IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1250 of 2011 In Civil Writ Jurisdiction Case No. 18590 of 2010 ====================================================== 1. Harish Chandra Patel, S/o Late Ram Chandra Roy, R/o Vill.- Larkania Tola, Ward No.- 18, P.O. + P.S. + Distt.- Katihar. 2. Ajit Kumar, S/o Sri Kameshwar Prasad Yadav R/o Vill.- Salarpur Via + P.S.- Parbatta, Distt.- Khagaria. .... .... Petitioners-Appellants Versus 1. The State of Bihar through Director Statistics and Evaluate, Govt. of Bihar, Patna 2. The Bihar Staff Selection Commission, Bihar through its Secretary 3. The Secretary, Bihar Staff Selection Commission, Bihar, Patna 4. The Chairman, Bihar Staff Selection Commission, Bihar, Patna 5. The Principle Secretary, Personnel and Reforms Department Govt. of Bihar, Patna .... .... Respondents-Respondents ====================================================== Appearance : For the Appellants : Mr. Sharda Nand Mishra, Advocate For the Respondent State : Mr. Ravindra Kr Choubey, S.C.-8 For the Respondent Commission: Mr. Lalit Kishore, AAG-1 with Mr. Satyam Shivam Sundaram, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA C.A.V. JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) 6. 29-09-2011 Feeling aggrieved by the judgment and order dated 21st June 2011 passed by the learned single Judge in above C.W.J.C. No. 18590 of 2010 insofar as the learned single Judge Patna High Court LPA No.1250 of 2011 (6) dt. 29-09-2011 2 / 8 2 has refused to issue writ of mandamus upon the respondents to appoint the writ petitioners in Government service, the writ petitioners have preferred this Appeal under Clause 10 of the Letters Patent. Pursuant to the advertisement published on 23rd August 2006 by the Bihar Staff Selection Commission (hereinafter referred to as ‘the Commission’) inviting applications for 224 vacancies in the Department of Statistics and Evaluation, the appellants made application for selection and appointment in the category of Other Backward Class. Out of 224 vacancies notified, 27 vacancies were reserved for the Backward Class candidates. In respect of Backward Class candidates the said advertisement provided that the application shall be accompanied by a caste certificate and non-creamy layer certificate issued by the District Magistrate. The advertisement also stipulated that in case of the reserved category candidates if the requisite caste certificate were not annexed the candidature of such candidates would be considered in the ‘General category’. The last date for receiving the applications was 22nd September 2006. Indisputably, though the appellants had applied in the category of Backward Class, they produced the caste certificate issued by the Sub-Divisional Officer and not by the District Magistrate as required. It appears that apart from the appellants there were other Backward Class candidates who had failed to produce required certificates issued by the District Magistrate. For the benefit of such candidates the Commission issued a public notice on 31st October 2009 to remove the deficiency by 16th November 2009. The said period was later extended upto 31st November 2009. Admittedly, pursuant to the said public notice also, the appellants did not remove the deficiency. Their applications were not considered in the category of Backward Patna High Court LPA No.1250 of 2011 (6) dt. 29-09-2011 3 / 8 3 Class. Pursuant to the above referred recruitment process, a panel of 207 candidates in various categories was published on 14th August 2010. The appellants’ candidature was not considered with other Backward Class candidates and they were not selected in ‘General category’. Feeling aggrieved the appellants filed above C.W.J.C. No. 18590 of 2010 under Article 226 of the Constitution. The appellants alleged hostile discrimination as the appellants were not given individual intimation to remove the deficiency. The appellants also challenged the action of the Commission in preparing a merit list of 207 candidates as against 224 vacancies notified. The petition was contested by the Commission. According to the commission, the terms of the advertisement specifically required the caste certificate and non-creamy layer certificate issued by the District Magistrate. In absence of such certificates the Commission was under no obligation to consider the candidature of the appellants in the category of Backward Class. Nevertheless, the Commission did relent and gave opportunity to such candidates to produce the required certificates even after the due date. An individual intimation was also sent to each of such candidates including the appellants. Even after the individual intimation and the public notice the appellants failed to remove the deficiency. The action of the Commission in not considering the applications of the appellants in Backward Class category was justified. In support thereof the Commission produced copies of the public notice and list of candidates to whom the individual intimation was sent. In the said list the names of the appellants appear on sl. nos. 17 and 202. The copies of the communication dated 22nd October 2009 are also placed on record. The learned single Judge has held that the burden of Patna High Court LPA No.1250 of 2011 (6) dt. 29-09-2011 4 / 8 4 proof of service of the individual intimation lay upon the Commission. The Commission had failed to discharge the said burden of proof. Moreover, the Commission did relent and allowed the applicants to remove the deficiency even after the last date of submitting applications. The Commission should, therefore, consider the cases of the appellants in Backward Class category. Nevertheless, on the facts of the case the learned single Judge refused to issue mandamus to appoint the appellants. Instead the Commission has been directed, “to examine its records and satisfy itself if the petitioners have actually submitted a caste certificate from the District Magistrate concerned as was urged on their behalf before the Court. If they have, and the Commission be otherwise satisfied of their eligibility, it shall then proceed to recommend their names to the Department, which shall then take decision on this recommendation in the light of the discussions aforesaid in so far as they are concerned”. Therefore, the present Appeal. In the present Appeal the appellants have relied upon a Division Bench judgment in the matter of Rakesh Kumar and another V. The State of Bihar & Ors. (L.P.A. No.416 of 2009 and other cognate Appeals decided on 21st April 2011 coram: Justice Smt. T. Meena Kumari & Justice Akhilesh Chandra). In the aforesaid judgment, the Division Bench has relied upon a Government communication dated 2nd February 1982 to hold that in respect of the Backward Class and Extremely Backward Class candidates authorities other than the District Magistrate including the Sub-Divisional Officer are empowered to issue caste certificate. The caste certificate issued by the District Magistrate is required only at the time of appointment. Hence, in case any applicant has produced a caste certificate, issued by the Sub- Divisional Officer or any other officer empowered to issue such Patna High Court LPA No.1250 of 2011 (6) dt. 29-09-2011 5 / 8 5 certificate, along with the application such application is complete. A caste certificate issued by the District Magistrate would be required to be produced only at the time of appointment and that (in the case before the said Division Bench) the Commission had not given opportunity to present such certificates. We have in our judgment dated 8th August 2011 passed in the matter of Tar Babu Yadav v. The State of Bihar and others (Letters Patent Appeal No. 1034 of 2011 arising from C.W.J.C. No. 2743 of 2009 decided on 8th August 2011) held the above Division Bench judgment per incurium the Full Bench judgment in the matter of Braj Kishore Prasad v. The State of Bihar & Others, [1998 (3) PLJR 34]. We are informed at the Bar that the challenge to the above judgment before the Hon’ble Supreme Court has failed. The Special Petition for Leave to Appeal filed by the State Government has been rejected. In the present Appeal the Commission has filed counter affidavit to produce the above referred communication dated 2nd February 1982 and the later instructions issued in the subject matter. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Commission. He has submitted that in the above referred judgment the Division Bench, though referred to the Government communication dated 2nd February 1982, did not consider the said communication in its true perspective. The Court also did not consider the later instructions issued in the subject matter; the provisions contained in The Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991, and; the Full Bench judgment in the matter of Braj Kishore Prasad v. The State of Bihar & Others, [1998 (3) PLJR 34]. He has submitted that the intention of the State Government is explicit in the above communication/instructions issued by the State Patna High Court LPA No.1250 of 2011 (6) dt. 29-09-2011 6 / 8 6 Government from time to time and in the 1991 Act. He has submitted that each of the aforesaid Instructions categorically provided that for the purposes of benefit of reservation in public employment, the candidates claiming such benefit as Other Backward Class or Extremely Backward Class must produce caste certificate and non-creamy layer certificate issued by the District Magistrate. We have perused the above referred instructions issued by the State Government from time to time. The said instructions do empower several officers apart from the District Magistrate, such as Sub-Divisional Officer, Project Executive Officer, Block Development Officer, Circle Officer, Sub- Divisional Welfare Officer to issue caste certificate. However, the said instructions also specifically provide to the effect that to claim reservation in public employment, in the category of Backward Class, a candidate shall produce a caste certificate issued by the District Magistrate. In the above referred judgment in the matter of Braj Kishore Prasad v. The State of Bihar & Others, [1998 (3) PLJR 34], the Full Bench of this Court in similar set of facts held that, “No candidate can as a matter of right claim relaxation of the conditions incorporated in the advertisement”. The Bench culled the principles as under: “(a) Where the advertisement specifies the last date for filing of supporting or other documents, that date must be given effect to, 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 Patna High Court LPA No.1250 of 2011 (6) dt. 29-09-2011 7 / 8 7 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 finalisation 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 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.” In the present matter, as we have recorded hereinabove, the advertisement expressly specified that in case of Backward Class or Extremely Backward Class the application must be supported by a caste certificate issued by the District Magistrate. After the last date of receipt of the applications the Patna High Court LPA No.1250 of 2011 (6) dt. 29-09-2011 8 / 8 8 Commission could not have accepted further materials. Nevertheless, the Commission did relax the requirement and allowed the candidates to produce the relevant materials even after the last date of receiving the applications until as late as 30th November 2009. Apart from individual intimation a public notice was also given. Although the Commission was under no obligation either to relax the requirement or to send individual intimation once the public notice was issued. Presuming that the appellants did not receive the personal intimation sent to them under postal certificate the appellants were required to respond to the public notice. In spite of the public notice the appellants failed to produce the required certificates and to remove the deficiency. The appellants, therefore, cannot have a legitimate grievance against the Commission; nor the appellants can claim, as a matter of right waiver of such requirement. Nor the appellants are entitled to a mandamus against the Commission to recommend the names of the appellants for appointment in Backward Class category. For the aforesaid reasons, Appeal is dismissed in limine. Pawan/- (R.M. Doshit, CJ) Birendra Prasad Verma, J. I agree. (Birendra Prasad Verma, J)