IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17893 of 2010 NEELAM PRASAD DAUGHTER OF SRI RAJENDRA PRASAD SHOP NO. 45, 2ND FLOOR BAJAJ PLAZA, MACHCHHARHATTA, PATNA CITY, PATNA AT PRESENT RESIDENT AT VIVEKANAND PATH, BENGALI COLONY, BEGAMPUR, P.S. PATNA CITY CHOWK, PATNA SAHEB, DISTRICT PATNA. Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA. 3. THE SECRETARY, DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA. 4. THE PRINCIPAL SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, NOW KNOWN AS GENERAL ADMINISTRATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 5. THE BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS CHAIRMAN, 15, JAWAHAR LAL NEHRU MARG, PATNA. 6. THE SECRETARY, BIHAR PUBLIC SERVICE COMMISSION, PATNA. 7. THE CONTROLLLER OF EXAMINATION CUM ADDITIINAL SECRETARY, BIHR PUBLIC SERVICE COMMISSION, PATNA. ----------- For the Petitioner :- Mr. Nityanand Mishra. For the State :- Mr. M. N. Roy, A.C. to S.C. XXV For the B.P.S.C. :- Mr. Lalit Kishore, Sr. Advocate & Mr. Satyabir Bharti. ------ 3 11/03/2011 This writ application has been filed by the petitioner when on the final publication of result by the Bihar Public Service Commission for appointment on the post of Drug Inspector (Allopathic), her name did not figure in the list of successful candidates. Petitioner - 2 - thereafter made certain enquiries, down loaded certain informations and discovered that out of three candidates appointed under the category of O.B.C. (Women) atleast one candidate having Roll No. 100391, namely, Anita Kumari had less marks than the present petitioner. Petitioner is stated to have got 216 marks whereas Anita Kumari had only 207 marks. Prima facie, on the face of it, taking the basic facts into consideration, a case for arbitrariness was made out. It was in this background that a direction was given upon the Bihar Public Service Commission to explain the circumstance under which Anita Kumar was appointed at the cost of the petitioner. Counter affidavit on behalf of the Bihar Public Service Commission categorically states that there is no wrong doing in declaration of results because of failure of the petitioner to make it to the list of successful candidate is attributable to her and not to the respondents in any manner. Attention has been drawn to Advertisement No. 2/08 where it is clearly indicated to all the would be candidates that those claiming benefit of reservation in the backward or extremely backward caste category must submit a valid caste certificate along with - 3 - a creamy layer certificate signed by the authority indicated in the advertisement itself. Candidates were given freedom to produce this certificate even on the date of interview but if no certificate in accordance with the requirement of the advertisement was produced such candidates would be treated in the general category and not within the reserved category. Admitted position is that the so called O.B.C. certificate obtained by the petitioner was at the level of the Sub-divisional Officer with regard to the caste but no certificate with regard to creamy layer was furnished even on the date when the interview was held. The said certificate which was to be obtained at the level of the District Magistrate has been obtained at a subsequent date now which has been annexed with the rejoinder to the counter affidavit filed on behalf of the petitioner. Learned counsel for the petitioner thereafter relies on a Division Bench decision rendered in the case of Bihar Public Service Commission Vs. State of Bihar and others reported in 2008(2) PLJR, 155 wherein, according to him, in a similar circumstance, non furnishing of caste certificate or obtained from another - 4 - authority was not considered to be detrimental to the interest of the candidate. Learned counsel for the Bihar Public Service Commission, however, has annexed yet another decision rendered in the case of Anupma Kumari decided on 26.11.2010 which was C.W.J.C. No. 15582 of 2010. According to the learned counsel the disputes were identical. The submissions were similar but still the learned Single Judge taking into consideration the adjudication made by a Full Bench in the case of Braj Kishore Prasad Vs. State of Bihar and others reported in 1998(3) PLJR, 35 held that non furnishing of the documents by the last date in the required manner should not be diluted or in any manner be waived to create a right in favour of a candidate. The decision relied upon by learned counsel for the petitioner was rendered on a basic premise that there was no requirement laid down in the advertisement or in any Rule or Circular in this regard which is not a case so far as the present writ application is concerned because the requirements are very much indicated in the advertisement in clear terms and if there was failure on - 5 - the part of the candidate to adhere to the direction, then there is difficulty in accepting the plea of the petitioner of giving any direction for her appointment at the cost of Anita Kumari merely because she had more marks than the said Anita Kumari. A right has been created in favour of Anita Kumari and she has fulfilled all the requirements. If that be so, failure on the part of the petitioner cannot be rewarded by ouster of Anita Kumari when the petitioner herself is to blame for not being cautious enough to ensure that all papers were placed before the interview prior to final selection and appointment on the post was made. This writ application has no merit. It is dismissed. AMIN/ (Ajay Kumar Tripathi, J.)