IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3663 of 2011 Satyakam Bharti Versus The State Of Bihar & Ors with Civil Writ Jurisdiction Case No.16649 of 2011 1. Manish Kumar Sinha S/O Sh. Shivendra Kumar Sinha Resident Of Mohalla-Chitragupta Nagar (East), Road No.- House No.-109, Kankarbagh, Patna-800020, Post Office- Patrakar Nagar, District-Patna. Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna. 2. The Principal Secretary, Department Of General Administration, Govt. Of Bihar, Patna. 3. The Principal Secretary, Department Of Transport, Visheshwaraiya Bhawan, Government Of Bihar, Bailey Road, Patna. 4. The Bihar Staff Selection Commission Through Its Secretary, Veterinary College Campus, Patna. 5. The Chairman, Bihar Staff Selection Commission, Veterinary College Campus, Patna. 6. The Secretary, Bihar Staff Selection Commission, Veterinary College Campus, Patna. 7. Kamakhya Narayan Singh S/O Sri Ram Chandra Singh Resident Of Village-Shivpur, Post Office-Nokha, Police Station-Nokha, District-Rohtas. ---------------------------------- IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3663 of 2011 Satyakam Bharti Versus The State Of Bihar & Ors ---------------------------------- 5. 13.12.2011 Heard learned counsel for the petitioner, the State, and the Bihar Staff Selection Commission (hereinafter called the „Commission‟). A rejoinder to the counter affidavit is stated to have been filed on 29.11.2011 after serving a copy on the respondents which is not available on record. 2 The Court requested the counsel for the petitioner to make available his copy for perusal so as not to hold up the proceedings on that ground. Let the office place the original rejoinder on record. An advertisement was published in 2007 for appointment of 59 Motor Vehicle Inspectors. Only 183 applications were received. 9 applications only were accepted after scrutiny. This action of the respondents has led to a spate of writ applications stalling the appointments. 20 appointments have been made till date only. In M.J.C. No. 2521 of 2011 the Division Bench was constrained to observe as follows:- “We have also indicated a suspicion in the order dated 19.5.2011 that the delay is being caused on the behest of some dupatationist who want the ad-hoc arrangement to continue and it appears that they have influenced because there number is set to be around 62.” In L.P.A. No. 910 of 2010 the Division Bench has again observed :- “It appears that every candidate applying in answer to the advertisement has his own interpretation of the recruitment rules and has his own sense of propriety in respect of the recruitment procedure”. The petitioner‟s application was initially rejected on the ground that confirmation of his 3 driving licence for all four categories of vehicle in Form II under Clause (C) was not in the prescribed form of the advertisement. It was also not signed by the designated authority. The confirmation of licence was also wanting for certain categories of vehicles. The petitioner came to this Court in C.W.J.C. No. 3626 of 2010, disposed in light of the directions in C.W.J.C. No. 2371 of 2010 for re-scrutiny of applications. The petitioner‟s application has again been rejected after re-scrutiny. The core controversy is with regard to Clause-C read with Form II of the advertisement. It stipulates that the applicant must possess a valid driving licence for a Motor cycle, Light Motor Vehicle, Heavy Transport Vehicle and Heavy Passenger Vehicle valid as on 21.9.2007. He was required to annex a self-attested Xerox copy of the licence. Along with it he was also required to submit a confirmation in the prescribed Form-II from the concerned District Transport Officer with regard to the issuance of the licences. Learned counsel for the petitioner submits that his driving licence was issued from the North 24 Parganas, Barasat at Kolkata. Earlier his application was rejected on the ground that Form II submitted by 4 him was not signed by the competent authority. It is now alleged that it is not signed by the District Transport Officer. Under the Advertisement it was required to be signed by the licensing authority only. It is next contended that he had submitted confirmation of his driving licence for all categories of vehicles from the Kolkata authorities as required in Form-II. It may not have been in accordance with the Form II prescribed in the advertisement. But substantially the petitioner had complied the same. The authorities at Kolkata were not inclined to issue any certificate in accordance with the prescribed form of the advertisement and gave confirmation in accordance with their own practice. The confirmation was issued by them separately for two and four wheelers only. A mention of one four wheel licence was deemed to include confirmation for other four wheelers. A Xerox copy of his licence had been attested and submitted along with the same. If the respondents had any objection that the information in Form II was not in the prescribed form of the advertisement, the petitioner should have been given an opportunity to remove the defect. Alternately necessary queries and clarifications could have been obtained by the respondents from the 5 authorities at Kolkata. The issue concerned his bread and butter. The last submission was of hostile arbitrariness and discrimination vis-à-vis respondent no. 6, who was alleged to have similarly submitted Form II not in the prescribed form from the Kolkata authority but which was accepted. Learned Additional Advocate General No. 1 on behalf of the Commission, submitted that Form-II prescribed in the advertisement required confirmation of the authenticity of the driving licence by the signature of the District Transport Officer. The information submitted by the petitioner in Form II was not in accordance with the prescribed form and was not signed by the District Transport Officer. A copy of the petitioners application has been enclosed as Annexure-A to the counter affidavit. He also invited the attention of the Court to the order in L.P.A. No. 905 of 2010 observing as follows:- “However, the requirement of the Rules of the Advertisement that the candidate must have the required driving licence duly certified in „Parpatra-II‟ cannot be ignored” The advertisement at the end specified that Form I in support of experience certificates and Form II in support of the driving licence was mandatory to 6 be annexed. The candidature was to be rejected in case of incomplete applications. An employer making recruitment has the discretion to decide the modality and procedure for the same but which has otherwise to be in accordance with law. It is common for an employer to prescribe in the Advertisement, the form and manner in which applications are to be submitted. The purpose is salutary for standardization. If each applicant were to start submitting his application in a form and manner of his satisfaction claiming that he met all the conditions of the Advertisement, it may well nigh become impossible for the respondents to effectively and efficiently scrutinize large number of applications and sift between the eligible and ineligible. The margin and possibility for errors in scrutiny shall escalate. The applicant cannot claim a right to submit an application in a form of his convenience and urge that in any event he meets all the requirements. To permit the same amounts to rewriting the advertisement. The Advertisement prescribed a form under which the information was to be furnished in Form II signed by the District Transport Officer. The submission of the confirmation in any other manner 7 or from any other authority shall not meet the conditions of the advertisement making it an incomplete application fit to be rejected in terms of the advertisement itself. The absence of the signature of the District Transport Officer makes the Form-II completely invalid. The Form-II submitted by the petitioner was not in the prescribed form under the Advertisement. It was not signed by the District Transport Officer. The importance of an application to be submitted in the prescribed form has been noticed in (1971) 2 SCC 410 (State of Maharashtra v. Lok Shikshan Sanstha) at Paragraph-28 as follows:- “28.Coming to the application filed by the writ petitioner Special Civil Application 421 of 1966, which is the subject-matter of Civil Appeal No. 161 of 1968, we have already referred to the fact that the said society merely made a request for opening a school by means of a letter, dated October 29, 1965. Admittedly the applicant did not comply with the requirement of Rule 2(1) of the Code that the application should be in the prescribed form. No doubt, later on, on November 3, 1965, the said society sent a fresh application in the prescribed form, but this was not within the period mentioned in Rule 2(1) of the Code. So the said writ petitioner did not comply with Rule 2(1), read along with the press note and the circular letter, referred to above. That clearly shows that the application filed by the writ petitioner was not in the first instance in the 8 prescribed form and that when it was sent in the prescribed form it was beyond time……” Again in (1997) 11 SCC 62 (Bharat Commerce and Ind. Ltd. Vs. Collector of Customs) it was observed that:- “12….It cannot be said that the first application was in the prescribed form. No order could be passed upon it by the proper officer by treating it as a bill of entry for warehousing.” In (1997) 11 SCC 150 (CCE v. Hyderabad Plywood Industry) it has been held at Paragraph-1 as follows:- “1. In this case, the respondent- assessee filed a refund claim which application was returned to be resubmitted in the prescribed form. Instead of resubmitting the refund application in the prescribed form, the respondent filed a writ petition in the High Court which has been allowed. ….” The conditions of an Advertisement are required to be followed. If the Form-II submitted by the petitioner was not in the prescribed form and also not signed by the District Transport Officer, he cannot be said to have applied in accordance with the Advertisement. The respondents have committed no error. On the issue of hostile discrimination vis- à-vis, respondent no. 6, it is not the case of the 9 petitioner that the application submitted by the private respondent was also not signed by the District Transport Officer. The Supreme Court exercising review jurisdiction in (1997) 4 SCC 18 (Ashok Kumar Sharma Vs. Chandra Shekhar) approved the minority view in 1993 Supplement (2) SCC 611 (Ashok Kumar Sharma Vs. Chandra Shekhar) holding at Paragraph- 19 as follows:- “19……..If the notification would have stopped there, probably, much could be said in favour of the appellants but the second part required every candidate to file authenticated copy of the certificate in proof of each of the conditions. The notification further provided that, „incomplete applications and those not accompanied by the requisite certificates shall not be entertained‟. The notification, therefore, provided not, only, the conditions which a candidate was required to possess when applying for the post mentioned in the notification but he was also required to support it with authenticated certificate and if he failed to do so then the application was not liable to be entertained. In legal terminology where something is required to be done and the consequences of failure to do so are also provided then it is known as mandatory. The mandatory character of possessing the requirements as provided in the first part of the notification stands further strengthened from the third and last part of the notification which prohibited the candidates from applying if they did not possess the requisite qualifications. In view of these clear and specific conditions laid down in the advertisement those candidates who were not possessed of the B.E. qualifications were not eligible for applying nor their applications were liable to be 10 entertained nor could they be called for interview. Eligibility for the post mentioned in the notification depended on possessing the qualification noted against each post. The expression, „shall be possessed of such qualifications, is indicative of both the mandatory character of the requirement and its operation in praesenti. That is a candidate must not only have been qualified but he should have been possessed of it on the date the application was made. The construction suggested by the learned counsel for the appellant that the relevant date for purposes of eligibility was the date of interview and not the date of application or July 15, 1982 the last date for submission of forms is not made out from the language of the notification. Acceptance of such construction would result in altering the first part of the advertisement prescribing eligibility on the date of applying for the post as being extended to the date of interview. If it is read in the manner suggested then the requirement that incomplete applications and those not accompanied by the requisite certificates shall not be entertained, shall become meaningless. Purpose of filing certificate along with application was to prove that the conditions required were satisfied. Non- filing of any of the certificates could have resulted in not entertaining the application as the requirements as specified would have been presumed to be non-existent. Fulfilment of conditions was mandatory and its proof could be directory. The former could not be waived or deferred whereas the defect in latter could be cured even subsequently. That is proof could be furnished till date of interview but not the eligibility to apply for the post. Any other construction would further be contrary to the last part of the notification.” The Court while exercising powers of judicial review over a process of selection cannot usurp and arrogate unto itself the discretionary 11 power and jurisdiction of the employer to decide of the manner in which it shall proceed with the selection process. The question of opportunity to remove defects never arose as a defective application stood rejected at the very inception. The advertisement did not provide for any relaxation by opportunity to remove defects. The information to be furnished in Form II was not an empty formality but of extreme significance in support of the claim for possession of a valid licence. The petitioner was not an illiterate applicant. He was vying for a government job in a fiercely competitive job market. He shall have to bear the consequences of his own casualness, perhaps reflective also of his unsuitability for the job. The appointments have already been considerably delayed on account of several rounds of litigations. The process is now required to be expedited and foreclosed at the earliest in the nature of the public duties to be performed by the persons appointed. In C.W.J.C. No. 16649 of 2011 the candidature of the petitioner has been rejected both for non- fulfillment of the requirements of Form II and the complete necessary experience certificates. 12 Learned counsel for the petitioner fairly acknowledges that Form-II was submitted by him not in original but as a Xerox copy. It is submitted that the advertisement did not stipulate submission of the original Form-II with the signature of the District Transport Officer. The Xerox copy shall suffice. If the respondents had any doubt in the matter they should have verified it from the District Transport Officer concerned. Referring to the advertisement it was submitted that it permitted self attested photo copies of the driving licence under Clause-C and Form II was a part of Clause-C. The Court finds it difficult to uphold the submission. Clause-C required the applicant to submit a Xerox self attested copy of his driving licence. The original driving licence would then have been scrutinized at the appropriate time based on the success in the selection process. But the advertisement simultaneously required an applicant to submit an authenticity confirmation certificate of the Xerox copy of the licence from the District Transport Officer in original. If the confirmation was also to be by a Xerox copy, the very purpose of confirmation of the authenticity of the Xerox copy of the licence submitted by an applicant would stand 13 frustrated and negated. On the own showing of the petitioner, he also did not fulfill the conditions of the advertisement. While the words „Xerox‟ has been used in context of the driving licence, significantly it has been omitted with regard to Form-II. It is therefore not necessary to deal with the aspect of his incomplete experience certificates. The applications are dismissed. P. Kumar ( Navin Sinha, J.)