Jharkhand High Court
Raghuraj Prasad Gupta vs The State Of Jharkhand Through The ... on 2 April, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 378 of 2023
Raghuraj Prasad Gupta, aged about 33 years, son of Yamuna Saw,
resident of village- Karmakala, P.O. & P.S.- Chhattarpur, Dist.-
Palamu (Jharkhand). ... ... Petitioner
Versus
1. The State of Jharkhand through the Principal Secretary,
Department of Home, Jail and Disaster Management, Government of
Jharkhand having its office at Project Bhawan, Dhurwa, P.O. & P.S.-
Dhurwa, Dist.- Ranchi (Jharkhand).
2. The Principal Secretary, Department of Personnel, Administrative
Reforms and Rajbhasha, Government of Jharkhand having its office at
Project Building Dhurwa, P.O & P.S.- Dhurwa, Dist.- Ranchi
(Jharkhand)
3. Jharkhand Armed Police, through its Deputy Inspector General,
Jharkhand Armed Police, having its office at Jharkhand Police
Headquarters, Dhurwa, P.O. & P.S.- Dhurwa, Dist.- Ranchi.
4. The Jharkhand Staff Selection Commission, through its chairman,
having its office at Chai Bagan, Kali Nagar, P.O. & P.S. - Namkom,
District- Ranchi (Jharkhand).
5. The Secretary, Jharkhand Staff Selection Commission, having its
office at Chai Bagan, Kali Nagar, P.O. & P.S. - Namkom, District-
Ranchi (Jharkhand).
6. The Controller of Examination, Jharkhand Staff Selection
Commission, having its office at Chai Bagan, Kali Nagar, P.O. & P.S.
- Namkom, District- Ranchi (Jharkhand).
... ... Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mr. Shresth Gautam, Advocate
: Mr. Rajarshi Singh, Advocate
: Mr. Anmol Deepak, Advocate
For the JSSC : Mr. Sanjoy Piprawall, Advocate
: Mr. Rakesh Ranjan, Advocate
For the State : Ms. Pinky Tiwari, A.C. to A.G.
---
09/02.04.2024 Heard the learned counsel for the parties.
2. This writ petition has been filed for the following reliefs:
"a. For the issuance of appropriate writ/writs, order/orders,
direction/directions or a writ in nature of mandamus directing upon the
respondents to consider the caste certificate submitted by him under
BC-I category owing to the fact that by virtue of the resolution dated
23.07.2015 passed by the Department of Personnel, Administrative
Reforms and Rajbhasha, Government of Jharkhand, the category of the
petitioner has been shifted from BC-II to BC-I category;
And/or
b. For issuance of direction upon the respondents to consider the
candidature of the petitioner under BC-I category as by virtue of the
resolution dated 23.07.2015 passed by the Department of Personnel,
Administrative Reforms and Rajbhasha, Government of Jharkhand, the
category of the petitioner has been shifted from BC-II to BC-I category
and accordingly he had been issued a valid caste certificate by the
competent authority;
And/or
c. For directions upon the respondents to consider the case of the
petitioner for appointment on post of constable under BC-I category as
by virtue of the resolution 23.07.2015 passed by the Government of
Jharkhand, the category of the petitioner has been shifted from BC-II to
BC-I category and also the petitioner has scored more marks than the
last selected candidate under each category."
Arguments of the Petitioner.
3. That Department of Personnel, Administrative Reforms and
Rajbhasha, Government of Jharkhand sent requisition before the
Jharkhand Staff Selection Commission (in short 'JSSC') for starting
selection process for the appointment of Constables in District Police
Force for different districts under different categories against 6279
vacancies and also for appointment of Constables in Jharkhand Armed
Police against 850 vacancies. Accordingly, Prospectus/Advertisement
No. 04/2015 (Annexure-1) was issued. The advertisement mentioned
the vacancy in each district and altogether 544 posts were advertised
for Dhanbad district.
4. The advertisement provided the details, inter alia, with regard
to the procedure for making application, the relevant dates, the
requisite eligibility criteria, required educational qualification etc. The
petitioner being duly qualified and eligible for appointment, had
applied for appointment on the post of constable in Dhanbad District
Police Force.
5. Clause 8 of the advertisement contained the provision relating
to reservation and so far as the caste certificate is concerned, the same
was required to be issued by the competent authority in the prescribed
format i.e. Appendix-II for Scheduled Caste/Scheduled Tribe and
Appendix-III for Extremely Backward Class- I/ Backward Class - II
and with respect to EBC-I and BC-II category, the caste certificate
issued after 31.03.2015 in the prescribed format was said to be valid.
The last date for submission of online application was 30.09.2015 and
as per clause-8 of the advertisement, the incumbent was required to
produce the certificates in support of their claim of reservation at a
later date.
6. The petitioner belongs to caste namely "Teli" which at the time
of filling up the online application form, was classified under BC -II
category and thus, the petitioner applied under BC-II category and was
in possession of the caste certificate issued under BC-II category. The
petitioner successfully qualified the preliminary examination, mains
examination and physical and medical test and was called for
document verification scheduled to be held between 28.12.2016 to
30.12.2016. At the stage of document verification, the petitioner
produced caste certificate under BC-I category dated 20.12.2016 in
due format as prescribed in the light of amendment introduced vide
resolution dated 23.07.2015. The caste certificate so furnished by the
petitioner was duly accepted in view of the fact that vide resolution
dated 23.07.2015, the caste of the petitioner shifted from BC-II to BC-
I category.
7. The final result was published, but the name of the petitioner
did not figure in the list. Upon enquiry, the petitioner was informed
that the petitioner had applied under BC-II category in the online
application form, but had furnished the caste certificate under BC-I
category. The petitioner received information under Right to
Information Act, 2005 and came to know that the petitioner had
scored more marks than the last selected candidate both under BC-I
category and BC-II category. The petitioner had scored 228 marks and
the marks of the last selected candidates in both BC-I and BC-II
categories were 201 and 204 respectively. In response to an
application filed under Right to Information, the petitioner was
informed that since the petitioner had applied under BC-II category in
the online application form, but had furnished the caste certificate
under BC-I category, therefore, the petitioner was treated under
unreserved category owning to which the petitioner was not selected.
8. As per the petitioner, the main issue involved in this writ
petition is with regard to the change of caste category of the petitioner,
inasmuch as, at the time of filling up the online application form, the
petitioner was classified under BC-II category and during the
recruitment process, his caste was changed from BC -II to BC-I
category by the State Government and consequently, the petitioner
had produced the caste certificate under BC-I category. The caste
certificate as produced by the petitioner was issued after coming into
force of the resolution dated 23.07.2015 by which the caste status of
the petitioner was changed. The dates for filling up the form were
from 27.08.2015 to 30.09.2015 and at the time of filing up the form,
the petitioner was possessing the caste certificate under BC-II
category and therefore, the petitioner mentioned the caste as BC-II
category. The advertisement indicated that the caste certificate issued
after 31.03.2015 in the prescribed format will be valid.
9. The learned counsel for the petitioner has relied upon the
following judgments:
(i) Judgment passed in the case of "Pushpanjali Kumari Vs. The State of
Jharkhand and others" in LPA No. 338 of 2020.
(ii) Judgment passed in the case of "Ranjeet Prabhakar Vs. The State of
Jharkhand and others" in LPA No. 675 of 2019.
(iii) Judgment passed in the case of "Lavkush Gupta and others Vs. State of
Jharkhand and others" in W.P.(S) No. 3332 of 2017 and analogous
cases.
(iv) Judgment passed in the case of "Ram Kumar Gijroya Vs. Delhi
Subordinate Services Selection Board and Another" reported in (2016) 4
SCC 754.
Arguments of the respondent - JSSC
10. Learned counsel appearing on behalf of the respondents, on the
other hand, has opposed the prayer. As per Clause 4 of the
prospectus, it was mentioned that the candidates were required to
satisfy themselves before submission of application form that they are
fulfilling the terms and conditions of the advertisement and mere
issuance of admit card does not give right for appointment and the
commission, after conducting the examination, will verify the
testimonials and after verification, will take a final decision with
regard to eligibility of one or the other candidate. As per Clause 8 of
the advertisement, the reserved category candidates who claimed
benefit of reservation were required to submit caste certificate issued
by the Deputy Commissioner/Sub-divisional Officer of the
district/sub-division in the prescribed proforma as indicated in the
prospectus/advertisement and it was also mentioned that the
candidates who were claiming benefit of reservation under EBC-I and
BC-II category were required to submit their caste certificate issued
after 31.03.2015 in the prescribed proforma as indicated in Appendix-
III of the prospectus. It was also mentioned in Clause - 9 of the
prospectus that after submission of application form by the candidates,
no correction was permissible. It was also mentioned in Clause 15
(4)(iv) of the prospectus that the candidature of the candidate could be
rejected if the candidate does not produce his/her testimonials at the
time of verification of the testimonials within the time fixed by the
Commission. The last date for submission of the application form was
30.09.2015.
11. The petitioner had submitted online application for
consideration under BC-II category against vacancy of Dhanbad
district vide Annexure-A to the counter-affidavit and declared his
caste as 'Teli'. The preliminary test in terms of the advertisement was
conducted on 30.01.2016 and 31.01.2016 and the result of the
preliminary test was declared on 15.06.2016 and the petitioner was
declared successful. Mains examination was conducted on 25.09.2016
and the petitioner was also directed to appear before the medical
board. The petitioner was declared physically and medically fit and
had also passed the mains examination and was called for verification
of documents from 28.12.2016 to 30.12.2016. During verification, the
petitioner produced a caste certificate dated 20.12.2016 under BC-I
category and caste certificate no. 70 dated 08.06.2016 of EBC-I
category in which there was no mentioning regarding exclusion of the
petitioner from creamy layer. Since the petitioner failed to submit
valid caste certificate in terms of the advertisement for extending the
benefit of reservation under BC-II category and submitted the caste
certificate of EBC-I category, whereas the petitioner had claimed
benefit of reservation under BC-II category, the reservation was not
extended to the petitioner.
12. It is the case of the respondents that the petitioner having
applied under BC-II category, the caste certificate of EBC-I category
could not be considered. Consequently, the candidature of the
petitioner was considered under general category and the petitioner
was found over-age in general category.
13. The learned counsel for the respondents has also referred to the
resolution dated 23.07.2015 (Annexure-3 to the writ petition) and has
submitted that the said resolution was clarified vide clarificatory
circular dated 27.11.2015 stating that when for any selection process,
the last date of submission of application form ends before the date of
issuance of the resolution dated 23.07.2015, the candidate would be
entitled for reservation under BC-II category and when it is after
23.07.2015, then the candidate belonging to the caste 'Teli' would be
given reservation under BC-I category. It is the case of the respondent
- JSSC that the State Government has clarified about the entitlement
of candidates vide clarificatory circular dated 27.11.2015 and from the
material on record, in the present case the last date for submission of
online form was fixed as 30.09.2015. It is the case of the respondents
that before issuance of advertisement (27.08.2015) the caste 'Teli'
was already shifted to BC-I category from BC-II category on
23.07.2015 and as such the present case is not a case where the caste
'Teli' was shifted in BC-I category from BC-II category after starting
of the selection process and in view of the clarificatory circular dated
27.11.2015, the candidature of the petitioner cannot be considered and
consequently, the petitioner is not entitled for any relief.
14. After making recommendation for appointment in compliance
of order dated 11.08.2017 passed in W.P.(S) No. 3239 of 2017 by this
Court, all those candidates who had secured more marks than the last
recommended candidate in their respective categories who were
declared medically unfit were sent to an apex medical board for re-
medical test and as such the entire result was re-casted and fresh re-
casted recommendation was made on 23.06.2018. The entire process
of selection for appointment of constables pursuant to the
advertisement no. 04 of 2015 has already been completed in the year
2018-19.
15. While summarising the submissions it has been stated as under:
A. That, it is evident from the materials available on record
that Advertisement No. 4/2015 was issued on 27.08.2015
and last date for submission of Online Application Form
was fixed as 30.09.2015.
B. That, Department of Personnel, Administrative Reforms
and Rajbhasha, Govt. of Jharkhand vide its resolution
dated 23.07.2015 has categorized caste 'Teli' from BC-II
to BC-I category i.e. before issuance of Advertisement on
27.08.2015 and on the date of Advertisement the 'Teli'
caste was already in BC-I category and as such petitioner
is not entitled for any relief as prayed for in this writ
petition. The said resolution has already been enclosed by
the petitioner as Annexure-3 to the writ petition.
C. That, State Government after issuance of resolution
dated 23.07.2015 vide Annexure- 3 to the writ petition
clarified vide its clarificatory circular dated 27.11.2015
that when for any selection process the last date of
submission of Application Form ends before the date of
issuance of resolution dated 23.07.2015 the candidates
would be entitled for reservation under BC-II category
and when last date for submission of Application Form
falls after the date of issue of resolution dated 23.07.2015
then candidates belonging to Teli caste would get
reservation under BC-I category. Clarificatory circular
dated 27.11.2015 is enclosed as Annexure-D to the
Counter Affidavit.
16. The learned counsel has further submitted that after completing
the selection process in terms of Advertisement No. 04/2015, the State
Government sent the fresh requisition before the JSSC for starting
selection process for appointment on the post of constable,
accordingly JSSC has already issued fresh Advertisement on
20.12.2023 i.e. Advertisement No. 17/2023 and last date for
submission of application form is fixed as 20.02.2024 and vacant
posts have already been included in the fresh advertisement.
17. The learned counsel has placed the following judgments: -
i. "J&K Public Service Commission Vs Israr Ahmad and
others" (2005) 12 SCC 498, paragraph 5.
ii. LPA No.119 of 2021 (Jigyasha Gupta Vs. The State of
Jharkhand and others), paragraph 4.
iii. "The State of Tamil Nadu and Others Vs. G. Hemalathaa and
Anr." (2020) 19 SCC 430, paragraph Nos. 8, 9, 10 and 12.
iv. "State of Rajasthan and Ors. Vs Jagdish Chopra" (2007) 8
SCC 161, paragraph 9.
v. "J. Ashok Kumar Vs. State of Andhra Pradesh and Ors."
(1996) 3 SCC 320.
vi. L.P.A No. 64 of 2020 (Dr. Nutan Indwar @ Nutan Indwar Vs.
The State of Jharkhand and others) by which matter, inter
alia, issue has been framed and referred to a larger Bench as to-
Whether "Ram Kumar Gijroya" must be applied in every case
irrespective of the facts of the case, provided the caste
certificate is produced at the time of verification of the
documents?
vii. L.P.A No. 642 of 2022 (Dr. Nikhat Parween Vs. State of
Jharkhand and Anr.) which has been tagged with L.P.A
No. 64 of 2020 for hearing by the Hon'ble Full Bench which is
pending consideration.
viii. Judgment passed in L.P.A No. 469 of 2015 (Prem Chand
Kumar Vs State of Jharkhand & Ors.) by this Hon'ble Court
which was challenged before the Hon'ble Supreme Court in
S.L.P (C) No. 33684/2018 which was dismissed by the Hon'ble
Supreme Court in terms of order dated 14.01.2020 passed in
S.L.P (C) No. 33684/2018.
ix. L.P.A No. 675/2019 (Ranjeet Prabhakar Vs State of
Jharkhand & Ors) relates to selection process pertaining to
Advertisement No. 3/2014 (Forest Guard) and is therefore not
applicable to the facts of this case.
Findings of this Court
18. Some of the clauses of the advertisement important for the
purposes of this case are as follows:-
" 4. परीक्षा के लिए आवेदन दे ने के पूवव अभ्यर्थी यह सुननश्चित हो िें कक वे
ववज्ञावपत पद की पात्रता के ववषय पर प्रकालित सभी ित्तों को पूरा करते हैं।
परीक्षा में बैठने की अनुमनत पूर्त
व ः औपबश्धिक होगी। परीक्षा के लिए प्रवेि
पत्र ननगवत होना प्रमाणर्त नहीीं करता है कक अभ्यर्थी ववज्ञावपत पद पर
ननयुश्तत के लिए ियन हेतु ननिावररत पात्रता पूरी करते हैं तयोंकक आयोग
परीक्षा के बाद अपनी सुवविा के अनुसार ककसी भी समय अभ्यर्र्थवयों की
पात्रता से सम्बश्धित प्रमार् पत्रों की जााँि करे गा। प्रमार् पत्र जााँि के पचिात
अभ्यर्थी की पात्रता के बबधदु पर अींनतम ननर्वय हो सकेगा। ककसी भी समय
पात्रता पूरी नहीीं करने वािे अभ्यर्र्थवयों का आवेदन / अभ्यर्र्थवता रद्द ककया
जा सकता है।
8.आरक्षणः-
(I) आवेदन में ननयत प्रववश्टि के अिीन इींर्गत आरक्षर् का दावा नहीीं करने
पर आरक्षर् का िाभ नहीीं लमिेगा।
(II) आरक्षर् का िाभ एवीं उम्र सीमा में छूि (गृह रक्षक की उम्र सीमा में छूि को
छोड़ कर) केवि झारखण्ड राज्य के स्र्थानीय ननवासी को ही दे य होगा।
झारखण्ड राज्य के बाहर के सभी उम्मीदवार अनारक्षक्षत / सामाधय वगव के
माने जायेंगे।
(III) झारखण्ड सरकार द्वारा िागू आरक्षर् सम्बधिी सभी ननयम प्रभावी
होंगे। आरक्षर् का दावा करने वािे झारखण्ड के स्र्थानीय ननवासी उम्मीदवार
को ननम्न प्रमार्-पत्र आयोग द्वारा प्रमार्-पत्रों की जााँि के अवसर पर
समवपवत करना अननवायव होगा:-
(i) स्र्थानीय ननवासी प्रमार् पत्र (नियोजि के लिए) -
श्जिा/अनुमींडि के उपायुतत/अनुमण्डि पदार्िकारी से ववहहत-
प्रपत्र में अद्यतन ननगवत स्र्थानीय ननवासी प्रमार् पत्र। (पररलिष्ट-I
पर अंककत प्रपत्र)
(ii) जानत प्रमार् पत्र- श्जिा/अनुमींडि के उपायुतत/अनुमण्डि
पदार्िकारी से ववहहत- प्रपत्र {अनुसूर्ित जानत / अनुसूर्ित
जनजानत के लिए पररलिष्ट-II पर अंककत प्रपत्र तर्था अत्यींत वपछड़ा
वगव (अनुसूिी-1)/वपछड़ा वगव (अनुसूिी-2) के लिए पररलिष्ट-III पर
अंककत प्रपत्र} में अद्यतन ननगवत जानत प्रमार्-पत्र ।
(iii) अत्यींत वपछड़ा वगव (अनुसूिी-1) तर्था वपछड़ा वगव
(अनुसूिी-2) के लिए हदनाींक 31.03.2015 के पचिात ् ववहहत-
प्रपत्र (पररलिष्ट-III पर अंककत प्रपत्र) में ननगवत जानत प्रमार्
पत्र माधय होगा।
स्थािीय निवासी प्रमाण पत्र एंव जानत प्रमाण पत्र का प्रपत्र पररलिष्ट
के रूप में वववरणणका में संिग्ि है।
निर्ााररत प्रपत्र में ह ं प्रमाण पत्र मान्य होगें । ककसी अन्य प्रपत्र में
प्रमाण पत्र मान्य िह ं होगें ।
9. ON LINE आवेदि पत्र को भरिा:- ऑन-िाईन आवेदन को भरने
के लिए हदए गये हदिा ननदे ि का अक्षरिः पािन करें । आवेदन पत्र में
दी गई सूिनाओीं से पूर्व सींतुटि होने के पचिात ही आवेदन पत्र को
जमा (Submit) करें । आवेदन पत्र भरने के लिए आयोग के वेवसाईि
www.jssc.in पर जाएाँ एवीं Online Application for JCCE-2015
पर Click करें तर्था आवेदन पत्र भरें । एक अभ्यर्थी लसर्व एक श्जिा
बि अर्थवा झारखण्ड सिस्त्र पुलिस की वाहहनी की ररश्ततयों में से
कोई एक ररश्तत के ववरूद्ि तर्था उत्पाद आरक्षी के पद के लिए
आवेदन दे सकते हैं। श्जिा पुलिस बि की ररश्ततयों का ववकल्प दे ने
की श्स्र्थनत में अभ्यर्थी मात्र ककसी एक श्जिा वविेष की ररश्तत के
ववरूद्ि आवेदन कर सकते हैं तर्था उस श्जिा के लिए र्िश्धहत
जनजातीय भाषा अर्थवा क्षेत्रीय भाषा में से ककसी एक भाषा का िुनाव
करें गे। झारखण्ड सिस्त्र पुलिस वाहहनी के लिए आवेदन दे ने की
श्स्र्थनत में सभी श्जिों के लिए र्िश्धहत क्षेत्रीय/जनजानतय भाषाओीं में
से ककसी एक भाषा का ियन परीक्षा के लिए कर सकते हैं। अभ्यर्थी
को ियननत भाषा की परीक्षा दे नी होगी। अभ्यर्थी श्जस श्जिा अर्थवा
वाहहनी के लिए आवेदन करें गे उसी श्जिा/वाहहनी की ररश्तत के
ववरूद्ि ियन हे तु वविारर्ीय होंगे।
आवदे कों को सूर्ित ककया जाता है कक आवेदन Submit करने
के पूवव भरे गये आवेदन को ठीक से दे ख िें। यहद कोई त्रुहि है तो उसे
सुिार कर ही आवेदन Submit करें । एक बार आवेदन Submit करने
के पचिात ् परीक्षार्ि को प्रभाववत करने वािे ककसी भी प्रववश्टि में
सुिार का कोई भी दावा माधय नहीीं होगा और भरे गये आवेदन के
आिार पर ही आवेदक की परीक्षा िी जायेगी।
श्जिावार र्िश्धहत जनजातीय भाषा / क्षेत्रीय भाषा की वववरर्ी
पररलिष्ट IV पर है।
प्रत्येक श्जिा बि एवीं झारखण्ड सिस्त्र पुलिस की वाहहनी के
लिए अिग-अिग मेिासूिी / ियन सूिी गहठत की जायेगी।
15. अन्यान्य
4. आयोग द्वारा आयोश्जत परीक्षाओीं में अभ्यर्र्थवयों की आवेदन
पत्र/उम्मीदवारी ननम्न अवस्र्थाओीं में रद्द ककया जा सकेगा :-
(i) अभ्यर्थी की उम्र परीक्षा में भाग िेने के लिये ननिावररत उम्र सीमा
में नहीीं होना।
(ii) िैक्षणर्क योग्यता सहहत ननिावररत अहवताओीं को पूरा नहीीं करना।
(iii) ननिावररत परीक्षा िुल्क जमा नहीीं करना।
(iv) प्रमार् पत्रों की जााँि के अवसर पर उम्मीदवारी के समर्थवन में
आवचयक अहवताओीं से सम्बश्धित यर्था ननिावररत प्रमार् पत्रों की मूि
प्रनत ननिावररत समय सीमा के अधदर प्रस्तुत नहीीं करना।
v) आयोग की परीक्षा में नकि करना।..."
19. The aforesaid clauses of the advertisement clearly provide that
the documents in support of reservation are required to be provided
later at the time of the document verification; the candidates would be
governed by the norms of reservation as issued by the State of
Jharkhand; for claiming reservation under BC-I/BC-II category, the
caste certificate to be issued in the form prescribed and attached to the
advertisement; the candidature is to be rejected if the candidate does
not produce the required certificates at the time of verification of
documents.
20. The State Government came up with a resolution dated
23.07.2015 (Annexure-3) shifting the caste 'Teli' from BC-II to BC-I
category by amending the reservation rules of 2001. It has been
mentioned in the resolution itself that the reservation rules of 2001
stood amended in terms of the resolution and vacancies in services
under the State of Jharkhand are to be filled up accordingly. The said
resolution was sent for publication in the gazette and a copy was also
forwarded to concerned authorities. However, there was no clarity as
to the effective date of the resolution dated 23.07.2015. The effective
date of the resolution dated 23.07.2015 was clarified vide clarificatory
circular dated 27.11.2015 (Annexure-D to the counter affidavit)
mentioning that when for any selection process the last date of
submission of application form ends before the date of resolution
dated 23.07.2015 the candidate would be entitled to reservation under
BC-II category and when the last date of submission of application
form falls after 23.07.2015 then the candidates belonging to 'Teli'
community would get reservation under BC-I category. It is important
to note that the cut-off date was referrable to the last date of
submission of form and not to the date of advertisement.
21. Clarificatory circular dated 27.11.2015 as annexed with the
counter-affidavit is embossed as under:
22. Before proceeding further it would be important to deal with
the various judgements relied upon by the parties.
Consideration of the judgments relied upon by the parties :
A. The Hon'ble Supreme Court in Case of "J&K Public Service
Commission Vs Israr Ahmad and others" reported in (2005)
12 SCC 498 has been pleased to hold in paragraph no. 5 as
under:-
"5. We have considered the rival contentions advanced
by both the parties. The contention of the first respondent
cannot be accepted as he has not applied for selection as
a candidate entitled to get reservation. He did not
produce any certificate along with his application. The
fact that he has not availed of the benefit for the
preliminary examination itself is sufficient to treat him as
a candidate not entitled to get reservation. He passed the
preliminary examination as a general candidate and at
the subsequent stage of the main examination he cannot
avail of reservation on the ground that he was successful
in getting the required certificate only at a later stage.
The nature and status of the candidate who was applying
for the selection could only be treated alike and once a
candidate has chosen to opt for the category to which he
is entitled, he cannot later change the status and make
fresh claim. The Division Bench was not correct in
holding that as a candidate he had also had the
qualification and the production of the certificate at a
later stage would make him entitled to seek reservation."
B. Similar view has been taken in LPA No.119 of 2021 (Jigyasha
Gupta Vs. The State of Jharkhand and others) where the
petitioner filled up the application form showing to be a BC-II
candidate although the petitioner was a BC-I candidate which
resulted in considering the candidature of the petitioner as a
general category candidate and such action of JPSC was upheld.
C. The Hon'ble Supreme Court in "The State of Tamil Nadu and
Others Vs. G. Hemalathaa and Anr." reported in (2020) 19
SCC 430 has held that the mandatory instructions cannot be
violated in the matter of recruitment process. It is the case of the
respondents in this case that it has been specifically mentioned
in clause 9 of the prospectus that after submission of the
application form by the candidates no correction can be made
which affects the result.
D. In the judgement passed by the Hon'ble Supreme Court in the
case of "State of Rajasthan and Ors Vs Jagdish Chopra"
reported in (2007 (8) SCC 161 at para 9 the point for
consideration was the validity of the waiting list panel which
was held to be for a period of one year and the Public Service
Commission/recruitment agency was entitled to prepare waiting
list only to the extent of anticipated vacancies.
The aforesaid judgements do not apply to the facts of the present
case.
In this case vide advertisement dated 27.08.2015 the petitioner was
entitled to apply and claim reservation on the basis of caste
certificate issued after 31.03.2015 and was required to produce the
same later at the time of document verification; vide resolution dated
23.07.2015 the caste status of the petitioner changed from BC-II
category to BC-I category and as per the advertisement the last date
for filling the form was 30.09.2015. The resolution dated 23.07.2015
was not clear with regards to its effective date and the petitioner
applied under BC-II category as per his caste status prior to
23.07.2015; the state came up with a clarificatory circular dated
27.11.2015 mentioning that for the recruitments under the
advertisements whose last date of filling the forms fell after
23.07.2015, the candidate under 'teli' community falling under the
BC-I category as per regulation dated 23.07.2015 would be entitled
to claim reservation under BC-I category and would be granted
further time to produce appropriate caste certificate at the time of
document verification; undisputedly the case of the petitioner is
covered by regulation dated 23.07.2015 where the caste status of the
petitioner belonging to 'teli' community changed from BC-II to BC-I
category. The present case is not a simple case where the candidate
had applied under one category and was claiming reservation under a
different category but the claim of the petitioner is based on the
resolution/circular issued by the state with regard to caste status of
'Teli' community and the manner in which the petitioner belonging
to 'Teli' community could claim the benefit of his caste status under
BC-I category in terms of resolution dated 23.07.2015 read with
clarificatory circular dated 27.11.2015. The resolution dated
23.07.2015 and the clarificatory circular dated 27.11.2015 are
essentially matters of policy of reservation of the State of Jharkhand
which is required to be given full effect and merely became
advertisement was issue after resolution dated 23.07.2015 and prior
to clarificatory circular dated 27.11.2015, the same will not defeat
the right of the petitioner to claim reservation in terms of resolution
dated 23.07.2015 read with clarificatory circular dated 27.11.2015.
In the present case, the petitioner is not seeking any correction in the
application form but it relates to implementation of the policy
decision of the State Government which enabled the petitioner
belonging to 'teli' community to avail reservation under BC-I
category by virtue of resolution dated 23.07.2015 read with
clarificatory circular dated 27.11.2015.
Further, in the present case, the petitioner is not seeking any
employment by virtue of his name in the panel but the grievance of
the petitioner is that the candidature of the petitioner under BC-I
category has been wrongly rejected.
23. The judgement dated 14th June 2022 passed by this Court in the
case of "Ranjeet Prabhakar Vs. The State of Jharkhand and others"
in LPA No. 675 of 2019 against which Special Leave to Appeal (C)
No. 14377 of 2022 has also been dismissed; judgment passed by this
court in"Rohan Thakur versus State of Jharkhand" reported in 2019
(3) JBCJ 44 (HC) and judgement passed by Hon'ble supreme court
in "Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection
Board and Another" reported in (2016) 4 SCC 754 and other cases
relied upon by both the parties which have been passed relying upon
or distinguishing the case of Ram Kumar Gijroya (Supra) are
considered as follows:-
i. In the case of Ranjeet Prabhakar (supra) the appellant had
applied in the selection process under the BC-II category
under Advertisement issued on 5th November 2014 by JSSC
but his candidature was treated under general category only on
the ground that he had applied under the BC-II category but
had produced caste certificate under the BC-1 category. After
the advertisement, vide resolution dated 18.12.2015, the caste
category in the State of Jharkhand was restructured and the
caste 'sundi' was brought in the list of BC-I from BC-II and
consequently, he produced the caste certificate issued under
B.C. I category at the time of verification of documents. This
Court considered the fact that the appellant had secured more
marks than the last selected candidate under BC-I category and
even for BC-II the cut-off marks were less than the marks
secured by the appellant. The Court also considered the
number of unfilled vacancies and found that still there were
vacancies under BC-I category as well as BC-II category and
accordingly directed the Jharkhand Staff Selection
Commission (JSSC) to recommend the case of the appellant
under the BC-I category though the appellant had applied
under the BC-II category. The Advertisement dated
01.05.2015 did not require submission of the caste certificate
along with the application and the only rider was that it should
be issued after 31.03.2015 and the caste status was to be
governed by the notifications of the state government issued
from time to time. It has been held that enabling the candidates
to obtain a caste certificate after applying and not providing
any date concerning the caste status for considering the
candidature under one or the other category or sub-category is
bound to create such problems/uncertainty regarding caste
status falling under one or the other sub-category BC-I or BC-
II within the broad category of 'other backward classes'.
In the present case also, there is similar situation as that of
the case of Ranjeet Prabhakar (supra).
ii. Further, the case relied upon by the respondents of "Rohan
Thakur versus State of Jharkhand" reported in 2019 (3)
JBCJ 44 (HC) is clearly distinguishable from the facts of the
present case. In the said case there was a specific provision
under the advertisement to upload the caste certificate at the
time of submission of form failing which the candidate was to
be treated under general category. There is no such provision
in the advertisement involved in the present case.
iii. This Hon'ble Court in L.P.A No. 64 of 2020 (Dr. Nutan
Indawar Vs. State of Jharkhand and Ors.) has been pleased
to refer the case before the Hon'ble larger bench with
following observation: -
" In our opinion, the following issues call for an authoritative
pronouncement by a Larger Bench of this Court:
A. Whether "Ram Kumar Gijroya" must be applied in every
case irrespective of the facts of the case, provided the caste
certificate is produced at the time of verification of the
documents?
B. Whether Clause 9(gha) in the Advertisement No. 2 of 2016
and a similar stipulation in the other advertisements run
contrary to the Constitutional mandate under Article 14, 16 and
335 of the Constitution of India?
C. Whether providing a condition in the advertisement that the
caste certificate in the proper format should be in possession of
the candidate on the last date for making the application failing
which his/her candidature shall be considered under unreserved
category is an exercise of excessive delegation of power and/or
beyond the powers conferred upon the Commission?"
iv. The judgment passed by the Hon'ble Supreme Court in the
case of "Ram Kumar Gijroya Vs. Delhi Subordinate Services
Selection Board and Another" reported in (2016) 4 SCC 754
and other cases relied upon by both the parties which have
been passed relying upon or distinguishing the case of Ram
Kumar Gijroya (Supra) and aforesaid reference made by this
Court to larger Bench in LPA No. 64 of 2020 are not relevant
for the purposes of the present case as the present case is not a
simple case of delayed submission of caste certificate. The
present case is related to change in caste status of 'teli'
community from BC-II to BC-I by virtue of decision of the
state government as contained in resolution dated 23.07.2015
and the effective date of such change in terms of clarificatory
circular dated 27.11.2015 as fully explained above.
24. The Hon'ble Supreme Court in Case of "J. Ashok Kumar Vs. State
of Andhra Pradesh and Ors" reported in (1996) 3 SCC 320 refused to
grant relief to the petitioner since the selection was over and candidates
were selected and appointed.
25. In the present case, it is not in dispute that the petitioner
belongs to the community 'Teli'. Initially, 'Teli' community was
under BC-II category. The State Government came up with aforesaid
resolution dated 23.07.2015 shifting the caste 'Teli' from BC-II to
BC-I category however there was no clarity as to the effective date of
the resolution dated 23.07.2015. The advertisement in the present case
was issued on 27.08.2015 and the last date for submission of online
application form was 30.09.2015. The petitioner submitted his
application under BC-II category. On 27.11.2015, a circular was
issued by the State Government clarifying the position with respect to
the aforesaid resolution dated 23.07.2015 with regards to the cut-off
date for the purposes of grant of reservation to 'Teli' community. It
provided as follows:
(a) When the last date for submission of form in
connection with appointment falls before 23.07.2015,
Teli community will be entitled for reservation under
BC-II category.
(b) If the last date for submission of form falls after
23.07.2015, then the candidates will be entitled to
reservation under BC-I category and those who are
unable to submit caste certificate issued under BC-I
category, will be granted time to produce a caste
certificate.
26. In the present case, the last date for submission of application
form was certainly falling after 23.07.2015 and accordingly, this Court
is of the considered view that the petitioner having caste status as 'Teli'
would be entitled for reservation under BC-I category and was even
entitled to time to produce the appropriate caste certificate in terms of
clarificatory circular dated 27.11.2015 issued by the State Government
and annexed with the counter-affidavit.
27. In the present case, the petitioner produced the caste certificate
issued under BC-I category at the time of document verification and
his caste certificate was in consonance with the resolution dated
23.07.2015 read with clarificatory circular dated 27.11.2015. The
advertisement in the present case was issued on 27.08.2015 and prior
to this date, the resolution dated 23.07.2015 was issued and the
advertisement mentioned that the caste certificate issued after
31.03.2015 will be considered but no outer date was mentioned and
the advertisement also mentioned that the recruitment will be
governed by the reservation policy of the State of Jharkhand. Meaning
thereby, there could be many candidates who might have been issued
certificate after 31.03.2015 and before 23.07.2015 belonging to 'Teli'
community and such certificate would have been issued under BC-II
category as per the then applicable notification regarding caste status.
The category of 'Teli' was changed from BC-II to BC-I vide
resolution dated 23.07.2015.
28. Thus, at the time of filling up the forms, there was certainly a
confusion as to whether the certificate issued after 31.03.2015 would
be applicable or whether the certificate issued after 23.07.2015 would
be applicable so far as community 'Teli' is concerned. The position
stood clarified by virtue of the clarificatory circular dated 27.11.2015
which was issued after the last date of submission of form i.e.
30.09.2015 mentioning that if the last date for submission of form falls
after 23.07.2015, then the candidates under 'Teli' community will be
entitled to reservation under BC-I category and for those who would
be unable to submit caste certificate issued under BC-I category, time
will be granted to produce the appropriate caste certificate. The
clarificatory circular dated 27.11.2015 has nothing to do with the date
of advertisement. The caste status of 'Teli' community and effective
date of resolution dated 23.07.2015 which was clarified vide circular
dated 27.11.2015 is essentially a matter of reservation policy of the
State of Jharkhand and is also binding on all concerned. Thus, merely
because, the advertisement in the present case was issued after
issuance of aforesaid resolution dated 23.07.2015 has no bearing in
the matter and the material date for claiming caste status of 'Teli'
under resolution dated 23.07.2015 is the last date of submission of the
form as per the clarificatory circular dated 27.11.2015 issued by the
State Government. It is important to note that the State of Jharkhand
has not filed any counter affidavit in the matter.
29. If the caste certificate of the petitioner is seen in the light of the
aforesaid clarificatory circular dated 27.11.2015 issued by the State
Government, the candidature of the petitioner is to be considered
under BC-I category and not under BC-II category as the last date of
submission of form was after 23.07.2015 and the petitioner was also
entitled for further time for production of appropriate caste certificate
under BC-1 category in terms of the clarificatory circular dated
27.11.2015. Therefore, filling up of the form by the petitioner under
BC-II category and production of appropriate caste certificate under
BC-I category in the year 2016 at the time of document verification in
terms of resolution dated 23.07.2015 read with clarificatory circular
dated 27.11.2015 does not defeat the right of the petitioner for
consideration of his candidature under BC-I category. The caste
certificate issued to the petitioner dated 20.12.2016 also certifies that
the petitioner does not belong to the creamy layer.
30. Clause-8 of the advertisement contained the provision relating
to reservation and so far as the caste certificate is concerned, the same
was required to be issued by the competent authority in the prescribed
format i.e. Appendix-II for Scheduled Caste/Scheduled Tribe and
Appendix-III for Extremely Backward Class- I/ Backward Class - II
and with respect to EBC-I and BC-II category, the caste certificate
issued after 31.03.2015 in the prescribed format was said to be valid.
The last date for submission of online application form was
30.09.2015 and as per Clause- 8 of the advertisement, the incumbent
was required to produce the certificates in support of their claim of
reservation at a later date at the time of document verification. The
petitioner duly produced the caste certificate under BC-I category at
the time of document verification in terms of resolution
dated 23.07.2015 read with clarificatory circular dated 27.11.2015.
31. In view of the aforesaid facts and circumstances, the rejection
of candidature of the petitioner under BC-1 category ('Teli'
community in terms of resolution dated 23.07.2015 read with
clarificatory circular dated 27.11.2015 both issued by the state
government) solely on the ground that the petitioner had applied
under the category BC-II and had produced the caste certificate under
BC-I category at the time of document verification and consequently,
considering the candidature of the petitioner under 'general category'
cannot be sustained in the eyes of law.
Summary and operative portion of this judgment
32. The Advertisement No.4 of 2015 was issued by Jharkhand Staff
Selection Commission (JSSC) for total 7129 posts- 6279 posts under
'Jharkhand Zila Police Bal' for different districts of the State of
Jharkhand and 850 posts of 'Jharkhand Armed Police Force'. The
petitioner had applied for post of constable in 'Dhanbad District
Police Force' in which total vacancy advertised was 544. The vacancy
position with respect of Dhanbad district under home guard for EBC/
BC-I (male) was 23; for applicants for other posts the vacancy for
EBC/ BC-I (male) was 24. The petitioner had applied under BC-II
category for the post of constable but at the time of document
verification the petitioner produced caste certificate under BC-I
category and consequently his candidature was treated under general
category and his candidature under general category was also rejected
on the ground of over age. The last selected candidate under BC-I,
BC-II and General Category scored 201, 204 and 210 marks
respectively and the petitioner scored 228 marks. Having held as
aforesaid that respondent JSSC was not justified in rejecting the
candidature of the petitioner under BC-I category, this Court directs
the respondent JSSC to recommend the case of the petitioner for
appointment under BC-I if the advertised post under BC-I category
remained unfilled pursuant to the advertisement involved in this case.
The parties have not brought on record the number of vacancies which
were actually filled up under BC-I category. If all the vacancies under
BC-I category have been filled up in terms of the advertisement
involved in this case in the district of Dhanbad no recommendation is
to be made pursuant to this judgement as no recruitment can be made
more than the advertised post in one or the other category and the
petitioner has not challenged the induction of one or the under
candidate under BC-I category. This court is also of the considered
view that merely because fresh advertisement has been issued during
the pendency of this case on 20.12.2023 and the last date of
submission of form was 20.02.2024 as stated in the written
submissions filed by the respondent no.4 to 6, the same will not defeat
the right of the petitioner if all the vacancies under BC-I category
were not filled up in terms of the advertisement involved in this case.
33. This writ petition is allowed in the aforesaid terms.
34. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.)
Pankaj
