Jharkhand High Court
Sunil Kumar Ray vs State Of Jharkhand Through The Chief ... on 24 September, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1754 of 2023
.....
Sunil Kumar Ray, aged about 50 years, son of Late
Sachidanand Ray, resident of Near Football Ground,
Barmasia, P.O. & P.S. Barmasia, District Dhanbad, PIN-
826001 (Jharkhand). ..... Petitioner
Versus
1. State of Jharkhand through the Chief Secretary,
Government of Jharkhand, having office at Project Building,
Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi.
2. The Principal Secretary, Personnel, Administrative
Reforms & Rajbhasha Department, Government of
Jharkhand, having office at Project Building, Dhurwa, P.O.
Dhurwa, P.S. Jagarnathpur, District Ranchi.
3. Jharkhand Public Service Commission through its
Secretary, having office at Circular Road, P.O. & P.S. Lalpur,
District Ranchi.
4. Controller of Examination, Jharkhand Public Service
Commission, having office at Circular Road, P.O. & P.S. -
Lalpur, District - Ranchi. ..... Respondents
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
For Petitioner : Mr. Sumeet Gadodia, Adv.
Mrs. Shilpi Sandil Gadodia, Adv.
Mr. Prakhar Harit, Adv.
Ms. Shruti Shekhar, Adv.
For Resp.-JPSC : Mr. Sanjay Piprawal, Advocate,
For Resp.-State : Mrs. Pinky Tiwari, A.C. to A.G.
.....
Reserved on 28.08.2024 Delivered on. 24 /09/2024
Heard learned counsel for the parties.
2. The instant writ application has been filed by
Petitioner primarily seeking following reliefs:-
(a) For issuance of an appropriate writ/order/direction including
Writ of Declaration, declaring that the action of Respondent-
Jharkhand Public Service Commissioner [hereinafter referred to as
'JPSC' for short] in rejecting the candidature of the Petitioner
under the Reserved Category of Scheduled Caste and treating the
Petitioner to be a candidate belonging to Un-reserved Category for
appointment on the post of Deputy Collector pursuant to
Advertisement No. 05/2005 being '1st Deputy Collector (Limited)
Competitive Examination' on the alleged sole ground that the
Caste Certificate submitted by the Petitioner is not valid is per se,
illegal, arbitrary, actuated with malice in law and contrary to the
judicial pronouncement of the Hon'ble Apex Court in the case of
Pankaj Kumar v. State of Jharkhand & Ors. reported in
2021 SCC OnLine SC 616.
(b) For issuance of further appropriate writ/order/direction
including Writ of Mandamus, directing Respondent-JPSC to
recommend the name of the Petitioner for appointment on the post
of Deputy Collector pursuant to Advertisement No. 05/2005
pertaining to '1st Deputy Collector (Limited) Competitive
Examination' on the vacant post of Scheduled Caste Category,
especially in view of the fact that the Petitioner has secured more
marks than the last selected candidate, including the fact that one
Rajendra Kumar Das in whose favour recommendation was made
has not joined on the post of Deputy Collector as he was already
appointed on the said post pursuant to advertisement conducted
by Respondent-JPSC.
(c) For issuance of further appropriate writ/order/direction
including Writ of Mandamus, directing Respondent-State of
Jharkhand to appoint the Petitioner on the post of Deputy Collector
with all consequential benefits, especially in view of the fact that
the Petitioner has secured more marks than the last selected
candidate under the Scheduled Caste Category pursuant to
Advertisement No. 05/2005 pertaining to '1st Deputy Collector
(Limited) Competitive Examination' and is entitled for appointment
on the post of Deputy Collector.
3. The undisputed facts of the case is that Petitioner
belongs to the Caste 'Dusadh' which was recognized as a
Scheduled Caste under the undivided State of Bihar and after
bifurcation of the State of Bihar and creation of the State of
Jharkhand with effect from 15.11.2000, the said caste is
recognized as Scheduled Caste in both the successor State of
Bihar and in the State of Jharkhand. The Petitioner was born
in the District of Dhanbad in the year 1973, where his father
was working as 'Peon' in the office of the District Collectorate
at Dhanbad and the Petitioner has obtained his educational
qualification i.e. matric examination, intermediate
qualification and graduation all from the District of Dhanbad.
4. Pursuant to an advertisement published by Bihar
Public Service Commission at the time of undivided State of
Bihar, Petitioner applied for the post of Assistant Teacher as
Schedule Caste Category and was appointed on the post of
Assistant Teacher as Schedule Caste Category vide Office
Order dated 30.03.2000 issued by District Superintendent of
Education, Dhanbad. The Petitioner was appointed under the
Reserved Category of Schedule Caste on the post of Assistant
Teacher and was serving in the District of Dhanbad and after
bifurcation of the State of Bihar and creation of the State of
Jharkhand, the Petitioner continued to serve in the State of
Jharkhand as Assistant Teacher.
5. Advertisement No. 05/2005 being '1st Deputy Collector
(Limited) Competitive Examination', was published by
Respondent-Jharkhand Public Service Commission inviting
eligible candidates working with the State of Jharkhand for
appointment on the post of Deputy Collector. In the
advertisement itself, it was provided that details furnished by
the candidates is to be certified by their Controlling
Officer/competent authority of the State of Jharkhand and it
is an admitted fact that Petitioner applied under the Schedule
Caste Category pursuant to the said advertisement and his
caste was duly certified by the employer, State of Jharkhand.
6. Pursuant to the aforesaid advertisement initially
examination were held on 23rd April, 2006 but the same was
thereafter cancelled, on 13.06.2013 and, thereafter, a writ
petition was filed before this Hon'ble Court being W.P.(C) No.
991 of 2018 by some of the candidates who appeared in the
said '1st Deputy Collector (Limited) Competitive Examination'
for direction upon Respondent-Jharkhand Public Service
Commission (JPSC) for conducting re-examination and the
said writ petition was disposed of vide order dated 12.12.2018
directing the Respondent-JPSC to make all endeavours for
conducting re-examination pursuant to Advertisement No.
5/2005.
7. Thereafter, JPSC initiated the process of re-
examination and Petitioner appeared in the said re-
examination held on 03.01.2020 conducted by Respondent-
JPSC. The results of the said re-examination was published
by Respondent-JPSC on 14.01.2023 but the name of the
Petitioner did not transpire as the selected candidate and as
against five posts which were reserved for Schedule Caste
Category; names of five persons were shown to have been
selected in the said category namely, (i) Kamlesh Kumar Das;
(ii) Manoj Kumar Ram; (iii) Khoplal Ram; (iv) Rajendra Kumar
Das; (v) Bijay Ram.
8. Subsequently, JPSC published the marks obtained by
individual candidates and the marks obtained by the
Petitioner as uploaded by Respondent-JPSC reflected that
Petitioner has obtained '120' marks but in the remakes
column against the name of the Petitioner, it was mentioned
that Petitioner has not been selected. The remarks reads as
follows:- 'Not selected (Submitted caste certificate not valid so
treated as UNR)'.
9. Thereafter, Respondent-JPSC around 16th March,
2023, published the cut-off marks in the website from which
it was evident that cut-off marks for Schedule Caste Category
was 119 and, admittedly, Petitioner obtained 120 marks. The
marks obtained by the selected candidates as stated in the
writ petition in a tabulated chart is as under:-
Sl. Name of candidate Marks
No. obtained
Das
Das
10. It has been further specifically pleaded that one of the
candidates namely, Rajendra Kumar das who has obtained
119 marks, did not join the post of Deputy Collector as the
said person was already appointed pursuant to Advertisement
No. 10/2018 i.e. 5th Limited Deputy Collector (Backlog)
Competitive Examination' vide appointment dated 05.07.2021
and, under the said circumstances, it has been pleaded in the
writ petition that one post pursuant to advertisement was
lying vacant and the Petitioner was claiming appointment
against the said post. It is the specific case of the Petitioner
that Respondent-JPSC issued a notice, wherein it demanded
Caste Certificates to be submitted by the candidates
belonging to Reserve Category and, in the said notice, it was
stated that candidates belonging to Other Backward Class
Category-I & Category-II should submit Caste Certificate as
per the Notification contained in Memo no. 10007 dated
29.05.2012 in the requisite format and candidates belonging
to Schedule Caste and Schedule Tribe has to submit Caste
Certificate in the requisite format as notified by State of
Jharkhand vide letter no. 5682 dated 22.10.2008. The
Petitioner contended that the said notice was never published
in the newspaper and even if the said notice was stated to be
published, the same was contrary to the advertisement,
wherein there was no requirement of submission of Caste
Certificate.
11. Mr. Sumeet Gadodia, learned counsel appearing for the
Petitioner has vehemently argued that rejection of the
candidature of the Petitioner on the ground that Petitioner did
not submit Caste Certificate in the requisite format is directly
contrary to the provisions of Section 73 of the Bihar
Reorganization Act, 2000 ('Act of 2000') as well as the ratio of
the judgment rendered by Hon'ble Apex Court in the case of
Pankaj Kumar v. State of Jharkhand & Ors. reported in
2021 SCC OnLine SC 616. It has been argued that in terms
of Section 73 of Act of 2000, the Petitioner's service condition
could not have been changed including the condition that he
is a member of Reserved Category for the purposes of his
service and, therefore, rejection of the candidature of the
Petitioner on the ground that he had not submitted Caste
Certificate in the proper format was violative of Articles 14
and 16 of the Constitution of India.
12. Extensive reliance was placed by the Petitioner upon
the judgment of Hon'ble Supreme Court in the case of 'Pankaj
Kumar' (Supra) and, it was argued that the said judgment is
squarely applicable to the facts and circumstances of the case
of the Petitioner.
13. Further, reliance has also been placed upon the
judgment of Akhilesh Prasad v. Jharkhand Public Service
Commission & Ors. reported in 2022 SCC OnLine 510,
and it has been contended that the case of the Petitioner is
also squarely covered by the aforesaid judgment of the
Hon'ble Apex Court.
14. Counter Affidavit has been filed on behalf of
Respondent-State of Jharkhand and vide paragraphs 7 and 8
thereof, Respondent-State of Jharkhand stated that they have
no direct role in conducting examination and
preparation/publication of the results, and, it is for JPSC to
apprise this Hon'ble Court regarding the factual position. The
said stand of the Counter Affidavit was adopted by Mrs. Pinky
Tiwari at the time of arguments.
15. Per contra, Mr. Sanjay Piprawal, learned counsel for
Respondent-JPSC vehemently opposed the writ application
and at the outset raised the plea that the Petitioner is guilty
of suppression of material facts before this Hon'ble Court. Mr.
Piprawal vehemently submitted that originally when the
advertisement being Advertisement No. 5/2005 was
published, there was only one category for Backward Classes
i.e. OBC and, accordingly, the vacancy against Other
Backward Class was shown as '7'. It was submitted that
subsequently, the Department of Personnel, Administrative
Reforms and Rajbhasha, Government of Jharkhand vide its
letter no. 4182 dated 08.05.2014 requested JPSC to bifurcate
seven posts of OBC into two categories i.e. EBC-I and BC-II to
the extent of four and three posts respectively and, thereafter,
the Commission in its meeting held on 06.09.2018 decided to
bifurcate the post of OBC in two categories i.e. EBC-I and BC-
II having four and three posts respectively.
16. It has been further submitted that Department of
Personnel, Administrative Reforms and Rajbhasha,
Government of Jharkhand vide its letter no. 5682 dated
22.10.2008 and, further, vide Memo no. 10007 dated
25.09.2012 had prescribed formats for submission of Caste
Certificate for Schedule Caste and Schedule Tribe Categories
as well as Caste Certificate for BC-I and BC-II category and,
accordingly, before re-examinations were being conducted
Respondent-JPSC has published a press communication in
the daily newspaper on 28.09.2018 directing the candidates
to submit their Caste Certificate as per the format prescribed
by the State of Jharkhand.
17. It has been vehemently submitted that Petitioner
pursuant to the said press communication in fact, submitted
his Caste Certificate vide Annexure-D to the Counter Affidavit
and in the said Caste Certificate which was although issued
by the competent authority i.e. Sub-Divisional Officer being
Caste Certificate No. 1942/011 dated 09.03.2011; it was
mentioned that the said Caste Certificate is only for
'educational purposes'.
18. It was vehemently submitted that the Petitioner in the
writ application has not mentioned that it has submitted
Caste Certificate pursuant to press communication and, thus,
the Petitioner is guilty of misleading this Hon'ble Court and
concealment of material facts before this Hon'ble Court.
19. Reliance has been placed upon the decision of the
Hon'ble Supreme Court in the case of Dalip Singh v. State
of Uttar Pradesh & Ors. reported in 2010 (2) SCC 114,
and it has been submitted that in the said judgment, vide
paragraphs 2, 3, 4 and 7, the Hon'ble Supreme Court has
held that a litigant who attempts to pollute the stream of
justice or who approaches the Court with tainted hands is not
entitled to any relief, either interim or final by this Hon'ble
Court.
20. Further, on this proposition, Mr. Piprawal relied upon
an order dated 18.07.2024 passed in W.P.(PIL) No. 2253 of
2024 'Padma Baraik v. State of Jharkhand and Ors.', wherein
this Hon'ble Court after noticing the fact that a false affidavit
has been filed to mislead this Hon'ble Court has ordered that
a criminal proceeding be initiated against the person
concerned who has filed false affidavit. On the aforesaid
ground, Mr. Piprawal contended that the writ petition should
be dismissed in limine. Mr. Piprawal further submitted that
Respondent-JPSC had fixed a uniform criteria for selection of
all candidates and even if criteria fixed by Respondent-JPSC
was defective, the same is not required to be ordinarily
interfered by Hon'ble Courts as same standard/yardstick has
been applied to all candidates. Reliance has been placed upon
the decision of Hon'ble Supreme Court in the case of
Municipal Corporation of Delhi v. Surender Singh & Ors.
reported in 2019 (8) SCC 67.
21. Mr. Piprawal further submitted that reliance placed by
the Petitioner during the course of argument in the judgment
rendered by the Hon'ble Supreme Court in the case of Ram
Kumar Gijroya v. Delhi Subordinate Service Selection
Board and Ors. reported in (2016) 4 SCC 754, is not
applicable as in the said judgment, the Hon'ble Supreme
Court considered the fact that there was no specific terms
and conditions mentioned in the advertisement regarding
submission of Caste Certificate in the prescribed format
whereas in the present case Caste Certificate was directed to
be submitted in a prescribed format as per press
communication. Mr. Piprawal further relied upon the decision
of this Hon'ble Court rendered by Hon'ble Division Bench in
the case of Rohan Thakur v. State of Jharkhand & Ors.
being W.P.(S) No. 1921 of 2018 being judgment dated 18th
May, 2019 and contended that in the said judgment, the
Hon'ble Division Bench vide paragraph 7 has held as under:-
'7. Having heard learned counsel for the parties and on
perusal of the papers attached with this application as
well as the counter affidavit filed on behalf of respondent,
it would appear that the prayer of the petitioner was to
order to constitute an Interview Board for conducting
interview of the petitioner as a special case. Alternative
prayer is for quashing of Advertisement No.10 of 2015
issued by Jharkhand Public Service Commission and
quashing of Clause No.13 of the said advertisement, is
illegal, arbitrary and unconstitutional as the case of
competitive examination involving candidates with nil
experience is made eligible by Rules and even the quashing
of Rule 16(D) of Jharkhand Judicial Service (Rules), 2004
prescribed for fixation of minimum qualifying marks in
interview. This petitioner was aggrieved by the manner in
which the Jharkhand Public Service Commission initially
treated him as reserved category candidate during holding
of Preliminary examination and allowed him to appear in
the Main examination but at the time of declaration of
Main examination treated his candidature as an
unreserved category candidate. The reason being that the
caste certificate uploaded by the petitioner was not found
proper. So far as the decisions relied upon by this
petitioner including the case of Ram Kumar Gijroya (supra)
and the decisions in L.P.A. No.610 of 2017 with L.P.A.
No.618 of 2017 of this High Court, in all these cases the
requirement of submission of certificate within a cut-off
date was not mentioned in the advertisement but the same
was introduced before declaration of result. In those cases,
certificates were submitted by the candidate after cut-off
date so it was case of late submission of caste certificate
although submission of caste certificate was not a
requirement in the advertisement. In the present case, the
requirement of submission/uploading of caste certificate
issued till a particular date i.e. last date of submission of
online application form and keeping the original copy of
caste certificate to be produced by the concerned
candidate at the time of interview during course of
verification of testimonials was specifically mentioned in
the advertisement. The petitioner did submit the scanned
copy of the certificate but the same was found not proper.
Therefore his candidature was treated to be from
unreserved category, while the results of main
examination were processed. Therefore, in this situation,
prayer of petitioner could not be allowed at belated stage
as process for filling of the post of Advertisement No.10 of
2015 was over and subsequent to this advertisement,
another Advertisement No.11 of 2015 was issued and this
petitioner had appeared for interview and process of
appointment in that advertisement have completed by now.
Therefore, the prayer of petitioner cannot be acceded at
this stage. Before us, argument of the writ petitioner was
advanced on this point only and other prayers pertaining
to declaration of certain provisions of Selection Rules as
illegal were not really pressed. Moreover, as we find
nothing illegal in rejection of the petitioner from the list of
successful candidates as per Rules, discussion on other
issues would have become merely academic exercise.'
22. Mr. Piprawal, further submitted that the said judgment
rendered by Hon'ble Division Bench in Rohan Thakur v.
State of Jharkhand & Ors. [W.P.(S) No. 1921 of 2018],
was also affirmed by Hon'ble Supreme Court in Special Leave
to Appeal (C) No. 18423/2019.
23. Mr. Piprawal also referred to the judgment of Hon'ble
Supreme Court in the case of Divya v. Union of India
reported in (2024) 1 SCC 448, and while relying upon
paragraphs 55, 56, 57, 60 and 86 of the said judgment, it was
contended that in the said case, the Hon'ble Supreme Court
considered the judgment in the case of Ram Kumar Gijroya
(supra), and held that the said judgment is directly in conflict
with the earlier judgments of the Hon'ble Supreme Court and
has ultimately held that the candidates are required to
possess all certificates up to the last date of the submission of
the application form as mentioned in the advertisement and
the certificate including EWS Certificate obtained or issued
after the last date of submission of online application from
are not valid and the same cannot be accepted.
24. Mr. Piprawal further strenuously argued that strict
compliance of the instructions issued by the Public Service
Commission are mandatory and the Hon'ble High Court in
exercise of its power under Article 226 of the Constitution of
India cannot modify or relax the instructions issued by the
Commission and reliance in this regard has been placed upon
the judgment of the Hon'ble Supreme Court in the case of
State of Tamilnadu v. G. Hemlata & Ors. reported in
(2020) 19 SCC 430.
25. Mr. Piprawal strenuously argued that the judgment
rendered by the Hon'ble Supreme Court in the case of
'Pankaj Kumar' (Supra), is not applicable in the case of the
Petitioner as the question of submission of Caste Certificate
was not involved in the aforesaid case but, on the contrary, in
the aforesaid case, the applicant-Pankaj Kumar was
recommended for appointment in the Limited Departmental
Examination under Schedule Caste Category but later the
said candidate was denied appointment on the ground that in
the service-book of the said Pankaj Kumar, his permanent
residence has been shown as District Patna and, as such, he
is to be treated to be a migrant to the State of Jharkhand and
was, thus, consequentially not eligible for appointment under
Schedule Caste Category under Combined Civil Services
Examination. In it under the said background, the Hon'ble
Supreme Court held that the said applicant-Pankaj Kumar is
entitled to claim benefit of reservation in the Limited
Departmental Examination by virtue of Section 73 of Act of
2000. It was vehemently submitted that the case of Pankaj
Kumar is factually different on facts and no reliance can be
placed by the Petitioner upon the aforesaid judgment. Similar
distinction has been sought to be made in respect of the
judgment relied in the case of Akhilesh Prasad v.
Jharkhand Public Service Commission & Ors. (supra),
and it has been argued that the Petitioner's writ application is
liable to be dismissed.
26. Per contra, Mr. Sumeet Gadodia in his rebuttal
arguments again emphasized that Petitioner being already in
service in the State of Jharkhand under Schedule Caste
Category cannot be deprived of benefit of the said caste by
virtue of deeming fiction under Section 73 of Act of 2000 and
as well as the law laid down by the Hon'ble Supreme Court in
the case of Pankaj Kumar. Regarding concealment of fact, it
has been stated that Petitioner has not concealed any
material fact and/or has not filed any false affidavit as alleged
and all along it is the case of the Petitioner that his
candidature cannot be rejected on the ground that he has not
submitted Caste Certificate in the requisite format.
27. In fact, it was argued that bare perusal of the Caste
Certificate furnished by Petitioner (Annexure-D of the Counter
Affidavit), it would be evident that the said Caste Certificate
was as per the format prescribed vide letter no. 5682 dated
22.10.2008 and the said Caste Certificate was also issued by
the competent authority i.e. Sub-Divisional Officer and,
merely because in the said Caste Certificate it was mentioned
that the certificate has been issued for 'educational purposes'
could not render the said certificate as invalid for
consideration of the candidature of the Petitioner under
Schedule Caste Category.
28. While distinguishing the judgments relied upon by the
Respondents, it has been submitted that in none of the
judgments the issue involved was with respect to Limited
Departmental Examination, wherein a candidate already
being in employment under Reserve Category under the same
government has been denied the benefit on the alleged
ground of either non-submission of Caste Certificate or
submitted alleged defective certificate.
29. I have heard the counsel for the parties and I am of the
opinion that the case of the Petitioner is squarely covered by
the decision of Hon'ble Supreme Court in the case of 'Pankaj
Kumar' (Supra). From the facts of the case of Pankaj Kumar,
it would transpire that Pankaj Kumar was also appointed on
the post of Assistant Teacher on 21st December, 1999 against
the post reserved for Schedule Caste Category and, pursuant
to Cadre Revision upon bifurcation of the states, he opted for
State of Jharkhand and while serving as an Assistant
Teacher, appeared as a member of Schedule Caste Category
in the 3rd Combined Civil Services Examinations, 2008 as a
Schedule Caste Category candidate. Although the said Pankaj
Kumar was selected against the vacancy of Schedule Caste
Category but was not offered appointment on the ground that
he was a permanent resident of the State of Bihar and, thus,
could not have claimed the benefit of Schedule Caste
Category candidate in the State of Jharkhand. The Hon'ble
Supreme Court in the aforesaid case, took into consideration
the provisions of Section 23 and 24 of the Act of 2000,
wherein presidential order notifying the caste/tribe for the
State of Jharkhand was amended under the 'Fifth Schedule'
of Reorganization Act. The 'Fifth Schedule' for the sake of
ready reference is quoted herein under:-
THE FIFTH SCHEDULE
(See Section 23)
AMENDMENT OF THE CONSTITUTION (SCHEDULED CASTES)
ORDER, 1950
In the Constitution (Schedule Castes) Order, 1950 in the
Schedule,-
(i) in Part III relating to State of Bihar, in item No. 5, the
brackets and words "(excluding North Chhotanagpur and
South Chhotanagpur divisions and Santhal Parganas
district)" shall be omitted;
(ii) after Part VI, Himachal Pradesh, the following shall be
inserted, namely:-
"PART VIA-Jharkhand
1. Bantar 2. Bauri 3. Bhogta
4. Bhuiya 5. Chamar, 6. Choupal
Mochi
7. Dabajar 8. Dhobi 9. Dom,
Dhangad
10. Dusadh, 11. Ghasi 12. Halalkhor
Dhari,
Dharhi
13. Hair, 14. Kanjar 15. Karaiar
Mehtar,
Bhangi
16. Lalbegi 17. Musahar 18. Nat
19. Pan, 20. Pasi 21. Rajwar
Sawasi
22. Turi
30. The Hon'ble Supreme Court after noticing the aforesaid
provisions vide following paragraphs held as under:-
'49. The scheme of the 2000 Act postulates that employees
who are working immediately on or before the appointed
date, in the State of Bihar, has either domicile of the
districts that formed part of State of Jharkhand under
Section 3 of the Act or opted or joined being junior in their
respective seniority, stands absorbed in the successor State
of Jharkhand and by virtue of a statutory instrument, their
service conditions stand protected and became entitled to
claim privileges and benefits to which the members of
Scheduled Castes/Scheduled Tribes/OBC are entitled for in
terms of the Presidential Order, 1950 as amended from time
to time.
52. There is a fundamental dichotomy in the submissions
made by the counsel for the State of Jharkhand that the
existing service conditions including benefit of reservation in
the promotional cadre post shall not be varied to his
disadvantage but he shall be considered to be a migrant to
the State of Jharkhand while participating in public
employment to compete in open/general category and asked
to seek the benefit of reservation in the neighbouring State of
Bihar, to hold different status in his parent State of
Jharkhand after he became a member of service of the State
of Jharkhand, serving for sufficient long time on and after
the appointed day i.e. 15-11-2000 in the State is
unsustainable in law and in contravention to the scheme of
the 2000 Act.
53. It will be highly unfair and pernicious to their interest if
the benefits of reservation with privileges and benefits
flowing thereof are not being protected in the State of
Jharkhand after he is absorbed by virtue to Section 73 of the
2000 Act that clearly postulates not only to protect the
existing service conditions but the benefit of reservation and
privileges which he was enjoying on or before the appointed
day i.e. 15-11-2000 in the State of Bihar not to be varied to
his disadvantage after he became a member of service in the
State of Jharkhand.
54. The collective readings of the provisions of the 2000 Act
makes it apparent that such of the persons whose place of
origin/domicile on or before the appointed day was of the
State of Bihar now falling within the districts/regions which
form a successor State i.e. the State of Jharkhand under
Section 3 of the 2000 Act became ordinary resident of the
State of Jharkhand, at the same time, so far as the
employees who were in public employment in the State of
Bihar on or before the appointed day i.e. 15-11-2000 under
the 2000 Act, apart from those who are domicile of either of
the district which became part of the State of Jharkhand,
such of the employees who have submitted their option or
employees who are junior in the cadre of their seniority as
per the policy of the Government of India of which a
reference has been made, either voluntarily or involuntarily
call upon to serve the State of Jharkhand, their existing
service conditions shall not be varied to their disadvantage
and stands protected by virtue of Section 73 of the 2000 Act.
55. In our considered view, such of the employees who are
members of the SC/ST/OBC whose caste/tribe has been
notified by an amendment to the Constitution (Scheduled
Castes)/(Scheduled Tribes) Order, 1950 under Vth and VIth
Schedule to Sections 23 and 24 of the 2000 Act or by the
separate notification for members of other backward class
category, benefit of reservation including privileges and
benefits flowing thereof, shall remain protected by virtue of
Section 73 of the 2000 Act for all practical purposes which
can be claimed (including by their wards) for participation in
public employment.
57. We are of the view that the present appellant Pankaj
Kumar in civil appeal arising out of SLP (Civil) No. 13473 of
2020, being a serving employee in the State of Jharkhand by
virtue of Section 73 of the 2000 Act, would be entitled to
claim the benefit of reservation including the privileges and
benefits admissible to the members of Scheduled Caste
category in the State of Jharkhand for all practical purposes
including participation in open competition seeking public
employment.'
31. A bare reading of the aforesaid judgments would reveal
that the Hon'ble Supreme Court in unambiguous terms held
that a person who was a serving employee of the State of
Jharkhand by virtue of Section 73 of the Act of 2000 would be
entitled to claim the benefit of reservation including the
privileges and benefit admissible to the members of Schedule
Caste Category in the State of Jharkhand including
participation in open competitive examinations seeking public
employment. Thus, the Hon'ble Supreme Court while
interpreting the provisions of Section 73 of the Act of 2000
held that by deeming fiction, the service condition of the
employee would be protected not only for its existing
employment but also for future employments including
employments in open competitive examinations as well.
32. The facts of the present case is completely identical to
the facts of the case of Pankaj Kumar (supra), as in the
present case also, the Petitioner's caste 'Dushad' was
recognized as Schedule Caste Category under the undivided
State of Bihar and even after division of the State of Bihar,
said caste continued to be recognized as Schedule Caste both
in successor State of Bihar and in the State of Jharkhand.
Admittedly, the Petitioner was appointed as Assistant Teacher
vide order contained in Memo No. 1289/Dhanbad dated
30.03.2000 by the District Superintendent of Education,
Dhanbad and was extended the benefit of reserved category of
Schedule Caste and was serving in the District of Dhanbad
before bifurcation and after bifurcation was allotted State of
Jharkhand and was serving as Assistant Teacher and posted
in the District of Dhanbad. Thus, by virtue of the ratio laid
down by the Hon'ble Supreme Court and the deeming fiction
under Section 73 of the Act of 2000, Petitioner was entitled
for claiming the benefit of reservation as Schedule Caste in
the State of Jharkhand not only in the Limited Departmental
Examination but also in the open competitive examination.
33. Further, it is an admitted fact that in the original
advertisement being Advertisement No. 05/2005 in order to
claim the benefit of reservation, a declaration was to be given
by the candidate regarding his initial appointment i.e.
whether he was appointed as General Category/Schedule
Caste/Schedule Tribe or Backward Category. The said
declaration was to be certified by the employer of the
candidate. Admittedly, in the present case, since the
Petitioner was appointed as Schedule Caste candidate in his
last appointment as Assistant Teacher, Petitioner gave
declaration that he is a candidate of Schedule Caste Category
and is entitled for reservation as Schedule Caste Category
and the said fact was certified by his employer which is not in
dispute. However, the dispute arose in the present case when
a corrigendum was issued by Respondent-JPSC after
cancellation of the results pursuant to first examination and
before issuing admit cards for the second examination. In the
said corrigendum/circular issued by Respondent-JPSC
requirement was introduced for submitting Caste Certificate
in a requisite format for Schedule Caste and Schedule Tribe
candidates in terms of letter bearing no. 5682 dated
22.10.2008 issued by the State of Jharkhand. Although the
Petitioner admittedly submitted the said certificate but his
candidature was rejected on the ground that the said
certificate was issued for only 'educational purposes'.
34. The question would thus, arise as to whether a
candidate who is belonging to Reserve Category i.e. Schedule
Caste Category and is already in employment of the State of
Jharkhand and his service conditions including the benefit of
reservation and other privileges and benefits admissible to the
members of Schedule Caste Category in the State of
Jharkhand being protected by virtue of the Bihar
Reorganization Act, 2000 can be denied the benefit of
employment only on the alleged ground that certificate
submitted by the Petitioner was not in prescribed format.
35. In my opinion, the answer to the aforesaid question is
in negative, as if the benefit of reservation is denied to the
candidate belonging to Schedule Caste only on the ground
that he has not submitted the certificate in the requisite
format then the very purpose of Section 73 of the Act of 2000
would stand defeated. In fact, as already mentioned above,
the Hon'ble Supreme Court in its decision in the case of
Pankaj Kumar (Supra), after considering the provisions of
Section 73 of the Act of 2000 has clearly held that an
employee already serving in the State of Jharkhand by virtue
of Section 73 of the Act of 2000 would be entitled to claim the
benefit of reservation including the privileges and benefits
admissible thereunder. Thus, in my opinion, once a deeming
fiction is created by law, the same cannot be negated merely
because a candidate has allegedly not submitted a Caste
Certificate in the requisite format. The Hon'ble Supreme
Court in the case of Harish Tondon v. Additional District
Magistrate (Allahabad) reported in (1995) 1 SCC 537, has
held that full effect has to be given to such statutory fiction
and it has to be carried to its logical conclusion.
36. Another aspect which requires consideration in the
present case is regarding the status of a person belonging to
Schedule Caste or Schedule Tribe Category. The status of a
person whether he belongs to Schedule Caste or Schedule
Tribe Category depends on the caste which he belongs to by
birth and such status would remain unchanged and would be
static. However, the status of a person whether he belongs to
OBC-NCL/MCB/NCL/EWS would depend upon his or her
social and economic status and such status would keep on
changing depending on his or her income and, therefore,
would be dynamic. It is well settled position of law that
person belonging to Schedule Caste or Schedule Tribe
Category were and are treated as a separate category and the
concept of 'Creamy Layer' does not apply to said categories.
37. Even in the present case, Respondent-JPSC has
specifically pleaded that Respondent-State of Jharkhand
bifurcated the Other Backward Classes into two categories i.e.
BC-I and BC-II vide letter no. 4182 dated 08.05.2014, and,
requested Respondent-JPSC to bifurcate seven posts of OBC
into two categories i.e. EBC-I and BC-II by reserving four and
three posts respectively. It is only thereafter, that
Respondent-JPSC issued press communication dated
28.09.2018 for submitting of fresh Caste Certificates.
38. Though Respondent-JPSC tried to satisfy this Hon'ble
Court that necessity of issuing press communication dated
28.09.2018 arose because of bifurcation of OBC Category into
EBC-I and BC-II Categories, but it failed to explain as to why
in the said notification, the prescribed format for Schedule
Caste and Schedule Tribe Category candidates were also
demanded. Even otherwise, in the present case, the Petitioner
submitted its Caste Certificate which was duly issued by the
competent authority declaring that Petitioner belongs to
Schedule Caste Category but the said Caste Certificate was
not accepted by Respondent-JPSC by stating that it was not
in requisite format as the said Caste Certificate was only for
'educational purposes'.
39. It would be travesty of justice if the Petitioner who is
already serving with the affairs of the State of Jharkhand
under Schedule Caste Category is denied the benefit of
reservation in the Limited Departmental Examination by
Respondent-authorities only on the ground that the Caste
Certificate submitted by Petitioner though issued by the
competent authority was only granted for 'educational
purposes' and not for 'employment'.
40. The judgement relied upon by Respondent-JPSC in the
case of Municipal Corporation of Delhi v. Surender Singh
& Ors. (supra), would not be applicable in the facts and
circumstances of the present case as the Petitioner by virtue
of deeming fiction was entitled to be treated as Schedule
Caste Category in terms of Bihar Reorganization Act, 2000.
The Division Bench judgment of this Hon'ble Court in the
case of Rohan Thakur v. State of Jharkhand & Ors.
(supra), is also not applicable in the facts and circumstances
of the present case as the said case did not pertain to Limited
Departmental Examination but pertained to open
advertisement for appointment of Civil Judge (Junior)
Division. In fact, none of the cases relied upon by
Respondent-JPSC including the case of Divya v. Union of
India (supra), pertains to a situation where the candidate is
already in employment having reserve status which is
protected in terms of Bihar Reorganization Act, 2000. Even in
the said decision rendered by Hon'ble Apex Court in the case
of Divya (Supra), the candidate applied for Civil Services
Examination, 2002 and was belonging to Economically
Weaker Section Category and, in the said case, the Hon'ble
Supreme Court observed that the candidates claiming
benefits under EWS Category is required to acquire the
eligibility of reservation only if it fulfils the criteria prescribed
by Central Government in OM dated 19.01.2019 and
31.01.2019, and, is in possession of the requisite I&AC based
on the income for FY 2020-2021.
41. It is in that background Hon'ble Supreme Court
distinguished the judgment in the case of Ram Kumar
Gijroya (supra). I am also not convinced with the arguments
advanced by Respondent-JPSC that Petitioner is guilty of
concealment of martial facts before this Hon'ble Court and
has filed false affidavit before this Hon'ble Court. In this
context, reference may be made to paragraphs 27 and 28 of
the writ petition which has been relied upon by Mr. Piprawal
to contend that Petitioner had filed a false affidavit before this
Hon'ble Court. The said paragraphs are quoted herein under:-
'27. That Petitioner subsequently after rejection of its
candidature visited the office of Respondent-JPSC to enquire
as to why its candidature has been rejected and the
Petitioner was informed about advertisement published in
the website of JPSC being www.jpsc.gov.in, wherein
Respondent-JPSC issued a notice primarily stating, inter
alia, that the candidates who have earlier appeared in the
examination pursuant to Advertisement No. 05/2005, and
was claiming the benefit of Reserved Category should submit
a Caste Certificate up to 12.11.2018 issued in the format as
prescribed in the Notification/Circular contained in Memo No.
10007 dated 29.05.2012 issued by the Personnel,
Administrative Reforms and Rajbhasa Department of the
Government of Jharkhand.
Photocopy of undated Notice regarding submission of Caste
Certificate is annexed hereto and marked as Annexure-15 to
this writ application.
28. That it is stated that the aforesaid un-dated Notice to the
best of the knowledge of the Petitioner was never published
by Respondents in the newspapers and, it was only uploaded
in the website of the Respondent-JPSC. Even otherwise, even
if it is presumed that the said undated notice was even
published in the newspapers, the said notice is contrary to
the advertisement as the advertisement was issued in the
year 2005 and the format of the Caste Certificate was
prescribed in the year 2012 vide Memo No. 10007 dated
29.05.2012 and, thus, the candidates cannot be compelled to
furnish the Caste Certificate in a format which has been
Notified subsequently.'
42. The Petitioner in the writ application has specifically
submitted that notice was issued by Respondent-JPSC for
submission of Caste Certificate and has further stated that
the said notice was contrary to the advertisement and the
candidate cannot be compelled to furnish Caste Certificate in
the format which has been notified subsequently. It is true
that the Petitioner has not stated regarding submission of
Caste Certificate by him subsequent to the aforesaid notice,
but the mere fact that Petitioner has not stated about
submission of the Caste Certificate would not amount to
material suppression of fact by the Petitioner, far less filing
false affidavit before this Hon'ble Court. It was the specific
case of the Petitioner that Petitioner in terms of Section 73 of
the Act of 2000 was entitled for protection of his service
condition as a member of Reserve Category candidate and his
candidature could not have been rejected on the ground that
Petitioner has not submitted Caste Certificate in the proper
format. The pleading in that regard is contained in paragraph
30 of the writ petition which is as under:-
'30. That it is an admitted fact that the Petitioner is serving
in the State of Jharkhand as a member of Scheduled Caste
Category and in terms of the operation of Section 73 of the
Bihar Reorganisation Act, 2000, his service condition cannot
be changed including the condition that he is a member of the
Reserved Caste Category for the purposes of his service and,
thus, the rejection of the candidature of the Petitioner on the
ground that he had not submitted Caste Certificate in the
proper format is wholly illegal and arbitrary and violative of
Articles 14 and 16 of the Constitution of India.'
43. Thus, this Hon'ble Court is of the view that Petitioner is
not guilty of concealment of any material fact and has not
made any false claim in the writ petition as contended by the
Respondents and, under the said circumstances, the
judgment relied upon by the Respondent in the case of Dalip
Singh v. State of Uttar Pradesh & Ors. (supra), is not
applicable in the facts and circumstances of the present case.
44. In view of the cumulative facts and circumstances
mentioned hereinabove, this Court is of the firm opinion that
rejection of the candidature of the Petitioner on the alleged
ground of not having submitted Caste Certificate in the
requisite format and treating the Petitioner to be candidate
belonging to Unreserved Category for appointment on the post
of Deputy Collector is illegal and contrary to the provisions of
Section 73 of the Act of 2000. Consequently, I direct the
Respondent-JPSC to recommend the name of the Petitioner in
respect of one vacant post of Schedule Caste Category
pursuant to Advertisement No. 5/2005. Respondent-JPSC
should recommend the name of the Petitioner for
appointment of Deputy Commissioner pursuant to
Advertisement No. 05/2005 within a period of four weeks
from the date of receipt of copy of this judgement and,
further, consequently the State of Jharkhand would appoint
the Petitioner on the post of Deputy Commissioner within a
further period of four weeks.
45. The counsel for the Petitioner during arguments
vehemently argued that since the Petitioner has been illegally
denied the benefit of employment by Respondent-authorities,
all consequential benefits accrued to the Petitioner on the
basis of denial of such opportunity of employment on the post
of Deputy Commissioner should be extended in his favour.
Although, the Petitioner vehemently argued that he is entitled
for all consequential benefits but Petitioner has fairly brought
to the notice of this Hon'ble Court paragraph 61 of the
judgment rendered in the case of Pankaj Kumar (supra),
wherein the Hon'ble Supreme Court while allowing the
Special Leave Petition of Pankaj Kumar held that Pankaj
Kumar would be entitled for his seniority with notional
fixation of pay and allowances, and, further held that said
Pankaj Kumar would not be entitled for arrears of salary up
to the date of appointment/reinstatement.
46. Thus, following the ratio of the Hon'ble Supreme Court,
it is further directed that Petitioner would be entitled for his
seniority as per his placement in the order of merit with
notional fixation of pay and allowances but shall not be
entitled for arrears of salary up to the date of appointment.
Accordingly, the instant writ application is allowed in terms of
the order aforesaid. Pending, I.As., if any, stand disposed of.
There shall be no order as to costs.
(Deepak Roshan, J)
Jharkhand High Court at Ranchi
Dated:- 24/09/2024
Amardeep/
/AFR/
