.) and when his results were declared he too was not declared successful by treating him again to be the candidate of general category whereas the persons of M.B.C. having lesser marks than him had been 4 recommended and selected for appointment on the post of Sub Inspector of Police. Mr. N.K.Agrawal, learned Senior counsel appearing on behalf of the petitioner Rinku Ranjan Kumar has submitted that the said petitioner belongs to “Nai” by caste which came under M.B.C. category (B.C.-Annexure I) but he too was treated to be the candidate of general category whereas the persons having secured lesser marks in M.B.C. reserved category were recommended for appointment. Counsel for the Bihar Staff Selection Commission (hereinafter referred to as „the Commission‟) had submitted that the advertisement was very clear and had prescribed that the candidates seeking reservation in the S.C./S.T./B.C./M.B.C. had to enclose a certificate as prescribed in the advertisement itself and if those certificates were not filed/found in order, such candidates were to be treated as candidates of general category. Learned counsel also had submitted that the similar question was already decided by this Court 5 in a batch case by an order dated 30.9.2008 in C.W.J.C.No. 10121/2008 and its analogous cases (Rupa Kumari & ors. vs. The State of Bihar & ors.) and therefore, as nothing new was argued by the counsel appearing in this case these writ applications had to meet the same fate. In the opinion of this Court the aforementioned judgment on the same issue dated 30.9.2008 in C.W.J.C.No. 10121/2008 and its analogous cases squarely covers the issue in hand and hence, there would be no reason to take a different views. A learned Single Judge of this Court in the aforesaid judgment had not only considered the scope of advertisement but three corrigendum issued for arriving at a conclusion that the terms of the advertisement as with regard to submission of certificate for claiming reservation was mandatory in nature. As a matter of fact this Court would only find that clause 6 of the advertisement as with regard to reservation had provided inter alia: ^^vkj{k.k& fcgkj ljdkj }kjk ykxw vkj{k.k laca/kh lHkh fu;e izHkkoh gksaxsA ek= mUgha mEehnokjksa dks vkj{k.k dk ykHk feysxk tks fcgkj jkT; ds LFkk;h fuoklh gSA vU; jkT;ksa ,oa dsUnz 6 'kkflr izns'kksa ds mEehnokj dks pkgsa os fdlh Hkh tkfr ds gksa] vkj{k.k dk ykHk ugha feysxk vkSj os lkekU; Js.kh ds ekus tk;saxsA fcgkj jkT; ds LFkk;h fuoklh tks vuqlwfpr tkfr@tutkfr ds gS] mUgsa vkj{k.k dk ykHk izkIr djus ds fy, vuqeaMy inkf/kdkjh }kjk fuxZr tkfr izek.k i= layXu djuk gksxkA fcgkj jkT; ds LFkk;h fuoklh] tks fiNM+s oxZ ,oa vR;Ur fiNM+s oxZ ds gSa] bUgsa ftykf/kdkjh vFkok muds }kjk izkf/kd`r inkf/kdkjh }kjk fuxZr vks-ch-lh- izek.k i= layXu djuk gksxkA mEehnokj vkosnu i= esa vkj{k.k laca/kh lqwpuk vafdr ugsha djsaxs mUgsa vkj{k.k dk ykHk ugha feysxk vkSj lkekU; Js.kh ds ekus tk;saxsA** The advertisement, therefore, had made it quite clear that in respect of either backward category or most backward category a certificate duly issued by the District Magistrate or an Officer authorized by him had to be annexed. There is no dispute that in any of the three cases the petitioners at the time of filing of the application did not enclose the certificate of District Magistrate nor did they produce any certificate of an authority who was authorized by the District Magistrate to issue such certificate. The petitioner of C.W.J.C.No. 2813/2009 in paragraph no.5 has himself stated that he had attached his Caste and Creamy Layer certificate issued by the Sub-divisional Magistrate, Araria as would be also clear 7 from such certificate of Sub-divisional Magistrate which however was not the requirement of advertisement in case of backward/ most backward category and only such caste certificate issued only by the District Magistrate or an authority authorized by him were to be accepted. Similarly the petitioner of C.W.J.C.No. 3223/2009 claiming reservation under M.B.C. in paragraph 6 and with the help of Annexure 2 has admitted that he too at the time of filing of the application in response to the advertisement had annexed only a certificate issued by the Sub-divisional Officer, Hilsa. The petitioner of C.W.J.C.No. 2813/2009 however has not made any specific statement with regard to authority whose certificate had been filed by him at the time of filing of the application but then from paragraph no.10 of the writ petition read with Annexure 3 it becomes clear that such certificate was issued by the Sub-divisional Magistrate, Dumraon (Buxar). Thus facts also are absolutely admitted in all the three cases that none of the petitioner had 8 annexed the certificate claiming reservation of backward/ most backward category issued by the concerned District Magistrate or an authority authorized by him. In fact in none of the certificate enclosed/ issued by the Sub-divisional Officer there is any mention that they were so authorized to issue certificate on behalf of the District Magistrate nor counsel for the petitioners in any of the three cases had sought to advance submission to that effect. Their case in fact proceeds on a different angle. Counsel for the petitioners have stated that subsequently at the stage of verification certain category of candidates were asked to give Creamy layer certificate and as such, the petitioners ought to have been also given such opportunity. This aspect of the matter again has been gone into by the learned Single Judge at great length in the aforementioned judgment dated 30.9.2008 in C.W.J.C.No. 10121/2008 and its analogous cases and it has been held that the plea of discrimination by way of opportunity to 9 submit non-creamy layer certificate from the District Magistrate at the stage of selection process to certain candidates and not to the petitioners was fallacious and misconceived. In this context it was held that two stages were different and had their own relevance. The learned Single Judge in fact had apparently gone into all possible facets while rejecting the similar arguments in respect of the same advertisement no. 704 of 2004 and only additional thing which this Court can usefully add is that this very question as with regard to permissibility of filing of a certificate in course of selection has been specifically gone into in the judgment of Full Bench of this Court in the case of Braj Kishore Prasad & ors. vs. the State of Bihar & ors., reported in 1998(3) PLJR 34, wherein the Full Bench had laid down the law in the following words: “Having regard to all these considerations, I hold that: (a) Where the advertisement specifies the last date for filing of supporting or other documents, that date must be given effect to, 10 and any document received after such date shall be rejected by the selecting authority. (b) In appropriate cases where the selecting authority is of the view that the time for furnishing of documents should be extended, it may grant such extension by issuing a public notice to this effect so that all candidates may get the benefit of such extension. In the absence of any such extension granted by the selecting authority, the date/dates mentioned in the advertisement should be treated to be the last date for filing of documents, and no document shall be accepted thereafter. (c) No application/document shall be entertained by the Commission if the same is filed after the last date specified in the advertisement, or the extended date notified by the Commission, even if the same is filed before the finalization of the select list. (d) In appropriate cases where this Court is satisfied that a case of extreme hardship or injustice has resulted on account of factors beyond the control of the concerned candidate, this Court in exercise of its writ jurisdiction may grant 11 relief in deserving cases. But in doing so, the Court must be satisfied that the candidate concerned has acted diligently, and is not guilty of delay or laches in taking necessary steps for procuring the requisite certificates etc. However, no relief shall be granted where the requisite certificate is produced for the first time after the process of selection is complete and the selecting authority has made its recommendation.” This Court, however, must notice the two judgments referred to and relied by the counsel for the petitioners. Mr. Singh had referred to a judgment of the Division Bench of this Court in the case of the Bihar Public Service Commission & ors. vs. The State of Bihar & ors., reported in 2008(2) PLJR 155. This Court would find that the said judgment was discussed and distinguished by the learned Single Judge in the case of Rupa Kumari (supra) by holding that the advertisement dated 13.10.2007 in hand applicable in the cases of the petitioner specifically required that the 12 other backward/ extremely backward candidates were to submit caste certificate including non-creamy layer of the District Magistrate or an Officer authorized by him whereas in the judgment of Bihar Public Service Commission (supra) the advertisement itself provided that the caste certificate of OBC and EBC issued by the District Magistrate or counter signed by him and issued by the Additional Collector authorized by the District Magistrate or Sub-divisional Officer including that of not belonging to the creamy layer was to be produced at the time of candidates‟ interview. It was in the interview call letter which had restricted enter training of such certificate issued by the District Magistrate or counter signed by him or by the Additional Collector authorized. In that context the Division Bench had held that there was deviation from the original advertisement permitting the certificate from the Sub-divisional Officer. Mr. N.K.Agrawal had relied on a judgment of the Apex Court in the case of 13 M/s Poddar Steel Corporation vs. M/s Ganesh Engineering Works and others, reported in AIR 1991 S.C. 1579. In that case an auction sale notice with regard to give contract laying down conditions in auction notice was held to be not mandatory and the Apex Court had held that the condition laying down deposit of earnest money by cash or demand draft drawn on the State Bank of India could also be extended for the highest tenderer depositing earnest money by certified cheque of Union Bank. Mr. Agrawal could contend that technical irregularity having been waived by the Apex Court in the aforementioned case of M/s Poddar Steel Corporation (supra) this Court should take a similar view in accepting the candidature of the petitioners in the backward category/ most backward category. This Court fails to understand as to how the ratio of M/s Poddar Steel Corporation (supra) can be pressed into action in the facts of the present case. In that case not only the issue of Government revenue was involved but there was also no 14 similar provision that in absence of a certificate of a particular authority, the person concerned was to be treated as a candidate of general category. There actually a disqualification of a tenderer was sought be mode operative on account of not depositing of amount either in cash or by a Bank draft but then as the Apex Court had found that there was a certified cheque of nationalized Bank, that was held to be sufficient to fulfill the requirement of earnest money. Thus the aforesaid distinguishing facts and the contact would by itself make the ratio of M/s Poddar Steel‟s case (supra) to be inapplicable in the present cases. That being so, the judgment of the Apex Court in the case of M/s Poddar Steel Corporation (supra) will have no application to the facts of this case with regard to appointment in public service wherein level playing ground must be one and the same in order to ensure the fulfilment of fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. 15 Added to all these when this very question as with regard to this very advertisement has already been considered in its all possible ramification while deciding exactly the same issue in the batch case of Rupa Kumari(supra), and this Court is in respectful agreement with the same is must also arrive at the same conclusion. Thus, on an over all consideration of whole matter, this Court would find that these three writ petitions also have no merit and they are accordingly dismissed. (Mihir Kumar Jha.J.) Surendra/