IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7400 of 2002 Vijay Kumar, Son of Sri Bhuwaneshwar Prasad Singh Yadav, Resident of Village Chharapatti, P.O. Shiv Kund, Police station Dharahara, District Munger. ----------- Petitioner Versus 1. The Bihar Public Service Commission, 15-Jawahar Lal Nehru Marg, Patna-800001, through its Secretary. 2. The Dy. Secretary, Bihar Public Service Commission, 15-Jawahar Lal Nehru Marg, Patna-800001. 3. The Officer on Special Duty, Bihar Public Service Commission, 15-Jawahar Lal Nehru Marg, Patna-800001. 4. The Chairman, Bihar Public Service Commission, 15-Jawahar Lal Nehru Marg, Patna-800001. 5. The state of Bihar through its Chief Secretary. -------- Respondents ----------- For the Petitioner : Mr Rajendra Prasad Singh For the BPSC : Mr. Ashok Kumar Sinha, Advocate For the State : A.A.G.-2 P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (19.07.2010) Mihir Kr. Jha, J. Heard learned counsel for the petitioner and counsel for the State as also counsel for the Bihar Public Service Commission. The prayer of the petitioner in this writ application reads as follows:- 1(I) Issuance of direction, order or writ in the nature of writ of mandamus/certiorari commanding the Respondents to consider and grant the petitioner the benefits of reservation, to which he is entitled as per the advertisement and consequently his name for appointment, which has not been granted to him inspite of the submission of the certificate by the petitioner in response to the demand of the Respondent Commission, vide Annexure- 2 13 to this writ application. (II) Issuance of direction, order or proper declaration that non-communication of the marks after re-totalling to the petitioner by the Respondent Commission inspite of Annexure-11 to this writ application and also the non- communication of the other information to the petitioner after the publication of the result is illegal, arbitrary, malafide and put a question mark in transparency and genuinity in the matter of consideration by the Respondent Commission, which is non-sustainable in the eyes of law. (III) Issuance of direction, order or proper declaration commanding the Respondents that by non-consideration and consequential recommendation for appointment of the name of the petitioner do deceive the petitioner of his legitimate expectation, which is not permitted in the facts and circumstances of this case.” Learned counsel for the petitioner would submit that the petitioner belongs to the backward category and had appeared in an examination conducted by the Bihar Public Service Commission for the post of Primary Teacher pursuant to the advertisement issued by the Commission on 11th of May, 1996 as contained in Annexure-3. He would further submit the petitioner, having appeared in the competitive examination on 16.1.1999 and 3 declared unsuccessful, he had made an enquiry and at that stage he could learn from the office of the Commission that the petitioner was not selected only because the certificate issued with regard to his claiming reservation was found to be incorrect. In this context, he would invite attention of this Court towards the representation filed by him on 11.10.1999 and 14.10.1999 as also a communication of the Commission dated 7.1.2001 to make out his case that the petitioner had all along remained vigilant and in fact had submitted another copy of the certificate in question when the Commission had reminded him by letter no. 91 dated 7.1.2001 and therefore, the complete silence on the part of the Commission despite further representation by the petitioner on 22.12.2001 and 22.5.2002 would be an evidence of improper consideration of the case of the petitioner. In this case, there is no counter affidavit on record till date even when at least three adjournments were given to the learned counsel for the respondents as would be evident from the orders of this Court dated 13.8.2002, 16.7.2002 and 28.8.2002 respectively. In the considered opinion of this the 4 petitioner even otherwise, owes a duty to prove his case inasmuch as the same cannot be allowed only in absence of a counter affidavit. In this case, it will be found that the petitioner had not fulfilled the requirement as laid down by the Commission in the advertisement, published in the newspaper (Annexure-3) on 11.5.1996 relevant portion whereof meant for a candidate of reserved category read as follows:- 10.1. vuqlwfpr tkfr@vuqlwfpr tu&tkfr ds fy, iznr vkj{k.k ds ykHk gsrq mEehnokjksa dks eq[; ijh{kk ds fy, vkosnu&i= ds lkFk ftyk n.Mkkf/kdkjh }kjk gLrk{kfjr ;k izfrgLrk{kfjr tkfr izek.k&i= vFkok vuqe.My inkf/kdkjh }kjk gLrk{kfjr ¼izfrgLrk{kfjr ugha½ tkfr izek.k&i= vfuok;Z :i ls izLrqr djuk gskxkA vuqe.My inkf/kdkjh }kjk izfrgLrk{kfjr tkfr izek.k&i= fdlh Hkh fLFkfr esa ekU; ugha gksxkA 10.2. fiNM+k oxZ] vR;Ur fiNM+k oxZ rFkk fiMN+s oxksZa dh efgykvksa ¼;Fkk&vuqlwfpr tkfr] vuqlwfpr tu&tkfr] vR;Ur fiNM+k oxZ ,oa fiNM+k oxZ dh efgyk½ dks iznr vkj{k.k dk ykHk mUgha O;fDr;ksa dks vuqekU; gS tks fiNM+k oxZ] vR;ar fiNM+k oxZ] vuqlwfpr tkfr ,oa vuqlwfpr tu&tkfr ds :i esa fcgkj jkT; dh lwph esa vf/klwfpr tkfr ds lnL; gSaA bu Jsf.k;ksa ¼vuqlwfpr tkfr ,oa vuqlwfpr tu&tkfr dh efgyk dks Nksm+dj½ dks iznr vkj{k.k ds ykHk gsrq mEehnokjksa dks eq[; ijh{kk ds fy, vkosnu ds lkFk dkfeZd ,oa iz'kklfud lq/kkj foHkkx ds i= la[;k&11@ch&06&U;k;&04@94 dk 014 fnukad 30 tuojh] 1996 ds vuqlkj fu/kkZfjr izi= esa ek= ftykn.Mkf/kdkjh }kjk gh gLrk{kfjr tkfr izek.k&i= vfuok;Z :i ls layXu djuk gksxkA** 5 Such a clear criteria for fulfilling the requirement of reservation for the candidate of backward category had clearly spelt out that a caste certificate had to be not only issued by the District Magistrate/Collector of the district but had to also fulfil the requirement of the Circular of the Personnel and Administrative Reforms Department No. 014 dated 30.1.1996 laying down the norms of creamy layer certificate among the backward candidate. Such certificate however was not available to the petitioner which is established from his document and conduct, inasmuch as, counsel for the petitioner had relied on a certificate dated 24.5.1995 as contained in Annexure-2 which cannot be said to be a certificate as per the requirement laid down in the Commission’s advertisement as quoted above wherein it had to be with regard to the creamy layer certificate in terms of the Government Circular dated 30.1.1996. Thus, it becomes clear that the date on which the petitioner had filed the application, he had not submitted the required certificate for claiming reservation and accordingly, his case could not have been considered among the reserved category. 6 The reliance placed by the counsel for the petitioner on a certificate dated 7.1.1999 as contained in Annexure-10 and its being filed in the office of the Commission after declaration of the result in terms of the Commission’s letter dated 7.1.2001 would be neither here nor there. It has to be noted that the result of the test conducted by the Commission by this time had already been prepared on the basis of the cast disclosed by the candidate and supported by the document as prescribed in the advertisement. Therefore, the subsequent certificate dated 7.1.1999, though being in terms of the advertisement, did not fulfil the terms and conditions of the advertisement, which required the candidates to file such certificate along with application, in the year 1996 itself. It is this aspect of the matter which would make the petitioner disentitled for being given any relief, inasmuch as, it is well settled that the terms of the advertisement has to be fulfilled by the candidate before the last date of filing of the application. This aspect of the matter stands settled in the Full Bench Judgment of this Court in the case of Braj Kishore Prasad Vs. The State of Bihar and others reported in 1998(3) PLJR 34, 7 wherein it was held as follows:- "Having noticed the decisions on this issue, I must observe that the process of selection seeks to achieve two main objectives, namely, as fair selection of the meritorious candidates, and finalization of the process of selection within reasonable time. It is for this reason that the advertisements always prescribe the last date before which the application along with necessary documents should be received by the selection authority. The advertisement not only lays down the eligibility conditions, but also requires the production of documents which are necessary to enable the selecting authority to assess the eligibility of the concerned candidate. If no cut off date is prescribed for the filing of the applications in response to the advertisement and for production of necessary documents, the selection process may become an unending process. One cannot lose sight of the fact that the selecting authority has at times to deal with thousands of applications and the selection process is a time consuming process. Even after examination and interview have been held, it would take some time before the selecting authority can finalize its select list. These considerations cannot be disregarded while considering fairness of the procedure adopted by the selection authority. 8 When the selecting authority issues an advertisement and prescribes the last date on or before which applications must be received along with necessary supporting documents, that condition must be given effect. Any application or document received after that date may be justifiably rejected by the Commission." Admittedly in this case also the petitioner had not submitted the caste certificate in terms of Advertisement with his application and therefore the subsequent certificate relied by him and also allegedly filed after three years of the last date of filing application with requisite documents, could not have been taken into consideration for giving the benefit of reserved category. The petitioner thus was rightly treated as a candidate of general category. That being so, this Court would not find any merit in this writ application and the same is dismissed accordingly. Patna High Court Dated the 19th July 2010 A.F.R./Rsh (Mihir Kumar Jha, J.)