IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12805 of 2002 Dr. Atul Kumar Verma, son of Dr. Bhagwati Saran Verma, Resident of J/124, People Co-operative Colony, Kankarbag, Patna-20. ------ Petitioner Versus 1. The Bihar Public Service Commission through its Secretary, Bailey Road, Patna. 2. The Chairman, Bihar Public Service Commission, Bailey Road, Patna. 3. The Secretary, Bihar Public Service Commission, Bailey Road, Patna. 4. Deputy Secretary-cum-Examination Controller, Bihar Public Service Commission, Bailey Road, Patna. 5. T.N.Singh, son of Name not known, Administrative Officer, Bihar Public Service Commission, Bailey Road, Patna. ------- Respondent 1st Set 6. The Secretary, Department of Art, Culture and Youth Department, Government of Bihar, Patna. 7. Sahdey Kumar @ Sahdeo Kumar, S/o Mahabir Pd., 3/84 Officers Flat, New Punaichak, Bailey Road, Patna. -------- Respondent 2nd Set ----------- For the Petitioner :- Mr. Ashutosh Ranjan Pandey, Adv. For the State :- Mr. Udai Shankar Singh, Adv. AC to GA 3 For B.P.S.C. :- Mr. Nadim Seraj, Adv. Mr. Shailesh Kumar, Adv. 5 30.6.2009 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- “That this application is being filed against highly illegal, wrongful, malafide and arbitrary action of the Respondent 1st set by which in complete violation of the terms under requisition sent by the State Govt. through Respondent 2nd set and the advertisement issued by respondent B.P.S.C., even though the respondent 1st set B.P.S.C. sent interview letter to the petitioner but subsequently due to reasons best known to them did not allow the 2 petitioner to appear in inter view on the ground of being under age, and when the petitioner made protest and drew their attention towards requisition sent by State Government then the B.P.S.C. took new stand that the petitioner lacks 10 years experience although the petitioner had produced certificates showing 14 years experience and the department had itself recommended the name of the petitioner, after being fully satisfied with the qualification of the petitioner.” Learned counsel for the petitioner has submitted that the action of Bihar Public Service Commission (hereinafter to be referred to as ‘the Commission’) in rejecting the candidature of the petitioner on a ground of his being not duly qualified in terms of the advertisement for the post of Director, Archaeology was/is wholly unfair and thus unsustainable both on facts and in law. He would further submit that as the power was wrongly disqualified by the Commission, the subsequent action of the Commission in recommending Sahdey Kumar @ Sahdeo Kumar (respondent no.7) should also be held to be equally bad and this Court should therefore issue a direction to the Commission for holding a fresh interview in terms of the same 3 advertisement. Counsel for the Commission on the other hand with the help of the counter affidavit has taken a plea that the petitioner did not possess requisite qualification in terms of the advertisement and as such, the Commission had not committed any irregularity in rejecting the candidature of the petitioner and/or selecting and recommending the name of the Respondent no. 7 who was found to be the best among all the candidate for the post of Director, Archaeology. This Court would first of all find that there is a Government decision dated 29th July, 2000 with regard to filling up of the post of Director, Archaeology which not only lays down that the said post will be an ex-cadre post but also that the same will be filled up by direct recruitment from amongst the candidates having requisite/optional qualifications. Since the whole dispute in this writ application hinges on the scope of qualification it would be necessary to examine the requirement for the post of Director in terms of the aforementioned Government 4 decision dated 29th July, 2000 which for the sake of clarity is quoted hereinbelow:- ^^la0 261u 1&2194 ;qok&421 dyk&laLd`fr ,oa ;qok foHkkx ladYi 29 tqykbZ 2000 fo’k;& funs”kd] iqjkrRo] fcgkj] iVuk ¼fcgkj f”k{kk lsok oxZ&1½ ds in dks xSj&laoxhZ; ?kksf’kr dj ml ij lh/kh fu;qfDr fd;s tkus ds laca/k esaA funs”kd] iqjkrRo] fcgkj] iVuk ds in dh lh/kh fu;qfDr vFkok izksUufr ls Hkjus dk ekeyk fopkjk/khu FkkA lE;d fopkjksijkUr jkT; ljdkj us funs”kd] ijkrRo] fcgkj] iVuk tks fcgkj f”k{kk lsok oxZ&II ojh; izoj dksfV vFkkZr fcgkj f”k{kk lsok oxZ& I dk in gS] dk xSj&laoxhZ; ?kksf’kr dj ml ij lh/kh fu;qfDr djus dk fu.kZ; fy;k gSA rRlaca/kh iwoZ esa fuxZr vf/klwpuk] ladYi] ifji= vkns”k dks bl gn rd la”kksf/kr le>k tk;,A 2- funs”kd] ijkrRo ds in ij lh/kh fu;qfDr vf[ky Hkkjrh; Lrj ij fuEukafdr vgZrk ,oa ;ksX;rk ds vk/kkj ij fcgkj yksd lsok vk;ksx }kjk foKkiu izdkf”kr dj fd;k tk;sxk %& (i) osrueku 12]000 && 375 && 16]500 ,oa vuqekU; vU; HkrsA (ii) vko”k;d ;ksX;rk,oa & iqjkrRokizkphu Hkkjrh; bfrgkl ,oa laLd`fr ijkrRo ;k bfrgkl ¼ftlesa izkphu bfrgkl xzqi Hkh lfEefyr gks½ ,f”k;kbZ v/;;ukiqjkrRo½ izkphu bfrgkl xzwi ds lkFk½ esa fdlh ekU;rk izkIr fo”ofo|ky; ls ;wure f}rh; Js.kh esa LukRrdksrj dh mikf/k U;wure izkIrkad & 55 izfr”krA (iii) fdlh Hkh fo”ofo|ky; ;k jkT; ds dsUnzh; lsok esa 10 o’kksZa dk iqjkrRo@vUos’k.k mR[kuu ds losZ{k.k dk vuqHkoA (iV) okafNr ;ksX;rk,oa & iqjkrRo ls lacaf/kr fo’k;ksa tSls Hkkjr dh laLd`fr@eqfrZdyk@vfHkys[k@eqnzk”kkL=@fp=dyk vkfn esa vuqeksfnr “kks/k dk;Z] “kks/k] ih0,p0Mh0@Mh0fQy ;k Mh0 fyV0A (V) mez& foKkiu dh frfFk dks U;wure 30 o’kZ ,oa vf/kdre 45 o’kZ ljdkjh lsodksa ds fy, vf/kdre 55 o’kZA vkns”k & vkns”k fn;k tkrk gS fd bl ladYi dks fcgkj jkti= ds vlk/kkj.k vad esa izdkf”kr fd;k tk;s rFkk bldh lwpuk lHkh lacaf/kr inkf/kdkfj;ksa dks nh tk,A fcgkj jkT;iky ds vkns”k ls] jek “kadj frokjh] ljdkj ds lfpoA** It is not in doubt that in terms of the aforementioned Government decision dated 29th July, 2000 the Department of Art, Culture and Youth had sent a requisition to the Bihar Public Service Commission wherein both the essential and desirable qualification were laid down as follows:- “18. Qualification Required:- 5 (A) essential:- (i) Minimum 2nd class Post Graduate degree with at least 55% of Marks from any University in Archaeology (ii) Ancient Indian History & Cultural Archaeology & History or History in which Ancient History group included (Asian Studies Archaeology with Ancient History group) (iii) 10 yrs work experience in the field of survey related to Archaeology / Investigation, Excavation in any University or Central or State Service. (B) Desirable:- Ph.d/D.Phil/D.Lit degree related to approved research work in Archaeology and Indian Cultural in the field of Sculpture /documentation/numismatic/painting” However, when the Commission had advertised the post, the qualification in advertisement had been laid down as follows:- ^^vko”;d ;ksX;rk %& (i) ekU;rk izkIr fo”ofo|ky; ls iqjkrkfRod fo’k; esa de&ls&de f}rh; Js.kh dh Lukrdksrj fMxzh ¼U;wure izkIrkad 55% ftlesas iqjkrRo@izkphu bfrgkl ,oa laLd`fr fo’k; lfEefyr gksA ,f”k;kbZ v/;u@iqjkrRo½ ¼izkphu bfrgkl xqzi ds lkFk½ fo’k; Hkh lfEefyr gksA (ii) 10 o’kksZa dk lacaf/kr fo’k;ksa esa vuqHkoA okafNr ;ksX;rk,a%& iqjkrRo ls lacaf/kr fo’k;ksa esa “kks/kdk;Z] ih0,p0Mh0@Mh0fQy0@Mh0fyV0 dh mikf/kA mez lhek& fnukad 01-08-2001 dks 45 o’kZA ljdkjh lsodksa ,oa vkjf{kr ds fy, fu;ekuqlkj NqVA** The main stress of the counsel for the petitioner, therefore, is that when the Commission had modified the specified requirement as laid down in the requisition or rules, in respect of ten years experience in 6 the concerned subject the same became vague and thus the decision of the Commission to disqualify the petitioner on the ground of lack of ten years experience was wholly arbitrary and hence unsustainable. Counsel in this context had also tried to emphasize that neither the respondent no.7 nor other four candidates called for interview were eligible in terms of the advertisement but they were called for interview by excluding a genuine qualified candidate like the petitioner. This Court would however find that the requirement for the post of Director of Archaeology with specified qualification in terms of the Government decision and the requisition as quoted above was quite specific and clear that the person concerned apart from holding educational qualification of a Post Graduation Degree must have at least 55% marks in Archaeology/Ancient Indian History & Cultural Archaeology History in which Ancient History groups included (Asian Studies Archaeology with Ancient History group). It had also been clarified therein that apart from the aforementioned educational 7 qualification, the candidates must have a minimum ten years working experience in the field of survey related to Archaeological Investigation/ Execution in any University, Central or State Service. Obviously, when the Commission had put ten years experience clause in the advertisement in an abridged form by referring ten years experience in the subject, it had only intended to refer to the aforementioned requirement as laid down in the requisition and/or the Government decision laying down qualification and experience for the post of Director, Archaeology. It could have been much better, had the Commission given the entire requirement of the post as per rules/Government decision as mentioned in the requisition but then the petitioner had not suffered any prejudice on account of such publication of advertisement by the Commission specially when this Court has also found that there were in all 51 applicants. Thus on the basis of materials on record it cannot be said that either the terms of the advertisement was vague or anyone including the petitioner had suffered any prejudice on account of not 8 specifying ten years experience in the manner it was sought to be explained either in the Government decision or in the requisition sent to the Commission. That would now take this Court to the second question as to whether the petitioner had actually fulfilled the qualification of ten years experience? As noted above, the petitioner had filed an application which is Annexure-A to the counter affidavit filed by the Commission and in the column no.10, the petitioner had given the following details of his employment/experience:- ^^10- fu;kstu dk fooj.k %& in dk uke & ¼LFkk;h½ in xzg.k dh frfFk in R;kx dh frfFk fu;kstu dk uke irk ojh; rduhdh lgk;d 6-10-1988 5-3-2000 iqjkrRo funs”kky; vUos’k.k ,oa mR[kuu inkf/kdkjh ¼izkf/kd`r½ 6-3-2000 bl in ij dk;Zjr gSa iqjkrRo funs”kky;] dyk laLd`fr ,oa ;qok foHkkx From a bare perusal of the aforementioned detail of employment/experience furnished by the petitioner, it would be clear that the petitioner was working as Senior Technical Assistant in the Directorate of Archaeology. Holding of such post by the petitioner, a Class-3 post as explained in the counter affidavit, can hardly be reflective of the 9 fact that the petitioner was possessing an experience of ten years in terms of rules/requisition confining such experience by way of specialization and experience of survey relating to Archaeology/excavation. As a matter of fact, the Commission has taken a plea that the expert of the subject had found the petitioner to have only qualification of one year experience on the basis of his holding the post of Investigation and Exploration Officer. Counsel for the petitioner, however, by referring to the enclosures of his application containing 28 such documents has submitted that by a conjoint reading of all the 28 documents, it could have been safely inferred by the Commission that the petitioner had also the requisite experience of ten years in the field of survey in Archaeological operations as laid down in the advertisement/rules/requisition. This Court however would find that out of 28 documents, the petitioner has annexed a few of them in this writ petition and from their perusal, it would be very difficult to hold that the petitioner had requisite ten 10 years experience in the field of survey of archaeological operations. The counsel for the petitioner in this context has referred to a certificate issued by the Deputy Secretary- cum-Director of the Directorate of Archaeology dated 1.11.2002 which only goes to show that the petitioner was working as a Senior Technical Assistant for the period 6.10.1988 to 4.3.2000 and thereafter on the post of Research and Exploration Officer from 5.3.2000 to 26.7.2002. It is however very significant to mention here that the petitioner in response to the advertisement had filed his application in the Commission on 12.1.2002 and therefore, the aforesaid certificate dated 1.11.2002 was/could not have been the part of that application. This Court would again find that a few of the testimonials (not certificate) wishing him a great success in his life on the basis of the personal evaluation of the concerned authorities, did not reflect that the petitioner had actually worked and had acquired experience of survey operation of archaeology work as was the specific requirement in the advertisement 11 issued by the Commission. In that view of the matter, the reliance placed by the petitioner on a document dated 29.8.1995 (Annexure-1 Series) is also wholly misplaced, inasmuch as, this document is again by way of a testimonial given by one Dr. Prakash Charan Prasad wherein the petitioner’s educational qualification has been explained, but there is nothing to show that the petitioner had even for a period of seven years i.e. from 1988 when he entered in Government service was ever associated with work of survey or Archaeological operation. Counsel for the petitioner, therefore, is not correct in saying that the certificate and testimonials annexed by the petitioner by themselves were sufficient to establish that the petitioner had possessed the requisite essential qualification and experience as laid down in the advertisement issued by the Commission. Counsel for the petitioner, however, had very strongly placed reliance on the endorsement made by the Secretary of the Department in the application itself to contend that had the petitioner not been 12 qualified for the post, the Secretary of the department could not have forwarded his application and therefore, the forwarding note given in the application by the Secretary of the Department should itself be sufficient to prove that the petitioner had possessed requisite qualification. In the opinion of this Court, even this part of submission of the counsel for the petitioner is fit to be rejected for a simple reason that in the prescribed proforma of the application, there was a column meant for the candidates in Government service which had to be filled up by the Head of the Department in form of a declaration as to whether the concerned Government servant is holding the lien against a permanent post and as to whether the Department in the event of selection would be in a position to release him for joining the selected post. The said endorsement made by the Secretary of the Department in the case of the petitioner to the following effect, ^^dsoy ljdkjh lsodksa ds fy;s foHkkx ;k dk;kZy; ds iz/kku dk izek.k&i= izekf.kr fd;k tkrk gS fd Jh@lqJh@Jherh Mk- vrqy dqekj oekZ fnukad 6-10-1988 ls jkT; ljdkj ds v/khu LFkk;h in /kkj.k djrs gSA tgka rd esjh tkudkjh gS] budk pfj= mre gS vkSj ;g foHkkx bUgsa foKkfir in ij fu;qfDr ds fy, eqDr dj ldsxkA 13 fnukad 12-01-2002 inkf/kdkjh dk uke gLrk{kj inuke [kfut dyk lfpo dyk] laLd`fr ,oa ;qok foHkkx foHkkx dyk laLd`fr ,oa ;qok eqgj lfpo foHkkx] fcgkj] iVukA dyk] laLd`fr ,oa ;qok foHkkx fcgkj] iVuk** can hardly be a proof of the fact that the petitioner was holding the requisite qualification and experience for the post of Director as advertised by the Commission. This Court, therefore, would find no error in the decision taken by the Commission in holding the petitioner to be not qualified in terms of the advertisement and therefore, the action of the Commission in not sending the interview call letter can hardly be held to be illegal. As a matter of fact, not only the petitioner but in all 13 other candidates including the petitioner were found to be not fulfilling the requisite ten years experience in terms of the advertisement. The petitioner, therefore, cannot complain that the Commission had taken any decision for him alone by way of individual discrimination. As a matter of fact, when the Commission had taken assistance of three experts on the subject as noted hereinbelow, i.e., ^^fcgkj yksd lsok vk;ksx] iVukA foKkiu la[;k& 16@2001 ¼funs”kd] iqjkrRo½ frfFk 02-11-2002 le; 11-00 iwokg~u cksMZ la[;k p;u cksMZ dk xBu 14 01- Ekuuh; Mk0 ,y0 jk;] v/;{k Ekuuh; Mk0 ,l0 ch0 pkS/kjh lnL; Jh ds0 ,e0 JhokLro] fo”ks’kK iwoZ la;qDr egkfuns”kd] Hkkjrh; iqjkrRo losZ{k.k Mk0 ,e0 ds0 ih0 feJk] funs”kd] ekSykuk vktkn baftuh;fjax dkWyst] vfu”kkckn] iVukA fo”ks’kK Mk0 vks0 ih0 tk;loky] ls0 fu0 izksQslj] iqjkrRo foHkkx] fcgkj] iVukA fo”ks’kK it would be very difficult for this Court to hold that their unanimous decision with regard to the selection on the post of Director was not in keeping with the requirement of the post. In any event, when the petitioner did not produce any clinching document to show that he had experience of ten years in terms of the rules / advertisement /requisition, he cannot claim his being called for interview as a matter of right. Learned Counsel for the petitioner had also submitted that even if the petitioner had failed to satisfy this Court as with regard to his own candidature, he could still assail the decision of the Commission as with regard to short-listing of five candidates who were called for interview. In this context, counsel for the petitioner has tried to take help from Annexure-E to the counter affidavit containing the details of interview of the five candidates and on the basis of the same, it 15 has been sought to be canvassed that they too had no experience of ten years survey in the field of archaeology. It would be however very difficult for this Court to make such comparative evaluation as an appellate authority on the decision taken by the selection Committee of Commission but then from a bare perusal of the details given in respect of all the five candidates called for interview, it would appear that the Commission had ultimately selected a candidate, namely, Sahdey Kumar @ Sahdeo Kumar (Respondent No.7) whose date of birth was 13.2.1948. The said recommendation of the Commission, however, could not be acted upon in view of the interim order passed by this Court on 19.12.2002 and now the aforesaid selected candidate being Respondent No.7 having already attained the age of superannuation, is out of race for appointment on the post of Director. The interim order of this Court has done great service to the petitioner, inasmuch as he despite failing to establish his case, has been able to successfully scuttle the case of the respondent no.7. This Court could not take up this writ application for hearing for its 16 final disposal in a period over last six and half years and even counsel for the State or Commission did not find any necessity for its expeditious disposal and remained content with the ad interim order of stay which in turn has led a disastrous consequence for the Respondent no. 7 who despite his selection after great endeavors of the Commission could not be appointed on the post of Director, Archaeology. In this background, when this Court would find that there is hardly any merit in the claim of the petitioner of his being qualified for the post of the Director in terms of the advertisement, all that can be observed is that if the State Government feels necessity for filling up the post of Director, it may take fresh steps for filling up the post of Director in accordance with law. This time the Commission however should be more careful by incorporating the entire requirement of the rules in the advertisement without editing or modulating the requirement as laid down in the rules/requisition. The last prayer of the learned counsel for the petitioner that as the respondent no.7 has gone out of race on 17 account of his attaining the age of superannuation, there should be a fresh interview in terms of the existing advertisement and the petitioner should be also allowed to participate in the same must be rejected. That cannot be done for a simple reason, namely, when a selection had culminated into the recommendation of the respondent no.7 and that recommendation could not be acted upon due to ad interim order of stay passed by this Court on 22.12.2002, the transaction must be treated to have come to an end specially when the persons who would now have become qualified cannot be deprived of an opportunity of being considered for a specialized post like Director which is really a very significant post in the Department of Archaeology. That being so, this Court does not find any merit in this application and the same is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)