IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2732 of 2002 1. UPENDRA PRASAD, S/O SRI MISHRI SINGH, R/O VILLAGE-MANPUR, P.O.-JUNIYAR, P.S.-HILSA AT PRESENT RESIDING AT KANKARBAGH, KAUSHAL INDUSTRIES NEAR PATHAK INSTITUTE, PATNA-20. 2. MANOHAR PRASAD, S/O SRI JAI RAM PRASAD, R/O MOHALLA-POSTAL PARK, P.O.-G.P.O., P.S.- JAKKANPUR, DISTRICT-PATNA. ……………PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. THE BIHAR PUBLIC SERVICE COMMISSION REPRESENTED THROUGH ITS CHAIRMAN, BAILEY ROAD, PATNA. 3. THE SECRETARY, BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA. 4. SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS. ……………RESPONDENTS. For the petitioners: Mr. Shailendra Kumar Sinha, Adv. and Mr. Rajkumar, Adv. For the BPSC : Mr. Kaushal Kumar Jha, Adv. For the State : Mr. Nirmal Kumar Sinha, Adv. ----------- 7 22.02.2010 Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the Bihar Public Service Commission. The two petitioners have filed this writ application for a direction to the respondent Bihar Public Service Commission (hereinafter referred to as ‘The Commission’) to declare them successful in Primary Teachers Competitive Examination, 1996, under the reserved category. Case of the petitioners is that an 2 advertisement was published some time in May, 1996 for holding a preliminary examination for appointment of primary teachers in various schools of the State. The two petitioners belonged to other backward class (OBC) and most backward class (MBC) respectively and they were otherwise qualified to appear in the examination. Therefore, they submitted their applications and were issued admit cards. They appeared in the examination and were successful. Thereafter, some time in the year 1999, another advertisement was published for holding mains examination. In the advertisement it was stipulated that candidates of other backward class, most backward class and others should submit their caste certificate and creamy layer certificate issued by a competent authority. Accordingly, petitioners obtained the required certificates from the concerned S.D.O. and applied for appearing in the mains examination, enclosing the same. It is the case of the petitioners that there was strike of Non-Gazetted employees between the periods of 12th January, 1999 to 20th June, 1999. Therefore, they could not obtain caste and creamy layer certificate from the 3 office of the respondent Collector. However, since the concerned S.D.O. was also one of the competent authorities to issue caste and creamy layer certificate, they had appended valid certificates along with their applications. They appeared in the examination and when the result was published they did not find their names in the list. Therefore, they submitted their representation to the Commission making enquiry as to whether they had qualified in examination or not. After the strike of Non-Gazetted employees was over, they obtained their caste and creamy layer certificates from the office of the respondent Collector also and submitted the same to the Commission. However, on enquiry they were told that since they had not submitted their caste and creamy layer certificates, issued from the office of the Collector, their cases were considered in the general category and in the general category they had not qualified. Therefore, petitioners filed this writ application for a direction to the Commission to declare them qualified in the examination in the respective reserved category and for a direction 4 to recommend their names for appointment as Primary Teachers against reserved category posts. Counter affidavit has been filed by the Commission and it is stated that the last candidate of general category had obtained 59 marks whereas petitioner no. 1 had obtained 58 marks and petitioner no. 2 had obtained 54 marks. Therefore, in the category of general candidates they were not found eligible for being recommended for their appointment as primary teachers. Learned counsel for the petitioners submits that the advertisement for mains examination, a copy whereof is annexed as Annexure-2, clearly mentioned that the candidates of OBC and MBC and of other reserved category could submit their caste and creamy layer certificates issued by a competent authority. He submits that the advertisement for preliminary test mentioned that at the time of submission of application for mains examination caste certificate had to be submitted. He submits that it is true that earlier it was mandatory for any candidate for Government service to submit caste and creamy layer certificate issued from the 5 Collector only. But later on, the said requirement was relaxed as per letter no. 45 dated 25.3.1996, a copy whereof is annexed as Annexure-B to the counter affidavit of the State. The said letter specifically refers to earlier letters of the Personnel and Administrative Reforms Department, namely letter no. 32 dated 6.5.1995 and the letter no. 14 dated 30.1.1996, and mentions that information were received that the candidates of reserved category were finding it difficult to submit caste and creamy layer certificate issued by the Collector. Therefore, considering the difficulties faced by the candidates, the decision has been taken by the Government that candidates of reserved category, applying for Government service, could submit caste and creamy layer certificate issued by the Collector or/and Additional Collector duly authorized in this regard, on the basis of certificate issued the S.D.O. also. He submits that due to this relaxation, it was mentioned in the said advertisement that certificates from the competent authority will also be sufficient for candidates applying for their appointment under the concerned reserved category. 6 Learned counsel for the Commission submits that the advertisement for preliminary examination published in May, 1996, a copy whereof is annexed as Annexure-A to the supplementary counter affidavit of respondent nos. 2 and 3, specifically refers to letter no. 14 dated 30.1.1996 and stipulates that caste certificate had to be submitted by the candidates at the time of mains examination in terms of the said letter. He submits that the said letter provided submission of caste certificate issued only by the Collector and no other authority. He submits that an earlier letter issued from the Personnel and Administrative Reforms Department, no.32 dated 6.5.1995 (Annexure-B with supplementary counter affidavit) also makes it clear that caste and creamy layer certificate issued only by the Collector will be admissible. He refers to an order of learned single Judge dated 5.8.2004 passed in C.W.J.C. No. 8707 of 1999 (Annexure-C/1 with the said supplementary counter affidavit), to contend that the earlier letter no. 32 was considered by this Court in similar circumstances and it was held that the certificates issued by the S.D.O. was of no 7 advantage to a candidate. He also refers to a Division Bench judgment dated 26.8.2003 passed in LPA No. 729 of 2003, a copy whereof is annexed as Annexure-C, to contend that in LPA similar matter was rejected by this Court holding that the cast- cum-creamy layer certificate issued by the S.D.O. does not fulfill the requirement. Learned counsel for the State has supported the stand of learned counsel for the BPSC. For consideration of the rival submissions of the parties, the chronology of Government letters, having relevance in the matter, along with the two advertisements, has to be considered. The first letter, which has been brought on record with the supplementary counter affidavit of respondent nos. 2 and 3, is letter no. 32 dated 6.5.1995 annexed as Annexure-B. This letter does clearly mentions that for appointment in Government service under reserved category the certificate of District Magistrate shall only be acceptable. It is contended that another letter, namely, letter no.14 dated 30.1.1996 also reiterated the same position. Accordingly, the said advertisement for preliminary examination 8 for the appointment of primary teachers in the schools which was published on 10.5.1996, referred to the said letter no. 14 dated 30.1.1996 and thus it required that for appearing in the mains examination under reserved category certificate issued only by the Collector will be accepted. However, it appears that, in the meanwhile, another letter, the said Annexure-B, which had not been noticed by the Commission in the advertisement, had been issued by the Personnel and Administrative Reforms Department. This letter refers to the earlier letter no. 32 dated 6.5.1995 as well as letter no. 14 dated 30.1.1996, and also notices that letter no. 32 dated 6.5.1995 required submission of caste and creamy layer certificate issued only by the Collector for consideration of applications for appointment under the reserved category. Thereafter it mentions that subsequently Department had come to know that the candidates are facing difficulty in submission of caste and creamy layer certificate issued by the concerned Collector. Therefore, after due consideration it has been decided to relax the requirement and candidates could submit caste and creamy layer 9 certificate either of the Collector or of any Additional Collector also, authorized in this respect, issued on the basis of certificate issued by the S.D.O. Thus, this letter makes it clear that in all subsequent process for appointment under Government service, the requirement for submission of caste and creamy layer certificate issued by the Collector only, as is required earlier, was relaxed. It is obvious that while issuing the said advertisement, issued in May 1996, the Commission failed to notice this relaxation and noticed only the earlier letter of the Personnel & Administrative Reforms Department. The advertisement for mains examination was published in 1999. The said advertisement mentions that for candidates of OBC, MBC and also of other categories mentioned therein, caste and creamy layer certificate issued by a competent authority could be attached with the application. Thus, this chronology of the letters issued by the Personnel and Administrative Reforms Department shows that, after the issue of the said letter no. 45 dated 25.3.1996, the requirement of filing of certificates of caste 10 and creamy layer with the application stood relaxed and certificate of the Collector or of any Additional Collector, authorized by the Collector in this regard, issued on the basis of certificate of S.D.O., was made acceptable. Accordingly, the expression mentioned as ‘Saksham Padadhikari’ in the advertisement for mains examination, annexed as Annexure-2, necessarily related to this relaxation in terms of the said letter no.45 dated 25.3.1996. The judgment of the Division Bench annexed with the supplementary counter affidavit of the Commission does not deal with this change affected by letter no.45 dated 25.3.1996. It appears that the said letter was not brought to the notice of the learned Division Bench and it proceeded only on the basis of requirement of caste and creamy layer certificate issued by the Collector, as laid down by earlier letters of the Personnel and Administrative Reforms Department. The order of the learned single Judge, relied upon by the Commission, has taken notice of the letter no. 45 dated 25.3.1996 and noticed that the petitioner of that case had produced a certificate of S.D.O. only and not of the 11 Collector or any other authorized officer, issued on that basis. Therefore, the learned single Judge did not find any merit in the writ application and the same was dismissed. In the present case, one caste and creamy layer certificate of petitioner no. 1 is annexed as Annexure-6 with his reply to the counter affidavit filed by the State. The two certificates issued from the office of the Collector in favour of the respective petitioners which have been annexed as Annexure-4 and 4/A with the writ application were definitely issued after the mains examination. The certificate issued in favour of petitioner no. 2 by the office of S.D.O. and signed by a competent authority has not been brought on record. Submission has been made on affidavit that, along with their applications for mains examination, petitioners had submitted the certificate issued from the office of the concerned S.D.O. and signed by a competent authority. However, this statement has been denied in the counter affidavit of the Commission and it has been said in the supplementary counter affidavit on oath that along with their application for mains 12 examination petitioners had not submitted any caste certificate. In view of this dispute of fact, this Court is not in a position to pass any positive direction for acceptance of candidature of the petitioners as reserved category candidates, although the relaxed requirement by letter no. 45 dated 25.3.1996 is accepted by this Court as applicable for mains examination in view of the reference to ‘Saksham Padadhikari’ in the advertisement (Annexure-2). In the circumstances, this Court directs the Commission to verify from its records whether the petitioners had, in fact, submitted caste and creamy layer certificates, issued in terms of the said letter no.45 dated 25.03.1996 by a competent authority along with their applications for mains examination, or not. In case, it is found that indeed they had submitted such caste and creamy layer certificates along with their applications itself, the petitioners candidature shall be considered for the respective reserved category, and if the petitioners fall within the cut-off marks for empanelment, their cases shall be considered for recommendation to the State 13 Government for appointment as Primary Teachers under the concerned reserved category. In case, the vacancies are not available now, the cases of the petitioners shall be considered against the next available vacancies of the category in any school of the State. This exercise must be completed within two months from the date of receipt/production of a copy of this order with due communication to the petitioners. With the above observations and directions, this writ application is disposed of. Arvind/ (J. N. Singh, J.)