Jharkhand High Court
Sher Mohammad vs State Of Jharkhand And Others on 4 March, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P.(S) No. 2543 of 2023
Sher Mohammad ....Petitioner
Versus
State of Jharkhand and others ....Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Atanu Banerjee, Advocate
Mr. Suman Kumar Gshosh, Advocate
For Respondents-State : Mr. Sanjoy Piprawall, Advocate
Mr. Prince Kumar, Advocate
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14/04.03.2024 Learned counsel for the parties are present.
2. In furtherance of the arguments advanced by the petitioner on
earlier occasions, the learned counsel has submitted that the
advertisement in the present case was issued on 18.07.2019 and
preliminary test was held on 19.01.2020.
3. At the time of filling up the form the required certificate was not
to be uploaded and the petitioner was subsequently issued the certificate
by the Circle Officer on 29.02.2020 in the central format but all the
required information in connection with the petitioner to claim
reservation were available in the said certificate. It was also certified
that the petitioner did not belong to creamy layer.
4. The document verification was done on 13.10.2022 and on this
date the petitioner produced the original certificate dated 29.02.2022
and also one more certificate issued on 27.01.2022 which was also in
the central format issued by the Sub-Divisional Officer certifying that
that the petitioner belongs to non-creamy layer.
5. Learned counsel has submitted that the format of the caste
certificate was irrelevant once all the relevant information were
furnished. The petitioner was subsequently issued the caste certificate
dated 24.10.2021 mentioning that the petitioner belongs to BC I
category and such caste certificate was also produced by the petitioner
at the time of document verification.
6. He submits that the caste certificate dated 24.10.2021 read with
non creamy layer declaration and the declaration of the caste of the
petitioner as issued under the central format was complete in all respect
and therefore, the petitioner could not have been denied the benefit of
reservation.
7. Learned counsel submits that the sole reason for rejection of the
candidature of the petitioner was that he had submitted the caste
certificate in the central format. Learned counsel has referred to the
Annexure-9 by which the candidature of the petitioner was rejected by
indicating as follows: -
"Candidate got benefit of BC I category in PT and mains
result, but the caste certificate submitted central format
hence candidature rejected."
8. Learned counsel has referred to the following judgments: -
a. judgment passed by the Hon'ble Supreme Court reported in
(2016) 4 SCC 754 in the case of Ram Kumar Gijroya Vs.
Delhi Sub Ordinate Services Selection Board and Ors.
paragraph nos. 16 and 18 the case of the petitioner is squarely
covered by the said judgment;
b. writ petition decided by this Court in W.P.(C) No. 4572 of
2012 on 06.10.2012 paragraph Nos. 11 and 12;
c. writ petition decided by this Court in W.P.(S) No. 1630 of
2017 decided on 21.08.2017 paragraph 6 and 7 and
confirmed in L.P.A. No. 610 of 2017 decided on 12.10.2018
and has been upheld up till the Hon'ble Supreme Court;
d. Priyanka Rani versus Government of India and Another
reported in 2022 SCC Online Delhi 2621 and has referred to
paragraph nos. 40, 41, 42, 43, 44 and 45.
9. The Learned counsel submits that the case of the petitioner is
squarely covered by the judgment rendered by the Hon'ble Supreme
Court in Ram Kumar Gijroya case (Supra) reported in (2016) 4 SCC
754 and in view of that the present writ petition is fit to be allowed.
10. The summary of the arguments advanced by the petitioner is also
reflecting from the written submissions filed by the petitioner which is
quoted hereunder:
i. Cancellation of candidature of petitioner after interview
is contrary to the instruction given in paragraph 12(b) of
the Advertisement No. 05/2019.
ii. It was mentioned in paragraph 10 (III) (i) /(ii) that
certificates that were to be submitted should be issued
by competent authority of State of Jharkhand. Petitioner
has submitted with its application at the time of
document verification issued by Circle Officer, Gomia
and Sub-Divisional Bermo and original of both
certificate was provided.
iii. Caste certificate issued by competent authority of State
of Jharkhand i.e. Sub-Divisional Officer, Bermo cannot
be discarded by the Respondent Jharkhand Public
Service Commission, only for reason that it is in central
format.
iv. Contents of the Caste Certificate in prescribed format
and Caste Certificate submitted by petitioner are same
and not disputed.
v. Rejection of the candidature of petitioner for the reason
that caste certificate is in central format is too hyper-
technical.
vi. Caste status of petitioner is not denied. All along the
information and documents including caste certificate
submitted by petitioner were accepted and only in the
final stage it was rejected with giving any opportunity
of being heard to the petitioner.
vii. The press communique requiring related to important
information relating to mains examination requiring
successful candidates in preliminary examination to
send necessary documents including caste certificate
and other documents in accordance with entry made in
online application was complied by the petitioner and
then only he was issued Provisional Admit Card of
Combined Assistant Engineer Main Examination to be
held from 22.10.2021 to 24.10.2021.
viii. The petitioner has now obtained the Caste Certificate in
the prescribed format as mentioned in paragraph 20 of
Rejoinder (Annexure 20/ page 27 of Rejoinder dated
10.10.2023) and willing to furnish the same before the
Respondent.
ix. One week time was requested to be granted by the
petitioner through representation dated 11.04.2023 for
providing Caste Certificate in the prescribed format.
x. Petitioner obtained 442 marks out of 600 in section -I;
646 marks out of 1000 and shown to be qualified and
selected for interview under BC-I category. Petitioner
obtained 150 out of 200 marks in interview. The total
marks being 796 out of 1200 marks.
xi. The cut-off marks of unreserved category is 788 whereas
the cut-off marks of BC-I category is 671. The marks
obtained by petitioner is more than both the category.
xii. Genuineness of Caste Certificate is not denied.
xiii. Respondent in para 32/34 in Counter-Affidavit dated
29.09.2023 admits submission of said certificates.
Arguments of the Respondents.
11. Learned counsel appearing on behalf of the respondents while
opposing the prayer has submitted that the petitioner is bound by the
terms and conditions of the advertisement. As per the vertical
reservation different reservation have been provided for BC-I category
and BC-II category. He has also referred to clause 10 of the
advertisement to submit that the caste certificate was to be issued in
terms of the prescribed Form II which was in terms of the circular
issued by the State Government contained in the letter no. 1754 dated
25.02.2019 and it was also indicated that the said format was available
on the website.
12. Learned counsel submits that the format was prescribed not only
to indicate the specific category in which the candidate was belonging
whether BC I or BC II but also indicating as to whether the candidate
belongs to the creamy layer or not.
13. Learned counsel has referred to clause 12 of the advertisement
and has submitted that initially at the time of filing of online application
the certificate was not required to be uploaded but the hard copy of the
certificate was to be submitted at the time of filling up of the form for
Mains Examination. The certificate which was to be submitted in the
Mains Examination was the same certificate which was available to the
candidate at the time of filing of initial form. Clause 12 of the
advertisement further indicated that once online application for Mains
Examination is submitted, the required certificate was to be produced at
the time of physical verification of the certificate; on the date of
physical verification of the certificate, any other certificate which was
not mentioned in the online application and not issued on the date of
filling up the form was not to be considered.
14. He has also submitted that the advertisement further clarifies that
once the application is submitted online no changes would be
admissible.
15. The learned counsel has referred to the prescribed form in which
the certificate was to be issued. Learned counsel has referred to
Annexure -6 of the writ petition and submits that on 15.09.2020 the
documents were to be produced for physical verification included the
caste certificate in the prescribed form indicating as to whether the
candidate belongs to BC-I or BC-II category.
16. He submits that the reason for rejection of the candidature of the
petitioner was rightly passed. He has also referred to the, supplementary
counter affidavit, paragraph Nos. 6 and 7 and the candidature of the
petitioner was rejected by indicating that-
"form -11 not annexed. Issue dt. after hard copy
submission last date. Earlier, caste cert. in Central govt.
format dt. 29.02.2020 submitted at the time of hard copy
submission".
17. The Learned counsel has referred to the following judgments:-
I. judgment passed in L.P.A. No. 169 of 2015 decided on
01.09.2015 paragraph 2 and 4.
II. judgment passed by this Court in W.P.(S) No. 869 of 2023
paragraph nos. 3, 4, 5, 6 , 7, 10, 11, 12 , 20, 35, 36 .
III. judgment passed by this Court in L.P.A. No. 91 of 2020 decided
on 21.10.2022.
18. Learned counsel has relied upon the recent judgment of Hon'ble
Supreme Court in Divya Vs. Union of India & Ors. reported in (2024)
1 SCC 448 and has referred to paragraph nos. 5.3, 7, 8, 9, 12, 14, 54,
55, 56, 57 and 61 of the said judgment
54. The strong reliance placed on Ram Kumar Gijroya case
(supra) also does not impress us. Not only was there no
rule, like we have in the present case, it was only while
declaring the result, the requirement of submitting the OBC
certificate before the cut-off date was introduced by the
Selection Authority there. Moreover, unlike the present,
there was no contention or issue raised in that case that
eligibility enures or crystallizes only on the issuance of the
certificate and on possession of the certificate, before the
prescribed cut-off date.
55. The judgment in Ram Kumar Gijroya case (supra) is
also directly in conflict with the judgment of three Hon'ble
Judges in Ashok Kumar Sharma and Others vs. Chander
Shekhar and Another (1997) 4 SCC 18 wherein in para 6, it
was held as under:-
"So far as the first issue referred to in our Order
dated 1-9-1995 is concerned, we are of the
respectful opinion that majority judgment (rendered
by Dr.T.K. Thommen and V. Ramaswami, JJ.) is
unsustainable in law. The proposition that where
applications are called for prescribing a particular
date as the last date for filing the applications, the
eligibility of the candidates shall have to be judged
with reference to that date and that date alone is a
well-established one. A person who acquires the
prescribed qualification subsequent to such
prescribed date, cannot be considered at all. An
advertisement or notification issued/published
calling for applications constitutes a representation
to the public and the authority issuing it is bound by
such representation. It cannot act contrary to it. One
reason behind this proposition is that if it were
known that persons who obtained the qualifications
after the prescribed date but before the date of
interview would be allowed to appear for the
interview, other similarly placed persons could also
have applied. Just because some of the persons had
applied notwithstanding that they had not acquired
the prescribed qualifications by the prescribed date,
they could not have been treated on a preferential
basis......"
56. Apart from all of this, the correctness of Ram Kumar
Gijroya case (supra) was referred to a three-Judge Bench in
the case of Karn Singh Yadav (two-Judges). A perusal of
para six of the referral order clearly shows that the Bench
was echoing the ratio of the three-judge Bench in Ashok
Kumar Sharma's case (supra) though there is no express
reference to the said case. However, when the matter came
before a three- Judge Bench, the reference was not
answered and even after noticing that Ram Kumar Gijroya
case (supra) covered the case of Karn Singh Yadav (two-
Judges), the Court, however, denied relief to Karn Singh
Yadav, the petitioner by holding that since the appellant was
never appointed to the post at that length of time it was not
possible to grant any relief to the appellant. Ram Kumar
Gijorya (supra) is clearly distinguishable.
57. Be that as it may, we are bound by the judgment of the
three-Judge Bench in Ashok Kumar Sharma (supra) and we
follow the said judgment and reiterate the principle laid
down thereon. It is also interesting to note that even in
Deepak Yadav (supra), a judgment, strongly relied upon by
the learned counsel for the petitioners, the principle in
Ashok Kumar Sharma (supra) has been reiterated.
However, because of what the Court called an abnormal
and cataclysmal year, an exception was made due to the
ongoing pandemic, lockdown and restrictions imposed
thereof. In Alok Kumar Singh (supra), no rules like the ones
present in this case are shown to have existed. In the present
case, there are clear prescriptions as to eligibility, as has
been discussed herein above.
61. The challenge made in the writ petition to declare Rules
13, 27(3) and 28 to the extent it prescribes that candidate
must be in possession of a EWS certificate as on the closing
date of the application for preliminary examination to be
ultra vires Article 14 is only to be stated to be rejected.
There is no case made out to show that the cut-off of
22.02.2022 was picked out of the hat. That was the last date
for submission of the application and, according to us, it
was a validly prescribed cut-off. In fact, the law laid down
by this Court as discussed herein above is, where there is
absence of any rule or absence of any prescription, the last
day for fulfilling the eligibility is the last date of submission
of the application. This is a judicially recognized default
date. In this case the last date for filing of the application
has been prescribed as the cut-off in the Rules and we see
absolutely no case for violation of Article 14."
19. It is submitted that the parties are governed by the terms and
conditions of the advertisement and the judgment passed in the case of
Ram Kumar Gijroya case (supra) has no applicability to the facts and
circumstances of this Case.
Rejoinder arguments of the petitioner.
20. In response the Learned counsel for the petitioner has submitted
that the judgment passed by the Hon'ble Supreme Court in the case of
Ram Kumar Gijroya case (supra) has been considered in the case of
Karn Singh Yadav Vs. Govt. of NCT Delhi and others reported in
2022 SCC Online SC 1341.
21. Arguments are concluded, post this on 12.03.2024.
(Anubha Rawat Choudhary, J.)
MM
