Subodh Kumar Ray vs The State Of Bihar And Ors
2021 Latest Caselaw 3987 Patna

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     IN THE HIGH COURT OF JUDICATURE AT PATNA
      Civil Writ Jurisdiction Case No. 19387 of 2017
======================================================

Subodh Kumar Ray, son of Shri Mewa Lal Ray, resident of Village Keshopur, Police Station Vaishali, District Vaishali at Hajipur.

... ... Petitioner/s Versus

1. The State of Bihar

2. The Principal Secretary, Home (Police) Department, Government of Bihar, Patna.

3. The Bihar Public Service Commission, Patna through its Chairman, 15, Jawahar Lal Nehru Marg, Bailey Road, Patna.

4. The Secretary, Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg, Bailey Road, Patna.

5. The Special Secretary-cum- Examination Controller, Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg, Bailey Road, Patna.

6. Priyanka Kumari, D/O Shri Satyendra Kumar, R/O village Ekray, PO Ekadha, P.S. Ariyari, District Sheikhpura.

7.Jai Prakash Verma, S/o Sri Shiv Narayan Prasad, Vill- Bhurkunda, PO Ankuri, P.S. Goh, District Aurangabad.

8. Pooja Bharti, D/O Shri Gauri Shankar Singh, Sinha Sadan, Hanuman Path, Village- Tilkamanjhi, Bhagalpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner : Mr. Uday Prakash Sharma, Adv.

For the B.P.S.C.      : Mr. P. N. Shahi, Sr. Adv.
                        Mr. Sanjay Pandey, Adv.


For the State                : Mr. Suman Kumar Jha, AC to AAG-3

For the Respondents No. 6 & 8: Mr. Kumar Alok, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH CAV JUDGMENT

Date: 06-08-2021

The instant case has been taken up for consideration

through the mode of Video conferencing in view of the

prevailing situation on account of COVID 19 Pandemic,

requiring social distancing.

2. The present writ petition has been filed for

directing the respondents to declare the petitioner as a successful

candidate in the Mains (written) examination in connection with

Advertisement no. 42 of 2011 on the ground that though he has

secured 498 marks, three other candidates having lesser marks

have been declared successful whereafter, they have been called

for interview and have also been finally selected as against the

post of Assistant Prosecution Officer.

3. The brief facts of the case are that the petitioner

is a law graduate and is a practicing Advocate at the Civil Court,

Hajipur. An advertisement no. 42 of 2011 was published by the

B.P.S.C. on 19.10.2011 for making appointment on a total

number of 80 posts of Assistant Prosecution Officer. The

petitioner is stated to be belonging to the backward class

category and as far as the backward class category is concerned,

10 posts had been earmarked for the said category and two posts

had been assigned for the backward class ladies category. The

petitioner is stated to have applied for the post of Assistant

Prosecution Officer under the backward class category, where-

after the Admit card was issued to him and then the Preliminary

competitive examination was held on 23.03.2019, in which the

petitioner had qualified. The petitioner had appeared in the

mains (written) examination, which was held in between

02.02.2015 to 06.02.2015 and is stated to have performed very

well. However, when the result of the Assistant Prosecution

Officer, Mains (Written) competitive examination was published

by the competent authority of the respondent Commission on

07.04.2017, the petitioner did not find his name amongst the list

of successful candidates, though he had secured 498 marks.

4. The learned counsel for the petitioner has

submitted that Annexure-8 to the writ petition is the list of

candidates finally selected under the backward class category,

from which it is apparent that three candidates namely Puja

Bharti, Jai Prakash Verma and Priyanka Kumari, though have

got lesser marks than the petitioner in the Mains (written )

competitive examination, however, the petitioner has been

illegally not considered successful in the main (written)

examination despite having obtained 498 marks i.e. more than

the marks obtained by the said three candidates, hence, the

respondents are required to be directed to consider the

candidature of the petitioner for appointment on the post of

Assistant Prosecution Officer.

5. Per contra, the learned Senior Counsel appearing

for the Bihar Public Service Commission (hereinafter referred to

as "the Commission"), Shri P.N. Shahi, assisted by Shri Sanjay

Pandey, Advocate, has submitted that an advertisement bearing

Advertisement No. 42 of 2011 was published by the respondent

Commission on 19.10.2011, pursuant to the requisition letter no.

10457 dated 27.12.2010 of the Home Department, Government

of Bihar. The last date of submission of form was fixed as

17.11.2011. The learned Senior counsel for the respondent

Commission, without going into the details of the case has

directly sought to address the issue involved in the present case

and has submitted that the petitioner could not be declared

successful in the written examination because he had secured

498 marks, which is less than the cut-off marks i.e. 503, fixed

for his reservation category i.e. the backward class category

(05), hence he was not called for interview and this fact would

be apparent from Annexure-5 to the writ petition, which clearly

mentions the cut-off marks for the backward class category to be

503, as far as the Maims (written) examination is concerned.

The learned counsel for the respondent Commission has further

submitted that the final result was published on 14.6.2017, after

the interview was conducted and the final merit list was

prepared, whereafter recommendations of successful candidates

were sent to the department concerned, vide Commission's letter

dated 19.07.2017, however, 5 vacancies (BC-03 and BCL-02)

remained vacant due to unavailability of suitable candidates.

Thereafter, appointments have been made and now the selection

process is over. It is also submitted that all the women

candidates of reserved category i.e. the backward categories are

entitled to avail the benefit of reservation under the B.C. ladies

category, as per the letter of the General Administration

Department, Government of Bihar dated 19.8.2013. Since, the

cut-off marks for the Mains (written) examination qua the B.C.

ladies category had been fixed at 483, the aforesaid two ladies

candidates namely Puja Bharti and Priyanka Kumari, having

secured 490 and 485 marks respectively, had got the benefit of

reservation under the B.C. ladies category. The other candidate

namely Shri Jai Prakash Verma is a disabled category candidates

(OH), who has been declared successful in the Mains (written)

examination upon having got the benefit of reservation under

the disability category for which the cut-off marks was fixed as

476 and he had obtained 494 marks.

6. The learned Senior Counsel appearing for the

Bihar Public Service Commission, has also referred to the

supplementary counter affidavit filed in the present case to

further elaborate and clarify the legal and factual aspect of the

matter. It is stated that the General Administrative Department,

Bihar vide letter dated 19.08.2013 has clarified that all the

Female (Woman) candidates of SC, ST, EBC & BC category are

included in the backward class women (female) category. In

fact, as per the Reservation policy of the State Government,

contained in letter dated 03.09.2002 (Annexure-G to the

supplementary counter affidavit), the percentage of reservation

among the different reservation categories is as follows:-

           Scheduled Caste (02)              16%
           Scheduled Tribes (03)               1%
           E.B.C. (04)                       18%
           B.C. (05)                         12%
           B.C.L. (06)                       03%


            Unreserved Category (01)         50%

7. It is submitted that all the Female candidates of

SC, ST, EBC & BC category are entitled to exercise the benefit

of their respective reservation categories including the

reservation of BCL as per the circumstances during the selection

in the light of the aforesaid policy of the Government and all the

candidates included in the final merit list are considered to be

Unreserved Category candidates first and if a candidate does not

get a post under the Unreserved Category, by dint of his/her

merit, then he /she is considered for reservation and allotment is

made against the vacancies of his/her respective reservation

category.

8. It is also submitted that letter No. 11364, dated

04.09.2017 of the General Administration Department, Bihar

prescribes provision/process regarding allotment of vacancies.

Clause -5(i) of this letter prescribes that the vacancies of open

merit under vertical reservation of unreserved category will be

filled up first and then other (horizontal) reservation like 3% of

Disabled, 2% of Freedom fighter and 35% of Female. Clause 5

(ii) of letter dated 04.09.2017 prescribes that the vacancies of

reserved category (SC, ST, EBC, BC, BCL) under vertical

reservation of Unreserved Category will be filled up first; and

then other horizontal reservation like 3% of Disabled, 2% of

Freedom fighter and 35% of Female will be filled. It is stated

that the qualifying marks and cut off marks are different matters.

The qualifying marks which has been fixed by the State Govt.

vide para-7 of its letter dated 16.07.2007 (Annexure-H to the

supplementary counter affidavit) is as follows:-

            Unreserved Category                40%
            E.B.C (04)                         34%
            B.C     (05)                       36.5%
            Schedule Caste (02),
            Schedule Tribe (03)
            and B.C.L. (06)                    32%

9. The learned Senior counsel for the Commission

has further submitted that the cut off marks is the marks which

is fixed after reservation category wise selection of a particular

examination. The cut off marks come out automatically as soon

as selection for a particular reservation category is done up to

the last merit position in context of vacancy of that particular

reservation category in the light of the provisions made vide

letter no. 2374, dated 16.07.2007. The marks of the last

candidate on that particular last merit position of that reservation

category becomes the cut off marks of reservation category as

the selection ends for a particular examination. It is submitted

that all the selections are being made in the light of existing

Reservation Policy of the State, as per the provisions contained

in the Reservation in Vacancy of Posts & Services of Bihar Act

(For Schedule caste, schedule Tribes and other Backward

Classes), 1991 and in light of the amended rules framed by the

State from time to time in this regard. Section-4(3) of the

Reservation in Vacancy of Posts & Services of Bihar Act (For

Schedule Caste, Schedule Tribes and other Backward Classes),

1991 provides that a candidate of reserved category, who is

selected by virtue of his/her merit, will be counted under 50%

vacancy of unreserved category and not against the vacancies of

reserved category.

10. It is further submitted that the selection has

been made taking into consideration the respective merit of the

candidates and availability of reservation category wise

vacancies in the concerned categories. If a candidate is having

higher merit position and vacancy is available at that particular

merit position of a candidate in the Unreserved Category, then

his/her candidature will be allotted against that vacancy of the

post but if he/ she does not get a post in the Unreserved

Category with respect to his/her merit position under the general

category then the candidature of such a candidate will be

considered against the vacancy of his/her respective reservation

category, in which vacancy is available. If vacancy is available

in their respective reservation category, then the candidate is

allotted against this vacancy.

11. The Ld. Sr. Counsel for the respondent

Commission has also contended that all the Woman candidates

of reserved categories come under the BCL (06) category as per

the Letter of the General Administration Department, Bihar

dated 19.08.2013. Now coming back to the present case, it has

been submitted that the respondents no. 6 and 8 are the woman

candidates of Backward Class (05) Category who are entitled to

exercise the benefit of reservation under the BCL (06) category,

as per the provision laid down in the aforesaid letter. Both the

aforesaid female candidates have been declared successful in the

Mains (written) Examination since they secured more marks

than the cut off marks of BCL (06) category As far as Sri Jai

Prakash Verma, is concerned, he is a disabled candidate (OH

category), who has been declared successful in the Mains

(written) Examination getting the benefit of reservation under

the disability quota and having secured more marks than the cut

off marks, fixed for the disabled category (OH). It is stated that

all the aforesaid three candidates found place in the final merit

list prepared after interview and got selected against the vacancy

of BC (05) by dint of their merit. On the contrary, the petitioner

could not be declared successful in the Mains (written)

examination since he secured lesser marks than the cut off

marks fixed for his reservation category i.e. BC (05).

12. It is thus the submission of the Ld. Sr. Counsel

for the respondent Commission that all the aforesaid three

candidates, regarding whom the petitioner has alleged that they

were having less marks than the petitioner but had still qualified

in the Mains (written) examination, have found place in the final

merit list and have been selected by virtue of their merit which

is also clear from Annexure-P 8 to the writ petition. Thus, it is

evident that no candidate has been declared successful who has

obtained lesser marks than the cut-off marks, in their respective

categories, either in the written examination or at the time of

final selection and moreover, no candidate having lesser marks

than the petitioner, in the respective category, has found place in

the final merit list.

13. The learned counsel for the private respondents

no. 6 and 8, Shri Kumar Alok has though adopted the arguments

advanced by the learned Senior counsel appearing for the

respondent Commission, but has further submitted that the cut-

off marks fixed for succeeding in the Mains (written)

examination was 503 marks and admittedly the petitioner has

secured 498 marks, as such he failed to compete for the

purposes of appearing in the interview. It is further submitted

that as far as the respondents no. 6 and 8 are concerned, they

belong to the backward class ladies category i.e. the B.C.L.

Category, for which the cut-off marks, for being successful in

the Mains (written) examination, was fixed as 483 and they had

secured 490 and 485 marks respectively, hence, they had

qualified for being called for interview.

14. I have heard the learned counsel for the parties and gone through the materials on record from which it is apparent that neither any candidate having lesser marks than the petitioner in his category i.e. the B.C. category nor any candidate having lesser marks than the cut-off marks in their respective category in the Mains (written) examination have been declared successful so as to qualify for appearing in the interview. This Court further finds that the private respondents no. 6 and 8 namely Puja Kumar and Priyanka Kumari have qualified under their own category i.e. the B.C.L. category inasmuch as they have secured 490 and 485 marks, which is more than the cut-off marks fixed for that category i.e. 483 marks. As far as the respondent no. 7, namely, Jai Prakash Verma is concerned, he has qualified under the disabled category i.e. OH category

inasmuch as he has got 494 marks in the Mains (written) examination, which is more than the cut-off marks fixed for this category i.e. 476 marks. Therefore, this Court finds that the allegation levelled by the petitioner in the writ petition as well as contention raised to the effect that since three candidates having less marks than the petitioner under the B.C. category have been declared successful in the Mains (written) examination, the petitioner should also be declared successful in the Mains (written) examination and his candidature should be considered for selection on the post of Assistant Prosecution Officer, is not only incorrect but also thoroughly misplaced, as is apparent from the facts and circumstances of the present case, stated herein above in the preceding paragraphs.

15. Having regard to the facts and circumstances of the case and for the reasons mentioned herein above, I do not find any merit in the present writ petition, hence the same stands dismissed.

( Mohit Kumar Shah, J)

Tiwary/-

AFR/NAFR             NAFR
CAV DATE            23.07.2021
Uploading Date      07.08.2021
Transmission Date   N/A