IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9461 of 1993 Dinesh Sharma Diwakar, son of Sri Bangali Sharma, resident of village Koiri Bigha, P.S. Barbigha, District Munger … Petitioner Versus 1. Bihar Public Service Commission through its Secretary, 15, Bailey Road, Patna 2. Dr. Ram Ashray Yadav, Chairman, B.P.S.C., 15 Bailey Road, Patna 3. Mrs. Chandra Bhanu Devi 4. Mr. Satyendra Singh 5. Dr. Karma Oraon 6. Dr. Shiva Jatan Thakur 7. Mr. Brahmdeo Ram 8. Mr. Sarju Prasad 9. Dr. Keshav Pd. Singh 10. Mr. S.S.Mashahadi 11. Mr. Sacchidanand Singh, all Members, Bihar Public Service Commission, 15, Bailey Road, Patna 12. Mr. Pandey Surendra, (Expert) Principal, Patna Art College, Vidyapetin Marg Patna 800001 13. Mr. Krishna Kumar Nayar, C/o Panma Devi, Silp Prasichhan Sansthan Ashok Nagar Road no.1 Kankarbag Colony, Patna 14. Mrs. Anju Verma, W/o Sri Abinas Anand, Muhalla Chakaram Road No.29, P.S. Budha Colony, Patna-1 15. Director, Archaeology and Museum, Vidyapati Marg, Patna-1 16. State of Bihar through the Commissioner cum Secretary to the Human Resources Development Department, New Secretariat, Patna … Respondents ------- For the Petitioner: Mr. J.P.Shukla, Sr.Adv. Mr. Vivekanand Kumar, Mr. Dhirendra Kumar Singh & Mr. Manish Jha, Advocates. For the B.P.S.C. : Mr. D.K.Sinha, Sr.Adv. For respondent no.6:Mr. Durga Nand Jha & Mr. Ravindra Kr. Sukla,Adv. For respondents no. 13 & 14 : Mr. N.K.Malhotra, Sr.Adv.& Mr. Binod Kumar Sinha,Adv. ------- 2 P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (18.7.2011) Mihir Kumar Jha,J., Heard Mr. J.P.Shukla, learned Senior counsel for the petitioner, Mr. D.K.Sinha, learned counsel for Bihar Public Service Commission, Mr. Naresh Kumar Malhotra, learned Senior counsel appearing on behalf of private respondents no. 13 and 14, Mr. Durganand Jha, learned counsel appearing on behalf of respondent no.6 and Mr. Indrajeet Singh, A.C. to S.C.VI, for the State of Bihar. In this writ application the petitioner has prayed for the following relief: “That the petitioner has come up for quashing the letter of recommendation dated 3.8.1993 issued by the Bihar Public Service Commission through its Secretary by which the recommendation for appointment on the posts of two Modellers have been made in favour of respondent no. 13 and 14 and also for quashing the letters of appointment dated 5.8.1993 and 7.8.1993 respectively in favour of R.No. 13 and 14 pursuant to the above recommendation dated 3.8.1993 3 and also for issuance for a direction commanding the respondents to consider the matter of appointments on the basis of the advertisement no. 2/91 published on 12.4.1991 and the interview taken on 27.8.1992 and accordingly the decision taken by the interview board on 31.8.1992.” From the pleadings on record as with regard to the aforementioned relief it is borne out that the petitioner and the contesting respondents no. 13 and 14 at one point of time having found themselves to be eligible for the post of Modeler advertised by the Govt. of Bihar through Bihar State Subordinate Selection Board had been interviewed by its successor body, Bihar Public Service Commission (B.P.S.C.) and it is the recommendation of the Commission in favour of respondents no. 13 and 14 which has been assailed by the petitioner on various grounds. The main attack of the petitioner in selection and resultant appointment of respondents no. 13 and 14 is confined to the aspect that while respondent no.13 was over- age, respondent no.14 was not qualified for 4 the post of Modeler. This aspect of the matter has been asserted by the petitioner in paragraph 6 which reads as follows: “6.That the Bihar Public Service Commission conducted the interview of six candidates who attended the interview including the petitioner and respondent no. 13 and 14 although the respondent no.13 being an applicant of general category was found and declared overage and the respondent no.14 having no requisite qualification till 25 April, 1991 which was a last date for filing application by the candidates and pursuant to the aforementioned disqualifications incurred by respondents no. 13 and 14 their application forms were initially shown on the notice board as rejected.” As would be apparent the aforesaid vague pleading of the petitioner to assail eligibility of selected and appointed respondents no. 13 and 14 itself rests on a very shaky foundation. As a matter of fact the respondent B.P.S.C. in its first counter affidavit had categorically controverted this aspect as with regard to ineligibility of respondents no. 13 and 14 by taking its 5 stand in paragraph 9 reading as follows: “It is specifically being stated that respondent no.13, Shri K.K.Nair belongs to Backward Category and is within the age limit as advertised. As far as respondent no.14, Mrs. Anju Verma, is concerned, she did Bachelor of Fine Arts (Integrated Course) on 7.8.1987 from Benaras Hindu University. She had also acquired Bachelor of Fine Arts from Patna University on 11.7.1991 which can be said to be an additional qualification.” Such statement of the Commission in paragraph no.9 though answered by the petitioner in paragraph 6 of the reply affidavit does not deny the fact that respondent no.13 had filed his candidature as a candidate of backward category for whom there was an age relaxation of two years in the advertisement. Similarly the educational qualification of respondent no.14 as explained in the counter affidavit of the Commission was not denied by the petitioner, who has only explained it by taking a plea that the degree of Bachelor of Fine Arts of respondent no.14 from Banaras Hindu 6 University was not equivalent to Diploma or degree in Fine Arts in terms of the advertisement. This Court, however, in order to do complete justice between the parties had gone into the records and from them it becomes apparent that respondent no.13 had submitted his candidature claiming to be a member of backward category for whom there was an additional relaxation of two years of age. Judged in this background respondent no.13 on the date of filing of his application was well within 37 years as envisaged in the advertisement and therefore, his selection or recommendation and consequential appointment cannot be said to be bad on the ground of his being overage. Similarly the challenge of the petitioner to the candidature of respondent no.14 on the ground of lack of qualification also must fail. The advertisement in question had required the person to be a matriculate and to have also passed Diploma Examination in Arts and Craft from a recognized University. It is not in doubt 7 that respondent no.14 had passed her Bachelor of Fine Arts (Sculpture) from Patna University in January, 1991, whereas the advertisement was issued in the month of April, 1991. Obviously with such a qualification of Bachelor of Fine Arts (Sculpture) respondent no.14 cannot be said to be ineligible in terms of the qualification laid down for the post of Modeler. So far so good but then the problem which respondents no. 13 and 14 may have to face justifying their recommendation and/or selection by B.P.S.C. has yet another facet. There were three posts of Modeler advertised by the Commission out of which one was ear- marked for general category, the other for most backward category and the last one for the Scheduled Caste category. It is not in doubt that it was under such terms of advertisement that the selection process had commenced and it was only during the continuance of selection process and in fact after the Commission had initially also made its final deliberations to send its recommendation that a changed roaster cum 8 reservation requisition was sent by the Director, Museum, Bihar, in his letter dated 14th May, 1993 whereby and whereunder the three posts of Modeler were sought to be filled up by providing two posts for general category and one post for Scheduled Caste category. It is said that the recommendation of the Commission in favour of respondents no. 13 and 14 was made in view of the changed roaster and reservation treating them to the candidates of general category and the petitioner whose candidature was against the post of most backward category was left out on the ground that he had secured lesser marks in the final selection as against respondents no. 13 and 14. First of all Mr. D.K.Sinha, learned Senior counsel appearing on behalf of the Commission, could not justify the change of criteria during the midst of selection process. He had in the light of long line of cases decided by the Apex Court laying down that the law as it stood at the point of time when the process of selection had commenced will be the law according to which the selection has to be completed, as held 9 in the case of A.A.Calton vs. Director of Education & anor., reported in AIR 1983 S.C. 1143 and reiterated again in the case of P. Mahendran & ors. vs. State of Karnataka, reported in AIR 1990 S.C. 405, had frankly conceded that once the selection process had commenced by way of issuance of advertisement followed by the interview, no new reservation policy and/or change of roaster of the post could be made applicable. This Court, therefore, will have little difficulty in holding that the selection, recommendation and appointment on the post of Modeler had to be made strictly as per the reservation indicated in the advertisement and the same could not have been changed in the midst of selection process. Once this aspect becomes clear, this Court would find it difficult to approve the selection, recommendation and appointment of respondents no. 14 in preference to the petitioner unless it is held that the petitioner in terms of advertisement was himself disqualified for the post of Modeler. 10 The respondent Commission in their supplementary counter affidavit in paragraph 11 has taken a stand that respondent no.13 had obtained 109.12 marks, whereas respondent no.14 had obtained 101.96 marks, and one Himansu had obtained 100.91 marks followed by the petitioner who is said to have obtained 95.23 marks. The two other candidates Anita Prasad and Ashok Kumar Sahoo had secured 73.12 and 63.19 marks respectively. In the considered opinion of this Court there would be thus no difficulty in upholding the recommendation in favour of respondent no.13, inasmuch as even if he belongs to the backward category, it would become clear that he had secured highest marks amongst all the six candidates and therefore, one post of general category had to go to him. The main question would however be in fact in regard to the second post which as per revised recommendation has gone to the general category candidate, namely, respondent no.14, which if not disturbed as per earlier reservation policy as set out in 11 the advertisement could have gone to the candidate of most backward category. This Court is not aware of the claim of petitioner against most backward category but then if the petitioner belongs to most backward category and the respondent no.14 belongs to the general category and as Himansu also belongs to the general category, then in that case it was the petitioner who had to be recommended for the second post of Modeler against the post reserved for most backward category. Admittedly the Commission did not find any candidate among Scheduled Caste category eligible for being recommended and as such, the third post was left vacant without any selection, recommendation and appointment against the same. In that view of the matter, while this Court could have easily set aside the recommendation and appointment of respondent no.14, Mr. Malhotra, learned Senior counsel appearing on her behalf, has made appealing submissions to save her appointment. He has firstly submitted that the petitioner himself does not qualify for the post of 12 Modeler, inasmuch as he has done his Bachelor of Fine Arts with specialization in Applied Art and that such persons cannot be said to be eligible for the post of Modeler. The Commissioner however while preparing its select list of six persons had not found the petitioner ineligible in terms of the prescribed qualifications laid down in the advertisement and therefore, this Court for the time being can not hold him ineligible on the ground of lack of educational qualification but this aspect can still be looked into by the concerned experts in the field of Fine Arts as may be summoned by the B.P.S.C. Since the recommendation of B.P.S.C. in favour of the petitioner may have the effect of displacing respondent no.14 who has been working for almost 18 years during the pendency of this writ application and therefore, this Court would direct the Chairman of the Bihar Public Service Commission to constitute a team of experts in the field of Fine Arts to examine the eligibility conditions as laid down in the advertisement for judging the suitability of the petitioner and respondent 13 no.14 and in fact also of Himansu who has secured higher marks to the petitioner. If upon such consideration by the Expert Committee it is found by the Commission that the petitioner fulfils the requisite qualification for the post of Modeler as laid down in the advertisement and that he is the only person belonging to most backward category, the Commission will send its revised recommendation in favour of respondent no.14. If, however, the Expert Committee and the Commission would come to a conclusion that the petitioner himself does not fulfil the criteria as laid down in the advertisement by way of having the requisite qualification, the Commission will close the matter and intimate its decision backed by reasons to the petitioner. There is a human aspect to the whole thing which has been also canvassed by Mr. Malhotra, learned Senior counsel for respondent no.14, inasmuch as it is said that respondent no.14 has continued in service for 18 years and that she was not found to be better and superior to the petitioner in course of selection who may 14 now be possibly edged out by the petitioner only on the ground of reservation of the post for most backward category. It has been pointed out that respondent no.14 in fact is the more educationally qualified candidate as she holds the qualification of Bachelor in Fine Arts (Sculpture) which is the most appropriate qualification for the post of Modeler. This Court again will not go into the niceties of such submission made by Mr. Malhotra for the simple reason that this aspect of the matter as to whether Respondent no. 14 could be accommodated against a vacant post of Modeler even after recommendation and appointment of the petitioner against the second post reserved and yearmarked for the most backward category inasmuch as such administrative decision has to be taken by the State Government. This Court would accordingly direct the Principal Secretary, Human Resources Development Department to examine and decide the feasibility of continuance of Respondent no. 14 on the post of Modeler. In taking such a decision he may consider the submission of Mr. Malhotra that there is one 15 more vacancy on the post of Modeler at Darbhanga or the third unfilled post of Modeler in the advertisement yearmarked for Scheduled Caste candidate which would also accommodate respondent no.14 even after appointing the petitioner. Such a conscious decision in the facts of the case must be taken by the appointing authority, the State of Bihar and the recommending authority the Commission in a fixed time frame of six months from the date of receipt/production of a copy of this order. It is expected that both the State of Bihar and the Commission will make its best effort to accommodate both the petitioner, in case he is found educationally qualified for the post of Modeler and belonging to most Backward category as well as the respondent no.14 against any vacant and sanctioned posts of Modeler even by taking one time recourse of de-reserving the vacant 3rd post of Modeler earmarked for Scheduled Caste in the advertisement for which no one was found suitable by the Commission. The Respondents must keep in mind 16 that the post of Modeler is a specialized post and therefore if there be still any vacancy good enough to accommodate the petitioner as well as respondent no.14, the authorities by taking into consideration of long continuation of respondent no.14 in service may also appoint the petitioner on the post of Modeler so that the service of both the petitioner and respondent no.14 becomes available to the Directorate of Museum. If, however, there be a Hobson's choice and the Government is left only with one post of Modeler and the petitioner cannot be appointed against the remaining vacant post of Modeler at Darbhanga and/or the third unfilled post of Modeler yearmarked for a Scheduled Caste candidate in that event it is respondent no.14 who will have to make way for the petitioner on the ground of reservation cum roaster as per the terms of the advertisement. Since the matter has remained pending before this Court for long 18 years this Court would expect both authorities of the Commission and the State Government to take a final decision as early as possible 17 preferably within a period of six months from the date of receipt/ production of a copy of this order. Before parting with this Court must leave a word of caution to the high constitutional functionaries including the Chairman, the members of the Commission and Respondent no. 6, who was a member of Commission. Each and every member of the Bihar Public Service Commission enjoys a very high status and therefore, his action should not only be above board but also dignified. Here in this case respondent no.6, a member of the Bihar Public Service Commission, had shown his partisan attitude in favouring and highlighting the case of the petitioner, inasmuch as a counter affidavit in this case was filed by him even before this case was placed for admission before an appropriate Bench. It has to be noted that this writ application was filed on 16.9.1993 and was placed under Orders on 4.10.1993 for service of copy on the office of the Advocate General but even when the matter was not heard on merit nor any notice was issued to respondent no.6 he of his own 18 simply in order to preempt the possible stand which could be taken by the Bihar Public Service Commission in its counter affidavit had already filed his separate counter affidavit on 27.11.1993 by engaging a private lawyer, namely, Sri Ravindra Kumar Shukla. In his counter affidavit while making his intentions clear for supporting the case of the petitioner he had also produced an extract of the official note sheet dated 27.10.1993 and 29.10.1993 in form of Annexure „B‟ to his counter affidavit highlighting his differences with the Chairman and other members of the Commission in his letter addressed to the Secretary of the Commission dated 18.10.1993. Though every respondent made party in the writ application will have a right to place his view point but the manner in which respondent no.6 had openly come out to support the case of the petitioner in over enthusiastic manner would only go to show that he had not maintained the decorum of a member of the Bihar Public Service Commission. This Court in the order dated 19 30.3.2010 had directed the Commission to produce the records and such records have been produced by Mr. D.K.Sinha, learned Senior counsel for the Commission, and from their perusal this Court would find nothing sensational as was sought to be reflected in the oral submission of the learned Senior counsel for the petitioner. On the other hand, from perusal of such records of the Commission it becomes clear that respondent no.6 had gone out of way to support the case of the petitioner only because he was not allowed to be associated in the interview conducted by the Commission for the post of Modeler. Thus, after the Commission had decided to recommend the names of Respondents no. 13 and 14, respondent no.6 had written a long note of protest with regard to his being dissociated in the selection process on 31.7.1993, 18.8.1993 and 23.8.1993 and if that was not all he had filed his counter affidavit in this Court by obtaining a copy of writ application directly from the writ petitioner on 12.11.1993/ 27.11.1993 and enclosing his note sheet in the official file for helping 20 cause of the petitioner. This Court would not like to say anything further as Respondent no. 6 is now no longer a member of Commission but then his conduct in going out of way to support the case of the writ petitioner and opposing the recommendation and appointment of respondent no.13 on his personal whims has got no jurisdiction either on facts or in law inasmuch as there is no requirement that for every selection and in interviews all eleven members of the Commission must participate and absence of even one member would vitiate the selection and the recommendation. Infact it is always the prerogative of the Chairman of the Commission to assign work to its members including constituting the Boards of interview and no member can take exception much less make his grievance in public for his being not made member of a particular interview Board. Infact his objection to candidature of Respondent no. 13 on the ground that he despite having obtained highest marks ought to have not been recommended against the post of unreserved 21 category because he belonged to backward category would only reflect his shallow knowledge and/or his ignorance to the rules of reservation in public appointment. If in this manner the functioning of multi member Commission would be sought to be obstructed by one of its member as has been sought to be done by Respondent no. 6, the whole sanctity of an impartial body like Public Service Commission would be eroded and infact finished for once and ever. Respondent no.6 in stead of making this Court and the present writ application his abode and mode of ventilating his personal grievances against the Chairman of the Commission ought to have behaved in a more dignified manner by placing his views before the Governor of Bihar his appointing authority. The manner in which respondent no.6 has behaved not only by engaging his personal counsel for espousing the cause of the writ petitioner but also filing an uncalled for counter affidavit without even being directed to do so by this Court and that too after unauthorisedly smuggling the confidential documents and note sheets of 22 the B.P.S.C. and making them part of his counter affidavit, leaves the whole thing in a very bad taste. Such action and conduct of respondent no.6 in capacity of member of the Public Service Commission, the holder of a post of constitutional office must be condemned by this Court. With the aforementioned observation and direction, this application is disposed of. Let the records and files of the B.P.S.C. produced by the learned Senior counsel for the Bihar Public Service Commission be returned back to him. (Mihir Kumar Jha,J.) Patna High Court Dated the 18th July 2011 A.F.R/Surendra